Grabbing breasts, snapping pyjama string not attempt to rape: Allahabad High Court

Grabbing breasts of the victim, breaking the string of her pyjama and trying to drag her beneath the culvert are not enough to charge an accused with the offence of rape or attempt to rape, the Allahabad high court observed recently, describing such an act as “aggravated sexual assault” while modifying a summoning order and altering the charges against two accused.

The two accused were initially summoned by the district court to face trial under Section 376 of the IPC (rape) and Section 18 of the Pocso Act, but the HC instead directed that the accused be tried under Section 354-B of the IPC (assault or use of criminal force with intent to disrobe) with Sections 9/10 of the Pocso Act (aggravated sexual assault).

The court observed, “The allegations levelled against the accused, Pawan and Akash, and facts of the case hardly constitute an offence of attempt to rape in the case. In order to bring out a charge of attempt to rape, the prosecution must establish that it had gone beyond the stage of preparation.”

The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination, a bench of Justice Ram Manohar Narayan Mishra observed as it partly allowed the criminal revision plea filed by three accused.

As per the prosecution’s case, the accused (Pawan and Akash) grabbed the breasts of an 11- year-old victim, and one of them, Akash, broke the string of her pyjama and tried to drag her beneath the culvert in UP’s Kasganj.

However, in the meantime, due to the interference of passersby/witnesses, the accused persons fled from the spot, leaving the victim behind.

The petitioner counsel argued that no offence under Section 376 of the IPC was committed even if the complaint version is taken on its face value and that the case does not go beyond the extent of Section 354, 354(b) of the IPC, and relevant provisions of the Pocso Act.

On the other hand, the counsel for respondent No.2 submitted that at the stage of framing the charge, the trial court is not supposed to meticulously sift and weigh the evidence and material collected during the investigation. At that stage, only a prima facie case is to be found for putting the accused persons on trial.

The court said there was no material on record to draw an inference that the accused persons had determined to commit rape on the victim.