Allahabad High Court: Grabbing Breasts and Breaking Pyjama String Not Sufficient for Attempted Rape Charge

Prayagraj , Uttar Pradesh – In a ruling that has sparked discussion and debate within legal circles, the Allahabad High Court has held that actions such as grabbing a minor girl's breasts, breaking her pyjama strings, and attempting to drag her under a culvert do not, in themselves, constitute an attempt to rape. Justice Ram Manohar NarayanMishra , presiding over a single-judge bench, modified a summoning order issued by a lower court, altering the charges against two accused from attempted rape under Section 376 of the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act to aggravated sexual assault under the POCSO Act and assault with intent to disrobe under Section 354B IPC.

The case originated from an incident where two men, Pawan and Akash , were accused of sexually assaulting an 11-year-old girl. According to the prosecution, the accused allegedly grabbed the victim’s breasts, broke the string of her pyjamas, and attempted to drag her beneath a culvert. However, the intervention of passersby forced them to flee. The trial court, based on the initial complaint, deemed the incident as an attempt to rape and issued summons to the accused under Section 376 IPC read with Section 18 of the POCSO Act (which pertains to attempting to commit an offense under the POCSO Act).

Challenging this order, the accused approached the High Court arguing that the allegations, even if taken at face value, did not amount to attempted rape. They contended that the case was more appropriately categorized under Section 354, 354(b) IPC, and relevant provisions of the POCSO Act concerning sexual assault short of rape.

The High Court, in its judgment issued on March 17th, concurred with the accused's arguments. Justice Mishra , after meticulously examining the facts and allegations, stated, "The allegations levelled against the accused Pawan and Akash and the 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.”

The court emphasized that while the actions of the accused were undoubtedly serious and constituted sexual assault, they did not demonstrate the necessary level of intent and action required to establish an attempt to commit rape. Justice Mishra highlighted that the prosecution's case lacked evidence indicating that the accused had progressed beyond mere preparation towards the act of rape itself. The court noted that there was no indication that the accused had undressed themselves or made any explicit attempts towards penetrative sexual assault.

“The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjami. It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed. There is no allegation that accused tried to commit penetrative sexual assault against the victim,” the court observed.

Furthermore, the court underscored that the intervention of passersby, which caused the accused to flee, occurred relatively early in the sequence of events. This intervention, in the court's view, further supported the conclusion that the accused's actions had not progressed to the stage of a definitive attempt to rape.

Consequently, the Allahabad High Court modified the summoning order, directing the trial court in Kasganj district to issue fresh summons under Section 354(B) IPC (assault or use of criminal force with intent to disrobe) and Section 9/10 of the POCSO Act (aggravated sexual assault). Section 9(m) of the POCSO Act defines aggravated sexual assault, especially when committed against a child below twelve years of age, and Section 10 prescribes the punishment for the same.

The High Court’s decision differentiates between actions that constitute aggravated sexual assault and those that reach the threshold of attempted rape. It underscores the legal principle that for an act to be classified as an "attempt" to commit a crime, it must go beyond mere preparation and demonstrate a clear and unequivocal intention, coupled with actions, towards the commission of the full offense. The ruling suggests a stricter interpretation of what constitutes "attempted rape," requiring more concrete actions indicative of an intention to commit rape, beyond acts of sexual assault that fall short of penetration.

This judgment may have significant implications for the interpretation and application of laws related to sexual offenses against children, particularly under the POCSO Act. It raises pertinent questions about the evidentiary burden required to prove attempted rape and the distinction between aggravated sexual assault and attempted rape in the eyes of the law. Legal practitioners dealing with POCSO cases will need to carefully consider this ruling, especially when evaluating the charges and evidence in cases involving sexual assault of minors where the act of rape itself was not completed.

While the High Court's decision provides clarity on the legal distinction in this specific case, it is likely to fuel further debate on the nuances of "attempted rape" and the appropriate legal response to various forms of sexual violence against children. The ruling highlights the judiciary's role in interpreting and applying the law, ensuring that charges are commensurate with the evidence and the specific nature of the alleged offense, while also upholding the paramount need to protect children from sexual abuse. The legal fraternity will be keenly observing how this ruling is interpreted and applied in subsequent cases, and its potential impact on the broader jurisprudence surrounding sexual offenses and child protection in India.