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Synopsis

The Allahabad High Court has ruled that the actions of grabbing the minor victim’s breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert before fleeing, did not constitute rape or an attempt to rape.

The court, presided over by a single-judge bench of Justice Ram Manohar Narayan Mishra, made the observation while modifying a trial court’s summoning order against two accused men, Pawan and Akash.

According to the prosecution, the accused allegedly assaulted an 11-year-old girl, with Akash breaking the string of her lower garment and attempting to drag her beneath a culvert. However, the assault was interrupted by passersby, causing the accused to flee.

The trial court, treating the incident as an attempt to rape or an attempt to commit penetrative sexual assault under the POCSO Act, had issued a summoning order invoking Section 376 (Rape) of the Indian Penal Code (IPC) and Section 18 (Attempt to Commit Offence) of the Prevention of Children from Sexual Offence (POCSO) Act.

However, the High Court altered the charges, directing that they be tried under Section 354-B IPC (Assault or Use of Criminal Force with Intent to Disrobe) read with Sections 9/10 (Aggravated Sexual Assault) of the POCSO Act.

“In the present case, the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim,” observed the court.

The court noted that the specific allegation against one of the accused was that he attempted to drag the victim beneath the culvert and broke the string of her pyjama. However, the court found that there was no statement from witnesses indicating that this act resulted in the victim becoming naked or undressed. “There is no allegation that accused tried to commit penetrative sexual assault against the victim,” the court further remarked.

The court also clarified that for a charge of attempt to rape to be established, the prosecution must demonstrate that the act went beyond mere preparation. However, in this case, such evidence was not presented. “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,” the court ruled.

Based on these findings, the court held that “prima facie charge attempt to rape is not made out against the accused Pawan and Akash and instead they are liable to be summoned for minor charge.”

Consequently, the trial court was directed to issue a fresh summoning order under the modified sections.

 

Cause Title: Akash and Others vs. State Of U.P. and Anothers [CRIMINAL REVISION No. 1449 of 2024]

Appearance: For the Accused/ Revisionist- Advocate Ajay Kumar Vashistha; For the Prosecution- Government Advocate Indra Kumar Singh.