Allahabad HC: Grabbing breasts, breaking minor’s pyjama string does not amount to rape

Making a distinction between the 'preparation stage' and an 'actual attempt to rape', the Allahabad high court has said grabbing a minor’s breasts, breaking her pyjama strings, and trying to drag her beneath the culvert is not enough to charge a perpetrator with the offence of rape, or an attempt to rape.

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,” noted judge Justice Ram Manohar Narayan Mishra in his order.

The Allahabad HC bench thus ordered a modification in the order slapped by a lower court against the two accused, Pawan and Akash. The accused were earlier summoned to face trail under section 376 (rape) and under the Protection of Children from Sexual Offences (POCSO) Act.

The accused then moved the high court, arguing that no offence under Section 376 was committed, even if the official complaint was taken into account at face value.

After the Allahabad HC judgement, the accused will now be tried for minor offences under the section 354(B) IPC (assault or use of criminal force with intent to disrobe) and Section 9(m) of the POCSO Act, which states that committing sexual assault on a child below twelve years would be ‘aggravated sexual assault’ punishable under Section 10.

The assault

The accused allegedly grabbed the breasts of a 11-year-old child with Akash breaking the string of her pyjamas while dragging her under a culvert.

The accused were stopped mid-assault and interrupted by onlookers, and made a run for it, leaving the victim behind.

A single bench of Justice Ram Manohar Narayan Mishra observed, “...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.”

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Prima facie

The counsel for the respondent submitted that the trial court is not supposed to meticulously sift and weigh the evidence and material collected during the investigation. It was contended that the trial court must instead only determine whether a prima facie - based on the first impression - case exists, to proceed with the trial.

The single bench took all the arguments and allegations into account and made a note that there is no sufficient material on record, enough to draw an inference that the accused intended to rape the victim, according to a Bar and Bench report.

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Justice Mishra observed, "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 impugned summoning order was then modified and the court issued a fresh summoning order.