‘Grabbing breasts, breaking pyjama string not attempt to rape but…’: Allahabad HC

The Allahabad High Court recently altered the charges against two “rape” accused, calling their crime not an attempt to rape but “aggravated sexual assault”. The court was hearing a case against Pawan and Akash, who had allegedly grabbed a minor's breast and broke her pyjama's string.

The accused were initially summoned to face trial under Section 376 IPC (Rape) and Section 18 of the POCSO Act. However, the high court, instead, directed that the accused be tried under the minor charge of Section 354-B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault).

Why did Allahabad HC alter the charges?

The Allahabad High Court observed that grabbing the breasts of the victim, breaking the string of her pyjama and trying to drag her beneath the culvert before fleeing the spot won't come under the offence of rape or an attempt to rape, Live Law reported.

It was alleged that Pawan and Akash “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 the intervention of witnesses, they left the victim and fled away from the place of incident,” the court order shared by Live Law stated.

The court noted that this fact “is not sufficient to draw an inference that the accused persons had determined to commit rape on the victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim”.

The court observed that there was no material on record to suggest that the accused had a determined intent to commit rape on the victim.

Victim was not ‘naked’

The court also noted that neither the complaint nor the statements of witnesses contained any allegation that the accused Akash himself became unsettled after breaking the string of the minor victim’s lower garment.

“...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 order stated.

The high court also said that the allegations hardly constitute an offence of attempt to rape in the case.

‘Difference between preparation and actual attempt’

“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 added.

Allahabad HC's order details

The Allahabad High Court said in its order, “...this court is of the considered opinion that mere fact that according to prosecution version two accused Pawan and Akash grabbed the breasts of the victim and one of them namely Akash broke the string of her pyjama and tried to drag her beneath the culvert and in the meanwhile, on interference of passersby/witnesses, the accused persons fled away from the spot, leaving the victim behind, is not sufficient to hold that a case of Section 376, 511 IPC or Section 376 IPC readwith Section 18 of POCSO Act has been made out against the accused persons."

The court said that the accused are instead liable to be summoned for minor charges of Section 354(b) IPC ( assault or abuse a woman with intent to disrobe or compel her to be naked) and Section 9 of the POCSO Act (aggravated sexual assault on a child victim).

Meanwhile, Section 10 of the POCSO Act provides that whoever commits an aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years and shall also be liable to fine.