In a controversial decision, the Allahabad High Court has ruled that drabbing the breasts of a minor girl and breaking her pyjama drawstring is not an attempt to rape. The accusations against two “rape” accused were recently amended by the Allahabad High Court, which referred to their offence as “aggravated sexual assault” rather than an attempt at rape. Pawan and Akash were on trial for grabbing a minor girl’s breast and breaking the drawstring of her pyjamas. On 17th March, Justice Ram Manohar Narayan Mishra rendered the decision in Criminal Revision No. 1449 of 2024.
They were initially charged under section 376 (rape) of the Indian Penal Code and section 18 (Punishment for attempt to commit an offence) of the Protection of Children from Sexual Offences (POCSO) Act. Now, they will be put on trial under section 354-B (assault or use of criminal force with intent to disrobe) of IPC along with sections 9/10 (aggravated sexual assault) of the POCSO Act.
“The allegations levelled 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,” the court pronounced.
The court further stated that neither the complaint nor the witness statements recorded under sections 200/202 CrPC contain any claims that the accused Akash got unrest after severing the lower garment’s string. Additionally, the court distinguished between an “actual attempt” to execute a crime and a “stage of preparation.”
It mentioned, “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. 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.”
According to the court, the facts of the case and the accusations made against the accused hardly amounted to an attempt at rape. The lower court has also been instructed by the high court to issue a new summons order in accordance with this directive. The offenders approached the court to contest the summons order that had been sent to them. They claimed that no sexual offense was proven, even if the complaint’s statement is taken at face value.
Background of the case
The case transpired on 12th January 2022, when Asha Devi, Mahadev’s wife, filed a complaint before the Special Judge, POCSO Act, Kasganj, under section 156(3) of the Code of Criminal Procedure (CrPC). The woman revealed that she and her 14-year-old daughter were returning from her sister-in-law’s home in Patiyali of Kasganj distrcit at approximately 5:00 pm on 10th November 2021, when they came across the perpetrators, Pawan, Akash and Ashok on a muddy road.
Pawan who belonged to the same village promised to drop the young girl off at home safely and offered to give her a ride on his motorcycle. Asha Devi trusted his word and let her daughter go with him. However, according to the complaint, in addition to stopping the motorcycle next to a culvert, Pawan and Akash grabbed the girl’s breasts and tried to drag her under it, breaking the string of her pyjamas in the process.
After hearing the girl’s pleas, two witnesses, Satish and Bhurey who were passing by on a tractor, intervened as the situation deteriorated. After reportedly threatening the witnesses with a domestically produced handgun, the accused left the location. Asha Devi later went to the police after being assaulted and threatened by Pawan’s father, Ashok when she confronted him at his home. She submitted the application that resulted in the complaint case after no FIR was filed.
The Special Judge recorded Asha Devi’s and witness Satish’s statements under sections 200 and 202 of CrPC respectively, after considering the application as a complaint under CrPC section 200. The court summoned Ashok on 23rd June 2023 under sections 504 (insult) and 506 (criminal intimidation) of the IPC and Akash and Pawan under section 376 IPC read with section 18 of the POCSO Act.
