Grabbing breasts, snapping pyjama string not attempt to rape: Allahabad High Court
The court noted that the charges brought against the accused and facts of the case barely make an offence of attempt to rape in the case
The petitioner counsel made the submission that no offence of Section 376 of the IPC was committed at all even when the complaint version is accepted on its face value and that the case does not extend beyond the limits of Section 354, 354(b) of the IPC, and provisions of POCSO Act.(HT File)
Lifting breasts of the victim, snapping the string of her pyjama and attempting to pull her under the culvert do not suffice to hold an accused guilty of the offence of rape or attempt to rape, the Allahabad high court recently noted, classifying such an action as “aggravated sexual assault“ while amending a summoning order and changing the charges against two accused.
The two accused were initially summoned by the district court to face trial under Section 376 of the IPC (rape) and Section 18 of the Pocso Act, but the HC instead directed that the accused be tried under Section 354-B of the IPC (assault or use of criminal force with intent to disrobe) with Sections 9/10 of the Pocso Act (aggravated sexual assault).
The court noted, “The facts and allegations made against the accused persons, Pawan and Akash, hardly form an offence of attempt to rape in the case. To prosecute a charge of attempt to rape, the prosecution has to prove that it had crossed the threshold of preparation.”
The distinction between preparation and real attempt to commit an offence lies primarily in the higher level of determination, a bench of Justice Ram Manohar Narayan Mishra noted as it partially granted the criminal revision plea moved by three accused.
According to the prosecution case, the accused (Pawan and Akash) groped the breasts of an 11-year-old victim, and one of them, Akash, snapped the string of her pyjama and attempted to pull her under the culvert in UP‘s Kasganj.
Nevertheless, in the process, as passersby/witnesses obstructed them, the accused persons ran away from the scene leaving the victim alone.
The counsel for the petitioner pleaded that no offence under Section 376 of the IPC was committed even if the complaint version is read on its face value and the case doesn’t extend beyond the limits of Section 354, 354(b) of the IPC, and provisions of the Pocso Act.
Conversely, the respondent No.2‘s counsel argued that at the framing of charge stage, the trial court is not required to thoroughly sieve and consider the evidence and material gathered in the course of investigation. Only a prima facie case is to be established at that stage for trying the accused persons.
The court held that there was no material on record to infer that the accused persons had made up their minds to rape the victim.
