Grabbing breasts, breaking string of pyjama not enough for ‘attempt to rape’ charge, says Allahabad HC

In a significant observation, the Allahabad High Court has said that grabbing the breasts and breaking the string of the pyjama are not enough for pressing charge of attempt to rape and that they only constitute ‘preparation’, which is different from the actual attempt to commit the offence.

A single bench comprising Justice Ram Manohar Narayan Mishra made this observation while partly allowing the revision petition filed by two accused persons challenging the order of the lower court which had summoned them to face trial for charge under Sections 376 IPC (attempt to rape) read with Section 18 of POCSO Act.

‘’The 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 read with Section 18 of POCSO Act has been made out against the accused persons,’’ the court said.

‘’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,’’ it further said.

 The prosecution had contended that the accused 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 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 observed. 

‘’The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjama. 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,’’ it said. 

The court said that the lower court’s findings with regard to offence of attempt to rape in respect of revisionist Pawan and Akash in the impugned summoning order is not sustainable and instead they are liable to be summoned for minor offence under Sections 354(b) IPC read with Section 9/10 of POCSO Act.