TOUCHING WOMENS BREASTS AND BREAKING PAJAMAS STRING NOT INCLUDED IN ATTEMPTED RAPE:

The Allahabad high court has ruled that touching a women’s breasts and breaking the string of her pyjamas and attempting to drag her do not meet the legal threshold for an attempted rape charge. The court modified the court charges against two accused men stating that prosecution must establish that an act has gone beyond mere preparation to constitute an actual attempt to commit rape.

The accused were earlier summoned to face trail under section 376 (rape) and under the POCSO Act. However, now the accused will be tried under the section 354(B) IPC (assault or use of criminal force with intent to disrobe) and POCSO Act (aggravated sexual assault). The court held that the facts of the case did not support an attempted rape charge and modified the charges accordingly.

The case dated back to 2021, when two men identified as Pawan and Akash were accused of sexually assaulting a minor’s girl. “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,” a bench of justice ram Manohar Narayan Mishra observed it partly allowed the criminal revision plea filed by three accused.

As per the prosecution, the accused Pawan and Akash grabbed the breasts of the 11-year-old victim and one of them broke the string of her pyjama and tried to drag her beneath the culvert.

The accused fled from the spot due to interference of passersby and witnesses. Based on these allegations, the trial court invoked IPC 376 along with section 18 of the POSCO act .The accused, however, moved the high court arguing that their action did not constitute an attempt to commit 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 attempts to commit an offence consists chiefly in the greater degree of determination.”

“The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjamas. 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 Court observed in its order.

The Court observed that a prima facie charge of attempt to rape was not made out against the accused and instead, they were liable to be summoned for a minor charge of assault or abuse a woman with intent to disrobing or compelling her to be naked and section 9 (m) of POCSO Act.

After amending the summon order, the high court directed the lower court to issue a fresh summoning order in respect of the revisionists under modified sections.