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New Delhi:
In a case involving an attack on an 11-year-old girl in Uttar Pradesh, the Allahabad High Court has ruled that actions like grabbing the breasts of a victim and snapping her pyjama string do not constitute rape or attempt to rape but can be considered aggravated sexual assault – a comparatively lesser charge.
In the order, the High Court draws a distinction between “the preparation stage” and “actual attempt”.
In 2021, the girl was attacked in Uttar Pradesh’s Kasganj by two men, Pawan and Akash, who allegedly grabbed her breasts, tore her pyjama string and tried to drag her under a culvert. They fled the spot after a passer-by stopped them and came to the girl’s rescue.
They had lured the child pretending to take her home, according to the prosecution.
Pawan and Akash were initially summoned by a trial court for charges of rape and under the POCSO (Protection of Children from Sexual Offences) Act. After they challenged the trial court summons before the Allahabad High Court, Justice Ram Manohar Narayan Mishra yesterday modified the charges to assault or “use of criminal force with intent to disrobe” and aggravated sexual assault under POCSO.
“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. 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 judge said.
The counsel for the accused men also argued that at the stage of framing charges, the trial court is not supposed to meticulously sift and weigh the evidence and material collected during the investigation. At that stage, a court can only decide whether there is a case for placing the accused on trial, they argued.
The Allahabad High Court judge noted that there was no material on record to infer that the men had intended rape.
“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,” the judge observed in the order.
The allegation against third accused Ashok – Pawan’s father – is that when the complainant (the victim’s father) approached him after the incident, he abused and threatened her.
Thus, Ashok has been summoned under Sections 504 (intentional insult with intent to provoke breach of the peace) and 506 (criminal intimidation) of the Indian Penal Code.
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