Allahabad: The Allahabad High Court observed that grabbing the breasts of the victim, breaking the string of her pyjama and trying to drag her beneath the culvert before fleeing the spot can not be considered rape or an attempt to rape. A single-judge bench of Justice Ram Manohar Narayan Mishra made these observations while modifying the charges by a lower court against two men who were accused of rape.
The accused were facing trial under Section 376 IPC (Rape) and Section 18 of the POCSO Act, reported The Live Law. However, the bench directed that the accused must be charged with a minor charge under Section 354-B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault).
"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 bench of Justice Ram Manohar Narayan Mishra observed as reported by the media house.
“The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” the bench added.
Justice Mishra said that there was no evidence that proved that the accused were determined to commit rape.
“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 undressed. There is no allegation that the accused tried to commit penetrative sexual assault against the victim,” the bench stated.
As per the prosecution case, the accused grabbed the breasts of an 11-year-old victim and one of them broke the string of her pyjama, reported The Live Law. However the accused fled from the spot after the interference of witnesses.
The court modified the summoning order of the lower court and directed to issue a fresh summons with revised sections.
