New Delhi: To level the charge of attempt to rape, the prosecution must establish that the accused had gone beyond the stage of preparation. With this observation, the Allahabad High Court has modified a trial court order that directed for two men to face rape charges for grabbing a minor’s breasts and untying her pyjamas before dragging her beneath a culvert.
Justice Ram Manohar Narayan Mishra held that given the facts of the case, they “hardly constitute an offence of attempt to rape” under criminal law. Distinguishing between preparation and actual attempt to commit an offence, the judge said the latter requires a greater degree of determination, which was missing in this case.
Justice Mishra, however, considering the nature of the allegations, directed that the accused be tried under minor offences of Section 354 (b) of the erstwhile Indian Penal Code (IPC) along with sections 9/10 of Protection of Children from Sexual Offences (POCSO) Act.
In view of the modification, the judge said, the trial court should issue fresh summons against the men under the new offences.
The judgment was delivered on a revision filed by the accused, challenging a summoning order issued on 23 June 2022 by a Kasganj special POCSO judge. The summoning order was issued as part of proceedings initiated on a complaint filed by the minor victim’s mother under Section 156 (3) of the erstwhile Criminal Procedure Code (CrPc). The father of one of the accused too was summoned, but for lesser offences—criminal intimidation and insulting someone with the intent to cause a breach of public peace.
According to the police complaint, filed on 12 January 2022, the incident dates back to 10 November 2021. It says the victim and her mother were returning home when they met the accused, who offered a lift to the minor on their motorbike. On their assurance that the girl would be dropped home safely, the mother allowed the minor to travel with the three men.
On the way, the complaint alleged, the men stopped their motorcycle and grabbed her breasts. Later, one of them dragged her beneath a culvert, after breaking the strings of her pyjamas. They could not proceed on account of the intervention of two passers-by, the complaint further said.
The accused first threatened the passers-by with life with a country-made pistol and then fled the spot. The victim’s mother claimed she approached the court when the police refused to act on her complaint.
Accused was in state of ‘unrest’
Before the court, the accused argued that on the face value of the allegations, no offence of rape was made out. Therefore, they contended the magistrate had passed the summoning order in a casual and cavalier manner, without application of mind.
They also said that the complainant had falsely implicated them due to personal enmity between the two families. It was their case that the mother of one of the two accused had filed a criminal complaint against the minor victim’s uncle, and the present complaint was a bid to settle scores.
The complainant side countered the argument saying that at the stage of the framing of charges, the trial court is not supposed to sift and weigh the evidence collected during investigation in a meticulous manner, and a prima facie finding was sufficient to summon the accused.
After an examination of the POCSO Act as well as the definition of rape under IPC, the judge observed that in the current case, the allegation against the accused is that they grabbed the breasts of the victim, with one of them untying the victim’s pyjamas.
“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 judge ruled.
He referred to the complaint and the statement given by the witnesses to say that the accused was in a state of “unrest” after breaking the pyjama strings, meaning he showed no intention to rape the victim.
“The specific allegation against (accused) 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,” he observed.
The court then concluded that no case of rape is made out.
(Edited by Gitanjali Das)
Also Read: Death penalty overturned in 2016, serial offender held for rape & murder of 11-yr-old disabled girl