The Allahabad High Court has held that allegations of grabbing of breasts of minor, breaking her pyjama string and dragging her will not be sufficient to attract the offence of 'attempt to rape’.

The Court was considering a Criminal Revision Petition against an order of the Special Judge, POCSO Act whereby the Revisionists were summoned to face trial for charge under Sections 376 IPC read with Section 18 of POCSO Act and Sections 504 and 506 IPC.

The single judge bench of Justice Ram Manohar Narayan Mishra observed, " After giving a thoughtful consideration and meticulous examination of the facts of the case, this court is of the considered opinion that 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 Petitioner was represented by Advocate Ajay Kumar Vashistha while the Respondent was represented by Government Advocate Indra Kumar Singh.

Facts of the Case

The Informant had filed an application under Section 156(3) Cr.P.C. before the court of Special Judge, POCSO Act alleging that one day when she was returning home along with her minor daughter aged about 14 years, the accused persons met her on the way on muddy road and asked her from where she was coming, as they are her co-villagers. They then offered a lift to her daughter with assurances that he would drop her at residence and placing reliance on his assurance, she permitted her daughter to company him on his motorcycle. The accused persons had stopped their motorcycle on muddy way, on way to her village they started grabbing her breasts and one of them dragged her and tried to take her beneath the culvert and broke the string of her pyjami. The witnesses who were coming behind on a tractor reached the spot on hearing cries of her daughter. The accused persons threatened him with life by pointing a country made pistol to them and fled away from the place. The Applicant was also abused and threatened with her life by the father of the one of the accused and thereafter she went to police station to lodge an FIR on next day, but no action was taken. Later, the accused persons were summoned by the Special Court.

Counsel for the Revisionists submitted that they are closely hit family members, commission of such type of incident by them does not look natural. He submitted that present FIR was lodged only to wreck vengeance against the revisionist on account of said FIR and it is highly improbable that where there was a prior and recent enmity between both sides, the mother of the victim will permit her daughter to accompany the son and a relative of the informant in earlier case even after filing of chargesheet against informant side. He further averred that the Special Court failed to appreciate the fact that no offence under Section 376 IPC is made out against accused even if complaint version is taken on its face value, the case as produced by prosecution does not go beyond the extent of Section 354, 354(b) IPC and relevant provisions of POCSO Act. He further submitted that neither the complainant nor victim has levelled any allegation regarding commission of rape against the revisionists, even then two accused persons have been summoned inter alia under Sections 376 IPC and that summoning order was passed in a casual and cavalier manner without application of mind. He argued that ingredients of offence under Section 375 IPC are not made out in the case. Reliance was placed on recent judgement of the Supreme Court in Lal Kumar Singh and Others Vs. State of Maharashtra.

Reasoning By Court

The Court after going through the relevant sections observed that the case of 'attempt to rape' is not made out.

"In the present case, the allegation against accused Pawan and Akash is that they 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 Court pointed out that there is no allegation in the complaint or in statement of the witnesses recorded under Sections 200/202 Cr.P.C. that the accused himself got unrest after breaking the string of lower garment of the minor victim and that specific allegation against him 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 Court pointed out.

It was thus of the view that the allegations levelled 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 Court observed.

The Revision Petition was partly allowed accordingly.

Cause Title: Akash And 2 Others vs. State Of U.P. And 2 Others (2025:AHC:37075)

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Allahabad High CourtJustice Ram Manohar Narayan Mishra

Sheetal Joon