PRAYAGRAJ: Grabbing a minor girl’s breasts, breaking her pyjama strings, and trying to drag her beneath the culvert is not enough to charge an accused with the offence of rape or an attempt to rape, the Allahabad high court observed describing such an act as ‘aggravated sexual assault’.
With the above observation, the high court has modified a summoning order, altering the charges against two accused.
Initially, the accused were summoned to face trial under section 376 (rape) and under the POCSO Act. However, the high court has instead directed that the accused be tried under the section 354(B) IPC (assault or use of criminal force with intent to disrobe) read with POCSO Act (aggravated sexual assault).
“The allegations levelled against the accused Pawan and Akash and the 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,” a bench of Justice Ram Manohar Narayan Mishra observed, as it partly allowed the criminal revision plea filed by the three accused.
As per the prosecution’s case, the accused Pawan and Akash grabbed the breasts of the 11-year-old victim and one of them, namely Akash, broke the string of her pyjama and tried to drag her beneath the culvert.
However, in the meantime, due to the interference of passersby/witnesses, the accused persons fled away from the spot, leaving the victim behind.
Finding it to be a case of attempt to rape or attempt to commit penetrative sexual assault within the purview of the POCSO Act, the concerned trial court invoked Section 376 (rape) with Section 18 (attempt to commit an offence) of the POCSO Act and issued summoning order under these sections.
Challenging the summoning order, the accused moved the high court, wherein it was primarily argued that no offence under Section 376 (rape) of IPC was committed even if the complaint version is taken on its face value and that the case does not go beyond the extent of Section 354, 354(b) IPC, and relevant provisions of the POCSO Act.
On the other hand, the counsel for respondent submitted that at the stage of framing the charge, the trial court is not supposed to meticulously sift and weigh the evidence and material collected during the investigation. At that stage, only a prima facie case is to be found for putting the accused persons on trial.
Against the backdrop of these submissions and taking into account the allegations levelled against the accused, the single judge noted that there was no material on record to draw an inference that the accused persons had determined to commit rape on the victim.
The court also factored in that there is no allegation in the complaint or in the statement of the witnesses recorded under sections 200/202 of criminal procedure code (CrPC) that the accused Akash himself got unrest after breaking the string of the lower garment of the minor victim.
“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 Court observed in its order.
In view of this, the court opined that the allegations levelled against the accused and facts of the case hardly constituted an offence of attempt to rape in the case.
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 Section 354(b) IPC, i.e. assault or abuse a woman with intent to disrobing or compelling her to be naked and section 9 (m) of POCSO Act.
This provision states that committing sexual assault on a child below twelve years would be ‘aggravated sexual assault’ punishable under Section 10.
Consequently, the court opined that the accused are liable to be summoned for minor offences under section 354(b) IPC with section 9/10 of the POCSO Act.
Thus, the impugned summoning order was modified, and the court in its decision dated March 17 directed the court below to issue a fresh summoning order in respect of the revisionists under modified sections.
(The victim’s identity has not been revealed to protect her privacy as per Supreme Court directives on cases related to sexual assault)
