Grabbing breast not attempt to rape, rules Allahabad High Court

"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 HC stated in its order

The Allahabad High Court recently passed an order stating that grabbing breasts or snapping a pyjama string do not constitute rape or attempt to rape. However, it said, it can be “considered aggravated sexual assault – a comparatively lesser charge.” 

The High Court was hearing a case of a minor who was sexually molested in 2021 when she was 11 years old.

The incident occurred in Uttar Pradesh’s Kasganj district. The minor was walking with her mother when two men approached them and offered a lift. When they refused, the men allegedly grabbed the minor’s breasts, tore her pyjama and tried to drag her to an isolated place.

When passers-by heard the girl’s screams and came to her rescue, the two fled the spot.

A case of attempted rape was registered against Pawan and Akash under the POCSO (Protection of Children from Sexual Offences) Act.

The two men moved to the Allahabad High Court after a trial court summoned them. The bench was presided over by Justice Ram Manohar Narayan Mishra who, on Monday, changed the charges to assault or “use of criminal force with intent to disrobe.”

In his order, Justice Mishra stated, “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 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. No allegation accused tried to commit penetrative sexual assault against the victim,” Justice Mishra observed in his order.

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“On facts of the case a prima facie charge attempt to rape is not made out against the accused Pawan and Akash and instead they are liable to be summoned for 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 of POCSO Act provides punishment for aggravated sexual assault on a child victim wherein Section 9 (m) provides that whoever commits sexual assault on a child below twelve years is said to have commit aggravated sexual assault,” the order stated.

The Allahabad High Court order has sparked outrage amongst the legal community. Senior lawyer Indira Jaisingh has appealed to the Supreme Court to interfere in the matter. In an X post, she said, “Requires suo moto action by Supreme Court. Judges have been pulled up for much less by the Supreme Court.”