In a case involving an attack on a minor in Uttar Pradesh, the Allahabad High Court has ruled that actions like grabbing breasts or snapping a pyjama string do not constitute rape or attempt to rape but can be considered aggravated sexual assault - a comparatively lesser charge.
In an order that has drawn sharp criticism and even calls for the Supreme Court's intervention, the Allahabad High Court draws a distinction between "the preparation stage" and "actual attempt" in case of rape allegations.
In 2021, the minor, then 11, was attacked in Uttar Pradesh's Kasganj by two men, Pawan and Akash, who allegedly grabbed her breasts, tore her pyjama string and tried to drag her under a culvert. She had been walking with her mother when they offered to drop her on their bike, according to the prosecution.
When passers-by heard the girl's screams and came to her rescue, the two fled the spot.
Pawan and Akash were initially summoned by a trial court on charges of rape and under the POCSO (Protection of Children from Sexual Offences) Act. After they challenged the trial court summons before the Allahabad High Court, Justice Ram Manohar Narayan Mishra on Monday altered the charges to assault or "use of criminal force with intent to disrobe" and aggravated sexual assault under POCSO.
"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 order said.
Justice Mishra noted that there was no material on record to infer that the men had intended rape.
"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," Justice Mishra observed in his order.
"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 ruling has provoked outrage, with many raising questions about the selection of judges.
Senior lawyer Indira Jaisingh flagged the order and said in a post on X: "Requires suo moto action by Supreme Court. Judges have been pulled up for much less by Supreme Court."
Many have posted on social media, questioning if these acts don't show intention to rape, then what does?
The counsel for the accused men also argued that at the stage of framing charges, the trial court is not supposed to meticulously sift and weigh the evidence and material collected in the investigation. At that stage, a court can only decide whether there is a case for placing the accused on trial, they argued.
