Bhubaneswar: Making a far-reaching observation, the Allahabad High Court Justice Ram Manohar Narayan Mishra ruled that grabbing breasts of the victim and breaking string of her pyjama, and even dragging her beneath culvert is not an attempt to rape but assault or abuse a woman with intent to disrobing or compelling her to be naked and an aggravated sexual assault only.
The single judge Justice RMN Mishra observed
“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. “
HC JUDGE'S TAKE
The single judge Justice RMN Mishra has observed the following on what constitutes “Attempt to Rape”.
- There is no allegation in the complaint or in statement of the witnesses recorded under Sections 200/202 Cr.P.C. that the accused Akash himself got unrest after breaking the string of 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.
- Moreover, there is no allegation that accused tried to commit penetrative sexual assault against the victim.
- The HC Judge has observed the following.
Following the observations, Justice RMN Mishra has relied on the following two court orders to deliver such a far-reaching ruling.
AFTERMATH OBSERVATIONS
The single judge bench then ruled:
- On facts of the case, a prima facie charge attempt to rape is not made out against the accused.
- 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.
- Also, 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.
- Section 10 of POCSO Act provides punishment with imprisonment upto seven years winch shall not be less than five years and shall be liable to fine. 28.
Allowing the revision order, Allahabad HC has directed the session court to summon the accused under Sections 354(b) IPC read with Section 9/10 of POCSO Act.
