“Grabbing Breast and bringing down lower garment of victim -No Prima Facie Case of Attempt to Rape Made Out” Allahabad HC -Directs Trial Court to issue Summon for minor charge
Isabella Mariam
The Allahabad High Court, Single Bench of Justice Ram Manohar Narayan Mishra, set aside the summoning order that directed two individuals to face trial under Section 376 IPC read with Section 18 of the Protection of Children from Sexual Offences Act (POCSO Act). The Court observed that the material on record did not disclose sufficient grounds for framing a prima facie case of attempt to rape. It was held that, “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 354B IPC read with Section 9/10 of POCSO Act.”
The Court directed the trial court to issue a fresh summoning order invoking Sections 354B IPC and Sections 9 and 10 of the POCSO Act. The charges under Section 504 and 506 IPC against the third accused were not disturbed.
The case originated from Complaint Case No. 23 of 2022 filed before the Special Judge, POCSO Act, Kasganj, concerning allegations against three individuals: Akash, Pawan, and Ashok. The complaint, filed under Section 156(3) of the Code of Criminal Procedure, alleged an incident on 10 November 2021, wherein the complainant and her 14-year-old daughter encountered the accused while returning from a relative's residence.
According to the complaint, accused Pawan offered the minor girl a lift on his motorcycle, which was permitted by the complainant. During the journey, Pawan and Akash allegedly stopped near a culvert, grabbed the minor’s breasts, and attempted to drag her beneath the structure. It was stated that Akash broke the string of the minor's lower garment. The intervention of two witnesses, Satish and Bhurey, arriving on a tractor, disrupted the alleged assault, leading to the accused fleeing the scene after threatening the witnesses with a country-made pistol.
It was also alleged that upon approaching Ashok, father of accused Pawan, at his residence to report the incident, the complainant was abused and threatened. The initial complaint led to proceedings under Section 200 CrPC, followed by the statement of witness Satish under Section 202 CrPC. Based on this, the trial court summoned Akash and Pawan under Section 376 IPC read with Section 18 of POCSO Act, and Ashok under Sections 504 and 506 IPC.
In the criminal revision, the accused contested the summoning order, asserting that the allegations did not support the charge of attempt to rape and that the order was passed without proper consideration of the facts. The revisionists also pointed to an earlier FIR lodged by the mother of Akash against certain individuals related to the complainant, alleging that the present complaint was retaliatory.
The revisionists submitted that no explicit allegations of rape or attempt to rape were made in the complaint or supporting statements, and thus the summoning order invoking Section 376 IPC was not sustainable. It was argued that the allegations, even if accepted as true, would constitute offences under Sections 354 or 354B IPC.
The opposing party submitted that at the stage of summoning, detailed analysis of evidence is not warranted and that the material on record was sufficient to summon the accused for trial. The State supported the original order, while the revisionists cited Supreme Court precedent in Lal Kumar Singh v. State of Maharashtra, arguing that summoning orders must reflect application of judicial mind.
Justice Ram Manohar Narayan Mishra examined the nature of the allegations and the legal standard for invoking Section 376 IPC and Section 18 of POCSO Act. The Court recorded, “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.”
The Court observed that no allegation of penetration or further acts indicative of determination to commit rape was made. The Court stated, “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.”
On the legal distinction between preparation and attempt, the Court recorded, “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 referred to established legal doctrine, including Rex v. James Lloyd (1836) and Express v. Shankar (1881), noting that mere indecent assault does not automatically amount to attempt to rape. The judgment recorded, “A conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events and in spite of all resistance.”
The Bench noted the age of the victim, recorded as under 12 years based on school documents, and considered the applicable POCSO provisions. The Court stated, “Section 10 of POCSO Act provides that whoever commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.”
Accordingly, the Court found that the facts supported charges under Section 354B IPC and aggravated sexual assault under Section 9(m) of the POCSO Act rather than attempt to rape.
The Court modified the impugned summoning order. It directed, “The learned court below is directed to issue fresh summoning order in respect of the revisionists Pawan and Akash, under modified sections.” The charges against Ashok under Sections 504 and 506 IPC remained unchanged.
The Court concluded, “The finding of the learned court below with regard to offence of attempt to rape in respect of revisionist Pawan and Akash in the impugned summoning order is not sustainable.”
The criminal revision was allowed in the terms stated.
Advocates Representing the Parties
For the Revisionists: Ajay Kumar Vashistha, Advocate.
For the Opposite Parties: Indra Kumar Singh, Advocate; G.A.
Case Title: Akash and 2 Others v. State of U.P. and 2 Others
Neutral Citation: 2025:AHC:37075
Case Number: Criminal Revision No. 1449 of 2024
Bench: Justice Ram Manohar Narayan Mishra
[Read/Download order]
