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The Allahabad high court has ruled that mere grabbing of the breast and breaking of the string of a 'pyjami' do not amount to offence of rape but such offence falls under the ambit of assault or use of criminal force against any woman with the intent to disrobe or compel her to be naked.
The order was passed by Justice Ram Manohar Narayan Mishra on a revision petition filed by two persons who moved the court, challenging the order of a Special Judge of Kasganj by which the court had summoned them under Section 376 of IPC apart from other sections.
According to facts of the case, an application was moved before the court of Special Judge, POCSO Act, alleging that around 5:00 pm on November 10, 2021, she (informant) was returning from the home of her sister-in-law (husband's sister) along with her minor daughter aged about 14 years.
Accused Pawan, Akash and Ashok, who were her village men, met her on the way on a muddy road and asked where she was coming from. When she replied she was coming from her sister-in-law's place, accused Pawan offered a lift to her daughter, assuring her that he would drop her at her residence. Relying on his assurance, she permitted her daughter to accompany him on his motorcycle.
The accused persons stopped their motorcycle on the muddy way to her village and started grabbing her breasts. Akash dragged her and tried to take her beneath the culvert and broke the string of her pyjami.
Two persons reached the spit on hearing the cries of her daughter. The accused persons threatened them with life by pointing a country-made pistol and fled the place. After recording the statement of the victim and the witnesses, the court summoned the accused for offence of rape.
After going through the materials on record, the court found, "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 the 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, but due to intervention of witnesses they left the victim and fled away from the place of incident.
"This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on the victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim," the court said.
The court in its order on March 17 further observed that the specific allegation against accused 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 the witnesses that the victim got naked or undressed due to this act of the accused, the court said.
"There is no allegation that the accused tried to commit penetrative sexual assault against the victim," the court said.
It said 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. To bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation, it said.
"The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination," the court added.
The court said, "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 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 of POCSO Act provides punishment for aggravated sexual assault on a child victim.