Grabbing the breast of a minor girl and breaking her pyjama string won't come under the offence of rape or an attempt to rape, the Allahabad High Court has observed in an order. Instead, the court considered these actions as "aggravated sexual assault" under the POCSO Act.
The accused (Pawan and Akash) grabbed the breasts of the 11-year-old victim and one of them, namely Akash, broke the string of her pyjama and tried to drag her beneath the culvert. However, due to the interference of passersby, they fled the scene.
The Kasganj trial court initially invoked Section 376 with Section 18 (attempt to commit an offence) of the POCSO Act and issued summoning order under these sections against the accused persons.
However, a bench of Justice Ram Manohar Narayan Mishra of the Allahabad High Court directed that the accused be tried under Section 354-B IPC (assault or use of criminal force with intent to disrobe) along with Sections 9/10 of the POCSO Act (aggravated sexual assault).
"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 judge said.
“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,” the judge observed in its order.
