Grabbing the breast of a victim and breaking her pyjama string would not constitute rape or attempt to rape, but aggravated sexual assault, the Allahabad High Court observed in an order.

Pawan and Akash were accused of grabbing the breasts of an 11-year-old victim, breaking her pyjama string and trying to drag her beneath a culvert in Uttar Pradesh’s Kasganj. The accused fled from the spot after interference by passers-by. The 2021 incident occurred when the accused offered a lift to the child and then the horrific events unfolded.

Pawan and Akash were initially to face trial under Section 376 of the Indian Penal Code for rape and Section 18 of the POCSO Act on direction of Kasganj trial court. 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 bench said.

Counsel for one of the respondents 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 during the investigation. At that stage, only a prima facie case is to be found for putting the accused persons on trial.

“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 court said.

The judge concluded that no material on record inferred that the accused was determined to commit 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,” the Court observed in its order.

The allegation against third accused Ashok, who is father of Pawan, is that when the complainant approached him after the incident, he abused and threatened her. Thus, Ashok has been summoned under Section 504 and 506 of the Indian Penal Code.