Act Of Accused Taking Off His Own & Victim's Trousers Without Penetration Amounts To Sexual Assault Under POCSO, Not 'Attempt To Rape': J&K High Court

The Jammu and Kashmir High Court has held that the act of an accused to take off his own and victim's trousers, in the absence of penetration, does not amount to 'attempt to rape' within the meaning of Section 376/511 of IPC. However, the Court has said that the act may amount to sexual assault under Section 7/8 of POCSO Act.

Justice Sanjeev Kumar granted bail to a man accused of offences under sec. 376 (punishment for rape), 354 (Assault or criminal force to woman with intent to outrage her modesty), 511 ( Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of IPC and sec. 8 (Punishment for sexual assault) of Protection of Children from Sexual Offences Act, 2012.

"In the instant case, the petitioner had allegedly stripped the victim naked and had also taken off his trousers. This was, thus, an effort of making preparation for committing an attempt. Without there being any further act committed by the petitioner, it is difficult to arrive at a conclusion that the petitioner intended to commit rape or that the act attributed to the petitioner amounts to an attempt to commit rape," the Court observed.

Furthermore, the Court said:

"Believing the statement of the victim, as it is, prima facie the act of the petitioner may amount to making preparation for committing rape but cannot be said to be an attempt to commit rape. Therefore, prima facie, Section 511 IPC may not be attracted. It could, at best, be a case of indecent assault punishable under Section 354 IPC."

The Court was hearing bail plea of the Petitioner, accused of attempting to commit rape on the complainant's niece when she went to the Petitioner's house for buying mobile accessories.

During the course of investigation, the medical examination had revealed that no intercourse had taken place nor was there any mark of violence on the victim's body.

According to the sec. 164 CrPC statement of the minor victim, she had stated that the petitioner allegedly gagged her mouth with a tape, took off her trousers and also removed his own trousers. However, due to the petitioner's brother reaching on the spot, he removed the tape and went to the other side.

"Analyzing the statement of the victim in light of the definition of rape given in Section 375 IPC, indisputably, the act of petitioner does not, by any stretch of reasoning, amount to rape," the Court said.

Answering the question as to whether the act of the petitioner taking off the his own and the victim's trousers would amount to an attempt to rape punishable under Section 511 of the IPC, the Court held that prima facie the act may amount to "making preparation" for committing rape but cannot be said to be an attempt to commit rape.

It observed,

"There is, thus, fine distinction between preparation and attempt to commit offence and the different between the two lies primary in the greater degree of determination and it is, therefore, necessary to be proved in an offence of attempt to commit rape that the accused has gone beyond the stage of preparation."

The Court then went ahead to consider another issue i.e. "whether the offence under Section 8 of POCSO Act is prima facie made out against the petitioner?"

Answering the said question, the Court observed thus:

"Going by the statement of the victim, which is the only primarily evidence in the case, it is abundantly clear that the act of the petitioner taking off the trousers of the girl and also taking off his own trousers was an act with sexual intent, which involved physical contact without penetration and, therefore, would amount to committing sexual assault punishable under Section 8 with a term, which shall not be less than three years but which may extend to five years and also be liable to fine."

Furthermore, it said:

"Therefore, I am of the prima facie view that not only the petitioner is accused of committing indecent assault but also seems to have committed sexual assault defines under Section 7 of the POCSO Act."

However, considering the totality of the facts that the investigation in the matter has been completed and the challan is presented in before the Trial Court, the High Court granted bail to the petitioner.

"We also cannot forget that bail is a rule and its denial an exception. The purpose of arrest has been well served. The petitioner is, thus, held entitled to grant of bail subject to the petitioner's furnishing personal bond in the amount of Rs.50,000/- and two sureties of the like amount to the satisfaction of the trial Court," the Court ordered.

Case Title: Fayaz Ahmad Dar v. UT of J&K

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