'Erroneous': Supreme Court Sets Aside HC Verdict That Grabbing Minor's Breasts, Loosening Pyjama String Wasn't Rape Attempt

This is so because the High Court modified the summoning order and directed that the accused be tried under the minor charge of Section 354B IPC (assault or use of criminal force with intent to disrobe) read with Sections 9/10 of the POCSO Act (aggravated sexual assault). The modification was done on the grounds that there is a distinction between preparation and attempt and this case felt with the former.

It is the case of the prosecution that the accused persons, 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.

Finding it to be a case of attempt to rape or attempt to commit penetrative sexual assault within the purview of the POCSO, the concerned trial court invoked Section 376 with Section 18 (attempt to commit an offence) of the POCSO Act and issued a summoning order under these sections.

“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,” Justice Ram Manohar Narayan Mishra of the High Court observed as it partly allowed the criminal revision plea filed by 3 accused.

Referring to State of Madhya Pradesh v. Mahendra alias Golu(2022), authored by CJI Kant(J Kant then), the bench explained the difference between preparation and attempt. It said that an attempt is an execution of mens rea after preparation.

Considering this, the bench stated that the accused persons had only stopped the crime when witnesses reached the crime spot due to the shrieks of the minor. This is evidence of the fact that the accused persons had proceeded with a "pre-determined" intent attempt to commit rape.

"A bare perusal of these allegations leaves no modicum of doubt that the case sought to be made out is that the accused persons proceeded with a pre-determined intent to commit an offence under Section 376 of the IPC on her. In light of the overt averments recorded in the Criminal Application filed by the complainant-mother under Section 156(3) of the Code of Criminal Procedure, 1973, it becomes readily apparent that,from the story of the complainant, the mens rea involved had begun to be executed. This understanding is bolstered by the High Court's own recording that the only reason why the crime was not furthered was the above-mentioned intervention by third-party witnesses," the bench observed.

As a consequence, the summoning order of the Trial Court was restored. It also confirmed paragraph 5 of the interim order dated December 8, 2025, in which it was stated that the trial must proceed with the original summoning order only without any prejudice to either side. Additionally, the bench clarified that any observation should not be considered as any opinion furnished on the guilt of the accused persons.

Background

It may be noted that a bench comprising Justice B.R. Gavai and Justice AG Masih had stayed paragraphs 21, 24, and 26 of the order last year on March 26, after initiating a suo motu case against the High Court's order. The bench had expressed its strong disagreement with the High Court's view and had termed the decision as "shocking" and "insensitive".

Subsequently, on December 8, 2025, the Court stayed the entire judgment with an interim clarification that if the trial proceeds, it must proceed on premise that accused persons have been summoned to face trial under Section 376 along with Section 511 IPC along with Section 18 of POCSO.