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

The Supreme Court has set aside the controversial judgment of the Allahabad High Court which had held that allegations of grabbing a minor girl's breast and loosening the string of her pyjama did not amount to an attempt to commit rape, but only to “preparation”. Holding that the High Court misapplied settled criminal law principles, the Supreme Court restored the original summons issued by the Special Judge under Section 376 IPC read with Section 18 of the Protection of Children from Sexual Offences Act.Noting that it was only due to the interference of third persons that the accused did not commit rape, the Court held that the acts were not mere 'preparation' but 'attempt'."The facts alleged being so, we cannot agree with the finding of the High Court that the allegations only amount to preparation, but not an attempt, towards the commission of the offence of rape. The attempt made by the accused persons appears clearly and inevitably leads us to conclude that, prima facie, a case for invoking the provisions of attempt to commit rape has been made out by the complainant and the prosecution. The impugned judgment, thus, is liable to be set aside on account of the patently erroneous application of the settled principles of criminal jurisprudence."A 3-judge bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice NV Anjaria delivered the judgment in a suo motu case taken last year over the High Court's problematic judgment.BackgroundThe case stemmed from a complaint filed by the mother of a minor girl. Acting on an application under Section 156(3) CrPC, the Special Judge, POCSO, Kasganj, had issued summons to two accused under Section 376 IPC read with Section 18 of the POCSO Act.However, the Allahabad High Court modified the summons order. It held that the factual allegations did not disclose an attempt to commit rape and altered the charges to Section 354B IPC read with Sections 9 and 10 of the POCSO Act, which carry comparatively lesser punishment.The High Court reasoned that the acts alleged against the accused constituted only “preparation” and did not cross the threshold into “attempt”.Supreme Court On 'Preparation' Vs 'Attempt'The Supreme Court remarked that the High Court's order is liable to be set aside due to the "patently erroneous" application of settled principles of criminal jurisprudence.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...

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

Gursimran Kaur Bakshi

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