In a landmark judgment delivered on March 17, 2025, the Allahabad High Court ruled that the act of grabbing a minor girl’s breasts and breaking the string of her pyjama did not constitute an attempt to commit rape. The decision, pronounced by Justice Ram Manohar Narayan Mishra in Criminal Revision No. 1449 of 2024, partially allowed a revision petition filed by Akash, Pawan, and Ashok, challenging a summoning order issued by the Special Judge, POCSO Act, Kasganj, on June 23, 2023. The court modified the charges against Akash and Pawan from Section 376 IPC (rape) read with Section 18 of the POCSO Act (attempt to commit an offense) to lesser charges under Section 354(b) IPC (assault with intent to disrobe) and Sections 9/10 of the POCSO Act (aggravated sexual assault), directing the lower court to issue a fresh summoning order accordingly.
Background of the Case
The case stems from a complaint lodged by Asha Devi, wife of Mahadev, under Section 156(3) of the Cr.P.C. on January 12, 2022, before the Special Judge, POCSO Act, Kasganj. Asha Devi alleged that on November 10, 2021, at around 5:00 pm, she and her 14-year-old daughter were returning from her sister-in-law’s house in Patiyali, District Kasganj, when they encountered the accused—Pawan, Akash, and Ashok—on a muddy road. According to the complaint, Pawan, a co-villager, offered to give the minor girl a lift on his motorcycle, assuring her mother that he would drop her home safely. Trusting his assurance, Asha Devi allowed her daughter to accompany him.
However, the complaint further alleged that Pawan and Akash stopped the motorcycle near a culvert, where they grabbed the girl’s breasts, and Akash attempted to drag her beneath the culvert, breaking the string of her pyjama in the process. The situation escalated until two witnesses, Satish and Bhurey, passing by on a tractor, intervened after hearing the girl’s cries. The accused allegedly threatened the witnesses with a country-made pistol before fleeing the scene. Later, when Asha Devi confronted Pawan’s father, Ashok, at his residence, he reportedly abused and threatened her, prompting her to approach the police. When no FIR was registered, she filed the application that led to the complaint case.
The Special Judge, treating the application as a complaint under Section 200 Cr.P.C., recorded statements from Asha Devi and witness Satish under Sections 200 and 202 Cr.P.C., respectively. On June 23, 2023, the court summoned Akash and Pawan under Section 376 IPC read with Section 18 of the POCSO Act, and Ashok under Sections 504 (insult) and 506 (criminal intimidation) IPC. Aggrieved by this order, the accused filed the revision petition before the Allahabad High Court.
Legal Issues Involved
The revision raised several critical legal questions:
1. Sufficiency of Evidence for Attempt to Rape: Whether the actions of Akash and Pawan—grabbing the victim’s breasts, breaking her pyjama string, and attempting to drag her beneath a culvert—amounted to an attempt to commit rape under Section 376 IPC or Section 18 of the POCSO Act.
2. Application of Judicial Mind in Summoning Orders: Whether the Special Judge applied adequate judicial scrutiny in issuing the summoning order, as mandated by Section 204 Cr.P.C. and Supreme Court precedents.
3. False Implication Due to Prior Enmity: The revisionists argued that the complaint was a retaliatory move stemming from a prior FIR lodged by Akash’s mother, Ranjana, against family members of the complainant, including Sukhveer, the informant’s brother-in-law.
Representing the revisionists, Advocate Ajay Kumar Vashistha contended that the alleged acts did not meet the ingredients of rape under Section 375 IPC or an attempt under Section 511 IPC, suggesting instead that they fell under Section 354(b) IPC and relevant POCSO provisions. He highlighted the familial ties between the accused—Akash and Pawan being cousins and Ashok being Pawan’s father—arguing that such an incident seemed improbable. Vashistha also pointed to the prior FIR (Case Crime No. 209 of 2021) filed by Ranjana on October 17, 2021, against Sukhveer and others for molestation, suggesting the present case was a “counterblast” to frame the revisionists.
Opposing the revision, Advocate Indra Kumar Singh, counsel for the complainant, along with the Government Advocate (G.A.) representing the State, argued that at the summoning stage, the court is only required to determine a prima facie case, not conduct a mini-trial. They defended the invocation of Section 376 IPC read with Section 18 of the POCSO Act as equivalent to an attempt under Section 376/511 IPC.
Court’s Decision and Key Observations
Justice Ram Manohar Narayan Mishra, after a meticulous examination of the facts and legal precedents, partly allowed the revision. The court held that the summoning order under Section 376 IPC read with Section 18 of the POCSO Act was unsustainable, as the alleged acts did not demonstrate the requisite intent or determination to commit rape. In a pivotal observation, the court stated:
“Mere fact that according to prosecution version two accused Pawan and Akash grabbed the breasts of the victim and one of them namely Akash broke the string of her pyjama and tried to drag her beneath the culvert and in the meanwhile on interference of passersby/witnesses the accused persons fled away from the spot leaving the victim behind, is not sufficient to hold that a case of Section 376, 511 IPC or Section 376 IPC readwith Section 18 of POCSO Act has been made out against the accused persons.”
The court emphasized that for an attempt to rape to be established, the prosecution must prove a “greater degree of determination” beyond mere preparation, citing historical precedents like Rex v. James Lloyd (1836) and Express v. Shankar (1881). It noted that the absence of any allegation of penetrative assault or further acts to consummate rape undermined the charge of attempt.
Instead, the court found the actions constituted offenses under Section 354(b) IPC (assault with intent to disrobe) and Section 9(m) read with Section 10 of the POCSO Act (aggravated sexual assault on a child below 12 years, though the victim here was over 11 but under 18). The court clarified that the victim’s age—confirmed as over 11 years based on school records (DOB: February 12, 2002)—qualified her as a minor under POCSO, but the specific acts did not warrant the graver charge of attempt to rape.
Regarding Ashok, the court upheld the summoning order under Sections 504 and 506 IPC, finding no grounds to interfere, as his alleged abuse and threats were distinct from the main incident.
The court also addressed the revisionists’ claim of false implication due to enmity, acknowledging the prior FIR by Ranjana but refraining from delving into its merits at this stage, as the focus remained on the sufficiency of the summoning order.
The Allahabad High Court directed the Special Judge, POCSO Act, Kasganj, to issue a fresh summoning order against Akash and Pawan under the modified charges, effectively reducing the severity of the accusations. This ruling underscores the judiciary’s cautious approach to distinguishing between sexual assault and attempt to rape, reinforcing that summoning orders must reflect a reasoned application of mind, as mandated by the Supreme Court in Sunil Bharti Mittal v. CBI (2015).
