-Aarya Dubey & Kush Shanker.
INTRODUCTION
Recently, in a judgement delivered by the Hon’ble Ram Manohar Narayan Mishra J. of the Allahabad High Court, it was observed that groping breasts, snapping off the girl’s pyjama strings and dragging her beneath the culvert prima facie do not constitute an attempt to rape under the relevant provisions of the Indian Penal Code (IPC). Modifying the charges framed by the POCSO Court of Kasganj District against the two accused, the High Court directed to try them, instead, under the lesser charge of assault or use of criminal force with intent to disrobe, (under the IPC) along with aggravated sexual assault (under the POCSO Act).
The March 17, 2025 verdict, while igniting a nationwide debate surrounding the rights of victims and the judicial interpretation of the phrase “attempt to rape”, has been vehemently condemned by not just the legal fraternity, but also the political party leaders with the majority demanding a suo moto cognizance by the Apex Court. But, setting aside any bias, was the ruling skewed in the first place?
WHAT WAS THE ACTUAL CASE?
The facts of the case date back to November 10, 2021, when the alleged minor victim and her mother (complainant) were returning from a relative’s house. On the way, accused co-villagers Akash, Ashok, and Pawan met them, and Pawan offered the minor girl a ride, assuring her to drop her home safely. Trusting them, the complainant allowed. However, as alleged by her, the accused, after covering a distance, stopped the bike, and one of them started groping her daughter’s breasts, while others snapped her pyjama strings and started dragging her beneath the culvert. Hearing her screams, two villagers reached the spot, prompting the accused to flee.
The complainant approached the local police the next day, but no action was taken. The Kasganj court treated her application as a complaint and directed an FIR on March 21, 2022. After recording the statements of the complainant and her witness, the court summoned the accused Pawan and Akash under Section 376, IPC (punishment for rape) read with Section 18, POCSO Act (attempting to commit offence). The accused Ashok was summoned under Sections 504 (intentional insult to provoke breach of peace) and 506 (criminal intimidation), IPC.
The three accused then moved the High Court, challenging the summons which ultimately reduced their charges, and directed the trial court for fresh issuance of the summoning order.
WHY ‘ATTEMPT TO RAPE’ WAS NOT APPLICABLE?
While the internet is breaking with the growing demands of the immediate revocation of this “anti-women and anti-constitutional” judgement and the urgent removal of Justice Mishra, it is crucial to understand the legal rationale that formed the basis of such a decision. Although the acts of the accused are sometimes outrageous enough to shake the conscience of society, it must be noted that the courts, while deciding cases, are strictly guided by the letter of law and established judicial precedents. Similarly, the High Court, in the instant case, followed a well-settled legal principle, ruling that the acts in question do not constitute an attempt to rape but only aggravated sexual assault.
The Supreme Court, in the case of the State of Madhya Pradesh v. Mahendra, laid down a clear distinction between ‘preparation’ and ‘attempt’ in rape cases. It explained that while ‘preparation’ consists of deliberation, devising or arranging the means or measures, necessary for the commission of the offence, an ‘attempt’ to commit the offence begins the moment the preparation transitions into direct action toward executing the offence. If the accused has not performed any overt act but has only taken preparatory initial steps, even if they strongly suggest the likelihood of the crime occurring, they only constitute ‘preparation’ and not an ‘attempt’ to commit the offence.
In the instant case, there was no evidence of an attempt at penetration, or any other act indicating an imminent commission of rape. Although the accused attempted to disrobe the victim, they failed to do so. Had the accused forced the victim onto the ground, undressed himself, or positioned himself for penetration, then the argument for attempt to rape might have been sustained. However, the mere act of snapping the pyjama strings (although highly condemnable) without any further overt act, does not make it an offence of attempt to rape, for it is difficult to ascertain whether or not the accused intended to gratify their passions for the victim despite all odds or resistance.
Even if a common man thinks that such an act could have been done only to rape the victim, the courts are bound to rule based on what actually (with emphasis) happened and what is proven. Since there was no evidence of any overt act beyond the failed attempt at lowering the garment, the High Court was correct in altering the charges to Section 354B IPC (assault with intent to disrobe), which precisely addressed the accused’s actions.
THE MISAPPLICATION OF SECTION 9(m), POCSO ACT
Interestingly, while the High Court was correct in reducing the charges against the accused, it erred in applying Section 9(m) of the POCSO Act, which pertains to aggravated sexual assault when the victim is under 12 years of age.
As per the victim’s mother, she was 14 on the date of the incident, while her academics records suggested she was above 19. Either way, Section 9(m) was not applicable. The erroneous assumption by the Single Judge only unnecessarily increased the quantum of punishment that should have been given to the accused. Had the victim’s age been considered as 14, the accused would have been booked under Section 8, POCSO with a maximum imprisonment term of 5 years. And if her academic records suggesting her age as 19 years were taken seriously, then POCSO wouldn’t apply at all!
However, ironically, while everyone is outraged that the accused weren’t charged with attempted rape, no one is talking about this actual blunder. Sadly, they were quick to condemn the verdict on moral grounds, but nobody is calling out the real error- wrongly convicting the accused under a harsher offence than the law permits.
SO, WHERE DOES THE FAULT LIE?
While the judgement has triggered widespread criticism with many questioning the selection of judges and the judiciary’s approach in cases of sexual violence, such criticism mustn’t be misplaced. The ruling, if anything, only sheds light on the existing legal lacunae, which call for Parliamentary action instead of the Apex Court’s intervention.
The offence of attempt to commit rape does not exist in the IPC (now, BNS), and continues to be addressed by a combined reading of Sections 376 and 511, IPC (now, Sections 64 and 62, BNS). While interpreting these provisions, courts have laid down three key tests to determine whether the act qualifies as an attempt. Firstly, there must be a definite intention to commit rape. Secondly, such intention should be accompanied by initial preparatory steps towards its execution. Finally, the accused’s acts must extend beyond preparation and be proximate to the commission of rape. However, the application of these tests remains intricate owing to a subjective distinction between preparation and attempt, inconsistent judicial precedents, and the absence of clear legislative guidelines.
Given this ambiguity, the need for a separate, well-defined offence of “attempt to rape” cannot be emphasized enough. It is paradoxical that while our criminal law has a separate offence for an attempt to murder, no corresponding provision exists for an attempt to rape despite it being considered one of the most heinous crimes in society. The physical and psychological trauma suffered by the victim of an attempted rape is often as devastating as the consequences of an actual rape, making the need for inclusion of a strong, well-defined legal provision even more glaring. The introduction of such an offence would not only ensure that the severity of such acts is not diluted due to the absence of precise legal definition but will also bring uniformity in judicial decisions and rulings concerning such matters, thereby strengthening the criminal justice system’s response to sexual violence.
Perhaps, the public outrage over the judgement stems more from sensational headlines than from an actual understanding of the issue at hand. The problem is not with the judiciary, which merely followed the set precedents as it ought to, but with the legislature that forces courts to navigate such ambiguous provisions. Without a well-defined offence of attempting to rape, such judicial interpretations will continue to vary, leading to misplaced criticism.
CONCLUSION
The ruling, although controversial, exposes a broader legal issue rather than a flaw in the judiciary. Instead of misplaced criticism, the focus should shift towards legislative reforms to bridge this legal gap. Instead of targeting the courts, the real demand should be for Parliamentary action to close this loophole and ensure justice is served without legal uncertainty, fostering a more consistent, transparent, and effective legal system for handling such offences.
The authors are students at Maharashra National Law University, Chhatrapati Sambhajinagar.