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Grabbing breast and snapping pyjama string do not constitute rape: Allahabad high court
Accused to be tried under section 354-B IPC (assault or use of criminal force with intent to disrobe) and the POCSO Act (aggravated sexual assault)
The Allahabad high court stated that grabbing the breast of a victim and snapping her pyjama string would not be considered rape or attempt to rape. The court, however, termed the actions to constitute an aggravated sexual assault.
The case in which the court observed the definition pertains to two accused grabbing the breasts of an 11-year-old victim, tearing her pyjama string and trying to drag her beneath a culvert in Uttar Pradesh's Kasganj. The incident happened back in 2021 when the duo offered a lift to the victim. Their attempt was averted by the people passing the area and both had initially fled before being apprehended.
The accused, identified as Pawan and Akash, were slated to be tried under Section 376 of the Indian Penal Code for rape and Section 18 of the Protection of Children from Sexual Offences (POCSO) Act on the direction of the Kasganj trial court. However, an Allahabad high court bench directed that the accused be tried under Section 354-B IPC (assault or use of criminal force with intent to disrobe) along with Sections 9/10 of the POCSO Act (aggravated sexual assault), NDTV reported.
A third accused, identified as Ashok who is Pawan's father, has been summoned under Sections 504 (intentional insult with intent to provoke breach of the peace) and 506 (criminal intimidation) of the Indian Penal Code. The allegation against him is that when the victim approached him after the incident, he abused and threatened her.
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Why did the court change the charges?
The court changed the charges after finding that the allegations against the accused did not constitute rape under the law. The court observed that to bring out the charge of attempt to rape, the prosecution would need to establish the offender has gone beyond the preparation stage.
"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," the bench said, as per the NDTV report.
The lawyer representing one of the accused argued that the trial court cannot weigh the evidence at the stage of framing charges and only a prima facie case should be found. The judge concluded that no material on record inferred that the accused was determined to commit rape.
"The specific allegation against Akash is that he tried to drag the victim beneath the culvert and broke the string of her pyjama. It is also not stated by witnesses that due to this act of the accused, the victim got naked or got undressed. There is no allegation that the accused tried to commit penetrative sexual assault against the victim," the high court order stated.
