Allahabad High Court: In a criminal revision filed against the summoning order passed by Special Judge in complaint case, whereby the accused 1 and 2 have been summoned to face trial for charge under Sections 376 of the Penal Code, 1860 (‘IPC’) read with Section 18 of Protection of Children from Sexual offences Act, 2012 (‘POCSO Act’) , and accused 3 (Father of accused 2) was summoned for charge under Sections 504 and 506 IPC, the single judge bench of Ram Manohar Narayan Mishra,J. while modifying the impugned order, held that mere fact that accused 1 and 2 grabbed the breasts of the victim and one of them broke the string of her pajama and tried to drag her beneath the culvert and in the meanwhile on interference of passersby 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 read with Section 18 of POCSO Act has been made out against the accused persons.
Background
The informant filed an application under Section 156(3) Code of Criminal Procedure, 1973 (‘CrPC’) before the court of Special Judge, POCSO Act, alleging that on 10-11-2021 at approximately 05:00 pm, she was returning from her sister-in-law’s house, accompanied by her minor daughter, aged about 14 years. While on a muddy road, the accused persons encountered them and inquired about her whereabouts, as they were co-villagers. When the informant mentioned that she was coming from her sister-in-law’s residence, Accused 2 offered to give her daughter a lift, assuring that he would drop her off at their home. Trusting his assurance, the informant allowed her daughter to accompany him on his motorcycle. Thereafter, the accused persons had stopped their motorcycle on muddy way, on way to their village they started grabbing the minor’s breasts and accused 1 dragged her and tried to take her beneath the culvert and broke the string of her pajama. The witnesses who were coming behind a tractor reached the spot on hearing the cries of the minor victim. The accused persons threatened them with death by pointing a country-made pistol and then fled from the scene. The informant later went to the residence of accused 2 to file a complaint, but upon her arrival, his father (accused 3) verbally abused and threatened her with life. The following day, she went to the police station to lodge an FIR, however, no action was taken.
Analysis and Decision
The Court examined the relevant provisions of IPC and the POCSO Act.
After perusal of the impugned order, the Court noted that according to the academic records of the victim, issued by the primary school, her date of birth was mentioned as 12-02-2002. The alleged incident occurred on 10-11-2021, making the victim more than 11 years old at the time of the incident. Therefore, she was considered a minor. This fact has not been disputed by the accused, who did not deny that the victim was a minor at the time of the incident. However, the accused has raised the defense of false implication, alleging that the complaint is a result of an earlier incident, which was reported by the mother of accused 1 against the family members of the complainant in the present case.
The Court further noted that in the impugned order, the court below has summoned accused 1 and 2 under Section 376 IPC, but said charge is read with Section 18 of POCSO Act which provides for punishment for attempt to commit an offence. Thus, instead of invoking Section 376 read with Section 511 IPC against these accused persons, the court below has invoked Section 376 read with Section 18 of POCSO Act. Thus, it appears that court below has found the prima facie case against these accused of attempt to rape or attempt to commit penetrative sexual assault within the purview of POCSO Act.
The Court said that in the present case, the allegation against accused persons was that they grabbed the breasts of the victim and accused 2 tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. However, this fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim.
The Court highlighted that there is no allegation in the complaint or in the statement of the witnesses recorded under Sections 200/202 CrPC that accused 1 himself got unrest after breaking the string of lower garment of the minor victim. The specific allegation against accused 1 is that he tried to drag the victim beneath the culvert and broke the string of her pajama. 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 accused tried to commit penetrative sexual assault against the victim.
The Court held that the allegations levelled against the accused 1 and 2 and facts of the case hardly constitute an offence of attempt to rape in the case. 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 Court emphasised that on facts of the case a prima facie charge of attempt to rape is not made out against the accused 1 and 2 and instead they are liable to be summoned for minor charge of Section 354(b) IPC i.e. assault or abuse a woman with intent to disrobing or compelling her to be naked and Section 9 of POCSO Act, which provides punishment for aggravated sexual assault on a child victim.
The Court concluded that the findings of the court below regarding the offence of attempt to rape in relation to accused 1 and 2 are not sustainable. Instead, the Court held that they should be summoned for a lesser offence under Section 354(b) of the IPC, read with Section 9 read with Section 10 of the POCSO Act. The impugned summoning order was therefore modified accordingly. Further, the court below was directed to issue fresh summoning orders for accused 1 and 2 under the modified Sections.
[Akash v. State of UP, Criminal Revision No. 1449 of 2024, decided on 17-03-2025]
Advocates who appeared in this case:
Counsel for Revisionist :- Ajay Kumar Vashistha
Counsel for Opposite Party :- G.A.,Indra Kumar Singh
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Penal Code, 1860 HERE
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