Mere Touching Does Not Amount to Attempt to Rape – Allahabad High Court Modifies Charges in POCSO Case

An Accused Must Show Determination to Commit Rape; Mere Preparation is Not Enough –  In a ruling that clarifies the distinction between attempt to rape and aggravated sexual assault, the Allahabad High Court (Lucknow Bench) has held that grabbing a victim and attempting to disrobe her does not, by itself, constitute an attempt to rape unless there is a clear determination to complete the act despite resistance. The Court modified the charges against two accused, replacing Section 376 IPC read with Section 18 of the POCSO Act with Section 354(b) IPC and Section 9/10 of the POCSO Act, which deal with aggravated sexual assault.

Delivering the judgment in Akash & Ors. v. State of U.P., Justice Ram Manohar Narayan Mishra observed, "Mere fact that two accused grabbed the breasts of the victim and one of them broke the string of her pyjama is not sufficient to hold that a case of attempt to rape is made out. An attempt to rape must show determination to commit the act at all costs, and not just preparation."

By partly allowing the criminal revision, the High Court has ensured that legal definitions are strictly followed while framing charges in sexual assault cases under the IPC and POCSO Act.

The case arose from a complaint filed by Asha Devi, who alleged that on November 10, 2021, at around 5:00 PM, while returning from her sister-in-law’s house with her 14-year-old daughter, the accused Pawan and Akash offered the girl a ride home on their motorcycle. Trusting them as co-villagers, the mother allowed her daughter to go with them.

However, the accused allegedly took the girl to a secluded spot, where they grabbed her, broke the string of her lower garment, and attempted to drag her beneath a culvert. On hearing her cries, two witnesses—Satish and Bhurey—arrived at the scene, forcing the accused to flee.

The victim’s mother initially tried to lodge an FIR at the police station, but no action was taken. She later approached the Special POCSO Court under Section 156(3) CrPC, which treated the application as a private complaint. After recording witness statements, the Special Judge, POCSO Act, summoned Akash and Pawan under Section 376 IPC read with Section 18 of the POCSO Act, and their father Ashok under Sections 504 and 506 IPC for issuing threats.

Challenging the summoning order, the accused argued that the case was false and filed as a counter-blast to an earlier case lodged by the mother of one of the accused against the victim’s uncle for molestation. They contended that the allegations, even if taken at face value, did not meet the threshold of attempt to rape.

The High Court, while modifying the charges, observed, "An attempt to commit rape must go beyond preparation. It must demonstrate that the accused had a firm intention to commit the act and was stopped only due to external intervention. The facts here indicate an act of molestation and sexual assault but do not justify charges under Section 376/18 of POCSO Act."

Relying on the Supreme Court’s ruling in Express v. Shankar (1881) ILR 5 Bom 403, the Court reaffirmed that, "A conviction for attempt to rape should not be based on mere touching or partial undressing but should show a determination to gratify sexual passion at all costs."

While modifying the charges, the High Court ruled, "The correct charges applicable in this case are Section 354(b) IPC (assault with intent to disrobe) and Section 9/10 of the POCSO Act (aggravated sexual assault), which carry a punishment of up to seven years imprisonment."

The Court directed the Special Judge, POCSO Act, to issue a fresh summoning order based on the revised charges.

This ruling in Akash & Ors. v. State of U.P. reinforces that charges must be framed strictly in accordance with legal definitions. The High Court has ensured that serious charges like attempt to rape are not imposed unless the facts unequivocally support such an offense.

Justice Ram Manohar Narayan Mishra, in his concluding remarks, stated, "Sexual assault laws must be applied with precision. A distinction must always be drawn between an act of molestation and an actual attempt to rape, as the latter carries much graver consequences under the law."

With this decision, the Allahabad High Court has provided clear judicial guidance on how courts should evaluate allegations of sexual offenses under the IPC and POCSO Act.

Date of decision: 17/03/2025