ON MARCH 26, in a welcome move, the Supreme Court stayed the decision of the Allahabad High Court in Akash v. State of Uttar Pradesh (2024) authored by Justice Ram Manohar Narayan Mishra where the High Court had noted that “mere” grabbing of breasts of a minor and loosening her pyjama strings did not amount to attempt to rape. On March 25, the top Court had taken suo motu cognisance of the order, eight days after the High Court delivered the contentious order.
“This is total insensitivity by the judge,” Justice B.R. Gavai remarked yesterday. Justices Gavai and A.G. Masih also noted that the order violated “canons of law.”
“There are certain judgments which contain reasons for staying the judgment,” Solicitor General Tushar Mehta noted, “This is one of them. I take strong exception to this judgment.”
Resultantly the Supreme Court has also directed the Chief Justice of the Allahabad HC to “take appropriate” steps against Justice Mishra.
How the case came about
When the act has been penetrative assault it is not difficult to ascertain the offence. However, when the accused are not successful in committing the offence, then judicial interpretation is of utmost importance.
In 2024, the Allahabad High Court was seized of the aforesaid revision petition in which a summoning order passed by the trial court was under challenge. Two of the revisionists were summoned by the trial court under Section 376 of the Indian Penal Code read with Section 18 of the Protection of Children from Sexual Offences Act, 2012.
Allegedly, on November 10, 2021, the victim, aged between 11 and 18 years old (in primary school records, her birth date was noted to be February 12, 2002) was offered a lift by the accused, Akash and Pawan, while she was with her mother. As the accused persons were known to the mother of the victim, she allowed her daughter to go with them. However, midway the accused persons stopped their motorcycle, grabbed her breasts and Akash dragged her and tried to take her beneath the culvert and broke the string of her pyjama.
However, they ran away at the intervention of Satish and Bhurey who were coming from the other side and heard the cries of the victim. Ashok, father of Pawan abused and threatened the family of the victim when they complained to him. The FIR was registered only at the orders of the Special Judge, POCSO Act.
There are, however, allegations that the FIR was a response to ongoing dispute between the parties.
On March 17, 2025, the High Court modified the charges against Pawan and Akash to Section 354B of the IPC, which lays the punishment for assault or use of criminal force on woman with the intent to outrage her modesty, read with Sections 9 and 10 of the POCSO Act. The charges against Ashok were maintained as under Sections 504 (intentional insult intended to provoke breach of peace) and 506 of the IPC (criminal intimidation).
Reasons for modification of charge:
The High Court was of the opinion that the ingredients of Section 376 of IPC, i.e punishment of rape were not made out.
The High Court inferred that there was no allegation of any penetration. Akash and Pawan had “merely” grabbed the breasts, Akash tried to pull down the lower garment of the victim and for that purpose “only” he had broken the string of her lower garment and tried to drag her beneath the culvert. Thus, the acts of the accused person Akash and Pawan were not sufficient to draw the inference that the accused persons had determined to commit rape on victim as apart from the aforesaid acts there was no allegation to suggest that the accused persons had any desire to commit rape on the victim.
This is blatantly erroneous on not just the interpretation of facts but also of law.
Why the Allahabad High Court’s order is wrong in law
When the criminal act is complete it amounts to the commission of the offence. However, in peculiar circumstances the criminal act may not attain completion despite the intention and preparation to commit. This is when Section 511 of the IPC comes into play, which punishes for attempt to commit the crime. Thus, while Section 376 of the IPC punishes the successful commission of rape, Section 511 punishes the failed attempt to commit such a crime. In case of minors, such failed attempt would fall under the purview of Section 18 of the POCSO Act, which provides for punishment for attempt to commit an offence.
There are several decisions of the Supreme Court where detailed analyses regarding the various stages towards commission of rape and a failed attempt to commit such a crime have been laid down.
In Aman Kumar v. State of Haryana (2004), it has been held that a culprit first intends to commit the offence, then makes preparation for committing it and, thereafter, attempts to commit the offence. If the attempt succeeds, the offence is complete. If the attempt fails due to certain reasons unforeseen or beyond the control of the person, then he is said to have attempted to commit the offence. Attempt to commit the offence begins when the preparations are complete.
In State of Madhya Pradesh v. Mahendra Alias Golu (2021), the top Court held that there are three stages of the commission of crime. First is Mention Rea, i.e the intention to commit crime. Second is preparation to commit it and third is the attempt to commit it. If the third stage, i.e attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete but such attempt is still punishable under law.
Is Attempt defined?
In Aman Kumar it has been observed that the word “Attempt” with respect to commission of crime is not defined in any statute. Hence, the word is to be taken in its ordinary meaning. Thus, to invoke Section 511 the mere ordinary meaning of the word ‘attempt’ is sufficient.
‘Attempt’ distinguished from ‘Preparation’
In Madan Lal v. State of J & K (1997), it has been held that the difference between “Preparation” and an “Attempt” to commit an offence of rape consists chiefly in the greater dergree of determination. It is necessary that the accused must have gone beyond the stage of mere preparation.
In Koppula Venkat Rao v. State of A.P (2004), the Supreme Court held that an Attempt to commit an offence is an act or a series of acts which lead inevitably to the consummation of the offence unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt is an act done in part execution of a criminal design amounting to more than mere preparation but falling short of actual consummation.
In Aman Kumar, it was held that “Preparation” consists of devising or arranging the means or measures necessary for the commission of the offence. On the other hand, “Attempt” is the direct movement towards the commission of crime, however, falling short of actual commission, but still possessing all the ingredients of a substantive crime. If not prevented, it would have resulted in full consummation of the act attempted. There is a greater degree of determination in “Attempt” as compared to “Preparation”.
In Shankar v. State of Maharashtra (2018),the Bombay High Court held that for the offence of attempt to rape the accused must have so advanced in his action that it would have resulted in rape had some extraneous factors not intervened. A similar view has been taken by the Supreme Court in Tarkeshwar Sahu v. State of Bihar (2006). Thus, as observed in Mahendra @ Golu, if the attributes are unambiguously beyond the stage of preparation, then the misdemeanours shall qualify to be termed as an “attempt” and such act will be punishable under Section 511 of the IPC. However, if only elementary exercise was undertaken so as to give a strong suggestion of likelihood to commit the actual offence without any overt act being attributed then the person shall be guilty of only “preparation”.
Thus, in the facts and circumstances of the case the person was held guilty of attempt to commit rape as the accused had stripped the girl naked, made her lie flat on the ground, undressed himself and then forcibly rubbed his genitals against those of the girl but did not penetrate. The Supreme had been pleased to hold that “it is difficult for us to hold that it was a case of merely assault under Section 354 IPC and not an attempt to commit rape under Section 376 read with Section 511 IPC”.The case before the Allahabad High Court is squarely covered by the decision of Mahendra @ Golu.
The accused persons grabbed the breasts of the girl.
The girl was dragged under the culvert
The accused persons broke the string of the lower garment trying to pull down the lower garment of the girl
Notably, they were stopped from continuing further in committing the crime only because of the intervention of the eye witnesses.
Thus, the ingredients of there being
(a) “greater determination to commit the crime,
(b) the acts being more than mere than preparation but falling short of actual consummation
(c) prevented only due to the eye witnesses,
are made out for the invocation of Section 376 read with Section 511 of the IPC. The corresponding provision of Section 511 in case of a minor in this case would be Section 18 of the POCSO Act. The trial court did find it a fit case to summon the two accused under Section 376 read with Section 18 of the POCSO Act.
I have not dealt with other provisions that were invoked in the case under discussion as my effort was to discuss the acts amounting to actual commission of rape and attempt to commit rape.
We can make innumerable laws to prevent sexual crimes and women and minor children. However, it is the interpretation of the provisions and the application of judicious mind that would make the implementation of such laws robust.
The Supreme Court’s decision to take suo motu cognisance of the High Court’s order and to impose a stay on the decision at this early stage is a welcome move. A perusal of the jurisprudence on attempt to commit rape substantially establishes that the judgement is not only insensitively articulated, but seemingly incorrect on the law.
Note: A previous version of this article incorrectly noted that the two accused persons who gave a lift to the victim and subsequently assaulted the victim were named Ashok and Pawan. The article has been updated to reflect that the accused persons were named Akash and Pawan. Ashok, Pawan's father was accused of threatening the victim's family subsequently. The error is regretted.
