He fondled her, tried to disrobe her: 'Attempt to rape' or just 'preparation'?

medium nocaption119713226A recent Allahabad High Court judgment in “an attempt to rape” case has sparked outrage, with senior lawyers urging for Supreme Court’s intervention and a women’s rights organisation calling for the removal of the judge.The case involves two men who were absolved of attempting to rape a 12-year-old girl by Justice Ram Manohar Narayan Mishra. Instead, the judge directed a trial for lesser charges under Section 354-B (assault with intent to disrobe) of Indian Penal Code and Sections 9/10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act.Under the Criminal Law (Amendment) Act, 2018, rape of a woman under 12 years carries a minimum 20-year sentence, which may extend up to the convict's natural life. Additionally, an attempt to commit rape, as per IPC Section 511, carries a sentence that is half the length of the sentence for rape.Thus, the punishment in this case (assuming that it was an attempt to rape) should be over 10 years. However, the current charges against the accused carry sentences ranging from three to seven years.Justice Mishra ruled that actions like “grabbing the breasts”, breaking the drawstrings of the victim’s pyjama, and dragging her under a culvert were not sufficient to charge the accused with “attempt to rape” but would instead amount to aggravated sexual assault.The Supreme Court on March 26 stayed the ruling and termed the observations made by the HC judge as “totally insensitive, inhuman” and “unknown to the tenets of the law.”However, the Allahabad HC’s judgment wasn’t the first where a distinction was made between “preparation” and an “attempt to rape”. Similar judgments have been passed by a Delhi court and the Rajasthan HC in recent months.In fact, there are legal precedents from various high courts and the Supreme Court that distinguish between “preparation” and “attempt” to commit an offence, a distinction Justice Mishra may have drawn upon.But, before we delve into past judgments, let’s take a closer look at the case that was before the Allahabad High Court.How the case reached HCAccording to the Allahabad HC judgment, accused Pawan and Akash challenged the summons issued to them by the Kasganj special court under Section 376 (rape) of the IPC and Section 18 (punishment for attempting sexual offences on a minor) of the POCSO Act.The case stemmed from a private complaint filed by the victim's mother after the police refused to register a first information report (FIR). The complaint detailed the incident of November 10, 2021, when the accused allegedly attempted to rape the victim after offering to drop her home on their motorbike. They were confronted by witnesses, whom the accused threatened before fleeing. !function(){"use strict";window.addEventListener("message",(function(a){if(void 0!==a.data["datawrapper-height"]){var e=document.querySelectorAll("iframe");for(var t in a.data["datawrapper-height"])for(var r,i=0;r=e[i];i++)if(r.contentWindow===a.source){var d=a.data["datawrapper-height"][t]+"px";r.style.height=d}}}))}(); The mother, facing police inaction, filed the private complaint with the Kasganj court in March 2022, leading to the summons issued to the accused. Pawan and Akash challenged the summons in the HC, arguing the case was fabricated due to a family dispute.The prosecution defended the summons, contending that at the current stage of framing charges against the accused, the court is not required to thoroughly sift through and assess the evidence and material collected during the investigation. It was also argued that at this stage, the court only needed to determine whether a prima facie case existed.The Allahabad HC, in its March 17 judgment, granted partial relief to the accused, stating the allegations were insufficient to infer “an attempt to commit rape.” Justice Mishra noted that while Akash allegedly tried to drag the victim under a culvert and broke the string of her pyjama, there was no allegation that the victim or the accused was undressed, or that any “penetrative sexual assault” occurred. medium119693134Top lawyers outraged• Indira Jaising criticised the judgment. Citing the “dragging under the culvert” part, she said the act “goes beyond preparation” for committing the rape. Jaising also saw this incident as part of “larger backlash against the rights of women”. She called for a “systemic” and “periodic” review of individual judgments for their sensitivity by the SC.• Shobha Gupta wrote a letter to the CJI urging the SC to take cognisance of the case and that the judge concerned be removed from the criminal roster, calling the judge’s interpretation as “grossly erroneous”.• Kapil Sibal wrote on X: “God save the country with such judges adorning the bench. The Supreme Court has been too soft in dealing with errant judges!”• Vikrant Marwah said that decisions like this risk undermine public confidence in the judicial system's commitment to protecting victims of sexual violence. “They may also discourage survivors from coming forward, fearing that their experiences will be minimized or dismissed.”• The National Federation of Indian Women condemned the judgment as shocking and demanded immediate revocation of the “anti-women and anti-Constitutional” judgment, as well as urgent removal of Justice Mishra. medium nocaption119693134 What past judgments sayIn September 2006, a two-judge bench of the Supreme Court passed an order similar to that of the Allahabad HC. However, the victim in that case was not disrobed.The 12-year-victim from a village in eastern India had stepped out to relieve herself in the open at night when the accused forcibly took her to his house. Hearing her cries, the victim’s father along with some neighbours reached the spot and saved the girl.Witnesses to this incident of February 1998 testified that they had seen the victim crying in front of the accused. The sessions court convicted the accused for attempt to rape and sentenced him to seven years’ rigorous imprisonment. While the verdict was upheld by the high court, the Supreme Court modified it.The SC bench, apart from scrutinising the evidence in detail, relied on an 1836 judgment by a British court to reach a conclusion that it was not a case of attempt to rape.“In the instant case, the act of the accused proves that during the kidnapping of the prosecutrix or forcibly taking her to the Gumti [his house], the accused had intention or knew it likely that the prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere case of kidnapping for indecent assault but the purpose for which kidnapping was done by the accused has been proved. It is a different matter that the accused failed at the stage of preparation of committing the offence itself,” the SC noted. ShowQuotesAnd because the court noted the ‘failure at the stage of preparation’, it convicted the accused and gave him five years for rigorous imprisonment for ‘kidnapping’ and two years for ‘molestation.’Another SC judgment from March 2004 resulted in the court downgrading a ‘rape’ conviction to ‘attempt to rape’ because the accused “ejaculated” without “penetrating” the victim.The trial court had convicted the accused for rape and the judgment was upheld by the HC.The SC, however, observed that there was no penetration at all and thus the charge of rape does not hold. Besides, the bench established the legal distinction between “attempt” and “preparation,” following the same principle outlined in the 1836 British court judgment, although it did not rely on that ruling directly.The two-judge bench ruled that to find an accused guilty of attempting to commit rape, the court must be satisfied that, when the accused seized the prosecutrix, he not only intended to rape, but also intended to do so at any cost, regardless of any resistance on her part.‘Preparation’ vs ‘attempt’The observations made in the 1836 ruling by a British court in a case known as Rex v. James Llyod were:“In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.”The underlined portion from the 1836 judgment, which is the key aspect of the “offence”, has effectively led to cases being classified as “attempt to rape” only when the accused is almost “caught in the act” without having actually penetrated the victim.The only exception, found in more than a dozen case laws we reviewed across various HCs and the SC, where there is ejaculation despite there being either no or minimal contact with the victim’s private parts.The principle followed by courts in India to distinguish between “intent” and “preparation” as opposed to “attempt” to rape is that there must be “some act towards the attempt that goes beyond mere preparation”. This holds true even if the accused was prevented from proceeding due to external factors — such as someone intervening after hearing the victim’s cries — rather than the accused stopping on their own.In addition to the 1836 precedent, a 1961 SC judgment is frequently quoted by courts while making a distinction between “preparation” and “attempt”. For the record, “attempt” is not explicitly defined in any law in India, although it is punishable with half the sentence prescribed for the commission of the offence. medium119694480 The only places where “preparation/attempt” to commit specific crimes is mentioned are IPC sections 122 (waging or preparing to wage a war against the Government of India), 399 (preparation to commit dacoity), and 307 (attempt to murder).The 1961 judgment said, “We may summarise our views about the construction of S. 511 [attempt to commit an offence], Indian Penal Code, thus: A person commits the offence of ‘attempt to commit a particular offence’ when (i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.”What about POCSO cases?Even the POCSO Act, which came into force in November 2012, does not specifically define “attempt” to commit a sexual offence on a minor.In a judgment in July 2016, the Sikkim HC modified a POCSO court’s conviction order from attempt to rape to molestation and reduced the maximum sentence for the convict to three years from five years.It was alleged that the accused had disrobed himself and the 10-year-old victim with the intention of committing sexual assault, but fled as soon as her mother arrived at the scene and thrashed him.In its order, the HC cited a specific point in the lower court’s judgment: “In cross-examination, statements of victim and her mother were consistent except that there was no mention of committing any sexual assault by the accused.”“The medical report did not find any injury on any part of the body and human semen and the act of sexual intercourse was not proved. The learned trial court held the appellant/accused guilty as aforestated and sentenced him accordingly.” !function(){"use strict";window.addEventListener("message",(function(a){if(void 0!==a.data["datawrapper-height"]){var e=document.querySelectorAll("iframe");for(var t in a.data["datawrapper-height"])for(var r,i=0;r=e[i];i++)if(r.contentWindow===a.source){var d=a.data["datawrapper-height"][t]+"px";r.style.height=d}}}))}(); The lower court had convicted the accused under a section pertaining to attempt of rape by a person in authority, which he was not. The HC dropped the attempt to rape charge and convicted him for molestation.In another case, the Karnataka HC in September 2020 convicted an accused only for the charge of sexual assault under POCSO Act (3-5 years in jail), reducing the lower court’s conviction order for attempt to rape (minimum 10 years).It was alleged that on January 9, 2017 the accused had taken the 16-year-old victim to a farmland on his motorcycle on the pretext of dropping her home. He allegedly told her that her father had suffered a snakebite.He then tied her hands and legs with her dupatta. On hearing her screams, the landowner came to her rescue and the accused fled the spot.The HC, relying on the Supreme Court judgment of September 2006, convicted the accused for sexual assault, among other charges.