Days after the Allahabad High Court ruled that it would not be considered rape or an attempt at rape to seize a minor girl's breasts, break the string of her pajama, and attempt to drag her under a culvert, the Supreme Court has taken suo moto cognizance of the ruling.
Tomorrow, a bench consisting of Justices B.R. Gavai and AG Masih will hear the case.
Senior Advocate Shobha Gupta, a founder of the non-governmental organization "We the Women of India," sent a letter that served as the basis for the cognisance.
According to the prosecution, the 11-year-old victim's breasts were grabbed by the accused, Pawan and Akash, who then snapped the thread of her pajamas and attempted to drag her under the culvert. The concerned trial court invoked Section 376 and Section 18 (attempt to commit an offence) of the Protection of Children from Sexual Offences Act, 2012, deeming it an attempt to commit penetrative sexual assault or rape, and issued a summons order in accordance with these provisions.
Instead, the High Court ordered that the accused be tried under Sections 9/10 of the POCSO Act (aggravated sexual assault) and Section 354-B IPC (assault or use of criminal force with purpose to disrobe). The edict caused a great deal of controversy and was criticized by many members of the public. The High Court distinguished between preparation and attempt in this case.
"The facts of the case and the accusations made against the defendants Pawan and Akash barely amount to an attempt to commit rape. The prosecution must prove that it had progressed past the preparation stage in order to file a case of attempt to rape. As it partially granted the criminal revision plea submitted by three accused, a bench of Justice Ram Manohar Narayan Mishra noted that "the greater degree of resolve is the main distinction between preparation and real attempt to execute an offence".
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