‘Grabbing breasts, breaking strings of pyjamas not sufficient to hold rape charge’, HC judge orders accused be booked for minor offence of ‘assault or abuse’ of girl

In June 2023, the Kasganj POCSO court, acting on an application filed by the mother of a girl, had issued summons to two youths, who are cousins, to face trial on charges of rape and rape attempt. The court had also summoned the father of one of the youths who was charged with criminal intimidation. In January 2022, a woman had filed an application in the Kasganj POCSO court seeking direction to the police to register an FIR against three men for rape and criminal intimidation.

In her application, the woman alleged that while returning to her village with her daughter on November 10, 2021, two youths of her village offered to drop her daughter home on a motorbike. She said that since the two youths were from her village, she allowed them to drop her daughter. On the way, the woman alleged, one of them grabbed her daughter’s breasts, while the other tore the strings of her pyajamas while dragging her under a culvert.

Meanwhile, two men from the village, who were passing by on a tractor, heard the screams of her daughter and reached the spot. The two youths then fled and threatened the two men by aiming firearms at them, she alleged.

According to the woman, the father of one of the accused threatened to kill her when she complained to him about the sexual assault on her daughter. She approached the local police the next day, but no action was taken.

The Kasganj court treated the woman’s application as a complaint and ordered the police to register a case on March 21, 2022. The court recorded the statements of the complainant and a witness. During the proceedings, the court summoned the two youths under IPC sections 376 (rape), and section 18 of the POCSO Act (attempting to commit offence). The father of one of the accused youths was summoned under IPC sections 504 (intentional insult to provoke breach of peace) and 506 (criminal intimidation).

The three accused then approached the High Court, challenging the POCSO court’s summons. Their counsel argued that both the families are rivals and the rape allegations were made to “settle scores”.

The counsel also told the High Court that the mother of one of the accused youths had lodged a case against four persons on October 17, 2021, alleging molestation when she had gone to farm for work. One of the four accused named in that case is the uncle of the minor girl, the counsel claimed.

Accusing the mother of the minor girl of “cooking up the rape story”, the counsel of the accused told the High Court that it was “beyond belief” that she would send her daughter with the youths belonging to the family, which has lodged a case against her brother-in-law.

In his order, Justice Mishra of the High Court said: “After giving a thoughtful consideration and meticulous examination of the facts of the case, this court is of the considered opinion that mere fact that according to prosecution version the accused… grabbed the breasts of the victim and one of them broke the strings of her pyjamas and tried to drag her beneath the culvert. In the meanwhile, on interference of passersby/witnesses the accused persons fled away from the spot leaving the victim behind, is not sufficient to hold that a case of section 376 (punishment for rape), 511 IPC (attempt to an offence) or section 376 IPC read with section 18 of the POCSO Act has been made out against the accused persons.”
“This court finds that the finding of the learned court below with regard to the offence of attempt to rape… in the impugned summoning order is not sustainable, and instead they are liable to be summoned for minor offence under sections 354(b) IPC read with section 9/10 [aggravated sexual assault] of POCSO Act. The impugned summoning order stands modified accordingly,” Justice Mishra ordered.