‘Lack of sensitivity’: SC stays Allahabad HC’s ‘grabbing breasts not sufficient to hold rape charge’ order

The top court had registered a suo motu case in this regard on Tuesday.

The order noted that the March 17 judgment was not authored at the spur of the moment but was pronounced after being reserved for four months, indicating application of mind by the judge concerned.

The bench said that since the concerned observations “are totally unknown to the tenets of law and depict total insensitivity and inhuman approach, we are inclined to stay” those.

The top court issued notice to the Centre, the state of Uttar Pradesh, and the parties in the matter before the high court. It also sought the assistance of the Solicitor General in the matter.

In January 2022, a woman had filed an application in a Pocso court in Kasganj in Uttar Pradesh, 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 from her village offered to drop her daughter home on a motorbike. She said that since they 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 pyjamas while dragging her under a culvert.

Meanwhile, two men from the village, who were passing by a tractor, allegedly heard the screams of her daughter and reached the spot. The two youths 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 Indian Penal Code (IPC) Section 376 (rape), and Section 18 of the Pocso Act (attempting to commit offence). The father of one of the accused 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 had lodged a case against four people on October 17, 2021, alleging molestation when she had gone to her 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.

Hearing the petition challenging the summons, a single-judge bench of the Allahabad High Court ordered that the offence of rape in the case be altered into that of “assaulting or abusing with an intent to disrobe or compel her to be naked”. The high court then directed the trial court in Kasganj to issue fresh summons to the two accused, who had been booked for rape, under the modified charges.

The single judge said in his order, “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,” the high court said.