The Supreme Court, on Wednesday, March 26, in a strong rebuke, expressed shock and stayed the Allahabad High Court order that ruled assaulting a minor girl — grabbing her breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert — did not amount to an attempt to rape. The top court had made the observations on March 19 while hearing an appeal against the Allahabad High Court order that had modified the charges in a case involving the alleged sexual assault of a 11-year-old girl.
"We are at pains to say that some of the observations made in the impugned judgment… depict a total lack of sensitivity on the part of the author of the judgment," a bench of Justices BR Gavai and AG Masih observed while considering a suo motu case initiated against the High Court order. The bench also said that the HC order was "shocking." The court took cognisance of the matter based on a letter sent by senior advocate Shobha Gupta on behalf of the NGO 'We the Women of India'.
According to a LiveLaw report, the judges noted that the High Court did not pronounce the judgement in the spur of the moment but it was delivered after close to four months. The bench reportedly observed that this would mean that the judge delivered the judgement after due consideration and application of mind. Criticising the observations of the HC as “totally unknown to the tenets of law and depict total insensitivity and inhuman approach,” the SC stayed the order.
The apex court also issued notice to the Union government, and Uttar Pradesh state government.
The case pertains to the assault on a 11-year-old child by the two accused – Pawan and Akash. They had grabbed the breasts of the girl and one of them, namely Akash, broke the string of her pyjama and tried to drag her beneath the culvert. As passersby intervened, the duo had fled the spot. A lower trial court found it to be an attempt to rape or attempt to commit penetrative sexual assault within the purview of the Protection of Children from Sexual Offences Act, 2012, and initiated proceedings. It was against this order that the accused approached the High Court, arguing that the charges were excessive and the case did not warrant an offence of rape.
The High Court, in its order, said that the allegations levelled against the accused “hardly constitute an offence of attempt to rape”. “In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination,” the court said.