What’s 'Preparation' And 'Attempt' To Rape As Per Law? Decoding Allahabad HC Judgment
Justice Mishra of the Allahabad HC noted that ‘the difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination’
The Allahabad High Court had given a shocking judgment recently that said grabbing the breasts of a minor child and breaking the string of her pyjama “hardly constitute[d] an offence of attempt to rape", and merely amount[ed] to “preparation".
But the Supreme Court of India stayed the Allahabad HC order, and a Bench of Justices BR Gavai and AG Masih said “some of the observations made in the impugned order…depict a total lack of sensitivity on the part of the author of the judgment".
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What The Allahabad High Court Had Said?
In his order passed on March 17, Justice Ram Manohar Narayan Mishra of the Allahabad High Court deleted the charges of attempted rape against three accused and directed that they should be tried for the “minor offence" of assaulting or using criminal force against a woman under Section 354B of the Indian Penal Code, 1860 (IPC), read with Sections 9/10 (aggravated sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
Justice Ram Manohar Narayan Mishra ruled that grabbing a girl’s breasts does not amount to rape but instead falls under the category of assault or use of criminal force with intent to disrobe or force nudity.
The high court was hearing an appeal by the accused against an order of a POCSO court summoning them to trial under Section 376 IPC (rape) and Section 18 (punishment for attempt to commit an offence) of the POCSO Act.
Stressing on the grave legal implications of the judgment, the Supreme Court noted that while it is generally reluctant to issue a stay order at this stage, the high court’s observations “are unknown to the canons of law and show an inhuman approach."
The high court’s March 17 ruling and the stay ordered by the top court puts focus on what constitute “preparation" to commit an offence and the “attempt" to commit that offence.
Difference Between ‘Preparation’ And ‘Actual Attempt To Commit An Offence’
In the judgment, Justice Mishra noted that “the difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination." In this case, he reasoned that the acts of grabbing the breasts of the minor, loosening her lower garment and trying to drag her beneath the culvert did not amount to an actual attempt to rape.
“The allegations levelled against the accused Pawan and Akash and facts of the case hardly constitute an offence of attempt to rape in the case. 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 judge wrote.
He found that it was more appropriate to summon the two accused under the minor charge of assault or abuse of a woman with intent to disrobing or compelling her to be naked (Section 354(b) of the Indian Penal Code, 1860) and punishment for aggravated sexual assault on a child victim (Section 9 and 10 of the Protection of Children against Sexual Offences Act, 2012).
The High Court relied on an old English case, Rex v. James Lloyd (1836), in which the judge, Justice Patterson, held: “In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner…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 HC judgment also found that “there is no allegation that accused tried to commit penetrative sexual assault against the victim". Penetration is a precondition for proving rape under the IPC.
Attempt To Commit An Offence
In Abhayanand Mishra v. State of Bihar (1961), the Supreme Court ruled that to prove an attempt to commit an offence, the prosecution must show that:
• The accused had the “intention" to commit that offence.
• The accused made preparations to commit the offence.
• The accused then acted towards committing the offence — this need not be the “penultimate act", that is, the final act before the offence is committed.
• The penultimate act took place “during the course of committing that offence". (This is known as the requirement of “proximity".)
In State of Maharashtra v Mohd. Yakub (1980), the Supreme Court had said, “attempt begins where preparation ends".
Courts follow the almost two-centuries-old Lloyd ruling as a basis for deciding if an accused attempted to commit the offence of rape.
For example, the Rajasthan High Court in May applied the standard test for ‘attempt’ as well as the Lloyd ruling to alter an attempted rape conviction and instead hold the accused guilty under Section 354, thus reducing the punishment.
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