Grabbing Breasts, Breaking Clothes And Dragging Into A Culvert Is Not Enough For Attempt To Rape?

This is an attempt to dissect misapplication of the “preparation vs. attempt” distinction, its flawed interpretation of legal principles concerning “attempt to rape,” and its failure to apply established tests like the “Next Immediate Step” and “But For” tests. Furthermore, how the judgment disregards the victim's vulnerability as a minor and undermines the protective purpose of the POCSO Act, placing it within a concerning pattern of similar judicial interpretations by other HCts that create a doctrine of “almost, but not quite” in sexual assault cases.

The Prosecution Case

On January 11, 2022, at approximately 5:00 PM, the Complainant was returning from her sister-in-law's house with her 14-year-old daughter (X/Survivor). While on their way, they encountered the accused persons, namely, Akash, Pawan, and Ashok. Pawan offered to give the X a lift on his motorcycle, assuring the Complainant that he would drop her home safely. Trusting his assurance, the Complainant permitted her daughter to accompany him. However, instead of taking her directly home, the accused stopped the motorcycle on a muddy path leading to her village. At that point, the accused began assaulting the X—they grabbed her breasts, and Akash attempted to drag her beneath a culvert, forcibly pulling at her clothing and breaking the string of her pyjama. Hearing her cries, witnesses Satish and Bhurey, who were following behind on a tractor, rushed to the scene. However, the accused threatened them at gunpoint with a country-made pistol before fleeing. When the Complainant later approached Pawan's house to confront him, his father, Ashok, verbally abused and threatened her. A police complaint was filed, but no immediate action was taken. The Trial Court later treated the complaint as a case under Sections 376 of the IPC, read with Section 18 of the POCSO Act for Akash and Pawan, and Sections 504 and 506 of the IPC for Ashok. [para. 3-4]

Interpretation by High Court

The HC before examining the factual circumstances, defined the elements of rape under Section 375 of the IPC and attempt under Section 18 of the POCSO Act. [para 13-14] The Court acknowledged that the victim was a minor at the time of the incident. Thereupon, the HC interpreted the facts - specifically that the accused person grabbed X's breasts, broke the string of her lower garment, and attempted to drag her beneath a culvert before being interrupted by witnesses - as insufficient to establish the intent to commit rape. [para 21] The HC emphasized that there was no allegation that the accused "got unrest" (presumably meaning undressed himself) or that the X became naked due to the breaking of her pajama string. [para 23] The HC relied heavily on the distinction between "preparation" and "attempt," referring to Rex v. James Lloyd (1836) and Express v. Shankar (1881) to hold that an attempt to rape requires "determination to gratify his passions at all events and despite all resistance". [paras 24-25] The Court concluded that these actions fell short of constituting an "attempt to rape" as defined under Section 375 IPC. The Court upheld charges under Section 354B IPC for disrobing with intent, but set aside charges under Section 376/511 IPC.

Troubles in Reasoning

Justice Ram Manohar Narayan Mishra's decision that the actions of the accused—grabbing the X's breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert—did not constitute an "attempt to rape" under Section 376 of the IPC read with Section 511 of the IPC raises significant concerns regarding its interpretation of the law and its application to sexual offences. Firstly, the HC misapplied the 'preparation vs. attempt' distinction; second, the HC misinterpreted the principle concerning 'attempt to rape'; third, the HC overlooked the "Next Immediate Step" Test and 'But For' test and fourth and lastly, the HC failed to consider the X's vulnerability and the whole purpose of the POSCO Act.

I. Preparation v. Attempt

The concept of attempt in criminal law is well-established and requires two essential elements: mens rea (criminal intent) and actus reus (an overt act toward committing the offence). Subsequently, in the case of 'attempt', the Supreme Court ('SC') in the case Tarkeshwar Sahu v. State of Bihar (Now Jharkhand), [(2006) 8 SCC 560], established that to constitute an attempt, two elements are essential: (1) mens rea or guilty intention to commit the offence, and (2) some overt act done toward the commission of the offence. The act must be proximate to the intended result. In State of Maharashtra v. Mohd. Yakub, [(1980) 3 SCC 57], the SC held that “the dividing line between preparation and attempt is not always clear, but the moment the preparatory acts reach a point where the next immediate step would constitute the actual commission of the offence, the line from preparation to attempt is crossed.” The SC in Koppula Venkat Rao v. State of Andhra Pradesh, (2004 INSC 155) clarified that an attempt begins when preparation ends, and execution commences. The Court noted, “An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists of the intent to commit a crime, falling short of its actual commission or consummation/completion.” [Para 10, Koppula] The SC in the case of State of Madhya Pradesh vs. Mahendra Alias Golu, (2021 INSC 665), held that there is a visible distinction between 'preparation' and 'attempt' to commit an offence. The Court observed that the stage of 'preparation' consists of deliberation, devising, or arranging the means or measures, which would be necessary for the commission of the offence. An 'attempt' to commit the offence starts immediately after the completion of preparation. If the attributes are unambiguously beyond the stage of preparation, then the misdemeanors shall qualify to be termed as an 'attempt' to commit the principal offence.

In the present case:

➔ First, the accused isolated X by taking her on a motorcycle.

➔ Second, the accused stopped at a culvert (a secluded location).

➔ Third, the accused physically assaulted her by grabbing her breasts.

➔ Fourth, the accused attempted to remove her lower garments by breaking the string; and

➔ Fifth, the accused tried to drag her beneath the culvert.

These actions (seen collectively) cross the line from mere preparation to attempt, as they represent a substantial step toward completing the offence of rape. The only reason the offence was not completed was the interruption by witnesses, which constitutes an external factor preventing completion rather than voluntary abandonment. The HC reasoning downplays the significance of the acts committed by the accused. The accused's actions go beyond mere preparation and fall within the realm of execution, making them sufficient to qualify as an attempt under Section 511 of the IPC. The HC reasoning that these acts do not amount to an attempt because penetration did not occur reflects a narrow and flawed understanding of criminal law. The absence of penetration does not negate an attempt; rather, it highlights that the offence remained incomplete despite clear intent and substantial steps taken toward its commission.

Justice Mishra's approach in the present case seems to suggest that without penetration, the actions could not be classified as an attempted rape. It is well-recognized by the SC that there need be no penetration to attract the offence of 'attempt to commit rape'. In the case of Madan Lal v. State of J&K, [Madan Lal v. State of J&K, (1997) 7 SCC 677], the SC rejected the argument that the absence of penetration negates the attempt to commit rape. It emphasized that an accused going beyond the stage of preparation is enough to constitute an attempt under Section 376, read with Section 511 of the IPC. Furthermore, in the case of Radhakrishna Nagesh vs. State Of Andhra Pradesh, (2012 INSC 595), the SC held, “penetration itself proves the offence of rape, but the contrary is not true i.e. even if there is no penetration, it does not necessarily mean that there is no rape.” The Court must examine the evidence of the prosecution in its entirety and then see its cumulative effect to determine whether the offence of rape has been committed. Similarly, in the case of Aman Kumar and Anr. v. State of Haryana (2004 INSC 93), the SC emphasizes that for an accused to be guilty of an attempt with intent to commit rape, the Court must be satisfied that the accused not only desired to gratify his passions but also intended to do so at all events, notwithstanding any resistance on her part. [Also see here and here]

The actions of the accused in this case—grabbing X's breasts, breaking her pyjama string, and dragging her to a secluded location—demonstrate a clear intention to proceed with the act of rape, irrespective of X's will. These actions demonstrate a determination to "gratify passions at all events" as required by the standard. By not recognizing these actions as part of a direct progression toward the completion of the crime, the HC potentially ignored critical evidence of intent. Justice Mishra's rationale places undue emphasis on physical proximity necessary for penetration or sexual intercourse. This approach undermines broader judicial interpretations that focus on intent and preparatory acts rather than proximity alone. In Koppula Venkat Rao (2004), the Court held that proximity is not always necessary for an attempt; overt acts demonstrating intent are sufficient. By focusing narrowly on whether penetration was imminent, the HC disregarded the accused's clear intent to isolate, disrobe, and sexually assault X. Breaking the pyjama string—a deliberate act aimed at disrobing—and dragging her toward a secluded area is indicative of intent to commit rape. Such actions should be viewed as part of a continuum toward an attempted sexual offence rather than isolated acts unrelated to rape.

III. Overlooking the 'Next Immediate Step' & 'But for' Test

In Mahendra Alias Golu (2021)'s case, the SC emphasized, that what constitutes an 'attempt' is a mixed question of law and facts. 'Attempt' is the direct movement towards the commission after the preparations are over. Applying this test to the present case, the accused's actions in breaking X's pajama string and attempting to drag her beneath the culvert constitute a "direct movement towards commission" of rape. The next immediate step would have been the actual rape itself, had the witnesses not interrupted. The Court failed to recognize that the accused had progressed beyond preparation and into the realm of attempt, as they had already engaged in acts directly proximate to the completion of rape. Furthermore, the HC could have applied the infamous criminal law principle, i.e., the "but for" test in the present case. The House of Lords in the case of R. v. White (1910) established this principle to determine whether an attempt has occurred: but for the interruption, would the crime have been completed? In Chaitu Lal (2019)'s case, the SC explicitly applied this reasoning: "...had there been no intervention, the accused-appellant would have succeeded in executing his criminal design. The conduct of the accused in the present case is indicative of his definite intention to commit the said offence." Similarly, in the present case, but for the intervention of the witnesses Satish and Bhura, the accused would likely have succeeded in committing rape, given that they had already proceeded to break X's clothing and attempt to drag her to a secluded area.

The Allahabad HC relied heavily on colonial-era precedents like Rex v. James Lloyd (1836) and Express v. Shankar (1881) to establish that attempt to rape requires a “determination to gratify his passions at all events and despite all resistance.” However, the Court failed to apply this standard properly to the facts at hand. In Aman Kumar (2004), the SC clarified this standard by focusing on actions that demonstrate intent. The accused's conduct in isolating a minor victim, taking her to a secluded location, grabbing her breasts, breaking her clothing, and attempting to drag her beneath a culvert collectively indicates a clear determination to gratify sexual desires regardless of X's consent. The Court's narrow interpretation disregards the evolution of jurisprudence around sexual offences, particularly against minors, as established in cases like Radhakrishna Nagesh (2021) and State of Rajasthan v. Sri Chand, [(2015) 11 SCC 229], where the SC adopted a more comprehensive approach to evaluating sexual assault.

4. Disregarding the Victim's Vulnerability and POCSO's Protection

Perhaps most troubling is the Court's insufficient consideration of X's status as a minor. Under the POCSO Act, special protections are afforded to children, recognizing their increased vulnerability. In Madan Lal, (1997), the SC rejected the argument that absence of penetration precludes a finding of an attempt to rape, emphasizing that going "beyond the stage of preparation" is sufficient—especially in cases involving minors. The Court's judgment in the present case undermines these protections by setting an unreasonably high threshold for what constitutes an attempt to rape a minor. In Sakshi v. Union of India (2004 INSC 383), the SC stressed the need for special considerations when dealing with minor victims of sexual offences, acknowledging their particular vulnerability. The POCSO Act aims to provide a safe and secure environment for children by penalizing acts that endanger their physical and psychological well-being.

By minimizing the severity of the accused's actions, the HC potentially undermines the protective intent of this law. This approach contradicts the protective jurisprudence established in numerous SC Judgments and risks creating a dangerous precedent that could limit the prosecution of sexual offences against children, directly contradicting the legislative intent behind the POCSO Act to provide enhanced protection to minors. In the case of Mahendra Alias Golu (2021), the Supreme Court emphasized that if the attributes are unambiguously beyond the stage of preparation, then the misdemeanors shall qualify to be termed as an 'attempt' to commit the principal offence and such 'attempt' in itself is a punishable offence in view of Section 511 of the IPC.

The Growing Doctrine of 'Almost, but not quite”

The Allahabad High Court's decision in Akash follows the footsteps of other HC(s) wherein the Courts tend to emphasize the absence of penetration as a decisive factor, leading to the dismissal of attempted rape charges even when there is clear evidence of intent and overt acts towards committing the offence. In Suwalal v. State of Rajasthan, the accused undressed both himself and a six-year-old girl but fled when she raised an alarm. The HC held that the act of removing a girl's innerwear and undressing oneself with nothing more will not attract the offence of 'attempt to commit rape' under Section 376 read with Section 511 of the IPC but it will attract the offence of Assault to outrage the modesty of a woman punishable under Section 354 of the IPC. [See here] Similarly, the Jammu and Kashmir High Court in the case of Fayaz Ahmad Dar v UT of J & K, (2021), has held that the act of an accused therein to take off his own and the victim's trousers, in the absence of penetration, does not amount to an 'attempt to rape' within the meaning of Section 376/511 of the IPC. However, Justice Sanjeev Kumar of the J&K Court held that the act in question may amount to sexual assault under Section 7/8 of the POCSO Act.

In the case of Sri Nemai Dey Alias Pijus v. State of Tripura, (2018), the victim girl was cooking at home and at that time, the accused trespassed into the kitchen and grabbed the victim girl, laid her on the ground, kissed all over her body, tore her frock, removed her panty and by removing his under-garments the accused tried to lay his body over the body of the victim prosecutrix. When the victim raised the alarm and her mother came into the kitchen, the informant fled. Shockingly, the Tripura High Court held that the case at hand is of “fondling” and the offence does not fall within the scope of Section 376 of the IPC, but it will fall within Section 354 of the IPC. Justice Arindam Lodh of the Tripura HC held that the slightest penetration, whichever degree it is, is the essential requirement vis-à-vis sine qua non to attract the provision of Section 376 of the IPC. Recently, the Delhi Court upheld an order of the Metropolitan Magistrate which refused to frame a Rape/attempt to rape charges against a man who has been accused of forcibly entering into the complainant's house, assaulting her, as well as pushing her breasts, besides trying to open her salwar's knot and “trying to rape her”.

This jurisprudence of “almost, but not quite” raises serious questions about the protection afforded to victims of sexual assault and the deterrent effect of the law. This jurisprudence risks setting a dangerous precedent where perpetrators may escape harsher penalties despite evident intent and preparatory acts toward committing rape. Such interpretations could embolden offenders to exploit legal technicalities while victims face further trauma due to inadequate legal redress. The Supreme Court's suo moto cognizance of this insensitive judgment represents a crucial step toward rectifying a dangerous legal interpretation. By staying the concerned paragraphs and recognizing them as "unknown to the cannons of law" and displaying "totally insensitive and inhuman approach," the Supreme Court has signaled that such misinterpretations cannot stand. One can hope that this intervention will lead to clearer guidelines on what constitutes an attempt to rape, particularly in cases involving minors, and help dismantle the problematic “almost, but not quite” doctrine that has emerged in sexual assault jurisprudence.

Sarthak Gupta is a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India. Views expressed are personal