# Akash & Ors. Revisionists v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 441
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-17
- **Case number:** Criminal Revision No. 1449 of 2024
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akash-ors-revisionists-v-state-of-u-p-ors-53211
- **Pages:** 9

## Headnote

Criminal Law - Attempt to Rape - Indian
Penal Code, 1860 - Section 376 -
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 18 -
Summoning order passed under Section
376 IPC and Section 18 POCSO
-
Allegation that revisionists forcibly caught
hold of minor victim, pressed her chest,
and attempted to disrobe her - No act
suggestive of determination to commit
rape - Held, mere act of touching or
disrobing, without further overt act or
intent to perform sexual intercourse, not
sufficient to constitute 'attempt to rape' -
Summoning under Section 376 IPC and
Section 18 POCSO modified. (Paras 21, 24,
25, 27, 29)

Criminal Law - Outrage of Modesty -
Indian Penal Code, 1860 - Section 354B -
Protection
of
Children
from
Sexual
Offences Act, 2012, Sections 7, 9(m), 10 -
Alleged acts constitute sexual assault and
aggravated sexual assault - Victim a
minor girl below 18 years - Sufficient
prima facie material for summoning under
Section 354B IPC and Sections 9/10
POCSO - Held, Trial Court erred in
summoning for graver offence of rape;
modified
summoning
upheld
under
appropriate provisions. (Paras 18, 23, 26,
28)

Criminal Procedure Code, 1973 - Sections
200 & 202 - Summoning of Accused -
Magistrate required to apply judicial mind
to nature of allegations and supporting
material
-
Mere
reproduction
of
complainant's St.ment without examining
whether offence alleged is made out not
permissible
-
Re-evaluation
of
summoning
order
proper
in
revision
jurisdiction. (Paras 16, 21)
442 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:
The allegation of Section 376 IPC and Section
18 of POCSO Act is levelled against accused
Pawan and Akash. The offence under Section
376 IPC and Section 18 of POCSO Act has been
attributed against accused Pawan and Akash
and offence under Sections 504 and 506 IPC is
alleged against accused Ashok who is father of
main accused Pawan. In the impugned order
learned court below has summoned the accused
Pawan and Akash under Section 376 IPC, but
said charge is readwith Section 18 of POCSO Act
which provides for punishment for attempt to
commit an offence. Thus, instead of invoking
Section 376/511 IPC against these accused
learned court below has invoked Section 376
readwith Section 18 of POCSO Act. Thus, it
appears that learned court below has found the
prima facie case against these accused for
attempt to rape, or attempt to commit
penetrative sexual assault within the purview of
POCSO Act. (Para 18)

Section 354 (B) IPC provides punishment for
assaults or uses criminal force against any
woman with the intent to disrob which shall not
be less than three years but which may extend
to seven years, and shall also be liable to fine.
Section 354 IPC provides punishment for assault
of criminal force to women with intent to
outrage her modesty which shall not be less
than one year but it may extend to five years.
(Para 19)

In section 376 IPC punishment for rape has
been provided. Section 376 (AB) IPC describe
punishment for rape on woman within twelve
years of age, imprisonment shall not be less
than twenty years, but which may extend to
imprisonment
for
life,
which
shall
mean
imprisonment for the remainder of that person's
natural life, and with fine or both. (Para 20)

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 two
accused Pawan and Akash grabbed the breasts
of the victim and one of them namely Akash
broke the string of her pyjama and tried to drag
her beneath the culvert and 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, 511 IPC or Section 376 IPC
readwith Section 18 of POCSO Act has been
made out against the accused persons. (Para
26)

With foregoing discussion, this court finds that
the finding of the learned court belo

## Text

3 All. Akash & Ors. Vs. State of U.P. & Ors.
441
had
correctly
identified
the
accused. In such circumstances court
should not have recoded their conviction on
the basis of such evidence.

68. In this case it is admitted that
one of accused was transferred from one
jail to the other. There is nothing in the
evidence which shows that accused were
kept baparda in the process of transit.

69. Most of the conditions
enumerated by this Court necessary for
acceptance of identification evidence by
this Court in the case of Asharfi and Anr.
(supra) have not be fulfilled by the
prosecution.

70. All the appellants have
undergone
about
fourteen
years
of
incarceration in jail from the date of
judgment of the trial court. They must have
been in jail earlier also without there being
any reliable evidence against them.

71. All the Criminal Appeals are
allowed. The appellants shall be set at
liberty forthwith, if not wanted in any other
case.

72. Let this judgment be notified to
the trial court and record of trial court be
returned within two weeks.
----------
(2025) 3 ILRA 441
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2025

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1449 of 2024

Akash & Ors. ...Revisionists
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ajay Kumar Vashistha

Counsel for the Respondents:
G.A., Sri Indra Kumar Singh

Criminal Law - Attempt to Rape - Indian
Penal Code, 1860 - Section 376 -
Protection
of
Children
from
Sexual
Offences Act, 2012 - Section 18 -
Summoning order passed under Section
376 IPC and Section 18 POCSO
-
Allegation that revisionists forcibly caught
hold of minor victim, pressed her chest,
and attempted to disrobe her - No act
suggestive of determination to commit
rape - Held, mere act of touching or
disrobing, without further overt act or
intent to perform sexual intercourse, not
sufficient to constitute 'attempt to rape' -
Summoning under Section 376 IPC and
Section 18 POCSO modified. (Paras 21, 24,
25, 27, 29)

Criminal Law - Outrage of Modesty -
Indian Penal Code, 1860 - Section 354B -
Protection
of
Children
from
Sexual
Offences Act, 2012, Sections 7, 9(m), 10 -
Alleged acts constitute sexual assault and
aggravated sexual assault - Victim a
minor girl below 18 years - Sufficient
prima facie material for summoning under
Section 354B IPC and Sections 9/10
POCSO - Held, Trial Court erred in
summoning for graver offence of rape;
modified
summoning
upheld
under
appropriate provisions. (Paras 18, 23, 26,
28)

Criminal Procedure Code, 1973 - Sections
200 & 202 - Summoning of Accused -
Magistrate required to apply judicial mind
to nature of allegations and supporting
material
-
Mere
reproduction
of
complainant's St.ment without examining
whether offence alleged is made out not
permissible
-
Re-evaluation
of
summoning
order
proper
in
revision
jurisdiction. (Paras 16, 21)
442 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:
The allegation of Section 376 IPC and Section
18 of POCSO Act is levelled against accused
Pawan and Akash. The offence under Section
376 IPC and Section 18 of POCSO Act has been
attributed against accused Pawan and Akash
and offence under Sections 504 and 506 IPC is
alleged against accused Ashok who is father of
main accused Pawan. In the impugned order
learned court below has summoned the accused
Pawan and Akash under Section 376 IPC, but
said charge is readwith Section 18 of POCSO Act
which provides for punishment for attempt to
commit an offence. Thus, instead of invoking
Section 376/511 IPC against these accused
learned court below has invoked Section 376
readwith Section 18 of POCSO Act. Thus, it
appears that learned court below has found the
prima facie case against these accused for
attempt to rape, or attempt to commit
penetrative sexual assault within the purview of
POCSO Act. (Para 18)

Section 354 (B) IPC provides punishment for
assaults or uses criminal force against any
woman with the intent to disrob which shall not
be less than three years but which may extend
to seven years, and shall also be liable to fine.
Section 354 IPC provides punishment for assault
of criminal force to women with intent to
outrage her modesty which shall not be less
than one year but it may extend to five years.
(Para 19)

In section 376 IPC punishment for rape has
been provided. Section 376 (AB) IPC describe
punishment for rape on woman within twelve
years of age, imprisonment shall not be less
than twenty years, but which may extend to
imprisonment
for
life,
which
shall
mean
imprisonment for the remainder of that person's
natural life, and with fine or both. (Para 20)

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 two
accused Pawan and Akash grabbed the breasts
of the victim and one of them namely Akash
broke the string of her pyjama and tried to drag
her beneath the culvert and 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, 511 IPC or Section 376 IPC
readwith Section 18 of POCSO Act has been
made out against the accused persons. (Para
26)

With foregoing discussion, this court finds that
the finding of the learned court below with
regard to offence of attempt to rape in respect
of revisionist Pawan and Akash in the impugned
summoning order is not sustainable and instead
they are liable to be summoned for minor
offence under Sections 354(b) IPC readwith
Section 9/10 of POCSO Act. The impugned
summoning order stands modified accordingly.
The learned court below is directed to issue
fresh summoning order in respect of the
revisionists Pawan and Akash, under modified
sections. (Para 29)

Revision Application partly allowed. (E-14)

List of Cases cited:

1. Lal Kumar Singh & ors. Vs St. of Mah.

2. Rex Vs James Lloyd (1836) 7C and P 817
:173 ER 141

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Instant Criminal Revision has been
preferred against the summoning order
dated 23.06.2023 passed by learned Special
Judge POCSO Act, Kasganj in Complaint
Case No.23 of 2022, P.S. Patiyali, District
Kasganj. Whereby the revisionist Nos.1
and 2 namely Akash and Pawan have been
summoned to face trial for charge under
Sections 376 IPC readwith Section 18 of
POCSO
Act,
and
also
summoned
revisionist No.3 Ashok for charge under
Sections 504 and 506 IPC.

2.

Heard
Sri Ajay
Kumar
Vashistha,
learned
counsel
for
the
revisionists, Sri Indra Kumar Singh,
learned counsel for the respondent No.2
3 All. Akash & Ors. Vs. State of U.P. & Ors.
443
and
learned
A.G.A.
for
the
Staterespondent and perused the material
available on record.

3. The factual matrix of the case in
brief are that informant "X" (identification
masked) filed an application under Section
156(3) Cr.P.C. bearing date 12.01.2022
before the court of Special Judge, POCSO
Act, with allegation that on 10.11.2021 at
around 05:00 pm she was returning from
the home of her sister-in-law (nanad)
alongwith her minor daughter aged about
14 years. Accused Pawan, Akash and
Ashok met her on the way on muddy road
and asked her from where she was coming,
as they are her co-villagers. When she
stated that she was coming from the place
of her sister-in-law accused Pawan offered
a lift to her daughter with assurances that
he would drop her at residence and placing
reliance on his assurance, she permitted her
daughter
to
company
him
on
his
motorcycle. The accused persons had
stopped their motorcycle on muddy way, on
way to her village they started grabbing her
breasts and Akash dragged her and tried to
take her beneath the culvert and broke the
string of her pyjami. The witnesses Satish
and Bhurey who were coming behind on a
tractor reached the spot on hearing cries of
her
daughter.
The
accused
persons
threatened him with life by pointing a
country made pistol to them and fled away
from the place. When the applicant came to
the place of Pawan to make a complaint,
his father Ashok abused and threatened her
with life, she went to police station to lodge
an FIR on next day, but no action was
taken.

4. Learned court below vide order
dated 21.03.2022 treated the application as
complaint and proceeded with the case as a
complaint case. Learned court below after
recording statements of the complainant
under Section 200 Cr.P.C. and her witness
Satish
under
Section
202
Cr.P.C.
summoned the accused Pawan and Akash
under Sections 376 IPC readwith Section
18 of POCSO Act and accused Ashok
under Section 504 and 506 IPC The
accused persons feeling aggrieved by the
summoning order has filed present revision
before this Court.

5. Learned counsel for the
revisionist submitted that revisionist No.1
is a cousin (mausera bhai) of revisionist
No.2 and nephew of revisionist No.3,
revisionist No.2 is the son of revisionist
No.3 so both are son and father. As the
revisionists are closely hit family members,
commission of such type of incident by
them does not look natural. In fact mother
of revisionist No.1 Smt. Ranjana has
lodged an FIR against four persons namely
Rajeev, Shailendra, Sukhveer, and Videsh
vide Case Crime No.209 of 2021 under
Sections 354 (b), 504 506 IPC at P.S.
Patiyali, District Kashganj on 17.10.2021.
In said FIR an allegation was made by said
Ranjana the mother of revisionist No.1
Akash
that
named
accused
persons
molested
and
torn
her
clothes
on
04.11.2021 at around 11:00 am when she
had gone to her agricultural field alongwith
her son Akash to make kyari (seed plot),
they also engaged in marpeeth with her son
and abused him. The victim who is mother
of revisionist No.1 had supported the FIR
version in her statement under Section 161
Cr.P.C. and chargesheet has been filed
against named accused persons under
Section 354 kha, 504, 506 IPC.

6. He further submitted that as
Sukhveer
who
is
brother-in-law
the
informant "X" (identification masked) in
said police case and real uncle of the victim
444 INDIAN LAW REPORTS ALLAHABAD SERIES
in the present case is an accused in said
case, the revisionists have been maliciously
framed by informant and victim in this
false criminal case to save skin of
Sukhveeer who is their family member.
Present FIR has been lodged after filing of
chargesheet in said police case against
Sukhveeer and others as a counter blast of
earlier case lodged at the instance of the
mother of revisionist No.1.

7. Learned counsel for the
revisionist submitted that present FIR has
been lodged only to wreck vengeance
against the revisionist on account of said
FIR. It is highly improbable that where
there was a prior and recent enmity
between both sides, the mother of the
victim
will
permit
her
daughter
to
accompany the son and a relative of the
informant in earlier case even after filing of
chargesheet against informant side.

8. He next submitted that learned
court below has failed to appreciate this
fact that no offence under Section 376 IPC
is made out against accused Pawan and
Akash even if complaint version is taken on
its face value, the case as produced by
prosecution does not go beyond the extent
of Section 354, 354(b) IPC and relevant
provisions of POCSO Act.

9. Learned counsel for the
revisionist further submitted that neither the
complainant nor victim has levelled any
allegation regarding commission of rape
against the revisionists, even then two
accused persons have been summoned inter
alia under Sections 376 IPC. This fact itself
reflects that summoning order was passed
in a casual and cavalier manner without
application of mind. Ingredients of offence
under Section 375 IPC are not made out in
the
case.
He
lastly
submitted
that
summoning order is liable to be set-aside,
and at least matter should be remanded to
the court below for decision afresh and
application for discharge filed by the
revisionist.

10. Per contra learned counsel for
the respondent No.2 submitted that at the
stage of framing of charge trial court is not
supposed to sift and weigh the evidence
and material collected during investigation
in meticulous manner. As at that stage only
a prima facie case is to be found out for
putting the accused persons on trial. No
mini trial can be held at the stage of
summoning the accused persons in a
complaint case. The learned court below
has summoned main accused persons under
Section 376 IPC read with Section 18 of
POCSO Act which is tantamount to an
offence under Section 376/511 IPC.

11. Learned counsel for the
revisionist
placed
reliance
on
recent
judgment of the Hon'bel Supeme Court in
Lal Kumar Singh and others Vs. State of
Maharashtra
in
a
Criminal
Appeal
preferred against order passed by Single
Judge of Bombay High Court dismissing
the criminal writ petition filed by the
accused appellants against the order of
issuance of process by the learned CJM
concerned and the order passed by learned
Session Judge dismissing the Criminal
Revision preferred by the appellants.

12. Hon'ble Court observed in the
above judgment as under:-

The order of issuance of
process is not an empty formality.
The Magistrate is required to apply
his mind as to whether sufficient
ground for proceeding exists in the
case or not. The formation of such
3 All. Akash & Ors. Vs. State of U.P. & Ors.
445
an opinion is required to be stated
in the order itself. The order is
liable to be set aside if no reasons
are given therein while coming to
the conclusion that there is a prima
facie case against the accused. No
doubt, that the order need not
contain detailed reasons. The case
of Sunil Bharti Mittal vs. Central
Bureau of Investigation (2015) 4
SCC 609 , which reads as under: -
"51. On the other hand,
Section 204 of the Code deals with
the issue of process, if in the
opinion of the Magistrate taking
cognizance of an offence, there is
sufficient ground for proceeding.
This
section
relates
to
commencement
of
a
criminal
proceeding.
If
the
Magistrate
(2015)
4
SCC
609
taking
cognizance of a case (it may be the
Magistrate receiving the complaint
or to whom it has been transferred
under
Section
192),
upon
a
consideration of the materials
before him (i.e. the complaint,
examination of the complainant
and his witnesses, if present, or
report of inquiry, if any), thinks that
there is a prima facie case for
proceeding in respect of an offence,
he shall issue process against the
accused.
52. A wide discretion has
been given as to grant or refusal of
process and it must be judicially
exercised. A person ought not to be
dragged into court merely because
a complaint has been filed. If a
prima facie case has been made
out, the Magistrate ought to issue
process and it cannot be refused
merely because he thinks that it is
unlikely to result in a conviction.
53. However, the words
"sufficient ground for proceeding"
appearing in Section 204 are of
immense importance. It is these
words which amply suggest that an
opinion is to be formed only after
due application of mind that there
is sufficient basis for proceeding
against the said accused and
formation of such an opinion is to
be stated in the order itself. The
order is liable to be set aside if no
reason is given therein while
coming to the conclusion that there
is prima facie case against the
accused, though the order need not
contain detailed reasons. A fortiori,
the order would be bad in law if the
reason given turns out to be ex
facie incorrect."

29. A similar view has been taken
by this Court in the case of Ashoke Mal
Bafna (supra).

30. In the present case, leaving
aside there being no reasons in support of
the order of the issuance of process, as a
matter of fact, it is clear from the order of
the learned Single Judge of the High Court,
that there was no such order passed at all.
The learned Single Judge of the High
Court, based on the record, has presumed
that there was an order of issuance of
process. We find that such an approach is
unsustainable in law. The appeal therefore
deserves to be allowed."

13.
Section
375
IPC
defines rape as under:-

A man is said to commit
"rape" if he-
1. penetrates his penis, to
any extent, into the vagina, mouth,
446 INDIAN LAW REPORTS ALLAHABAD SERIES
urethra or anus of a woman or
makes her to do so with him or any
other person; or
2. inserts, to any extent,
any object or a part of the body, not
being the penis, into the vagina, the
urethra or anus of a woman or
makes her to do so with him or any
other person; or
3. manipulates any part of
the body of a woman so as to cause
penetration
into
the
vagina,
urethra, anus or any part of body of
such woman or makes her to do so
with him or any other person; or
4. applies his mouth to the
vagina, anus, urethra of a woman
or makes her to do so with him or
any
other
person,
under
the
circumstances falling under any of
the following seven descriptions:
First.- Against her will.
Secondly-
Without
her
consent.
Thirdly- With her consent,
when
her
consent
has
been
obtained by putting her or any
person in whom she is interested, in
fear of death or of hurt.
Fourthly- With her consent,
when the man knows that he is not
her husband and that her consent is
given because she believes that he
is another man to whom she is or
believes herself to be lawfully
married.
Fifthly- With her consent
when, at the time of giving such
consent, by reason of unsoundness
of mind or intoxication or the
administration by him personally
or
through
another
of
any
stupefying
or
unwholesome
Substance,
she
is
unable
to
understand
the
nature
and
consequences of that to which she
gives consent.
Sixthly- With or without her
consent, when she is under eighteen
years of age.
Seventhly- When she is
unable to communicate consent.
Explanations:-
1. For the purposes of this
section,
"vagina"
shall
also
include labia majora.
2.
Consent
means
an
unequivocal voluntary agreement
when the woman by words, gestures
or any form of verbal or non-verbal
communication,
communicates
willingness to participate in the
specific sexual act;
Provided that a woman
who does not physically resist to
the act of penetration shall not by
the reason only of that fact, be
regarded as consenting to the
sexual activity.
Exceptions
1. A medical procedure or
intervention shall not constitute
rape.
2. Sexual intercourse or
sexual acts by a man with his own
wife, the wife not being under
fifteen years of age, is not rape.

14. Section 18 of POCSO Act,
provides punishment for attempt to commit
an offence. Whoever attempts to commit
any offence punishable under this Act or to
cause such an offence to be committed, and
in such attempt, does any act towards the
commission of the offence, shall be
punished
with
imprisonment
of
any
description provided for the offence, for a
term which may extend to one-half of the
imprisonment for life or, as the case may
be, one-half of the longest term of
3 All. Akash & Ors. Vs. State of U.P. & Ors.
447
imprisonment provided for that offence or
with fine or with both.

15. Section 7 of POCSO Act defines
Sexual Assault. Whoever, with sexual
intent touches the vagina, penis, anus or
breast of the child or makes the child touch
the vagina, penis, anus or breast of such
person or any other person, or does any
other act with sexual intent which involves
physical contact without penetration is said
to commit sexual assault.

16. Section 8 of POCSO Act
provides punishment for sexual assault.
Whoever, commits sexual assault, shall be
punished with imprisonment of either
description for a term which shall not be
less than three years but which may extend
to five years, and shall also be liable to
fine.

17. In the present case, learned
court below has observed in the impugned
order
that
according
to
academic
documents of the victim issued by primary
school from where she passed class IV, her
date of birth is mentioned as 12.02.2002.
Whereas the alleged incident occurred on
10.11.2021, thus the victim was more than
11 years of age on the date of incident and
thus she was minor. This fact has not been
denied by the revisionist that victim was
not minor on the date of incident, but they
have taken plea of false implication due to
an earlier incident which has been reported
by mother of revisionist No.1 against
family members of the complainant in the
present case.

18. The allegation of Section 376
IPC and Section 18 of POCSO Act is
levelled against accused Pawan and Akash.
The offence under Section 376 IPC and
Section 18 of POCSO Act has been
attributed against accused Pawan and
Akash and offence under Sections 504 and
506 IPC is alleged against accused Ashok
who is father of main accused Pawan. In
the impugned order learned court below
has summoned the accused Pawan and
Akash under Section 376 IPC, but said
charge is readwith Section 18 of POCSO
Act which provides for punishment for
attempt to commit an offence. Thus, instead
of invoking Section 376/511 IPC against
these accused learned court below has
invoked Section 376 readwith Section 18 of
POCSO Act. Thus, it appears that learned
court below has found the prima facie case
against these accused for attempt to rape, or
attempt to commit penetrative sexual
assault within the purview of POCSO Act.

19. Section 354 (B) IPC provides
punishment for assaults or uses criminal
force against any woman with the intent to
disrob which shall not be less than three
years but which may extend to seven years,
and shall also be liable to fine. Section 354
IPC provides punishment for assault of
criminal force to women with intent to
outrage her modesty which shall not be less
than one year but it may extend to five
years.

20. In section 376 IPC punishment
for rape has been provided. Section 376
(AB) IPC describe punishment for rape on
woman within twelve years of age,
imprisonment shall not be less than twenty
years,
but
which
may
extend
to
imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and with fine or both.

21. In the present case, the
allegation against accused Pawan and
Akash is that they grabbed the breasts of
the victim and Akash tried to bring down
448 INDIAN LAW REPORTS ALLAHABAD SERIES
lower garment of the victim and for that
purpose they had broken string of her lower
garments and tried to drag her beneath the
culvert, but due to intervention of witnesses
they left the victim and fled away from the
place of incident. This fact is not sufficient
to draw an inference that the accused
persons had determined to commit rape on
victim as apart from these facts no other act
is attributed to them to further their alleged
desire to commit rape on the victim.

22. In the present case the
allegation against the revisionists has
appearing from the statement of the
complainant and victim is that the accused
Pawan had got victim seated on pillion of
his motorcycle, when the accused Pawan
and Akash made a complaint when she was
on way alongwith her daughter on date and
time of incident, on giving her assurance
they stopped the motorcycle on the way
near the culvert grabbed her breast and
Akash tried to dragged her beneath the
culvert and broke the string of her pyjami
(lower garment). On hearing her shrieks the
witnesses Satish and Bhura emerged on the
spot who were coming behind on a tractor
and challenged the accused persons who
fled away after giving the witnesses threat
to kill and pointed country made pistol
towards them. The allegation against
accused Ashok who is father of accused
Pawan is that when the complainant
approached
him
after
the
incident
alongwith the victim at his residence, he
abused and threatened her and for that
reason accused Ashok has only been
summoned for charge under Section 504
and 506 IPC, and there is no allegation
made against him as to molestation or
attempt to rape.

23. There is no allegation in the
complaint or in statement of the witnesses
recorded under Sections 200/202 Cr.P.C.
that the accused Akash himself got unrest
after breaking the string of lower garment
of the minor victim. The specific allegation
against Akash is that he tried to drag the
victim beneath the culvert and broke the
string of her pyjami. It is also not stated by
witnesses that due to this act of the accused
the victim got naked or got undressed.
There is no allegation that accused tried to
commit penetrative sexual assault against
the victim.

24. 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
difference between preparation and actual
attempt to commit an offence consists
chiefly
in
the
greater
degree
of
determination.

25. In Rex v. James Lloyd (1836)
7C and P 817 : 173 ER 141 while
summing up the charge to the jury, Justice
Patterson observed :

"In
order
to
find
the
prisoner guilty of an assault with
intent to commit a rape, you must
be satisfied that the prisoner, when
he laid hold of the prosecutrix, 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".
In Express v. Shankar,
(1881) ILR 5 Bom 403 the accused
was charged for an attempt to
commit
rape.
There
the
observations of M. Malyill J.,
3 All. Rajendra Singh Vs. State of U.P. & Ors.
449
which as quoted below, are
very pertinent :
"We believe that in this
country indecent assaults are often
magnified into attempts at rape,
and even more often into rape
itself; and we think that conviction
of an attempt at rape ought not to
be arrived at unless the Court be
satisfied that the conduct of the
accused indicated a determination
to gratify his passions at all events
and in spite of all resistance."

26. 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 two
accused Pawan and Akash grabbed the
breasts of the victim and one of them
namely Akash broke the string of her
pyjama and tried to drag her beneath the
culvert
and
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, 511 IPC
or Section 376 IPC readwith Section 18 of
POCSO Act has been made out against the
accused persons.

27. On facts of the case a prima
facie charge attempt to rape is not made out
against the accused Pawan and Akash and
instead they are liable to be summoned for
minor charge of Section 354(b) IPC i.e.
assault or abuse a woman with intent to
disrobing or compelling her to be naked
and Section 9 of POCSO Act provides
punishment for aggravated sexual assault
on a child victim wherein Section 9 (m)
provides that whoever commits sexual
assault on a child below twelve years is
said to have commit aggravated sexual
assault. Section 10 provides punishment
with imprisonment upto seven years winch
shall not be less than five years and shall be
liable to fine.

28. Section 10 of POCSO Act
provides that whoever, commits aggravated
sexual assault shall be punished with
imprisonment of either description for a
term which shall not be less than five years
but which may extend to seven years, and
shall also be liable to fine.

29. With foregoing discussion, this
court finds that the finding of the learned
court below with regard to offence of
attempt to rape in respect of revisionist
Pawan and Akash in the impugned
summoning order is not sustainable and
instead they are liable to be summoned for
minor offence under Sections 354(b) IPC
readwith Section 9/10 of POCSO Act. The
impugned
summoning
order
stands
modified accordingly. The learned court
below is directed to issue fresh summoning
order in respect of the revisionists Pawan
and Akash, under modified sections.

30. . The revision is partly allowed
in the manner.
----------
(2025) 3 ILRA 449
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2025

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Criminal Revision No. 1965 of 2024

Rajendra Singh ...Revisionist
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Revisionist: