Criminal Law : Attempt To Rape

Criminal Law : Attempt to Rape and Akash v. State of UP [2025] GCtR 700 (Allahabad)

Introduction

Akash v. State of UP [2025] GCtR 700 (Allahabad) has created some controversy. Allegations were "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". Special Judge 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. 

Alleged time of Offence : 5 : 00 p.m.

Date of alleged offence : 10 november 2021.

Date of Application : 12 Jan 2022.

Remarks : Prior criminal case 

This fact has not been denied by the accused that victim was not minor on the date of incident. 

Para 21 notes "they grabbed the breasts of the victim and Akash tried to bring down 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."

Para 22 notes "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." 

Para 24 notes "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." 

Para 26 notes "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 29 notes "liable to be summoned for minor offence under Sections 354(b) IPC readwith Section 9/10 of POCSO Act." 

Rex v. James Lloyd (1836) 7C and P 817 : 173 ER 141 was cited.

Previous Decisions 

Let us see Sujit Biswas v. State of MP [2013] GCtR 6044 (SC). Allegations involved an injury to her vagina. Allegedly blood group of the blood found on the underwear of the accused, was the same as the blood group of the victim, Sima Khatoon. Later on, accused was acquitted ; "An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself." 

Another one is Deepak Gulati v. State of Haryana [2013] GCtR 6045 (SC). Allegations related to S.376 of IPC. Allegations was accused had sexual intercourse with her against her wishes, behind bushes. At para 17 it was noted "Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim." Ultimately, accused was acquitted.

Another one is Kaini Rajan v. State of Kerala [2013] GCtR 6046 (SC). Allegation was "caught hold of her by hand and forcibly took her to the nearby property of one Karunakaran and committed rape on her, without her consent." After noting the principles "conviction in case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the Court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity", accused was acquitted.

There is Ramdas v. State of Maharashtra [2007] GCtR 6047 (SC). Allegations around S.376 of IPC were made. Allegations were in following manner : "When she refused to do so, he dragged her outside the house and whistled twice. The remaining two appellants came on signal being given by him and they all dragged her to a distance of about 500 feet from her house. When she was being dragged out of her house, she raised alarm but no one came to her rescue. She was thereafter raped by all the three appellant". Conclusions in following way : "She does not appear to us to be a witness of sterling quality on whose sole testimony a conviction can be sustained. She has tried to conceal facts from the court which were relevant by not deposing about the earlier first information report lodged by her, which is proved to have been recorded at the police station. She has deviated from the case narrated in the first information report solely with a view to avoid the burden of explaining for the earlier report made by her relating to a non cognizable offence." Result was acquittal. 

There is then State of MP v. Mahendra @ Golu [2021] GCtR 2480 (SC) where attempt and preparation were explained and conviction was ordered. There too it was noted "Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made." 

There is Aman Kumar v. State of Haryana [2004] GCtR 6048 (SC). Prosecution was aiming for conviction under S.376 ; ultimately it was a conviction under S.354 of IPC. Allegations were much more serious than what was made in Akash [2025] ; the allegations were "when she had reached near the field, the accused persons caught hold of her right arm and dragged her forcibly to the field. Accused Shiv Dayal shut her mouth with her chuni and both the accused persons thereafter forcibly raped her. They threatened to kill her if she told about the incident to anybody." What was explained is that "in order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, 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. Indecent assaults are often magnified into attempts at rape."

Comments

Let us say that the trial proceeds for attempt to rape. Necessary for that is "attempt" of action which constitutes "rape". Several decisions where death took place and S.302 invoked but later lesser degree offence were established. 

Judge has to pass decisions based on law available. What shocks public may not be a ground for a Judge to pass something which public anticipates. A change in law can take place by amendment to the Act ; amendments themselves must pass the tests of A.14 and A.21 ; inequality even in law - making has to be in accordance with A.14.

One must look at all stakeholders : 1. Accused. 2. Victim. 3. Prosecution and public money spent on investigation. 4. Judiciary and public money spent on trial.

It is better to aim for trial of such offences which have possibility of conviction. Invoking grievous sections where possibility of conviction is bleak will also become controversial.