Shivani Pandey-
The Jammu and Kashmir High Court has held that the act of an accused to take off his own and victim’s pants, in the absence of penetration, does not amount to ‘attempt to rape’ within the ambit of Section 376/511 of the Indian Penal Code but may amount to sexual assault under Section 7/8 of the Protection of Children from Sexual Offences (POCSO) Act.
The case for offences under Sections 376 (punishment for rape) 354 (assault or criminal force to women with intent to outrage her modesty), 511 (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) IPC and Section 8 (Punishment for sexual Assault) of POCSO Act was registered in the concerned Police Station.
As per the medical opinion, no intercourse had taken place nor was there any mark of violence on the body or any private part.
As per the statement of the victim recorded under Section 164 CrPC, the victim, as is claimed by her, went to the house of the petitioner, to get the mobile lead as the petitioner deals with mobile accessories. The petitioner met her in the courtyard of the house and took her to the attic of the house. He gave her mobile lead and thereafter gagged her mouth with a tape, took off her trousers and also removed his own trousers.
The Court observed, “The statement of the victim in light of the definition of rape given in Section 375 IPC, indisputably, the act of petitioner does not, by any stretch of reasoning, amount to rape.”
However, the question that begs an answer in this case is, “ Whether the act of the petitioner taking off the trousers of the victim as also is own trousers would amount to an attempt to rape punishable under Section 511 of the IPC”
The Court observed, “In the instant case, the petitioner had allegedly stripped the victim naked and had also taken off his trousers. This was, thus, an effort of making preparation for committing an attempt. Without there being any further act committed by the petitioner, it is difficult to arrive at a conclusion that the petitioner intended to commit rape or that the act attributed to the petitioner amounts to an attempt to commit rape.”
On the prima facie view not only, the petitioner is accused of inflicting indecent assault but also seems to have committed sexual assault defines under Section 7 of the POCSO Act.
Justice Sanjeev Kumar in the instant case granted bail to the accused with a bail bond of Rs. 50,000 and two sureties of the like amount.
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