Act Of Accused Taking Off His Own & Victim’s Trousers Without Penetration Amounts To Sexual Assault Under POCSO, Not ‘Attempt To Rape’: J&K High Court

The Jammu and Kashmir High Court has held that the act of an accused to take off his own and victim’s trousers, in the absence of penetration, does not amount to ‘attempt to rape’ within the meaning of Section 376/511 of IPC. However, the Court has said that the act may amount to sexual assault under Section 7/8 of POCSO Act. Justice Sanjeev Kumar granted bail to a man accused of offences under sec. 376 (punishment for rape), 354 (Assault or criminal force to woman with intent to outrage her modesty), 511 ( Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of IPC and sec. 8 (Punishment for sexual assault) of Protection of Children from Sexual Offences Act, 2012. “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,” the Court observed. Furthermore, the Court said: “Believing the statement of the victim, as it is, prima facie the act of the petitioner may amount to making preparation for committing rape but cannot be said to be an attempt to commit rape. Therefore, prima facie, Section 511 IPC may not be attracted. It could, at best, be a case of indecent assault punishable under Section 354 IPC.”