Does the Law See Sexual Assault on a Child as Attempted Rape?

Allahabad High Court’s Controversial Ruling

March 26, 2025

The Supreme Court has decided to take up a case on its own – called a “suo motu” action – to review a controversial ruling made by the Allahabad High Court, that actions such as grabbing a child’s breasts, breaking the string of her clothes and trying to drag her to a secluded spot do not qualify as either rape or an attempt to commit rape.

A bench of two judges from the Supreme Court, Justices B.R. Gavai and Augustine George Masih, will examine it further, as reported by Bar and Bench.

The High Court’s ruling was originally made on March 17, during a case where the court was asked to reconsider the charges against the accused individuals.

Two men accused of assaulting an 11-year-old girl were initially charged with serious crimes, such as rape, under Section 376 of the Indian Penal Code (IPC), and attempted rape, under Section 18 of the POCSO Act. However, the High Court decided that the evidence didn’t support these severe charges. Instead, the court said the accused should face less serious charges, such as using force to disrobe the victim (Section 354-B of the IPC) and sexual assault under the POCSO Act.

The judge in the High Court explained his reasoning by saying that the actions of the accused may suggest “inappropriate” behaviour but did not necessarily prove they intended to commit rape. He argued that there wasn’t enough evidence beyond those actions to show a clear determination to carry out the crime of rape.

According to the victim’s account, the two men had attacked her and tried to take her to a secluded spot, but their plan was interrupted when passers-by intervened, forcing them to flee. Based on this evidence, the trial court had initially treated it as a case of attempted rape or attempted penetrative sexual assault under the POCSO Act.

The two accused then went to the High Court to challenge the trial court’s decision. They argued that even if everything the victim said was true, their actions didn’t amount to rape or even an attempt to rape. They claimed they should only be charged with less serious offences.

Section 375 of the IPC lays out specific circumstances where a sexual act qualifies as rape, such as when it is carried out without the woman’s consent, against her will, through deceit or under coercion. The definition of rape was expanded significantly following the 2013 criminal law amendments after the Nirbhaya case. It now includes acts beyond penetration, such as oral sex or insertion of objects.

Importantly, consent must always be free, informed, and unequivocal.

For minors (under 18 years), any sexual act is automatically considered rape, as they are legally incapable of giving consent. The punishment for rape under Section 376 IPC is stringent, with a minimum sentence of 10 years that can extend to life imprisonment. In aggravated cases, such as when the victim is a minor, the punishment may include life imprisonment or even a death sentence.

Attempted rape is dealt with under Section 511 of the IPC, which applies to attempts to commit offences punishable with life imprisonment. For an action to qualify as attempted rape, there must be a clear intention to commit rape and an overt act that goes beyond mere preparation. For example, forcibly restraining the victim, attempting to disrobe them, or using physical force in a sexual context with the intent to rape would qualify as an attempt.

However, if the actions remain at the stage of planning or preparation, they would not be considered an attempt. The punishment for attempted rape is up to half of the sentence prescribed for the actual offence of rape, which means it can still lead to significant jail time.

Courts have developed several precedents that help clarify the law on rape and attempted rape.

In cases of attempted rape, the Supreme Court has held that both intention and an overt act are essential. For instance, in the case of Koppula Venkata Rao v. State of Andhra Pradesh (2004), the Court held that merely expressing intent without taking actions close to committing the crime does not amount to an attempt. However, acts such as trying to undress the victim or restraining her with clear sexual intent are sufficient to establish attempted rape.

Courts have also made it clear that at the stage of framing charges, the trial court does not need to conduct a detailed analysis of evidence but must determine if there is a prima facie case to proceed to trial.

The POCSO Act provides even stricter provisions for offences involving minors. Under this law, any form of sexual assault or harassment of a child under 18 is treated as a grave offence, and consent is not a consideration. For instance, if an accused touches a child inappropriately or makes an attempt to disrobe them, it would qualify as aggravated sexual assault under POCSO, with harsher penalties than under the IPC alone.

Over time, courts have tried to adopt a victim-centric approach in cases of sexual violence, focusing on protecting the dignity and autonomy of survivors.