The Allahabad High Court observed in a recent order that actions such as grabbing the victim's breast and breaking her pajama string do not amount to rape or attempted rape but instead constitute aggravated sexual assault.

Pawan and Akash were accused of grabbing the breasts, breaking pyjama string and trying to drag her beneath a culvert in Uttar Pradesh's Kasganj of an 11-year-old victim.

The accused fled the scene after passersby intervened. The 2021 incident began when they offered the child a lift, leading to the horrific events that followed.

Both the accused were initially set to face trial under Section 376 of the Indian Penal Code for rape and Section 18 of the POCSO Act, as directed by the Kasganj trial court.

However, a bench led by Justice Ram Manohar Narayan Mishra held that the accused should instead be tried under Section 354-B IPC (assault or use of criminal force with intent to disrobe) along with Sections 9/10 of the POCSO Act (aggravated sexual assault).

"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," the bench said.

The counsel for one of the respondents mentioned that during the stage of framing charges, the trial court is not required to meticulously examine and evaluate the evidence collected during the investigation. At this stage, the court only needs to determine whether a prima facie case exists to proceed with the trial against the accused.

"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," the court said.

"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," the Court observed in its order.