Supreme Court Stays Allahabad High Court’s Decision That Touching Breast Is Not Considered Rape

The Supreme Court on Wednesday (March 26) has stayed a controversial decision of the Allahabad High Court.

The Allahabad High Court had said in its March 17 decision that ‘touching the victim’s breast and breaking the string of the pyjama cannot be counted as a case of rape or attempted rape.’

An organization called ‘We the Women of India’ had approached the Supreme Court against the March 17 decision of the Allahabad High Court. After which the Supreme Court took suo motu cognizance of the matter.

The Supreme Court bench of Justice BR Gavai and Justice AG Masih said that because the decision ‘shows a completely insensitive and inhuman attitude’, it is necessary to stay the decision.

According to Live Law, the bench said in its order, “We are sad to say that some of the comments made in this controversial decision, especially paragraphs 21, 24 and 26, show the lack of sensitivity of the writer of the decision.” The bench also said that this decision was not given suddenly, but it was given after keeping it in reserve for about four months. This means that the judge gave this decision after proper deliberation and thinking.

The Supreme Court has also issued notice to the Central and Uttar Pradesh governments in this matter. During the hearing, Solicitor General of India Tushar Mehta was also present in the court, who condemned the decision of the Allahabad High Court and said that this decision is shocking. What did the Allahabad High Court say? A bench of Justice Ram Manohar Narayan Mishra gave this controversial decision in a case related to Patiyali police station area of ​​Kasganj district of Uttar Pradesh. A bench of Justice Ram Manohar Narayan Mishra had said that it was not possible to prove that there was an attempt to rape on the basis of the allegations leveled against the accused and the facts of the case.

For this, it is necessary for the prosecution to prove that the act of the accused was to prepare for committing the crime.

The court also clarified that the difference between attempt to rape and preparation for the crime should be properly understood.

The High Court directed the lower court that the accused can be prosecuted under Section 354 (B) (assault or use of criminal force with intent to disrobe) of the IPC and Sections 9 and 10 (aggravated sexual assault) of the POCSO Act.

What is this case?

This case is from Kasganj area of ​​Uttar Pradesh. The incident happened with a minor girl in the year 2021.

In this case, the girl’s mother had alleged that on November 10, 2021, at 5 pm, when she was returning from Devrani’s village with her 14-year-old daughter, the accused Pawan, Akash and Ashok met her on the way on a motorcycle.

The mother said that Pawan assured her daughter to drop her home and under this belief, she let her daughter go.

But on the way, stopping the motorcycle, these three people misbehaved with the girl and touched her private parts. They dragged her under the bridge and broke the string of her pyjama.

But then two persons Satish and Bhure, who were passing by on a tractor, heard the girl crying. The accused showed them a pistol and then fled from there.

When the minor’s mother complained to Pawan’s father Ashok, she was threatened with death, after which she went to the police station but no action was taken.

The case reached the special court in Kasganj where Pawan and Akash were charged under Section 376 (rape) of the IPC, Section 18 (attempt to commit a crime) of the POCSO Act and Sections 504 and 506 against Ashok.

Satish and Bhure became witnesses in the case, but the case was challenged in the Allahabad High Court by the accused.

The Supreme Court had overturned such a decision earlier too

Earlier too, in a similar case, the Supreme Court had overturned the decision of the Nagpur Bench of the Bombay High Court.

The Supreme Court said in 2021 that touching the sexual organs of a child with sexual intent would be considered sexual violence under Section 7 of the POCSO Act. In this, even if there is no skin contact, the intention is important.

In this case, Additional Judge Pushpa Ganediwala of the Bombay High Court had decided to acquit the accused. The High Court had given its verdict on the basis of no skin-to-skin contact.

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