Rethinking Attempt to Rape: Allahabad HC's View & the Call for Gender Sensitivity

The interpretation of sexual offences in judicial pronouncements necessitates compassion and a gender-sensitive approach due to the very nature of the offence. How such offences should be interpreted and why a sensitive approach is necessary recently came to light on account of the observations made by the Allahabad High Court in its recent Order in Akash v. State of Uttar Pradesh (2025). 

Interpreting ‘Attempt’ to Rape 

The Allahabad High Court Order noted that “mere” grabbing of breasts of a minor and loosening her pyjama strings did not tantamount to an Attempt to Rape. The Court made these observations, even though the accused had forcibly dragged the minor under a culvert and fled only after intervention from passers-by. 

Originally, the trial court had summoned the accused persons under Section 376 read with Section 511 of the Indian Penal Code, 1860 (Section 64 read with Section 62 of the BNS) and Section 4 read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) for the offences of attempt to rape and attempt to commit penetrative sexual assault respectively. However, the High Court modified the Order to Section 354 (B) of the Indian Penal Code, 1860 and Section 9 read with Section 10 of the POCSO for the offence of disrobing and aggravated sexual assault respectively. 

The Order therefore highlights the importance of judging where the stage of preparation for commission of rape ends, and enters the realm of an attempt to commit the sexual offence. 

Taking a Humanitarian Approach in Interpreting ‘Attempt’ to Rape

The Supreme Court recently took suo moto cognizance of the aforementioned Allahabad High Court Order. While staying the Allahabad High Court Order, the Supreme Court observed, “We are at pains to state that it shows total lack of sensitivity on the part of the author of the judgment. It was not even at the spur of the moment and was delivered four months after reserving the same. Thus, there was an application of mind.” 

Further, the Supreme Court observed that the High Court’s observations “are unknown to the canons of law and show an inhuman approach.” 

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Gender Stereotypes to Be Avoided and Dignity/Sensitivity in Judgments

The Supreme Court has time and again underscored the importance of taking a gender-sensitive approach in cases of sexual offences and avoiding dehumanizing remarks or observations. 

Recently, in Re: Order dated 17.03.2025 passed by the High Court of Judicature at Allahabad in Criminal Revision No. 1449/2024 and Ancillary Issues (2025), the Supreme Court criticised an Allahabad High Court Bail Order wherein it was stated that the survivor “herself invited trouble”. The Apex Court observed, "There is another order now by another judge. Yes, bail can be granted... but, what is this discussion that she herself invited trouble? One has to be careful when saying such things, especially on this side (judges). One thing here and there…"

Earlier, in Aparna Bhat v. State of Madhya Pradesh (2021), the Supreme Court had categorically observed, “This Court therefore holds that the use of reasoning/language which diminishes the offence and tends to trivialize the survivor, is especially to be avoided under all circumstances.” 

Moreover, in 2023, the then Chief Justice of India, Justice D.Y. Chandrachud released a Supreme Court Handbook on Gender Stereotypes. The Handbook offers insights on avoiding harmful gender stereotypes that can affect judicial decision-making and writing. 

Therefore, the Courts are mandated to appreciate the true gravity of sexual offences and display sensitivity in interpreting such offences. This is the background in which the cases of possible attempt to rape also need to be interpreted. 

Law Relating to the Attempt to Commit Rape 

When it comes to committing a crime, there are usually several steps involved. It all starts by forming an intention to commit an act that constitutes the offence in question, followed by arranging the means to commit the offence, that is, preparation, moves on to the attempt, and culminates into actual commission of the crime. While the law comes down hard on those who successfully carry out an offence, it also recognises that the attempt itself is a crime under the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as BNS). This means that even if someone doesn’t finish what they started, they can still be held accountable for taking real steps toward committing a crime. 

Section 62 of the BNS concerns punishment for an attempt to commit offences punishable with imprisonment for life or other imprisonment. It refers to that stage of criminal conduct where the accused person has already arranged the means necessary for the crime with the intention to commit it and takes significant steps towards commission of the offence. The commission of the offence is however prevented due to intervening circumstances. It need not be the penultimate act, but to constitute an offence, it should be something more than mere preparation and constitute an action towards commission of the offence.    

In cases of attempt to commit rape, the line between the stages of ‘preparation’ and ‘attempt’ can often be thin and will require a humanitarian approach. Various judicial pronouncements on this subject however offer guidance on what constitutes an attempt to rape. 

• The 2005 judgment of the Supreme Court in State of Madhya Pradesh v. Mahendra (2021), wherein it was held that the respondent’s deliberate actions of taking minor girls inside his house, closing the doors and rubbing genitals against those of the victims amounted to an attempt to rape. 
• In Madan Lal v. State of J & K (1997), it was held that the difference between “Preparation” and an “Attempt” to commit an offence of rape consists chiefly in the greater degree of determination. It is necessary that the accused must have gone beyond the stage of mere preparation.
• In Shankar v. State of Maharashtra (2018), the Bombay High Court held that for the offence of attempt to rape, the accused must have so advanced in his action that it would have resulted in rape had some extraneous factors not intervened. A similar view has been taken by the Supreme Court in Tarkeshwar Sahu v. State of Bihar (2006). 
• Similarly, in State of Maharashtra v. Mohd. Yakub (1980), the distinction was further clarified by highlighting that preparation involves figuring out or organising the means needed to commit the crime, while an attempt is when someone takes direct action toward committing it after those preparations are in place. In the context of attempt to rape, this distinction helps differentiate between actions like planning to be alone with a potential victim (preparation) and actions like forcibly restraining them or making unwanted sexual advances (attempt).

Therefore, in cases of attempt to rape, the attempt begins as soon as the accused demonstrates an intention to commit rape in his actions and cannot succeed only because of the attending circumstances and external intervention. 

Taking a closer look at the line between preparation and attempt uncovers a complex and often subjective distinction. Preparation involves getting all the necessary pieces in place to commit a crime, while an attempt is about taking direct and immediate action toward carrying out that crime. Courts focus on the accused's intent, along with the nature and timing of the actions taken, to determine if an attempt has actually occurred. In the context of sexual offences, this requires a nuanced understanding of 'attempt to rape.' 'Attempt to rape' refers to actions that fall short of the completed act of rape (which involves specific acts of sexual penetration without free consent) but it unequivocally demonstrate the intention to commit it, such as forcibly restraining the victim or making aggressive sexual advances.

It is distinct from rape, which involves completed penetration and carries more severe penalties. A gender-sensitive approach is paramount in these cases to ensure respectful treatment of survivors by avoiding victim-blaming language or intrusive questioning about their past behaviour, recognising the trauma involved, and fostering a safe courtroom environment. The decision of the Allahabad High Court before the Supreme Court intervened, highlighting the potential for differing interpretations and the pressing need for judicial consistency and compassion, particularly in cases of child sexual abuse. These interpretations can significantly impact the safety of vulnerable individuals and the integrity of our legal system. 

Conclusion

In conclusion, the administration of justice requires not only a comprehensive understanding of legal provisions but also a conscious commitment to avoid language that either trivialises the gravity of the offence or belittles the trauma of the survivor. 

Taking a humanitarian approach requires the Court interpreting the offence to take into consideration the full import of the societal implications of sexual offences and avoiding casual/ stereotypical remarks against the survivor that can lead to absurd interpretations.