Actions such as grabbing a child’s breasts, breaking the strings of her pyjamas and attempting to drag her beneath a culvert before fleeing do not constitute the offence of rape or an attempt to rape, the Allahabad High Court has said.

Justice Ram Manohar Narayan Mishra made the remarks on Monday while altering charges against two men named Pawan and Akash.

The two men were originally summoned by a court in Uttar Pradesh’s Kasganj district to stand trial under charges of rape under the Indian Penal Code and attempted rape under the Protection of Children from Sexual Offences Act. They, however, challenged the summons, arguing that even if the complaint was taken at face value, it did not constitute an offence of attempt to rape.

However, the High Court directed them to be tried for assault with intent to disrobe under the Indian Penal Code – which carries a lesser punishment – and aggravated sexual assault under the POCSO Act.

In their police complaint, the child’s kin had alleged that the two men had offered her a lift and then attempted to rape her. However, a few passersby intervened and rescued her, which forced the two men to flee.

Justice Mishra noted that the specific allegation against Akash was that he tried to drag the girl beneath a culvert and broke the string of her pyjamas.

“It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed,” the judge said. “There is no allegation that accused tried to commit penetrative sexual assault against the victim.”

The court held that the allegations against the two men did not constitute attempted rape.

“In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation,” Mishra said. “The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.”