This article is written by Kritika Kumari, a first-year undergraduate law student at C.M.P. Degree College (Constituent P.G. College of the University of Allahabad), Prayagraj.
I. Introduction
In criminology, sexual offence carries a massive distinction from other crimes, as it is usually accompanied by irreversible psychological trauma. In a recent judgment regarding Akash and 2 Others v State of UP, two different courts presented two different arguments — on one hand the Allahabad High Court made an insensitive standard calling the crime ‘mere preparation’, undermining the protective intent behind the existing sexual offence law1 and on the other hand, the Supreme Court ruled the same crime as an ‘attempt’ to carry out the sexual offence.2 The gap between these two words led to a difference of seven years and life in prison.
This linguistic dilution of sexual offence is not new and is definitely not limited to the Allahabad High Court; it can be noticed across time and jurisdictions — even the savior of this 2026 judgment was also a perpetrator once. The Supreme Court itself attempted to downgrade an attempt-to-rape charge in Tarkeshwar Sahu v State of Bihar (Now Jharkhand) (2006),3 by using what can be essentially called the interrupted predator paradox. The root problem lies with the silence of the statute, which allows courts to use their own imagination while making such erroneous judgments, the law constituting this gap unspecified and vague. The legislature had the chance to clearly define these two terms while drafting the Bhartiya Nyaya Sanhita — ‘attempt’ and ‘preparation’ — but they decided to stick with a 165-year-old definition of the same.4
Until the silence itself is fixed, the dignity of the victims will continue to be compromised.
I — Vocabulary of Minimisation
To understand how violent sexual offences are often downplayed as misdemeanor, as mentioned in the instance above, we need to understand the classification of the trajectory of crime first. Under BNS 2023, this crime follows four linear stages as it progresses.
While the first two stages are mostly overlooked, as courts cannot punish people based on internal thought, it is the third and fourth stage where the law starts holding people accountable, as there is no clear explanation as to when criminal intent crosses the threshold of preparation and becomes an attempt. This gives birth to an ambiguity that is often used by the defence by deploying words that modify the actual fact of the case and legal liability.
This vocabulary of minimisation can be clearly noticed in multiple cases of this nature. For instance, in the case of Rabbo alias Raban v State of Haryana,5 the court deliberately chose to soften the label of an attempt-to-rape act — removing her underwear and penetrating a finger inside her — by calling it ‘sexual exploitation’ and ‘molestation’, which minimised the severity of legal implication by converting the charge from section 376 to Section 354 in The Indian Penal Code, 1860 of the IPC (now sections 64 and 74 of the BNS); it goes on to call physical overpowering of someone an ‘indecent assault’. They set a high standard for an act to be classified as a sexual offence by successfully arguing that the perpetrator lacked ‘determination’ simply because he was interrupted and fled and did not persist in completing the act. It reduces the severity of assault based on the physical condition of the victim’s garment, essentially shifting the focus from criminal intent to the timeline of the crime.
Even nowadays, such judgments by courts have not stopped, as noticed in the case of Akash and 2 Others v State of UP (2025), where the court tries to downplay the whole instance despite clear facts by using words like ‘hardly constitute’ and ‘preparation’.6
Fundamentally, the vagueness of the law instigates a natural course of action by the court — that is, in the process of defining what preparation and attempt may mean, courts tend to overlook the nature and evidence of the crime itself. The next section examines this pattern from its legislative origin.
II — The Anatomy of Attempt
This structural vulnerability in the undefined ‘attempt’ and ‘preparation’ stages of crime exists due to legislative stagnation; it cannot be blamed solely on judicial imagination. The provision constituting it has remained the same since the colonial period. There was an air of anticipation during the IPC’s transition into the BNS — it was a great chance to rectify the ambiguity between attempt and preparation. However, it was a massive let-down, as the only thing changed in the section was the word ‘Code’ to ‘Sanhita’.7
This superficial change is proof of legislative laziness. This can be observed in the 246th Parliamentary Standing Committee Report, in which the Committee, having conducted a thorough clause-by-clause review of almost all provisions of the IPC, chose to maintain silence over it.8
This flaw in the legal framework creates a gap that feeds the defense’s argument. It can be observed that, in multiple instances, the defense seeks an absolute gateway by weaponising Sections 250 and 251 of the BNSS, deliberately trying to tone down the deeds and focusing instead on physical timelines to shift the focus. It paves the way for courts to issue judgments holding that grabbing breasts or trying to undress a minor girl does not constitute an attempt to rape. Such careless characterisation of this heinous crime retraumatises the victim. This simple oversight by the legislature accidentally protects the colonial defect the new law aimed to overthrow.9
III — The Interrupted Predator Paradox:
This jurisprudential crisis is perfectly captured by what can be called the ‘Interrupted Predator Paradox’. This paradox occurs when a predatory mechanism directed towards a victim is intercepted before reaching its logical conclusion. It is the intervention itself which stops the act before it results in ultimate harm, but in the process destroys the evidence needed to prove the attempt. This evidentiary dilution then leads to a linguistic dilution of the fact and nature of the crime itself.
In the case of Akash and 2 Others v State of UP, we could see this phenomenon playing out.10 Currently, our judiciary is poorly equipped to deal with this vacuum, which exposes a pathway for it to rule that the forcible act of dragging the victim beneath a culvert, grabbing her breasts, and breaking the string of her pyjamas is still the ‘preparation’ of rape.
Conversely, through suo motu intervention by the Supreme Court, the judgment was flipped — rightfully so — focusing on intention and the action made towards it, by declaring that the moment the victim’s physical boundaries were breached, it became an attempt to rape on the victim, crossing the stage of preparation.11 This intervention by the Supreme Court cannot be seen as a constant, because historically, in the case of Tarkeshwar Sahu v State of Bihar (Now Jharkhand) (2006), the Supreme Court itself established a high standard for what constitutes sexual assault by relying on physical milestones such as the removal of clothes, stating that the accused ‘had neither undressed himself nor even asked the prosecutrix to undress’, even though the perpetrator had dragged her, and attempting to sexually assault her, only stopping due to outside interruption; the court held that it was the ‘initial stage of preparation’ and used the no-penetration argument to downgrade the offence.12 In the case of Koppula Venkat Rao, it was held that the predator must possess an absolute determination to go beyond interruption and complete the act; the sexual assault of the victim would not qualify as rape unless it reached completion. Thus, by establishing these qualifications for sexual assault, the Supreme Court laid the groundwork for a pattern of future regressive judgments.13
Furthermore, it can be held that the Allahabad High Court did not have a settled pattern of making such judgments, as a few months prior, in the case of Vijay Prakash Shukla v State of UP (2025), which possessed similar facts of an interrupted assault, the matter was judged correctly as an attempt to rape.14
This contrast of judgments arising in similar case cannot hold inconsistency in case-by-case interpretation as it is a fatal defect which can be cured solely through meaningful legislative change.
IV — Who the Language Protects
The language inside courtrooms is never neutral. This dilution of vocabulary appears only to benefit the accused, while invalidating the victim’s trauma. The rigid checklist of what constitutes a sexual crime by the judiciary pushes back feminist jurisprudence by decades, demanding physical evidence of the completion of the crime, such as penetration or removal of clothes.
Notably, judiciary’s approach was not foundationally flawed. The apex court in State of Punjab v Gurmit Singh (1996) laid down the principle that the absence of physical injury and resistance marks does not negate the actual occurrence of sexual assault.15 This ruling appropriately shifted the focus toward the violation of women’s integrity. This was further solidified in Madan Lal v State of Jammu and Kashmir (1997), where the perpetrator’s inability to reach a physical milestone such as penetration or removal of clothes due to interruption does not downgrade the crime from sexual assault.16 These landmark judgments are continuously being ignored in successive Supreme Court and lower court judgments.
Furthermore, this legal ambiguity under section 62 of the BNS does not affect both parties equally.17 This linguistic dilution creates a structural divide by prolonging the case indefinitely, and navigating such revision is only possible for those who can afford prolonged trials and the best lawyers. Under sections 250 and 251 of the BNSS, these cases can be dragged on endlessly through a microscopic focus on physical timelines by the defence. The poor and marginalised become unable to sustain the case in the long run and ultimately withdraw it. Ultimately, this creates a class divide between those who can and cannot afford justice.
Recommendation
Addressing and dismantling this structural flaw is absolutely essential. The system must move away from protecting the perpetrator at the cost of victims, and away from upholding a mechanical, completion-centric approach.
The legislature must amend section 62 of the BNS to include an Explanation Clause for sexual offences. the following reforms are urgently required :
- The law should consider any act as an attempt to rape when the predator executes any action showing clear sexual intent, regardless of whether he was successful in it. The court should not speculate as to whether the perpetrator would have stopped of his own accord absent intervention.
- The attempt to commit a sexual offence should not depend on a physical milestone, such as actual penetration occurring or a clothing article being breached.
- The law should treat even the initial crossing of physical boundaries (such as dragging, trapping, or cornering someone) as an active attempt at sexual assault rather than mere preparation for it.
- The law should not impose any requirement that the victim fought back, as victims often freeze due to trauma and fear, unable to cope with the reality of the attempted assault.
Conclusion
In India, The grave act of sexual assault is already linked with social humiliation. If the judicial procedure itself becomes harder to navigate, and the court’s language begins to show favoritism, then access to justice itself becomes limited.
There is no guarantee that other judicial bodies will continue acting according to the precedent set by the Supreme Court’s 2026 ruling, as noticed from previous instances.18 Hence, a codified explanation under section 62 of the BNS is necessary.
The court must not be allowed to treat the victim’s body as a crime scene map, picking apart their traumatic violation and negating it because they were saved before the predator could complete the sexual assault. The court needs to treat their being with dignity, instead of focusing on what the predator failed to accomplish, relative to the absolute and forceful violation of the victim. Justice can only be served if the language of the courts stops being a sanctuary for the accused, and starts giving voice to victims’ trauma. The choice of victim-centric language must not be left to the whim of the judiciary, it is a legal mandate.
References
1Akash v State of UP (Allahabad HC, 2025).
2In Re: Order Dated 17.03.2025 Passed by the High Court of Judicature at Allahabad in Criminal Revision No 1449 of 2024, SMW (Crl) No 1 of 2025 (SC).
3Tarkeshwar Sahu v State of Bihar (Now Jharkhand) (2006) 8 SCC 560.
4Indian Penal Code 1860, s 511; Bharatiya Nyaya Sanhita 2023, s 62.
5Rabbo v State of Haryana — citation not independently verified; confirm primary citation before relying on this case in submission.
6Akash v State of UP (n 1).
7Indian Penal Code 1860, s 511; Bharatiya Nyaya Sanhita 2023, s 62.
8Standing Committee on Home Affairs, 246th Report on the Bharatiya Nyaya Sanhita Bill 2023 (Rajya Sabha, November 2023).
9In Re: Order Dated 17.03.2025… (n 2).
10Akash v State of UP (n 1).
11In Re: Order Dated 17.03.2025… (n 2).
12Tarkeshwar Sahu (n 3).
13Koppula Venkat Rao v State of Andhra Pradesh (2004) 3 SCC 602; Aman Kumar v State of Haryana (2004) 4 SCC 379.
14Vijay Prakash Shukla v State of UP, 2025:AHC-LKO:41476 (Allahabad HC, Lucknow Bench, 21 July 2025).
15State of Punjab v Gurmit Singh (1996) 2 SCC 384.
16 Madan Lal v State of J&K (1997) 7 SCC 677.
17Bharatiya Nyaya Sanhita 2023, s 62.
18In Re: Order Dated 17.03.2025… (n 2).
