Attempt To Grope Breasts Not Attempted Rape: Calcutta High Court Temporarily Suspends POCSO Conviction
|It was contended that the allegations on record did not fulfill the criteria for an attempted rape charge.
The Calcutta High Court while hearing an appeal in a POCSO case, observed that an attempt to grope the breasts of a minor, though serious, does not prima facie amount to attempted rape. It temporarily suspended the conviction and 12-year sentence of a man who had previously been found guilty of aggravated sexual assault and attempted rape of a minor girl.
The order came in response to an appeal filed by the accused, challenging his conviction and sentence passed by the Additional District and Sessions Judge, Kurseong, in November 2024. The appellant was convicted under relevant provisions of the Indian Penal Code (IPC) and the POCSO Act.
A Division Bench of Justice Arijit Banerjee and Justice Biswaroop Chowdhury said, "The evidence of the victim girl and the medical examination report prima facie do not indicate that there was any penetration or rape committed by the petitioner on the victim girl nor that he attempted to penetrate. The victim girl has deposed that the petitioner was under the influence of alcohol and tried to grope her breasts. Such evidence may support a charge of aggravated sexual assault under Section 10 of the POCSO Act, 2012, but prima facie does not indicate commission of the offence of attempted rape."
Advocate appearing for the petitioner, contended that the allegations on record did not fulfill the criteria for an attempted rape charge.She pointed out discrepancies between the victim’s police complaint and her testimony during trial. Specifically, the original complaint only mentioned an attempt to kiss and made no reference to any groping. The allegation regarding breast grabbing emerged later during the victim’s court deposition.
She further argued that the alleged act of groping occurred only when the victim tried to leave the premises, suggesting that it might have been an effort to physically restrain her rather than a sexually motivated act. She emphasized that no such allegation was made about the time the two were alone in the room.
The defense also challenged the severity of the sentence, stating that a 12-year term exceeded what was permissible under the aggravated sexual assault provision. As per Section 10 of the POCSO Act, the maximum sentence for aggravated sexual assault is seven years, with a minimum of five years.
Taking into account that the petitioner had already been in custody for approximately 2 years and 4 months, the High Court acknowledged that he had served a substantial part of what could be the maximum sentence if the charge is ultimately scaled down during appeal.
The Bench also noted the backlog of criminal appeals, observing that many appeals older than this one (filed in 2024) are still pending, making an early hearing highly unlikely.
"On an overall assessment of the quality of the evidence on record and on an assimilation of the facts of the case, we are of the view that it cannot be said that the appeal is completely devoid of merits. Considering the period of incarceration of the petitioner and that there is very little possibility of an early hearing and disposal of the appeal we are inclined to suspend the sentence of the petitioner and grant him bail," the Court said.
The Court accordingly ordered the petitioner’s release on bail. Additionally, the operation of both his conviction and sentence—including the payment of fines—was stayed until the appeal is decided or until further orders.
However, the Court stressed that all observations made in their ruling were solely for the purpose of the current application and should not influence the final adjudication of the appeal.
Cause Title: Zomangaih @ Zohmangaiha v. State of West Bengal, [2025:CHC-JP:63-DB]
Appearance:
Petitioner: Advocates Ashima Mandia, Mandakini Singh, Debarshi Dhar, and Taniya Bhowmik
Respondents: Additional Public Prosecutor Aditi Shankar Chakraborty and Advocate Sourav Gangully