The Calcutta High Court recently suspended the conviction and 12-year sentence of a man found guilty by a trial court for attempting to rape a minor, holding that the alleged act constituted aggravated sexual assault under the POCSO Act, not an attempt to rape.
A Bench of Justices Arijit Banerjee and Biswaroop Chowdhury observed that there was no evidence suggesting penetration or even an attempt at penetration. The victim had testified that the accused, under the influence of alcohol, tried to grope her breasts—an act the Court held may fall within the scope of aggravated sexual assault under Section 10 of the POCSO Act, 2012, but does not meet the threshold for attempted rape.
“The evidence of the victim and medical records do not prima facie indicate an attempt to penetrate. The act of groping may support a charge of aggravated sexual assault, but not attempt to rape,” the Court stated.
The case arose from a conviction handed down in November 2024 by the Additional District and Sessions Judge, Kurseong. The accused, Zomangaih @ Zohmangaiha, appealed for suspension of his sentence. His counsel, Advocate Ashima Mandla, argued that the trial court had imposed a sentence disproportionate to the evidence on record.
She submitted that the initial police complaint made no mention of breast grabbing, only an attempt to kiss, and that the allegation regarding groping emerged only during the trial, while the victim was attempting to escape. The defense argued that this did not conclusively establish sexual intent.
After reviewing the case, the Court acknowledged that even if the offence is scaled down to aggravated sexual assault, the statutory sentence ranges from 5 to 7 years. Given that the convict has already served over two years in custody and that the appeal is unlikely to be heard soon amid a backlog of older cases, the Court granted him bail and suspended both the conviction and the sentence.
“The operation of the order of conviction and sentence shall remain suspended till disposal of the appeal or until further orders, whichever is earlier,” the Bench ordered, also staying the payment of fine.
The Court clarified that its findings were strictly for the purposes of deciding the bail application and would not influence the final outcome of the appeal.
Advocates Ashima Mandla, Mandakini Singh, Debarshi Dhar, and Taniya Bhowmik appeared for the petitioner. Additional Public Prosecutor Aditi Shankar Chakraborty and Advocate Sourav Gangully represented the State.
