The Court made the observation while suspending the conviction and sentence of a man who was found guilty by the trial court for attempt to rape.
On Friday, the Calcutta High Court suspended the conviction and 12-year sentence of a man found guilty by the trial court for aggravated sexual assault and attempted rape of a minor.
In its order, the Bench comprising Justices Arijit Banerjee and Biswaroop Chowdhury observed that, prima facie, an attempt to grope the victim’s breasts would not constitute an attempt to rape but would fall under the offence of aggravated sexual assault.
“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,” the Court said.
The Court issued the order on an appeal filed by Zomangaih @ Zohmangaiha (petitioner), who sought suspension of his sentence following his conviction in November 2024 by the Additional District and Sessions Judge, Kurseong, under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act.
Advocate Ashima Mandla, appearing for the convict, contended before the Court that the evidence on record did not substantiate the charge of attempt to rape.
She argued that the victim’s police complaint made no mention of the accused grabbing her breast and only referred to an attempt to kiss her.
It was further pointed out that the allegation of the petitioner grabbing the victim’s breast “while restraining her from leaving the house” surfaced for the first time during her testimony before the trial court.
In this context, it was argued that the victim’s statement did not conclusively establish that the alleged act of grabbing her breast was driven by sexual intent “as it appears to be in the context of grabbing the prosecutrix from escaping, and no alleged breast grabbing is claimed when the Appellant was in the room with the PW-1, but only when she was escaping.”
Mandla further contended that the trial court was not justified in imposing a 12-year prison sentence.
After examining the arguments and trial court records, the High Court observed that if, at the final hearing of the appeal, the charge is reduced to aggravated sexual assault, the convict would face a maximum imprisonment of 7 years and a minimum of 5 years.
The Court noted that the petitioner had already spent around 2 years and 4 months in custody.
It further observed that the appeal was filed in 2024, while a large number of much older criminal appeals are still pending.
Given the unlikelihood of an early hearing, the Court decided to suspend the convict’s sentence and ordered his release.
“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 also stayed the order of conviction in the case.
“The operation of the order of conviction and sentence shall remain suspended till disposal of the appeal or until further orders, whichever is earlier. We also stay the operation of payment of fine till disposal of the appeal.”
However, the Court clarified that all observations made in the order are solely for deciding the present application and will have no influence on the final hearing of the appeal.