April 26, 2025 – The Calcutta High Court has clarified that an attempt to grope a minor girl’s breast does not constitute attempted rape under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
Instead, such an act may amount to an attempt to commit aggravated sexual assault under Section 10 of the Act, provided there is no evidence of penetrative intent. The ruling came in an appeal seeking suspension of a trial court’s conviction and sentence.
A division bench comprising Justices Arijit Banerjee and Biswaroop Chowdhury delivered the judgment while hearing an appeal filed by a petitioner convicted by a lower court. The trial court had found the petitioner guilty of aggravated sexual assault under Section 10 of the POCSO Act, as well as attempted rape under Sections 376(2)(c) and 511 of the Indian Penal Code (IPC). The petitioner was sentenced to 12 years of rigorous imprisonment and fined Rs. 50,000.
The petitioner challenged the conviction, arguing that the charge of attempted rape was not substantiated by evidence and that he had been falsely implicated. The petitioner’s counsel contended that, in the absence of penetration or attempted penetration, an offence under Section 376 IPC could not be established. At most, the act could be classified as aggravated sexual assault under the POCSO Act, which carries a lesser punishment of 5 to 7 years’ imprisonment.
The High Court reviewed the evidence, including the victim’s testimony and the medical examination report. The victim, a minor, stated that the petitioner, while intoxicated, attempted to grope her breasts. The medical report showed no signs of penetration or attempted penetration.
The bench observed, “The evidence does not prima facie support the charge of attempted rape. The act of attempting to grope the victim’s breasts, as described, aligns with the offence of aggravated sexual assault under Section 10 of the POCSO Act, 2012.”
Consequently, the court suspended the petitioner’s conviction and sentence pending the final hearing of the appeal. The bench also stayed the payment of the fine until the appeal’s disposal. The court noted that the petitioner had already served approximately 28 months in custody. If the charge is revised to aggravated sexual assault alone after the final hearing, the imprisonment term could be reduced to between 5 and 7 years.
Case: Zomangaih @ Zohmangaiha -Vs.- State of West Bengal
Case No: CRA (DB) 16 of 2025
