The Calcutta High Court has ruled that an attempt by a man to grope a minor girl’s breasts while in an inebriated state does not amount to attempted rape under the Protection of Children from Sexual Offences (POCSO) Act, 2012, but qualifies as an attempt to commit aggravated sexual assault. A division bench comprising Justices Arijit Banerjee and Biswaroop Chowdhury observed that the evidence presented during the trial, including the testimony of the victim and the medical examination report, did not indicate any penetration or an attempt to penetrate, which is necessary to establish the offence of attempted rape.
“We have carefully gone through the evidence recorded by the learned Trial Court. 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 court stated. “Such evidence may support a charge of aggravated sexual assault under Section 10 of the POCSO Act, but prima facie does not indicate commission of the offence of attempted rape.”
The petitioner had been convicted under Section 10 of the POCSO Act and Sections 448, 376(2)(c), and 511 of the Indian Penal Code (IPC), and sentenced to 12 years of rigorous imprisonment along with a fine of ₹50,000. However, he appealed for suspension of sentence, arguing that he had been falsely implicated and that the evidence did not support the charge of attempted rape. His counsel contended that without proof of penetration, a charge under Section 376 IPC (rape) could not be sustained. At best, it was argued, the case amounted to aggravated sexual assault under Section 10 of the POCSO Act, which carries a lighter punishment of five to seven years’ imprisonment.
The Court took note that the petitioner had already spent more than two years and four months in custody, and the likelihood of an early hearing of the appeal was minimal. Upon reviewing the submissions and the evidence, the Court concluded that the offence amounted to aggravated sexual assault rather than attempted rape. Accordingly, the Court granted bail to the petitioner, considering the period of incarceration he had already served and the nature of the allegations as supported by the evidence on record.
