[POCSO Act] Trying To Grope Victim's Breast Doesn't Fall Under Definition Of Attempted Rape: Calcutta High Court

The Calcutta High Court has held that the attempt of a man to grope a minor girl's breast in an inebriated state, did not tantamount to the offence of attempted rape under the POCSO act, but could be categorised as attempt to commit aggravated sexual assault due to there being no penetrative act.

A division bench of Justices Arijit Banerjee and Biswaroop Chowdhury held:

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 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 petitioner had filed an appeal for suspension of sentence after being convicted of the offence punishable under Section 10 of the POCSO Act 2012 and under Sections 448/376(2)(c)/511 of IPC and was sentenced to undergo rigorous imprisonment for 12 years and to pay fine of Rs. 50,000/-.

The petitioner stated that he has been falsely implicated. The evidence on record does not support the charge of attempted rape. Even if the evidence of the victim girl, the de-facto complainant, the examining Doctor and other witnesses are taken at face value, the conviction cannot be sustained.

It was stated that he is in custody for about 2 years 4 months. There is no possibility of an early hearing of the appeal.

Counsel for the petitioner further submitted that without penetration, an offence under Section 376 IPC cannot be made out. It was stated that at the highest, the prosecution may be able to make out a case of aggravated sexual assault under Section 10 of the POSCO Act for which the punishment prescribed is imprisonment between 5 and 7 years.

The petitioner has served out a substantial part of the prescribed period and should be enlarged on bail, it was argued.

Upon considering the submissions, the court noted that the evidence given by the victim did not suggest any signs of penetration, and thus, the attempt of the petitioner to grab her breasts could best be an instance of aggravated sexual assault and not of attempted rape.

Thus, the court granted bail to the petitioner upon noting that he had already been incarcerated for more than two years.

Case: Zomangaih @ Zohmangaiha -Vs.- State of West Bengal  

Case No: CRA (DB) 16 of 2025

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