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Breast-Groping Without Penetration Not Attempted Rape: Calcutta HC Interpretation of POCSO

Calcutta High Court Suspends Conviction in POCSO Case Involving Minor Girl, Reduces Charge from Attempted Rape to Aggravated Sexual Assault

In a significant Calcutta High Court judgment concerning the Protection of Children from Sexual Offences (POCSO) Act, the court has suspended the conviction and 12-year sentence of a man previously found guilty of attempted rape and aggravated sexual assault of a minor girl. The bench, comprising Justices Arijit Banerjee and Biswaroop Chowdhury, clarified that groping the victim’s breasts did not meet the legal threshold for attempted rape under the Indian Penal Code (IPC) or the POCSO Act.

The High Court in Kolkata observed that both the victim’s testimony and the medical report failed to establish any penetration or intent to penetrate—criteria essential for an attempted rape conviction. The court ruled that the act, while serious, constituted aggravated sexual assault under Section 9 of the POCSO Act, rather than rape or attempted rape under Section 376 or Section 376/511 IPC.

The accused, identified as Zomangaih @ Zohmangaiha, had been convicted in November 2024 and subsequently appealed for suspension of sentence and conviction. Represented by criminal defense lawyer Ashima Mandla, the defense argued inconsistencies in the victim’s statements and the excessive nature of the 12-year prison sentence, pointing out that the maximum punishment for aggravated sexual assault under POCSO is seven years.

The defense further claimed that the breast-groping incident was possibly an attempt to restrain the victim rather than a sexually motivated act, challenging the sexual intent requirement of the original charges.

Given that the accused had already served over two years in judicial custody and considering the potential delay in the appeal hearing, the court approved the interim release and suspended the conviction. It also emphasized that these findings were provisional and would not affect the final outcome of the criminal appeal.

This POCSO judgment by Calcutta High Court underscores the importance of clearly distinguishing between different sexual offences under Indian law and highlights the need for precise legal interpretation in sexual assault cases involving minors.

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