The Calcutta High Court, Circuit Bench at Jalpaiguri, comprising Justice Arijit Banerjee and Justice Biswaroop Chowdhury, has suspended the sentence and granted bail to a convict in a POCSO case, holding that attempting to touch a minor girl’s breasts does not amount to an attempt to commit rape but may constitute aggravated sexual assault.
Background
The appellant had challenged the judgment and order dated November 29/30, 2024, passed by the Additional District and Sessions Judge, Kurseong, convicting him under Section 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Sections 448, 376(2)(c), and 511 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for 12 years along with a fine of ₹50,000.
An application for suspension of sentence and grant of bail was filed pending the hearing of the criminal appeal.
Arguments
The appellant’s counsel argued that the evidence, even if accepted in its entirety, did not make out a case of attempted rape. It was submitted that:
“At the highest, without penetration, offence under Section 376 IPC cannot be made out.”
Reliance was placed on decisions of the Supreme Court in Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, Aman Kumar v. State of Haryana, (2004) 4 SCC 379, and State of M.P. v. Mahendra @ Golu, (2022) 12 SCC 442, to contend that there must be an overt act towards commission of rape for the offence of attempt.
It was argued that:
“In the present case, the evidence on record does not even support a charge of attempt to commit rape. At the highest, the prosecution may be able to make out a case of aggravated sexual assault under Section 10 of the POCSO Act.”
It was further contended that the appellant had already undergone about 2 years and 4 months of imprisonment, and there was little likelihood of an early disposal of the appeal, given the pendency of older cases.
The State opposed the plea, submitting that post-conviction bail stands on a different footing and the presumption of innocence does not apply once there is a conviction. It was argued that strong and compelling reasons are required to suspend a sentence, relying on Preet Pal Singh v. State of Uttar Pradesh & Anr., (2020) 8 SCC 645.
It was also submitted that life imprisonment is not limited to 20 years, as clarified in Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600.
Court’s Observations
After carefully examining the evidence, the Court noted:
“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 specifically recorded that:
“The victim girl has deposed that the petitioner was under the influence of alcohol and tried to grope her breasts.”
It observed that 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 Bench highlighted that the appeal was relatively recent (of the year 2024), whereas numerous older appeals were pending, making an early hearing highly unlikely.
The Court further remarked:
“If at the final hearing of the appeal, the charge is scaled down to one under Section 10 of the POCSO Act and the conviction is sustained on that count only, the maximum period of imprisonment that the petitioner can be subjected to is 7 years and a minimum of 5 years. The petitioner has already been in incarceration for about 2 years 4 months.”
Finding that the appeal was not completely devoid of merit and considering the period of incarceration, the Court was inclined to suspend the sentence and grant bail.
Decision
The High Court ordered that the appellant be released on bail upon furnishing a bond of ₹10,000 with two sureties of like amount each, one of whom must be local, to the satisfaction of the Learned Additional District & Sessions Judge, Kurseong.
The Court also directed:
- The convict must personally appear or be represented during the hearing of the appeal.
- The operation of the conviction and sentence shall remain suspended until disposal of the appeal or further orders.
- The payment of the fine was stayed until the final decision of the appeal.
The Bench clarified:
“All observations made in this order are only for the purpose of disposing of the present application and shall have absolutely no bearing on the hearing of the appeal.”
Thus, the application for suspension of sentence was disposed of.
