Calcutta High Court Yesterday (April 26) suspended conviction of man jailed for 12 years under POCSO Act. Court says evidence shows aggravated sexual assault, not attempted rape.
Thank you for reading this post, don't forget to subscribe!
WEST BENGAL: The Calcutta High Court on Friday suspended the conviction and 12-year jail sentence of a man who was earlier found guilty of serious sexual crimes against a minor girl.
This order was passed by a Division Bench consisting of Justices Arijit Banerjee and Biswaroop Chowdhury, who examined the evidence and felt that the actions of the accused did not meet the legal standard for attempted rape, but could amount to aggravated sexual assault under the POCSO Act.
The Court made a very clear observation while passing the order:
“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.”
This case came up before the High Court as an appeal by the man named Zomangaih @ Zohmangaiha (the petitioner), who had been convicted by the Additional District and Sessions Judge, Kurseong, in November 2024 under the Indian Penal Code (IPC) and Protection of Children from Sexual Offences (POCSO) Act.
ALSO READ: Allahabad HC Controversy: “Grabbing Breasts, Snapping Pyjama String Not Attempt to Rape!”
Senior Advocate Ashima Mandla, who appeared for the convict, strongly argued that the available evidence did not support the serious charge of attempt to rape. It was pointed out that the original police complaint filed by the minor girl had no mention of any breast grabbing incident by the accused. It only mentioned that the accused tried to kiss her.
It was also highlighted that the claim of breast grabbing appeared only later in the victim’s statement before the trial court. The victim had said that the accused grabbed her breast “while restraining her from leaving the house.”
Based on this, Mandla submitted that this statement could not be taken as clear proof of sexual intent.
She said that-
“As it appears to be in the context of grabbing the prosecutrix from escaping, and no alleged breast grabbing is claimed when the Appellant was in the room with the PW-1, but only when she was escaping.”
She also argued that the punishment of 12 years’ imprisonment was too harsh and could not have been imposed by the trial court for this nature of charge.
The Calcutta High Court carefully reviewed the arguments made and the trial court documents. It then pointed out that if, during the final hearing, the charge is reduced to aggravated sexual assault, then the maximum punishment possible would be 7 years, and the minimum would be 5 years.
The Court also noted that the accused had already spent 2 years and 4 months in jail.
Another point raised by the Court was that the appeal was filed only in 2024, while there were many older criminal appeals still waiting to be heard. So, it would be highly unlikely that this appeal will be heard on the early date, the judges noted.
Therefore, the Court decided to suspend both the sentence and the conviction of the petitioner and ordered that he should be released from jail.
In its detailed order, the High Court clearly stated:
“On an overall assessment of the quality of the evidence on record and on an assimilation of the facts of the case, we are of the view that it cannot be said that the appeal is completely devoid of merits. Considering the period of incarceration of the petitioner and that there is very little possibility of an early hearing and disposal of the appeal we are inclined to suspend the sentence of the petitioner and grant him bail.”
The Court further ordered that even the conviction will remain suspended until the final hearing.
“The operation of the order of conviction and sentence shall remain suspended till disposal of the appeal or until further orders, whichever is earlier. We also stay the operation of payment of fine till disposal of the appeal.”
However, the Court clarified that this order was only meant for deciding the current application and should not influence the final hearing. It said that all the comments made in the order shall have absolutely no bearing on the hearing of the appeal.
The petitioner-convict was represented by Advocates Ashima Mandla, Mandakini Singh, Debarshi Dhar, and Taniya Bhowmik.
On the other hand, the State was represented by Additional Public Prosecutor Aditi Shankar Chakraborty and Advocate Sourav Gangully.
CASE TITLE:
Zomangaih @ Zohmangaiha vs State of West Bengal
Would You Like Assistance In Drafting A Legal Notice Or Complaint?
CLICK HERE
Click Here to Read Our Reports on POCSO
FOLLOW US ON YOUTUBE FOR MORE LEGAL UPDATES
