Kolkata, April 25 The Calcutta High Court on Friday, suspending an earlier order by a West Bengal trial court convicting and sentencing an accused under the Protection of Children from Sexual Offences (Pocso) Act, observed that an attempt grope the breasts of a victim can only support the charge of "aggravated sexual assault" and not "attempt to rape", under the act.
The trial court found the accused guilty of both "aggravated sexual assault" and "attempt to rape", and had sentenced him 12 years of rigorous imprisonment.
Hearing the appeal, a division bench of Justice Arijit Banerjee and Justice Biswaroop Chowdhury also observed that the medical examination of the victim in the case did not indicate any penetration or attempt of penetration.
It noted that, as per the version of the victim, the accused tried to "grope her breasts" under the influence of alcohol.
"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 division bench observed.
It also observed that if after the final hearing, the charge is scaled down to just "aggravated sexual assault" from both "aggravated sexual assault" and "attempt to rape", the imprisonment period for the convict would also be scaled down between five and seven years from 12 years, which is applicable in case of "attempt to rape".
In this particular case, the convict has already spent 28 months behind bars.
The bench ordered that the operation of the order of conviction and sentence shall remain suspended till the disposal of the appeal or until further orders, whichever is earlier. It also stayed the payment of the fine till the disposal of the appeal.
However, at the same time, the division bench also clarified that its observations should have no impact on the hearing of the appeal.
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