The Calcutta High Court on Friday suspended the conviction and sentence of a man who was found guilty by the trial court and sentenced to 12 years imprisonment for aggravated sexual assault and attempt to rape of a minor girl..The Bench of Justices Arijit Banerjee and Biswaroop Chowdhury in the order gave a prima facie finding that the attempt to grope the breasts of the victim would not amount to the offence of attempt to rape but would only support the charge of aggravated sexual assault. "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 Court said..The Court passed the order on an appeal moved by one Zomangaih @ Zohmangaiha (petitioner) seeking suspension of his sentence after he was convicted by Additional District and Sessions Judge, Kurseong under provisions of Indian Penal Code and Protection of Children from Sexual Offences Act (POCSO Act) in November 2024.Advocate Ashima Mandla, representing the convict, argued before the Court that the evidence on record did not support the charge of attempt to rape.It was submitted that the victim's police complaint had no whisper of the accused grabbing her breast but only attempt to kiss her. The counsel further highlighted that it was only in the victim's testimony before the trial court that she accused the petitioner of grabbing her breast "while restraining her from leaving the house."In this context, it was argued that the victim's statement did not lead to an irresistible conclusion that the alleged breast grabbing was with sexual intent "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."Mandla also argued that a sentence of 12 years imprisonment could not have been imposed by the trial court..After considering the arguments and trial court records, the High Court said that if at the final hearing of the appeal, the charge is scaled down to the aggravated sexual assault, the maximum period of imprisonment that the convict can be subjected to is 7 years and a minimum of 5 years. The petitioner has already been in incarceration for about 2 years and 4 months, it noted. It further said that the appeal is of 2024 and huge number of much older criminal appeals are pending. It is highly unlikely that the present appeal will be heard on the early date, the Court added. Thus, it proceeded to suspend the sentence of the convict and ordered his release."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 said. .Further, the Court also suspended the order of conviction in this case."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, it clarified that all the observations made in the order are only for the purpose of disposing of the present application and shall have absolutely no bearing on the hearing of the appeal..Advocates Ashima Mandla, Mandakini Singh, Debarshi Dhar and Taniya Bhowmik represented the petitioner-convict.Additional Public Prosecutor Aditi Shankar Chakraborty and Advocate Sourav Gangully represented the State..[Read Order]
The Calcutta High Court on Friday suspended the conviction and sentence of a man who was found guilty by the trial court and sentenced to 12 years imprisonment for aggravated sexual assault and attempt to rape of a minor girl..The Bench of Justices Arijit Banerjee and Biswaroop Chowdhury in the order gave a prima facie finding that the attempt to grope the breasts of the victim would not amount to the offence of attempt to rape but would only support the charge of aggravated sexual assault. "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 Court said..The Court passed the order on an appeal moved by one Zomangaih @ Zohmangaiha (petitioner) seeking suspension of his sentence after he was convicted by Additional District and Sessions Judge, Kurseong under provisions of Indian Penal Code and Protection of Children from Sexual Offences Act (POCSO Act) in November 2024.Advocate Ashima Mandla, representing the convict, argued before the Court that the evidence on record did not support the charge of attempt to rape.It was submitted that the victim's police complaint had no whisper of the accused grabbing her breast but only attempt to kiss her. The counsel further highlighted that it was only in the victim's testimony before the trial court that she accused the petitioner of grabbing her breast "while restraining her from leaving the house."In this context, it was argued that the victim's statement did not lead to an irresistible conclusion that the alleged breast grabbing was with sexual intent "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."Mandla also argued that a sentence of 12 years imprisonment could not have been imposed by the trial court..After considering the arguments and trial court records, the High Court said that if at the final hearing of the appeal, the charge is scaled down to the aggravated sexual assault, the maximum period of imprisonment that the convict can be subjected to is 7 years and a minimum of 5 years. The petitioner has already been in incarceration for about 2 years and 4 months, it noted. It further said that the appeal is of 2024 and huge number of much older criminal appeals are pending. It is highly unlikely that the present appeal will be heard on the early date, the Court added. Thus, it proceeded to suspend the sentence of the convict and ordered his release."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 said. .Further, the Court also suspended the order of conviction in this case."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, it clarified that all the observations made in the order are only for the purpose of disposing of the present application and shall have absolutely no bearing on the hearing of the appeal..Advocates Ashima Mandla, Mandakini Singh, Debarshi Dhar and Taniya Bhowmik represented the petitioner-convict.Additional Public Prosecutor Aditi Shankar Chakraborty and Advocate Sourav Gangully represented the State..[Read Order]
