The Calcutta High Court has 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 Protection of Children from Sexual Offences (POCSO) Act.
The court made this statement while suspending an earlier order by a West Bengal trial court convicting and sentencing an accused under the POCSO Act.
The trial court had sentenced the accused 12 years of rigorous imprisonment after found him guilty of both "aggravated sexual assault" and "attempt to rape".
While hearing the accused’s 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.
The court noted that, as per the victim’s statement, the accused tried to "grope her breasts" under the influence of alcohol.
The division bench observed, "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".
Earlier, Allahabad High Court had also ruled that acts like “grabbing a child victim’s breasts” and “breaking the string of her pyjamas” do not amount to rape or an attempt to rape. Taking suo motu cognisance of the judgment, the Supreme Court had slammed it as insensitive, noting that it was not a spontaneous decision but was delivered four months after reserving the verdict-- indicating deliberate consideration.
