‘Trying to grope victim’s breast does not amount to attempted rape’: Calcutta HC

Calcutta HC groping rape

In its recent ruling, the Calcutta High Court stated that a man’s drunken attempt to grope a minor girl does not amount to attempted rape under the POCSO Act, but rather qualifies as aggravated sexual assault, given the absence of any penetrative act.

A Division Bench comprising Justices Arijit Banerjee and Biswaroop Chowdhury made the observation while hearing an appeal. They noted that the victim’s testimony, along with her medical examination, showed no signs of penetration, nor any attempt to penetrate. Instead, the minor stated that the man, clearly under the influence of alcohol, had tried to grope her breasts — a serious act no doubt, but legally distinct from attempted rape.

“Such evidence may support a charge of aggravated sexual assault under Section 10 of the POCSO Act, but does not prima facie indicate an offence of attempted rape,” the Court remarked.

The petitioner had been convicted by a trial court under multiple sections, including Sections 448, 376(2)(c), and 511 of the IPC, and Section 10 of the POCSO Act. He was sentenced to 12 years of rigorous imprisonment along with a fine of ₹50,000. Challenging this, he approached the High Court, arguing that the evidence simply didn’t back an attempted rape charge — and even if all witness testimonies were taken at face value, the conviction could not stand.

His counsel also pointed out that the petitioner had already spent over two years behind bars, and there was little hope of the appeal being heard anytime soon. Without proof of penetration, they argued, Section 376 IPC (rape) wouldn’t apply, and at most, the case would fall under aggravated sexual assault, which carries a lighter sentence of 5–7 years.

The Court agreed. It noted that given the nature of the evidence, the petitioner’s actions amounted to aggravated sexual assault, not attempted rape. Considering he had already served a substantial portion of the maximum sentence for that lesser offence, the Court granted him bail.

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