Calcutta High Court: In an appeal seeking suspension of sentence filed by the appellant against his conviction under Section 10 of the POCSO Act and Sections 448, 376(2)(c) and 511 of Penal Code, 1860, a division bench of Arijit Banerjee and Biswaroop Chowdhury, JJ. granted bail to the petitioner, subject to furnishing a bond and two sureties, with the conviction and sentence remaining suspended until the final disposal of the appeal.
The petitioner had been convicted for an offence under Section 10 of the POCSO Act, 2012, and under Sections 448, 376(2)(c), 511 of Penal Code, 1860 (IPC). He was sentenced to undergo rigorous imprisonment for 12 years along with a fine of Rs. 50,000. He, hence, filed an appeal against this conviction, seeking suspension of his sentence while the appeal was pending.
The petitioner contended that he had been falsely implicated in the case and that the evidence presented did not support the charge of attempted rape. He argued that even if the testimony of the victim, the medical examination report, and the statements of other witnesses were taken at face value, the conviction would not be sustainable. He also pointed out that, at most, the prosecution could have made out a case for aggravated sexual assault under Section 10 of the POCSO Act, which carries a lesser sentence. Additionally, he highlighted that he had already been in custody for approximately two years and four months, and there was no likelihood of the appeal being heard promptly.
The Counsel for the petitioner argued that, without penetration, an offence under Section 376 IPC could not be made out. The advocate also relied on a distinction between the stages of preparation and attempt in a rape case, referring to the case of State of M.P. v. Mahendra, (2022) 12 SCC 442 and argued that the evidence did not support a charge of attempted rape and that the charge, at best, could only be one of aggravated sexual assault, which carries a punishment of 5 to 7 years imprisonment.
The State Counsel, on the other hand, argued that there was a distinction between the granting of bail in cases of pre-trial arrests and post-conviction bail. The presumption of innocence, which applies in pre-trial cases, does not apply once a conviction has been made. The counsel pointed out that the Court must carefully consider the merits of the appeal and only grant bail when there are compelling reasons. Counsel further referred to the case of Preet Pal Singh v. State of UP, (2020) 8 SCC 645, argued that suspension of sentence must be based on the merits of the case and strong reasons.
The Court noted that the victim’s statement, combined with the medical examination report, did not indicate penetration or rape. The victim’s testimony, which suggested that the petitioner was under the influence of alcohol and had groped her breasts, might support a charge of aggravated sexual assault under Section 10 of the POCSO Act. However, it did not establish that the petitioner had committed attempted rape. The Court observed that the charge of attempted rape was not substantiated by the available evidence.
The Court remarked that “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 appeal is for the year 2024. A huge number of much older criminal appeals are pending. It is highly unlikely that the present appeal will be heard at an early date. If at the final hearing of the appeal, the charge is scaled down to one under Section 10 of the POCSO Act and the conviction is sustained on that count only, the maximum period of imprisonment that the petitioner can be subjected to is 7 years and a minimum of 5 years. The petitioner has already been in incarceration for about 2 years 4 months.”
Furthermore, the Court considered the time elapsed since the petitioner’s incarceration, noting that he had already been in custody for over two years, and the possibility of an early hearing of the appeal seemed unlikely, given the backlog of older cases. The Court assessed the quality of evidence and concluded that the appeal was not devoid of merit. Therefore, it decided to suspend the petitioner’s sentence and grant him bail pending the appeal’s disposal.
The Court directed that the petitioner be released on bail upon furnishing a bond of Rs. 10,000 with two sureties of like amount, one of whom must be local. The Court made it clear that the operation of the conviction and sentence would remain suspended until the appeal was decided.
[Zomangaih v. State of West Bengal, CRA (DB) 16 of 2025 IA No. CRAN 2 of 2025, decided on 25-04-2025]
Advocates who appeared in this case :
For the appellant: Ms. Ashima Mandia, Adv. Ms. Mandakini Singh, Adv. Mr. Debarshi Dhar, Adv. Ms. Taniya Bhowmik, Adv.
For the State: Mr. Aditi Shankar Chakraborty, LD. APP, Mr. Sourav Gan
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