Calcutta HC says grabbing a minor's breasts is 'aggravated sexual assault' but 'not rape' under POCSO Act

The Calcutta High Court has ruled that grabbing a minor's breasts does not constitute attempted rape under the Protection of Children from Sexual Offences (POCSO) Act. The decision came during the appeal of a man who had been sentenced to 12 years of imprisonment and a fine of ₹50,000 for offenses under two sections of the POCSO Act. The accused had already spent over two years in jail before his appeal was heard.

The case involved allegations that the accused, while intoxicated, forcibly grabbed the breasts of a minor. The prosecution initially charged him under relevant sections of the POCSO Act, which pertains to offenses involving minors. However, after examining the evidence, the High Court bench, consisting of Justices Arijit Banerjee and Biswaroop Chowdhury, found that there was no evidence of penetration, which is a key element for an offense to qualify as attempted rape.

In their judgment, the court clarified that while grabbing a minor's breasts could constitute sexual harassment under Section 10 of the POCSO Act, it did not meet the legal definition of attempted rape. The bench emphasized that for attempted rape charges to apply, an attempt at penetration must be evident, which was not the case in this instance. Consequently, the court ruled that the initial conviction under attempted rape was incorrect.

The applicant had claimed that he was falsely accused and that there was no evidence of an attempted rape. His defense argued that charges under Section 376 of the Indian Penal Code, related to rape, could not be sustained because no penetration occurred. Instead, they suggested that the charges could be re-evaluated under Section 10 of the POCSO Act, which deals with sexual harassment, carrying a lesser penalty.

This ruling follows an earlier controversial decision by the Allahabad High Court, which similarly stated that grabbing a minor's breasts or tearing off her pajama lace does not constitute attempted rape. The Allahabad ruling was widely criticized, leading the Supreme Court to stay the decision. The Calcutta High Court’s ruling adds to the ongoing legal discussions regarding the scope and application of the POCSO Act in cases involving minors and sexual offenses.