Suspension of Sentence When Evidence Only Establishes Aggravated Sexual Assault under POCSO Act

Introduction

This commentary examines the Calcutta High Court’s decision in Zomangaih @ Zohmangaiha v. State of West Bengal (2025 CHC-JP 63-DB), delivered on April 25, 2025 by Justices Arijit Banerjee and Biswaroop Chowdhury. The appellant, Zomangaih, was convicted by the Additional District & Sessions Judge, Kurseong, under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Sections 448, 376(2)(c), and 511 of the Indian Penal Code (“IPC”), and sentenced to 12 years’ rigorous imprisonment plus fine. This appeal arises from an application under Section 389 Cr.P.C. seeking suspension of sentence pending his criminal appeal.

Key issues:

• Whether the evidence prima facie establishes attempted rape under Section 376(2)(c)/511 IPC or only aggravated sexual assault under Section 10 POCSO.
• Whether the trial court could impose a 12‐year sentence on an attempt charge.
• The legal principles governing post‐conviction bail under Section 389 Cr.P.C. and the distinction from pre‐trial bail.

Parties:

• Appellant: Zomangaih @ Zohmangaiha (represented by Ms. Ashima Mandia, Ms. Mandakini Singh, Mr. Debarshi Dhar, Ms. Taniya Bhowmik)
• Respondent: State of West Bengal (represented by Mr. Aditi Shankar Chakraborty, Mr. Sourav Gangully)

Summary of the Judgment

After hearing detailed submissions, the Bench held that:

• The victim’s testimony and medical report do not prima facie support any penetration or attempt at penetration; the facts point to groping of the breasts only.
• Such conduct can sustain a charge under Section 10 POCSO (aggravated sexual assault), punishable with 5–7 years’ imprisonment, not an attempted rape under Section 376/511 IPC, punishable with up to half the term of life or 10 years.
• Given the appellant’s 2 years 4 months’ incarceration and the unlikelihood of early disposal of the appeal, his sentence warrants suspension.
• The appellant was directed to furnish a bail bond of Rs. 10,000 with two sureties of like amount; operation of conviction and sentence was stayed until final disposal of the appeal.

Analysis

Precedents Cited

1. Tarkeshwar Sahu v. State of Bihar (2006) 8 SCC 560 – Held that “attempt” requires an overt act showing clear intention to commit the offence, distinguished from mere preparation.
2. Aman Kumar v. State of Haryana (2004) 4 SCC 379 – Clarified that without penetration, a rape charge under Section 376 IPC cannot be sustained.
3. Bibhishan v. State of Maharashtra (2007) 12 SCC 390 – Reinforced the need for proximate overt acts to constitute attempt in sexual offences.
4. State of M.P. v. Mahendra @ Golu (2022) 12 SCC 442 – Differentiated stages of preparation and attempt, underlining that attempt begins where preparation ends and an unequivocal step toward crime commission is made.
5. Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600 – Interpreted “life imprisonment” as the convict’s natural life, affecting computation under Section 57 IPC.
6. Preet Pal Singh v. State of Uttar Pradesh (2020) 8 SCC 645 – Laid down principles for post‐conviction bail under Section 389 Cr.P.C., emphasizing strong and compelling reasons for suspension of sentence.

Legal Reasoning

The High Court’s reasoning can be structured in three parts:

• Prima facie insufficiency for attempt: The Bench held that the victim’s account of groping breasts while the appellant was intoxicated lacks any evidence of penetration or overt acts necessary to make out the offence of attempted rape. Under Section 511 IPC read with Section 376, an attempt to commit rape requires at least an effort toward penetration. Here, the conduct only sustains aggravated sexual assault under Section 10 POCSO.
• Sentence calculation under IPC and POCSO: Section 10 POCSO prescribes 5–7 years’ imprisonment. The appellant, having served over 2 years, falls within the punishment range for the lesser offence. Moreover, questions on the trial court’s 12‐year sentence under Sections 376/511 IPC were left open for the final appeal and not decided at this interlocutory stage.
• Principles of post‐conviction bail (Section 389 Cr.P.C.): Distinct from pre‐trial bail, post‐conviction bail considers the prima facie merits of the appeal, period already spent in custody, and prospects of success. Mere presumption of innocence no longer applies. Relying on Preet Pal Singh, the Court found strong reasons—namely, prima facie lack of evidence for attempted rape, substantial custody period, and delay in hearing appeal—justifying suspension of sentence.

Impact

This decision is significant in several respects:

• Reinforces strict scrutiny of evidence for attempt charges in sexual offences; courts must differentiate aggravated assault from attempt at rape.
• Clarifies that when only a lesser offence under the POCSO Act is sustainable, bail courts must consider the statutory sentencing range and time already served.
• Elucidates criteria for suspension of sentence under Section 389 Cr.P.C., reinforcing that post‐conviction bail is an exceptional relief requiring strong grounds and prima facie merit in appeal.
• May influence trial courts to impose appropriate sentences and reduce over‐sentencing on unsupported charges.
• Guides appellate benches in balancing custodial delays against substantive justice in POCSO and IPC cases.

Complex Concepts Simplified

• Preparation vs. Attempt: Preparation includes planning and arranging means. Attempt is an overt act directly moving toward committing the offence (e.g., any effort to penetrate in rape).
• Section 57 IPC – “Life Imprisonment”: Used only for computation of fractional terms; life means natural life, but for calculation it is treated as 20 years.
• Section 511 IPC – Attempt Punishment: Where no express penalty for an attempt is provided, imprisonment may extend to half of the maximum term for the substantive offence.
• Section 389 Cr.P.C. – Suspension of Sentence: Enables bail after conviction; Courts examine appeal’s prima facie merit, custodial period, delay, and other factors. Requires recording of compelling reasons.

Conclusion

The Calcutta High Court in Zomangaih @ Zohmangaiha v. State of West Bengal has articulated a nuanced approach to post‐conviction bail in sexual offence appeals. By distinguishing between aggravated sexual assault under Section 10 POCSO and attempted rape under Sections 376/511 IPC on prima facie evidence, the Court set a precedent for rigorous evidentiary analysis before upholding severe charges. The judgment underscores the exceptional nature of suspension of sentence under Section 389 Cr.P.C. and provides a blueprint for balancing the rights of an appellant against the need for justice and finality in POCSO cases. This decision will guide trial and appellate courts in aligning charges, sentencing, and bail relief with the actual scope of proved conduct.