ZOMANGAIH @ ZOHMANGAIHA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application for suspension of sentence in an appeal filed by the petitioner against the judgment and order dated November 29/30, 2024, passed by the Additional District and Sessions Judge, Kurseong in Special Case No. 01 of 2023, whereby the petitioner was convicted of offence punishable under Sec. 10 of the POCSO Act 2012 and under Ss. 448/376(2)(c)/511 of IPC and was sentenced to undergo rigorous imprisonment for 12 years and to pay fine of Rs.50,000.00.

(2.) The petitioner says that he has been falsely implicated. The evidence on record does not support the charge of attempted rape. Even if the evidence of the victim girl, the de-facto complainant, the examining Doctor and other witnesses are taken at face value, the conviction cannot be sustained. He is in custody for about 2 years 4 months. There is no possibility of an early hearing of the appeal.

(3.) Learned Advocate for the petitioner further submitted that at the highest, without penetration, offence under Sec. 376 IPC cannot be made out. In this connection, learned Advocate relied on decisions of the Hon'ble Supreme Court in the cases of Tarkeshwar Sahu v. State of Bihar (North Jharkhand), reported at (2006) 8 SCC 560, Aman Kumar v. State of Haryana, reported at (2004) 4 SCC 379 and Bibhishan v. State of Maharashtra, reported at (2007) 12 SCC 390. Learned Advocate further referred to the decision in the case of State of M.P. v. Mahendra @ Golu reported at (2022) 12 SCC 442 to argue that there is a difference between the stages of preparation and attempt in a rape case. The stage of preparation consists of deliberation, devising or arranging the means or measures which would be necessary for commission of an offence. Attempt starts from the next stage. In the present case, the evidence on record does not even support a charge of attempt to commit rape. At the highest, the prosecution may be able to make out a case of aggravated sexual assault under Sec. 10 of the POSCO Act for which the punishment prescribed is imprisonment between 5 and 7 years. The petitioner has served out a substantial part of the prescribed period and should be enlarged on bail.