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Synopsis

A Single Judge Bench of the Calcutta High Court has recently upheld the conviction of a person accused of raping a minor while observing that the accused himself removed the victim's undergarments which justifiably signified an attempt to commit the offence of rape.

The High Court was heaing an appeal against the conviction of a person for rape under the Indian Penal Code. The appellant was sentenced to rigorous imprisonment of 5 years with a fine of Rs.5000.

The mother of the minor victim alleged that the minor daughter had disclosed to her that the appellant had fed her with ice cream and lured her to give her more food and taken her to the corner of the ground and removed her pant. It was alleged that the person then placed his hand on her vagina and forcibly grounded her, trying to rape her. After the victim shouted and raised an alarm, a mob rushed to the spot and had beaten up the appellant.

The amicus curie argued that the ingredients of Section 376, IPC were not established and there was no test identification parade conducted. He further submitted that the wearing apparel was not seized and the appeal against conviction should be allowed.

The Advocate for the State argued that under the facts and circumstances of the case, the elements necessary to comprise the offence under Section 376, IPC were present. Further, it was submitted that the intention of the miscreant to commit the offense was proved by the prosecution and the appeal should be dismissed.

The High Court opined that the appellant had the motive of sexual gratification. The order read,

"The appellant had no reason to provide an ice-cream to the minor victim except with an ulterior motive of quenching his sexual gratification. The first stage of enticing the victim with an ice-cream and distancing her to an isolated area was preparatory in nature. Thereafter asking the victim to remove her pant and in defiance the appellant himself removing it justifiably signifies an attempt to commit the offence of rape."

The bench also said that the act of removing her undergarment and making her lie on the ground was with the motive of ravishing her. The order stated,

"The action of removing the undergarment of the victim covering and protecting her private parts and forcibly made her lie down on the ground cannot be for any other oblique reason but indubitably for the purpose of ravishing her. The minor child cannot be said to be pampered or mollycoddled by asking to remove her pants and reclining her against her wish. The relationship between the parties was not acrimonious, obliterating the element of false indictment."

The court while upholding the conviction said that the appellant could have been the protector owing to his age and conducted such a reprehensible act towards the minor victim child and if the said act was accomplished in its entirety would have impacted her life inconsolably to bear the wretched stigma throughout her life.

Case Title: Rabi Saha Sarkar vs State of West Bengal

Statue: Code of Criminal Procedure 1973, Indian Penal Code 1860, POCSO 2013