Removing Minor Victim's Pant After She Herself Refuses To, Amounts To Attempt To Commit Rape: Calcutta High Court

The Calcutta High Court has recently held that removing a minor victim's pants after she refused to do so herself amounts to an attempt to commit the offence of rape. 

The Court was adjudicating upon an appeal passed against a trial court order convicting the appellant under Section 376 (punishment for the offence of rape) read with Section 511 (punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment) of the Indian Penal Code (IPC). 

Justice Ananya Bandyopadhyay observed that the act of removing the undergarment of the victim and forcibly making her lie down on the ground cannot be for any other reason than to sexually ravish her.

Emphasising that the appellant's act of forcibly removing the minor victim's pants amounts to an attempt to commit the offence of rape, the Court ruled, 

“..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 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”.

In this case, the Court noted that the appellant had lured the minor victim by giving her an ice cream. Unable to resist the temptation, she thereafter innocently went along with the appellant, a stranger, to the open ground. 

“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”, the Court underscored.

Justice Bandyopadhyay also noted that the minor child cannot be said to be pampered or mollycoddled by asking to remove her pants and reclining her against her wish. She further observed that the relationship between the minor victim and the appellant were not acrimonious thereby obliterating the element of a false indictment.

“The appellant who could have been the protector owing to his age conducted such reprehensible act towards the minor victim child, which if accomplished in its entirety would have impacted her life inconsolably to bear the wretched stigma throughout her life”, the Court added.

Upon perusal of the record, the Court also noted that the medical evidence showed that there was no evidence of violence or external injury on the victim's body. It was further taken into consideration that the victim in her statement under Section 164 CrPC had deposed that there had been no penetration and that the appellant had asked her to remove her pant which she had refused.

The Court was also apprised that when the appellant himself wanted to open her pant, she shouted following which the appellant clasped her mouth shut. Having heard the victim’s mother’s call, the appellant subsequently released her. 

Accordingly, the Court upheld the conviction and sentence of 5-year jail handed down by the concerned trial court for an attempt to commit the offence of rape.

Case Title: Rabi Saha @ Sarkar v. State of West Bengal

Case Citation: 2023 LiveLaw (Cal) 32

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