Removing undergarment, forcing girl to lie on ground would amount to rape: Calcutta High Court

The Calcutta High Court recently held that removing the undergarments of a minor girl and forcing her to lie down would amount to the offence of rape under Section 375 of Indian Penal Code [Rabi Saha @ Sarkar vs State of West Bengal]..Single-judge Justice Ananya Bandyopadhyay said that such actions by a stranger would without doubt be only with the intention of ravishing the minor girl and not for pampering her. "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 Court said.The Court noted that the convict had lured the victim, a minor child, by giving her ice-cream. She could not control her temptation and went 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. 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 court said in its order passed on January 3. The action of removing the victim's undergarment forcibly made her lie down on the ground cannot be for any other oblique reason but indubitably for the purpose of ravishing her, the bench observed."The minor child cannot be said to be pampered or molly-coddled 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 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 bench opined. It, therefore, upheld the conviction and sentence of 5-year jail handed down by the trial court for rape under Section 376 of the Indian Penal Code (IPC). .The bench was hearing an appeal by the convict challenging a trial court's order.The prosecution's version of the case was that on May 7, 2007, when the minor girl was standing near a toy shop, the appellant approached her and gave her ice cream. He then told her that he would give her more food and took her to a secluded place. There, the appellant asked the victim to remover her pants but she left the spot. Then, he chased her and brought her back to the spot and removed her undergarments but by then the girl had started shouting loudly as a result of which, people gathered and caught hold of the appellant. He was assaulted by the public and handed over to the police. .The Court after going through the material on record noted that the medical evidence did not point out any form of physical injury on the girl's person. The victim also did not mention any penetration in her statement. The Court, however, found no strong case to quash the trial court's order. "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 said while dismissing the appeal..Advocate Pritam Ray appeared as an Amicus. Advocate Aivishek Sinha represented the State. .[Read Order]