CASE TITLE:
Rabi Saha @ Sarkar v. State of West Bengal
DATE OF ORDER:
3 February, 2023
JUDGE(S):
Justice Ananya Bandyopadhyay
SUBJECT
The learned High Court of Calcutta in the present case held that forcibly removing the undergarments of a girl and also forcing her to lie on the ground would amount to an ‘attempt to rape’. Such an act, according to the Court, would tantamount to transgressing the space between ‘preparation’ and ‘attempt’.
IMPORTANT LEGAL PROVISIONS
INDIAN PENAL CODE
- Section 511- provides for the punishment for attempting to commit offences as imprisonment for life or other imprisonments-
BRIEF FACTS OF THE CASE
- The appellant is the present case was prosecuted by the State for attempting to rape a minor girl.
- The victim revealed that the accused tried to lure her by offering her ice-cream and took her to a spot where he asked her to remove her pants. On her attempt to rush from the scene of crime, he forcibly held her removed her pants and placed his hand on her vagina.
- At the victim’s cry for held, a mob gathered and thrashed the victim. It was alleged that he even admitted his guilt there.
- However, after an FIR was registered and investigation began, he pleaded not guilty and claimed to be tried.
- The Sessions Court convicted the accused (appellant) u/s 376/511 of the IPC.
- It is against this decision of the Sessions Court that the present appeal has been preferred.
ARGUMENTS ADVANCED BY THE APPELLANT
- It is argued by the learned counsel for the appellants that the prosecution failed to establish its case.
- That the ingredients to constitute the offence under Section 376/511 had not been established by the prosecution.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The learned counsel for the respondent submitted that the prosecution has successfully established its case
- That the intention of the miscreant to commit the offence was proved by the prosecution and the appeal should be dismissed.
LEGAL ISSUE
Whether the prosecution has clearly established its case or not?
ANALYSIS BY THE COURT
- While adjudicating upon the matter, the Court observed that the evidence of the minor victim when there existed no history of any enmity between the parties can not be disregarded. In fact, the Court was of the view that prime importance must be attached to such evidence.
- The Court also noted that though the victim’s statements before several parties has no major deviation, she had not mentioned any kind of penetration into her private parts.
- The Court took into account the observations of the Apex Court in State of Madhya Pradesh v. Mahendra [(2021) SCC Online SC 965]. The Apex Court, while observing the distinction between ‘preparation’ and ‘attempt’ to commit an offence noted that ‘if the attributes are unambiguously beyond the stage of preparation then the misdemeanours shall qualify to be termed as an ‘ attempt’ to commit the principal offence and such attempt in itself is a punishable offence in view of Section 511 IPC.’
- While turning to the facts of the present case, the Court observed that the very act of the accused trying to lure the minor who he did not know by offering her ice-cream is indicative of the fact that he had an ulterior motive of quenching his sexual gratification.
- It further observed that his act of luring the minor and taking her to an isolated spot constitutes ‘preparation’ but asking the minor victim to remove her pants and then eventually forcefully removing it by himself constitutes ‘attempt’ of the offence
CONCLUSION
The light of the above observations made, the learned Court concluded that the Sessions Court decision need not be interfered with. The Court opined that the accused was rightly convicted by the Sessions Court. The appeal was accordingly dismissed
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