Bidhan Lodh vs State of Tripura

S.C. Das, J.—This Criminal Appeal, under Section 374 of Cr.P.C., is directed against the judgment and order of conviction and sentence, dated 21.09.2011, passed by learned Addl. Sessions Judge, Belonia, South Tripura in Case No. ST 15(ST/B) of 2004. Learned Addl. Sessions Judge found the accused-appellant, Bidhan Lodh, guilty of the charge framed against him under Section 376(1) of IPC and sentenced him to suffer R.I. for 7(seven) years and to pay a fine of Rs. 50,000/- in default to suffer further R.I. for 3(three) years.

Heard learned Counsel Mr. P. Majumder for the appellant and learned Public Prosecutor Mr. A. Ghosh for the State-respondent.

One Smt. Gita Rani Sarkar, wife of Sri Basanta Kumar Sarkar of Bikhora set the law in motion by filing an F.I.R. in writing on 24.08.1999 before the O.C., Baikhora P.S. alleging that from last 6(six) months before, the accused Bidhan Lodh committed illicit activities with her daughter, the victim prosecutrix (name kept withheld) with the assurance of marriage and as a result, her daughter became pregnant of 6(six) months. She further alleged that Bidhan Lodh was absconding and she prayed for investigation and justice.

On the basis of that F.I.R., Baikhora P.S. Case No. 51/99 under Section 376 read with Section 417 of IPC was registered and investigation was taken up.

4.1 After completion of investigation, charge sheet was submitted against accused appellant Bidhan Lodh for commission of offence punishable under Sections 376 and 417 of IPC.

4.2 Cognizance was taken on the basis of the police report and in due course after commitment of the case to the court of Sessions, learned Addl. Sessions Judge on 31.05.2004 framed charge against the accused under Section 376(1) of IPC to which the accused pleaded not guilty and claimed to be tried.

In course of trial, prosecution examined 6(six) witnesses in support of its case and also proved a school certificate in the name of victim prosecutrix and her signature in the statement recorded under Section 164 of Cr.P.C.

After closure of the prosecution evidence accused was examined under Section 313 Cr.P.C. and in his turn, accused declined to adduce any defence evidence. Defence case is nothing but denial of the prosecution case.

Learned Addl. Sessions Judge at the conclusion of the trial, found the accused-appellant guilty of the charge and sentenced him as stated hereinbefore. Hence, this appeal.

Learned counsel Mr. Majumder appearing for the accused-appellant has submitted that except the victim prosecutrix, her mother and brother, there is no other witness to support the prosecution case. No neighbourers were examined. Village Pradhan who alleged to have attended a Panchayat meeting was not examined. No medical evidence adduced to prove the pregnancy of the alleged victim prosecutrix. A School Certificate in the name of the victim prosecutrix produced by P.W. 5 and that cannot prove the fact that she was below 16 years at the time of alleged occurrence. The allegation what is stated by the victim prosecutrix and her mother are quite contradictory and the facts narrated by P.W. 3, the victim prosecutrix suggest that she was a consenting party if the allegation was at all true and in that case punishment under Section 376(1) cannot sustain.

Learned Public Prosecutor, on the other hand, has submitted that though there is no medical evidence to support the prosecution case and no other evidence of the neighbourers or members of village panchayat but the victim prosecutrix being an unmarried young girl, at that relevant point of time, narrated the fact which cannot be disbelieved for the reason that there is no medical evidence or other evidence of the neighbourers. He has submitted that if the victim''s evidence is believed then conviction of the accused may be sustained.

In the present case, P.W. 1 a resident of Debdaru i.e. the locality of the victim prosecutrix stated nothing in his deposition. So his evidence is of no value.

P.W. 2 is the informant i.e. the mother of the prosecutrix. She lodged the F.I.R. but the F.I.R. has not been proved. In her deposition she stated that the victim is her daughter and she had good relation with accused Bidhan. Five years ago, one day, Bidhan called her daughter and proposed to marry her. Her daughter refused on the plea that she will not be able to fulfill the demand of his parents but the accused Bidhan insisted her for marriage. After a few days he again called her daughter and proposed to marry her. When she again refused, accused applied force and raped her. Due to this rape her daughter became pregnant and she (daughter) informed the fact to her. They complained before Panchayat and a ''salish'' was held. In that ''salish'' accused Bidhan and his parents agreed to arrange marriage of her daughter but before solemnization of marriage accused fled away. The marriage could not be performed and her daughter delivered a female child who died later. Thereafter, she submitted written complaint before Baikhora P.S. which was written by a person from Jolaibari and she put her thumb impression. One year ago (from the date of deposition) her daughter was married to another person.

In her cross examination, except suggestion, there is nothing material.

Let us now see the evidence of P.W. 3, the victim girl. She stated that when she was reading in Class-V, accused Bidhan Lodh used to disturb her at the time of going to school and on a day, five years ago (from the date of deposition) Bidhan called her to his house. She was then reading in Class-V. She went to the house of Bidhan and at that time, he proposed to marry her. She told Bidhan that her parents were poor and so they could give nothing in the marriage. Bidhan told her that he had no demand and he only wants her. Thereafter she came back to home. After a few days, he again called her in his house and accordingly she went to his house. Bidhan wanted to have sexual intercourse with her. She refused to his proposal. Then he forced her and she tried to raise cry but he pressed her mouth and thereafter forcefully raped her. When she was weeping he gave her consolation stating that he will marry her. Thereafter, she returned home. After 6/7 days accused Bidhan again called her in his house and wanted to have sexual intercourse. She again refused and requested him to cohabit only after the marriage but he did not pay any request and forcefully raped her. She returned home and became pregnant after few days. She informed Bidhan that she became pregnant for 2 months. Bidhan again gave consolation with promise to marry her. After three months of pregnancy Bidhan wanted for abortion at Udaipur but she refused. Thereafter accused Bidhan began to avoid her and did not meet with her. She then told the facts to her parents. They informed the fact to Panchayat. In the Panchayat meeting Bidhan demanded Rs. 20,000/- and other articles. Her parents were unable to give it. Thereafter he agreed to marry her but from the next date he absconded. After 10 months she delivered a dead child. Her mother made complaint to the police and police brought her before the Magistrate and she gave her statement. She proved her signature in the statement recorded by the Magistrate.

In cross examination she stated that she was 3 months pregnant when she informed the facts to her parents. She cannot remember the date of stopping of her menstruation. She cannot remember the exact date of delivery. One Pintu Rani may be the helper for delivery of the child. Neighbourers saw her dead child. Her parents buried the child. Doctor examined her after 2/3 months of giving information to her mother. After 3 months of giving information to her mother police brought her before Magistrate. There were 10 members in the house of Bidhan. After rape the accused released her but she did not inform anybody. She denied the suggestion that Bidhan did not call her in his house and did not rape her and that she tried to impose the fault of others on the accused as he is a rich man. Parimal Laskar is her brother-in-law. He had access to their house. Meeting held in the Panchayat office. She stated to the Magistrate what Bidhan had demanded. She denied the suggestion that there was no meeting in the village at all.

P.W. 4, the elder brother of victim prosecutrix stated that 5/6 years ago, Bidhan told him in a tea stall that he had love affairs with his sister and wanted to marry his sister, the victim prosecutrix. He accordingly informed the facts to his parents and also asked the victim about the truthfulness of the information. The victim confirmed it. Thereafter his father informed the fact to the Panchayat as the parents of Bidhan were not ready to arrange marriage. In the Panchayat, Bidhan agreed to marry his sister but on the next day he absconded. They informed the fact to Mahila Commission. His sister was pregnant and she delivered a dead child.

In cross examination he stated that Bimal Datta was present in the tea stall. 8/10 other persons were also present there in the tea stall. He cannot remember the date of delivery of child. For the first time he informed the fact of love affairs of victim prosecutrix to his parents. His sister was 6 months pregnant. Dhananjoy Reang was the Pradhan when the meeting was held. He denied the suggestion that Bidhan did not tell him anything and he was giving false evidence.

P.W. 5 is the Headmaster of Debdaru High School and he proved a school certificate in the name of the victim prosecutrix which is marked as Exhibit-3.

In cross examination he stated that he did not bring the Admission Register to prove the school certificate.

P.W. 6 is the I.O. of the case who submitted charge-sheet.

It is an admitted position that there is no medical evidence that the victim prosecutrix was pregnant or that she delivered a dead child. F.I.R. as it appears was lodged while the victim prosecutrix was carrying pregnancy of 6 months. So it is an admitted position that at the time of investigation, the victim prosecutrix was pregnant and during the time of investigation itself she delivered a dead child as stated by her and her mother and brother. No evidence collected by the prosecution about the pregnancy or delivery of child as alleged. This is a serious lapse on the part of the prosecution and definitely advantage of it should go in favour of the accused.

The victim prosecutrix (P.W. 3), her mother (P.W. 2) and her brother (P.W. 4) all have stated that after 3 months of pregnancy, the victim prosecutrix disclosed the fact to her parents and at that time, Panchayat was informed and a Panchayat meeting was held. But neither the Pradhan of the Panchayat nor any member or any other local people who attended the Panchayat meeting examined by the prosecution to prove the fact that there was a Panchayat meeting on the issue. This also raised a suspicion about the authenticity of the prosecution case and definitely the accused is entitled to get benefit of lapses in the prosecution case.

The victim prosecutrix in her deposition stated that in the Panchayat meeting accused Bidhan demanded Rs. 20,000/- and other articles and her parents were unable to give it but her such statement has not been supported by her mother P.W. 2 and her brother P.W. 4. P.W. 2 and P.W. 4 stated nothing that in the Panchayat meeting that Bidhan demanded Rs. 20,000/- and other articles. It makes clear that the victim prosecutrix made exaggerated allegation which is not found supported by her mother and brother.

Now let us see whether the statement of the victim prosecutrix inspires confidence. It is a settled law that if the allegation made by the victim prosecutrix inspires confidence, her sole statement is enough to record a conviction. Let us first see what was her age at the time of alleged sexual intercourse? Exhibit-3 is a school certificate proved by P.W. 5, the Headmaster of Debdaru High School. It shows that the victim prosecutrix was admitted in Class-1 on 15.06.1990 and as per Admission Register, her date of birth is 28.01.1984 and in 1998 she was reading in Class-V. The victim prosecutrix in her deposition stated that she was reading in Class-V when the incident occurred. If she was admitted in Class-1 on 15.06.1990 and her date of birth was 28.01.1984 she was about 6 1/2 years old at that time. If she was regularly passing the examination, in 1998 she would have reading in Class-IX. At the time of alleged occurrence, her statement and school certificate both show that she was reading in Class-V at that relevant point of time. The victim prosecutrix did not state as to what was her age at the time of alleged occurrence in her deposition. Her mother and brother i.e. P.Ws. 2 and 4 also did not utter a single word as to what was her age when she disclosed her 3 months pregnancy to them. Except the school certificate i.e. Exhibit-3 there is no other item of evidence about the age of the victim prosecutrix. According to law, if she was below 16 years at the time of occurrence, her consent would be of no value.

Learned counsel Mr. Majumder referring the decision of the Apex Court in the case of Alamelu and Another Vs. State represented by Inspector of Police, has submitted that mere production of the school certificate will not prove the age to hold that the victim prosecutrix was below 16 years of age at the time of alleged occurrence. In Para 39 and 40 of the judgment the Apex Court has held thus:-

"39. We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ext. P-16 and the certificate issued by P.W. 8 Dr. Gunasekaran, Radiologist, Ext. P-4 and Ext. P-5.

Undoubtedly, the transfer certificate, Ext. P-16 indicates that the girl''s date of birth was 15-6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the alleged incident, i.e., 31-7-1993. The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."

In para 48 of the judgment, the Apex Court has held thus--

"48. We may further notice that even with reference to Section 35 of the Indian Evidence Act, a public document has to be tested by applying the same standard in civil as well as criminal proceedings. In this context, it would be appropriate to notice the observations made by this Court in Ravinder Singh Gorkhi Vs. State of U.P., which held as follows: (SCC p. 595, para 38)

"38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under the ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the prosecutrix although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted."

(emphasis supplied)

In the present case, the trial Court solely relied on Exhibit-3 and arrived at a conclusion that the victim prosecutrix was below 16 years at the time of occurrence. There is no other item of evidence to support Exhibit-3. The Admission Register of the School has not been produced. What was the material on the basis of which the age was recorded in the Admission Register has not been proved at all. If her date of birth was 28.01.1984, at the relevant time when the F.I.R. was lodged i.e. on 24.08.1999 she was more than 15 years. No ossification test has been done to determine the age of the victim prosecutrix. As already stated even her mother who is a right person to say the age has stated nothing as to what was her date of birth or at least what was her age at the time when the incident occurred. So, solely based on Exhibit-3 the trial Court arrived at a conclusion that she was 15 years old at the time of alleged occurrence, was not justified.

Further as I find, the victim prosecutrix in her deposition clearly stated that on the first day the accused called her and she went to the house of the accused. The accused proposed to marry her but she refused the proposal and returned home. After a few days she was again called by the accused and she went to his house. Then the accused proposed to have sexual intercourse and forcefully raped her. Though she stated that she tried to raise cry but she could not as the accused gagged her mouth but even after coming out of the house she did not disclose the facts to her parents or to anybody else. After 6/7 days again she went to the house of the accused on his call and she alleged that she was again subjected to rape by the accused. That time also she did not disclose the fact to anybody. When she was carrying pregnancy of about 3 months she disclosed the fact to her mother, P.W. 2. What she stated before the Court shows that on two occasions she had intercourse with the accused but her mother did not support it. Her mother stated that on the first occasion, she went to the house of the accused and the accused proposed to marry her and on the second occasion, when she went to the house of the accused, she was raped and thereafter she became pregnant. If the statement of the prosecutrix is fully relied, it gives clear impression that she was a consenting party to the alleged sexual intercourse. She voluntarily went to the house of the accused on all those alleged occasions. Had she not interested in having such illicit relation she would not visit the house of the accused on his call. Her evidence itself therefore, does not inspire any confidence in the absence of any corroboration by medical evidence or in the absence of any other item of evidence of any independent person. Her brother did not make any statement about the alleged rape who simply stated that his sister was pregnant and delivered a dead child.

No doubt, the incident is most shocking. It is a rare occasion that an unmarried young woman will come up with a false allegation touching her chastity. The allegation itself must convince the conscience of the Court. If she is found to be not reliable and her statement is not supported by other relevant evidence such as medical evidence etc., it is very difficult to hold accused guilty of the offence of rape. She was quite a grown up girl and she was conscious of the consequence of pre-marital sex. If she was so conscious she would raise protest against such pre-marital sex as alleged. When she became pregnant she first disclosed it after about 3 months. Such conduct of the victim prosecutrix shows that she was a consenting party if the allegation of rape was at all true.

Learned counsel Mr. Majumder also referred the decision of the Apex Court in the case of K.P. Thimappa Gowda V. State of Karnataka, reported in 2011 AIR SCW 2281 and has submitted that even if the victim prosecutrix is believed since she was a consenting party and her age has not been proved according to law, the accused cannot be held guilty and he may be given the benefit of doubt.

I find justification in the submission of learned counsel Mr. Majumder. Since the statement of the victim prosecutrix does not inspire full confidence, in the absence of any medical evidence or other corroborative evidence, it is not justified to hold the accused-appellant guilty of the charge of rape. The victim prosecutrix has stated that she had already been given in marriage. She has also stated her husband''s name in her deposition. Her mother also stated that she (victim prosecutrix) had been given in marriage about a year ago. So, she is somehow settled even after the alleged incident if at all true. In the given facts and circumstances of the case, I think the benefit of doubt should be given to the accused and he may be acquitted of the charge. It is submitted by learned counsel Mr. Majumder that the accused is in custody from the date of judgment passed by the learned Sessions Judge i.e. 21.09.2011. Since benefit of doubt is given to the accused, he be set at liberty at once.

Accordingly, the appeal is allowed. The judgment and order of conviction and sentence dated 21.09.2011 passed by learned Addl. Sessions Judge, Belonia in Case No. ST 15(ST/B) 2004 is set aside.

The accused-appellant Sri Bidhan Lodh is given the benefit of doubt. He is acquitted of the charge framed against him. He be set at liberty from custody at once.

Send back the L.C. Records along with a copy of this judgment.