Prasenjit Lodh vs The State of Tripura

Deepak Gupta, C.J.

This appeal was originally filed by Sri Parimal Lodh who was convicted by the learned trial Court of having committed an offence punishable under Section 376(1) of the I.P.C. and sentenced to undergo 10 years Rigorous Imprisonment(RI) and pay a fine of Rs. 10,000/-, in default of payment of fine to undergo further RI for 1(one) year.

The prosecution was set in motion when an FIR was lodged on 3rd January, 2010 with the West Agartala Police Station. In this FIR it was mentioned that the accused Parimal Lodh had raped the victim girl aged about 17 years who was the daughter of the informant. In the very said complaint it was mentioned that the victim girl was pregnant and admitted to I G M Hospital, Agartala. It was further mentioned that on 2nd January, 2010 she was admitted in the hospital. Thereafter the investigation was carried out by the police, statement of the victim was recorded and finally, charge sheet filed against Sri Parimal Lodh. The gravamen of the charge is that about 6 or 7 months prior to 3rd January, 2010 on one occasion the deceased appellant Parimal Lodh had seduced the victim girl, taken her to his house on the pretext of performing puja and thereafter raped her. It was also stated that thereafter the victim girl and the accused had sex on a few occasions.

The victim appeared as her own witness. According to her, she was offering puja at her own house. At that time the accused called her from the road and asked her to go to his own house to offer puja in his house. She went to his house and was offering puja in his house and then the accused dragged her to the kitchen, removed her dress and committed forcible sexual intercourse with her. She also stated that the accused threatened her not to disclose this incident to any person otherwise, he would kill her and her parents and therefore, she did not disclose this fact to anybody.

In this very statement she stated that after this incident on two or three other occasions, the accused called her to offer puja in his house and when she went there to the house of the accused he committed sexual intercourse with her. According to her, she was compelled to go to his house because of his threats. On all occasions the accused was found alone in his house. This victim did not complain to anybody for 6 or 7 months. It was only in the end of December, 2009 that she complained of pain in her abdomen. She was first treated at home and on 1st January, 2010 she was taken to the hospital and according to her, on 1st January, 2010 she was admitted in I.G.M. Hospital, Agartala and on the next day she delivered a dead baby and it was thereafter that she narrated the entire incident to her mother and grandmother. Then on 3rd January, 2010 her mother lodged a complaint. It would be pertinent to mention here that in the complaint there is no mention of any dead baby. In the complaint dated 3rd January, 2010 it was mentioned that the victim was admitted in hospital on 2nd January, 2010 due to labour pain and that she was still in hospital but there is no mention that the victim delivered any dead child.

The victim was cross-examined and she stated that the house of the accused Parimal Lodh was adjacent to her house which meant that they were neighbours. She also stated that Parimal Lodh used to reside in his house along with Ranjit Kr. Lodh, his elder brother. Both the brothers are married and both the brothers have children. The victim at that time was a student and the children of the elder brother of the convict were also students. In cross-examination she stated that after three days of the first incident of rape sexual assault was committed on her on various times. In the very next line she stated that the last incident of sex took place after three days of the first incident. This by itself is contradictory. She also stated that she did not disclose about her pregnancy to anybody before the medical officer declared her to be pregnant. Some suggestions have been put to her that the case has been lodged due to enmity but we are not inclined to accept the suggestions. The statements of the parents and other witnesses of the victim are only to the effect that the victim informed them about this occurrence sometime in January, 2010. It would, however, pertinent to refer the statements of these witnesses to show that the victim was first taken to a doctor on 1st January, 2010 when she complained of pain in her abdomen and on 1st January, 2010 the physician told that the victim girl was pregnant. Thereafter she came back to her house and when she was slapped by her mother and asked how she had become pregnant she named Parimal Lodh. From the statements of all the other witnesses it is apparent that the victim was taken to the hospital on 2nd January, 2010 and by that time she had already delivered a dead child. The learned trial Court has convicted the accused Parimal Lodh only on the basis of the statement of the victim. Parimal Lodh filed the appeal but during the pendency of this appeal he died and now the appeal is being prosecuted by his legal heirs.

At the outset we may remember that the alleged occurrence in question took place sometime in May or June, 2009 and therefore the law as it existed on that day has to be taken into consideration. As per the law, prior to 3rd February, 2013 a girl of the age of 16 or above could give consent and any consensual sex would not be a rape. In the present case, even as per the averments of the victim and her parents she was definitely over 16 years of age. Even though the mother mentioned the age of the victim girl in the complaint to be 17 years, the girl while getting her statement recorded under Section 164 Cr.P.C. before the learned Magistrate has stated her age to be 21. Whether her age was 17 or 21 she was definitely over 16 years of age when the occurrence took place.

We cannot lose sight of the fact that the victim and the accused were neighbours. They lived in houses close to each other. It is also in evidence that there would be a number of people in the house of the accused. There is not an iota of evidence to suggest that the victim raised an alarm when she was forcibly caught hold of by the accused or that she struggled or resisted. She has talked about being threatened only after the occurrence of rape had taken place and there is no allegation in her statement that before she was raped she was threatened and therefore, she was scared to raise an alarm. If a girl of 17 or 18 years is sought to be raped she would definitely try to resist the aggressor and would also shout and admittedly, the houses are next to each other and are on the side of the road.

The case of the victim is that thereafter she went on 3 or 4 occasions and had sex with the accused. We cannot accept her statement to be correct that she did this under threat or duress. A girl who has been raped would tell this fact to her parents because at that time she did not know that she was pregnant or not. The pregnancy has been discovered in the 7th month. Even assuming for the sake of argument that the victim being a young girl was not fully aware about the working of women''s body but she herself states that she had stopped menstruating and therefore she should have been suspicious that she was pregnant. She is not telling the whole truth. This is a case where we feel that the case was of consensual sex and having been discovered after she was pregnant, the prosecutrix has made out a case of forcible sex. If we take the entire evidence together it points unerringly towards consensual sex. The conduct of the accused may have been reprehensible because he being a married man and a father may have seduced his neighbour''s daughter but the victim was of an age when she could consent and therefore, this would not be a criminal offence though, morally, the action of the deceased may not have been justified. In view of the above discussion, we have no hesitation in setting aside the judgment of the learned Additional Sessions Judge, West Tripura, Agartala, convicting the accused and sentencing him for 10 years RI. The accused deceased is, accordingly, acquitted.

The appeal is disposed of in the aforesaid terms. Send down the LCRs forthwith.