Ganga Sahay v. State

1. Ganga Sahay unlike his name showing no moral values has been held guilty for offences under Section 376(2)(f) IPC for committing rape of his minor daughter on the strength her statement coupled with the report of a medical examination and directed to undergo rigorous imprisonment for life and to pay a fine of ` 10,000/- and in default thereof to undergo further simple imprisonment for one month.

2. Ganga Sahay questions the verdict of guilt that there are material contradictions in the depositions of star witnesses, discrepancies in the statement of witnesses as to the place of arrest, his medical examination having not been carried out properly thus not depicting being intoxicated and the order on sentence not considering the mitigating circumstances that he was poor man with a large family comprising of his wife, 5 children of 2014:DHC:3591-DB which 4 were dependent on him and not being a habitual offender. He also assails the judgment as not extending the benefit of Section 85 of IPC.

3. Though no defence has been led, however in his statement recorded under Section 313 Cr.P.C. on the incriminating evidence put forth, he pleaded false implication and the answer to the question “Do you wish to say anything else?” was: “I am innocent and have been falsely implicated in the present case. I was under the influence of liquor at that time and hence, I am not aware as to what had happened on that day.”

4. The prosecution case is based on the deposition of the victim baby ‘P’ PW-10 who on being ascertained by the Court to be a competent witness in a position to give rationale answers recorded her statement without oath in question-answer form. The relevant portion of her testimony is as under:

Q Tumhari mammi kya kaam karti hai? A Panni kathi karti hai. (Court observation: witness means her mother is rag picker who picks up polythene bags)

Court observation: I am satisfied that the child witness is understanding the nature of question being put to her. Now I proceed with recording her statement in verbatim.

5. In the cross-examination suggestions have been made to this witness about a quarrel with the landlord that he used to beat her father; on which the prosecutrix stated that the landlord beat her father only on the day when he rescued her from her father and his wife had called the Police.

6. The investigation into the present case swung into action on a call being made vide DD No. 63-B that one child ‘P’ aged about 9 years has been raped by her father and the child was profusely bleeding from her vagina. The prosecutrix was immediately taken to the hospital, medically examined and treated. On the statement of Anjula PW-10 the mother of the prosecutrix the FIR was registered who stated that her husband was a rickshaw puller and she was doing a job in a factory. She had three daughters and two sons, her eldest daughter being married. On that date she had left her house at about 9.00 AM and at about 9.30 PM one boy from the neighbourhood came to her factory and informed about the incident. When she reached home she found her daughter crying and public and Police gathered there.

7. Surender Singh PW-15 who made the call at the 100 number stated that he was a resident of the village and was residing with his parents, wife and children. The premises belonged to him where he had given some rooms on rent and Ganga Sahay was one of the tenants therein. On May 17, 2012 at about 2/2.30 PM while he was putting fodder for the cattle he suddenly heard the scream of a small child from the room of Ganga Sahay. When he went towards the room the scream suddenly stopped. The other tenants in the vicinity also stated that they heard screams from the room of Ganga Sahay. Thus, he peeped from the gap in the door and saw that Ganga Sahay and prosecutrix were inside in half naked condition and the prosecutrix was screaming and crying. He pushed the door and opened it and found the child bleeding from her private parts. He immediately made a call to the Police from his mobile number. Till the Police came, he along with other public persons held Ganga Sahay in one room.

8. Dr.Pratibha Aggarwal PW-8 appeared in the witness box and exhibited the MLC of the prosecutrix prepared by Dr.Deepika on May 17, 2012 at about 4.15 PM as Ex.PW-8/A. The MLC of the prosecutrix noted hymen torn, clotted blood present on perineum, small abrasion present on posterior vaginal wall. Though the DNA examination is not relevant in the present case as the prosecutrix is the daughter of Ganga Sahay and thus the alleles would be common; the opinion of the doctor that the child being very small aged 9 years of age the clotted blood on the perineum, and abrasion on the posterior vaginal wall were indicative of a forced sexual assault is sufficient to hold Ganga Sahay guilty of the offence charged.

9. Left with no scope of escape as having been caught red-handed while committing the incestuous crime with his own daughter, Ganga Sahay took the plea of being intoxicated and not in a position to know what was happening to him. This plea taken in the guise of Section 85 of IPC is untenable. Section 85 IPC provides as under: “85. Act of a person incapable of judgment by reason of intoxication caused against his will.- Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.”

10. Thus, for a person to be incapable of judgment due to intoxication, the intoxication should be administered to him without his knowledge or against his will. Further, the MLC of Ganga Sahay Ex.PX and PX[6] do not show any intoxication. This defence not being available to Ganga Sahay, we find no infirmity in the judgment of conviction. We also find no mitigating circumstance to reduce the sentence.