Delhi District Court
State vs Ganesh S/O Sh. Ramu on 9 July, 2007
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IN THE COURT OF SH. V.K.BANSAL ;
ADDL. SESSIONS JUDGE;
NEW DELHI
State Versus Ganesh s/o Sh. Ramu
r/o Jhuggi NO S 49/89
New Gandhi Camp
Kailash Colony,
New Delhi
FIR No 363/05
Police Station Greater Kailash
U/s 376 of IPC
Sessions Case NO 72/06
JUDGMENT
Accused was working as driver with Sh. Anshuman Rai who was resident of 27 Delhi Administration Flat Greater Kailash-I New Delhi . One maid servant was also working there . On 28/12/2005 when Anshuman Rai and his wife both were out accused Ganesh returned home at about 2.30 p.m and raped the maid servant against her wishes and without her consent. When Anshuman Rai and her wife returned home she narrated the whole story to them. They took the accused and prosecutrix to police station . On the statement of prosecutrix case was registered. Prosecutrix and accused were medically examined . Accused was arrested. After completion of investigation chargesheet against the accused was filed. ld. M.M after complying with the provisions of Sec 207 of Cr.P.C committed the case to \\ 2 \\ the Sessions Court as the offence punishable u/s 376 of is exclusively triable by the Sessions Court. Accused was charged for the offence punishable u/s 376 IPC to which he pleaded not guilty and claimed trial. Thereafter case was fixed for prosecution evidence.
Smt. Sandhya Rai wife of Anshuman Rai was examined as PW1. Prosecutrix was examined as PW5 and Anshuman Rai was examined as PW8. Dr. Charu Senior Resident AIIMS hospital was examined as PW3. She examined prosecutrix and proved the MLC as Ex PW3/A. According to MLC hymen ruptured and introitus admitting one finger , spotting plus. Dr. Charu further deposed that under garments were not sealed as the patient had taken bath and washed the clothes and changed. Dr. B.L.Chaudhary who medically examined accused was examined as PW2. He deposed that there was nothing to suggest that Ganesh was incapable for performing sexual intercourse in the normal circumstances. ld. Metropolitan Magistrate who recorded the statement of prosecutrix u/s 164 Cr.P.C was examined as PW4 and proved the proceedings as Ex PW4/A. Dr. Ruchi ,Radiologist who conducted the ossification test was examined as PW6 and according to \\ 3 \\ the report the age of prosecutrix was more than 19 years at the time of examination. Report is Ex PW6/A. Duty officer was examined as PW7. He proved the copy of FIR Ex PW7/A. Investigating witnesses have been examined as PW9, PW10 , PW11 and PW12. Thereafter prosecution evidence was closed . Statement of accused U/s 313 Cr.P.C was recorded wherein he admitted that he was working as driver of Sh. Anshuman Rai resident of 27 Delhi Administration Flats Kailash Colony, Greater Kailash I New Delhi and prosecutrix was also working there as maid servant . He also admitted that he alongwith prosecutrix was taken to the police station by PW1 Sandhya Rai and PW8 Anshuman Rai . He was also medically examined by doctor. He stated that he has been falsely implicated by the prosecutrix and no incident has taken place. He did not wish to lead defence evidence and case was fixed for arguments.
I have heard the ld. Counsel for accused persons, ld. Addl. P.P for State and perused the record.
Ld. Addl.P.P for State submitted that in the present case prosecutrix has been examined as PW5 . She had fully supported the prosecution case. She stated that on 28/12/2005 when she was alone at home accused came to house at about 2.30 p.m. She opened \\ 4 \\ the door, accused asked her for gas cylinder . She told him that cylinder is lying in the other room . While she was going to the bed room where the child of the owner was sleeping accused gaudge her mouth from behind, took her to the dining room and raped her. The medical report Ex PW3/A supports the prosecution case. According to which hymen was found ruptured , spotting was also there. ld. Addl. P.P for State submitted that when owner of the house PW8 Anshuman Rai and PW1 Sandhya Rai returned home prosecutrix narrated them the whole story . They took the prosecutrix as well as accused to the police station. PW1 and PW8 both have supported the prosecution case and the fact that they have been told about the rape by PW5. PW5 was cross examined at length . There is nothing on record to disbelieve the prosecutrix. There is nothing to suggest that prosecutrix had any reason to falsely implicate the accused. The other two witnesses are employer of the accused in their cross examination also nothing has come on record that they had anything against the accused or that they had any reason to falsely implicate the accused. ld. Addl.P.P for State stated that keeping in view the statement of prosecutrix fully supported by the medical evidence accused be held guilty and convicted \\ 5 \\ for the offence of rape.
ld. Counsel for accused submitted that according to the medical record i.e. Ossification test report Ex PW6/A prosecutrix was 19 years of age . She was major and was able to give consent. According to the MLC there was no injury on the part of prosecutrix the offence has been committed at 2.30 p.m that also in the house of a government servant there must be some guard on duty. According to the testimony of PW5 Kavita Munda there was a security guard on the main gate which was few steps from the door of the house where the offence has been committed. ld. Counsel submitted that if prosecutrix resisted or raised alarm the guard on duty must had come to save her but the prosecutrix did not resist which is evident from the fact that there is no injury on her person. She even does not raise alarm that is why guard on duty did not come to save her this itself shows that she was the consenting party. She had taken bath after the incident and washed her clothes evenotherwise those should have been given to the police that being the important evidence. ld. Counsel submitted that according to PW5 the shirt was torned that has also not been seized or produced by the police. ld. Counsel submitted that as there is no other witness \\ 6 \\ to the incident and medical evidence does not support the prosecution case accused is liable to be acquitted.
After hearing the arguments and going through the recored I found that so far as age of prosecutrix is concerned she herself stated that she was 19 years of age. The medical report Ex PW6/A also shows that she was more than 19 years of age. Prosecutrix in her statement specifically stated that accused raped her against her wishes and in the rape her shirt was also torn. The shirt which she was wearing was also seized which is Ex P-1 and produced in the court. She also bleeded and doctor has specifically mentioned in the MLC Ex PW3/A that spotting is positive. In the MLC doctor has also mentioned that victim has given the name of accused as a person who raped her. Hymen was found ruptured . Undergarments were changed by the prosecutrix, She had also taken bath and washed and changed her undergarments. Therefore, in my opinion non detention of semen on the underwear or in the vaginal swab does not mean that rape was not committed. ld. Counsel during the course of arguments has argued that prosecutrix was consenting party but in the entire cross examination no such suggestion has \\ 7 \\ been put to the prosecutrix that she herself agreed for sexual relations with accused or she was consenting party for having sexual relations. In my opinion simply because there is no injury on the body of the prosecutrix does not in any manner establish that she was consenting party. The rape was committed no on the hard surface but on the cot hence there was no possibility of injuries on other parts of the body of the prosecutrix. So far as raising of alarm is concerned prosecutrix had stated that accused had gauged her mouth and hence she could not raise alarm. There is nothing on record to infer that prosecutrix had any reason to falsely implicate the accused due to any enmity or dispute between the two So far as employer PW1 and PW8 are concerned in their cross examination also there is nothing to infer that they had falsely implicated the accused in this case to settle some score. In my opinion simply suggesting that accused had been falsely implicated does not lead anywhere unless some facts are brought on record to substantiate the same. In the present case as discussed above prosecutrix had specifically stated that accused committed rape on her, so far as identity is concerned that is not disputed as admittedly accused was working as driver with PW8 \\ 8 \\ Anshuman Rai whereas prosecutrix was working as maid servant . They were knowing each other prior to the incident. Prosecutrix stated that she was raped by accused without her consent and against her wishes and I do not find any reason to disbelieve her. Keeping in view all these facts I am of the opinion that prosecution has proved this case and is able to bring home the guilt of the accused. Accused is convicted for the offence u/s 376 of IPC.
Announced in open court (V.K.BANSAL)
on 5/7/2007 ADDL. SESSIONS JUDGE:
NEW DELHI
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IN THE COURT OF SH. V.K.BANSAL ;
ADDL. SESSIONS JUDGE;
NEW DELHI
State Versus Ganesh s/o Sh. Renu
r/o Jhuggi NO 49/89
New Gandhi Camp
Kailash Colony,
New Delhi
FIR No 363/05
Police Station Greater Kailash
U/s 376 of IPC
Sessions Case NO 72/06
ORDER ON SENTENCE
9/7/2007
Present: Sh. Ahmad Khan Addl.P.P for State Convict is produced from JC , with counsel Heard on the point of sentence.
Ld. Addl. P.P for State submitted that convict had raped the maid servant of his own employer in the absence of his employer and hence committed the heinous offence. Rape is more serious than the offence of murder and prayed that maximum sentence may be imposed upon him.
Ld. Counsel for convict submitted that convict has no previous criminal record. He is of young age. He is the only male member of the family comprising his mother, wife and two minor children. Entire family has to suffer if he is sent behind the bar and prayed that \\ 10 \\ lenient view may kindly be taken.
Keeping in view the submissions made by ld. Counsel for convict , ld. Addl.P.P for State and the facts of the case that convict had raped the girl against her wishes I sentence him 7 years RI with fine of Rs 5000/- in default of fine he has to undergone 6 months RI. Benefit of section 428 Cr.P.C be given to him.
File be consigned to record room.
Announced in open court (V.K.BANSAL)
on 9/7/2007 ADDL. SESSIONS JUDGE:
NEW DELHI
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