Ghanshyam vs State (Govt. Of Nct) Of Delhi & Anr.
2015 Latest Caselaw 2488 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 2nd MARCH, 2015
                                    DECIDED ON : 24th MARCH, 2015

+                         CRL.A. 909/2013

      GHANSHYAM                                           ..... Appellant

                          Through :    Mr.Neeraj Bhardwaj, Advocate.
                          versus

      STATE (GOVT. OF NCT) OF DELHI & ANR.                ..... Respondents

                          Through :    Ms.Kusum Dhalla, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 13.12.2012 of learned Addl.

Sessions Jugde in Sessions Case No. 104/2010 arising out of FIR

No.168/2010 PS Begumpur, by which the appellant - Ghanshyam was

held guilty for committing offence punishable under Section 376 IPC, the

instant appeal has been filed by him. By an order dated 13.12.2012, he

was awarded RI for seven years with fine ` 5,000/-.

2. Allegations against the appellant as set up in the charge-sheet

were that in the year 2009 at Ms.Naaz Khan's house at Budh Vihar and at

house No.125, Pocket-12, Savera Apartment, Sector-21, Rohini, he

sexually assaulted 'H' (assumed name) aged 14 years several times. A

written complaint (Ex.PW-2/DA) was lodged on 29.06.2010 by victim's

mother regarding the occurrence to the police. The FIR was lodged after

recording victim's statement (Ex.PW-3/A) on 30.06.2010. 'H' was

medically examined. The accused was arrested on 01.07.2014 and taken

for medical examination. Statements of the witnesses conversant with the

facts were recorded. Exhibits were sent to Forensic Science Laboratory

for examination. After completion of investigation, a charge-sheet was

submitted against the appellant in the Court. To establish the appellant's

guilt, the prosecution examined fifteen witnesses. In 313 Cr.P.C.

statement, the appellant denied his complicity in the crime and pleaded

false implication. He did not examine any witness in defence. The trial

resulted in his conviction as aforesaid. Being aggrieved and dissatisfied,

the instant appeal has preferred.

3. I have heard the learned counsel for the parties and have

examined the file minutely. Admitted position is that 'H' used to work at

the residence of CW-1 (Naaj Khan @ Najma Begum) as domestic help.

She (Naaj Khan) had promised her parents that she would be kept like her

daughter and would be provided good education. The appellant was a

servant in the said house. Earlier, he was fired from the job after he

committed theft. However, he again joined her in 2009. CW-1 (Naaj Khan

@ Najma Begum) earlier lived at Krishan Vihar and subsequently, shifted

to Budh Vihar. Finally, she started residing at Savera Apartment, Sector-

21, Rohini. Both 'H' and the appellant continued to work with her in the

said house. It is also not disputed that 'H' became pregnant during her

stay in the said house. She was medically examined by PW-5 (Dr.Mili

Verma) vide MLC Ex.PW-5/A on 30.06.2010. She had pregnancy of

seven month duration approximately. She delivered a male child

thereafter. The prosecutrix was unaware of her pregnancy. When she felt

pain in her abdomen and was taken by her mother to the hospital, her

pregnancy surfaced there.

4. In her statement (Ex.PW-3/A) given to the police, at the first

instance, 'H' narrated a detailed account as to how and under what

circumstances, she was sexually assaulted by the appellant regularly on

various dates after putting her in fear. The appellant has not denied the

factum of her pregnancy. His defence throughout was that his employer's

son Shehzad @ Babar used to establish physical relations with the

prosecutrix and it resulted in her pregnancy. He was falsely implicated by

his employer to save her son Shehzad @ Babar and was not responsible

for the crime. In her Court statement, 'H' categorically implicated the

appellant for committing rape upon her on various dates. Specific Court

question was put to her if anyone else was involved or responsible for the

incident. She responded that 'only the accused was responsible'. She did

not assign or attribute any role whatsoever to her employer's son. In the

cross-examination, she emphatically denied that Shehzad @ Babar was

the author of the crime and she exonerated him due to a settlement arrived

at with Naaj Khan @ Najma Begum. No valid reasons have been offered

by the accused forcing 'H' to spare the real offender and to falsely

implicate an innocent one. She did not nurture any ill-will against him. No

infirmities could be elicited in her cross-examination to discredit her

version. Evidence of the victim of sexual assault has great probative force.

Appellant's involvement surfaced soon after H's parents came to know

about her pregnancy. No cogent evidence has emerged on record to infer

if employer's son used to have physical relations with the prosecutrix. No

such complaint was ever lodged by the appellant to his employer or H's

parents. He did not divulge as to when on any specific date, such physical

relations were established by his employer's son and what was his

reaction. He has attempted to shift the blame upon the employer's son

after the prosecutrix named him for the nefarious act. PW-8 (Ruksana),

H's mother, corroborated her version and she deposed that 'H' had

informed her that she was raped by the appellant who worked as a servant

in the said house. PW-8 (Ruksana), H's mother, is not expected to

exonerate the real culprit.

5. During investigation, DNA test was conducted. PW-15

(Ms.Shashi Bala), Sr.Scientific Officer (Biology) DNA Unit, FSL, Rohini,

proved the DNA Finger Printing Test report (Ex.PW-14/G). Her

testimony remained unchallenged. As per report, the DNA profiling (STR

analysis) performed on the exhibits '1', '2' & '3' provided was sufficient

to conclude that source of Ex.'1' (blood sample of the accused

Ghanshyam) and source of Ex.'3' (blood sample of 'H') were the

biological father and mother of the source of Ex.'2' (blood sample of male

baby of 'H'). Apparently, the ocular testimony is in conformity with the

DNA profiling and corroborates H's version to establish the appellant to

be the author of the crime without doubt.

6. The prosecutrix was below 16 year of age on the day of

occurrence. PW-11 (Smt.Bhagwati Devi), Principal MCD Primary

School, proved the school record, where her date of birth was recorded as

11.06.1995. She was admitted in the said school in 1st standard on

03.08.2002 vide admission No.7613 and studied upto 5th standard till

26.03.2007. The relevant documents are Ex.PW-11/A and Ex.PW-11/B.

The appellant did not deny her date of birth as reflected in school

registers. Since 'H' was below 16 years of age even her consent to the act

with the appellant was inconsequential. So innocent she was that she did

not come to know about the symptoms of pregnancy till she felt pain in

her abdomen and was taken for medical examination. She was having

seven month pregnancy that time. It is relevant to note that the appellant

was aged about 60 years and exploited the innocence of the child during

absence of his employer and other family members and ravished 'H'

repeatedly on various dates after putting her in fear.

7. Minor contradictions, inconsistencies, deficiencies and

improvements highlighted by the appellant's counsel are not material to

affect the core of the prosecution case. The prosecution has produced

reliable and clinching evidence of the minor child who had no ulterior

motive to falsely implicate the accused. It is in consonance with medical

evidence and DNA profiling. The appellant did not produce any evidence

to show the involvement of anyone else in the incident.

8. The conviction and sentence recorded by the Trial Court are

based upon fair appraisal of the evidence and warrant no intervention. The

appeal lacks merits and is dismissed. Trial Court record be sent back

forthwith with the copy of the order. A copy of the order be sent to the

Superintendent Jail for information.

(S.P.GARG) JUDGE MARCH 24, 2015 / tr