ORDER

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 Rs.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 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. Kya aap school jate hain?

A. Nahi (by nodding head)

Q. Kya aap kabhi school nahi gaee?

A. Nahi.

Q. Kya aap padhna likhna jante hain?

A. Nahi. Mai sirf apna naam likh sakti hoon.

Q. Tumhare Papa (father) kya kaam karte hain?

A. Rickshaw chalate hain.

Q. Khya tumari mammi (mother) bhi koi kaam karti hai?

A. Haan (by nodding head)

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)

Q. Aap kitne bhai-behene hain?

A. Hum paanch bhai-behen hain. Sabse badi meri behen hai, uske baad mera bhai hai, fir mai hoon, mere baad meri chhoti behen aur fir chhota bhai hai.

Q. Behen bhai me se kisi ki saadi hui hai?

A. Haan. Meri badi behen ki sadi ho gai hai.

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.

Q. Aaj aap kis ke sath aye hain. Mammi kahan hain?

A. Meri mammi gaon gai hai. Meri Naani ka pair toot gya hai, isliye meri mammi gaon gai hai. Aaj mai apni badi behen ke saath court aye hoon. Meri badi behen 10-15 din se mere ghar par hi hai.

Q. Aapka gaon kahan hai?

A. Begusarai, Bihar.

Q. Beta aap hame batayenge ki kya hua tha? Sari baat sach sach batao.

A. Papa ne galat kaam kiya tha. (Court observation: witness has started speaking very slowly and appears extremely embarrassed and ashamed).

Q. Beta aap hame poori baat batao ki kya huha tha?

A. (Court observation: Child witness has now softly started telling the counsel for the DCW what had happened which is audible to the Court and to everybody in the Chamber).

Subah Papa Khana kha kar chale gaye thye. Mammi bhi khana khar kar chali gaye thi aur apna lunch apne saath le gai thi. Mai apne bhai-behen ke saath kamre me so rahi thi. Mere papa ghar wapas aaye aur mere saath galat kaam karne lage. (child witness has correctly identified the accused in the court). (Pause by the witnesss-Court question: Kya hua tha?) Mere papa ne mere niche wale kapde utar diye thye aur jahan se wo susu karte hain wo mere ander jabardasti daal diya tha jahan se mai susu karti hoon. Jab mai roi aur chillai to unhone mera muh daba diya. Mujhe bahut dard hua aur ander se khoon nikalne laga aur mai jor-jor se