Delhi District Court
State vs Mahendra @ Manish on 26 February, 2016
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACK COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.70/15
FIR No.324/13
PS Vasant Kunj (N)
U/s 376/493/495/120B of IPC
State vs Mahendra @ Manish
ORDER ON SENTENCE
26.02.2016
Present. Sh. Sanjay Kumar, Learned Addl. PP for the state.
Sh. Ankit Nagpal, brother of prosecutrix with counsel Sh. Vikash Bhatia.
Convict Mahendra @ Manish in person with counsel Sh. Brijesh Oberoi from DLSA.
Arguments heard on the point of sentence.
It is argued on behalf of the convict Mahendra @ Manish that he is aged about 36 years old. Convict has to look after her widow mother aged about 75 years and convict is the only person to take care of her mother who is mentally ill and bed ridden. He is in custody since 25.10.2013 and his complete carrier will be ruined if he is sent to JC. He is not a previous convict and on these grounds it is prayed that convict may be awarded minimum punishment.
On the other hand, learned Addl. PP for the State/complainant argued that convict Mahendra @ Manish and his wife Vijeta @ Varsha who are having a female child and both Mahendra @ Manish and Vijeta @ Varsha conspired with each other and introduced themselves as brother and sister before the prosecutrix. They concealed intentionally the factum of earlier marriage between them with a view to ensure the prosecutrix to believe that convict Mahendra is unmarried with motive to grab the property and money. They succeeded in execution of their plot FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 1 of 8 and convict Mahendra @ Manish contracted the second marriage with prosecutrix on 30.08.2010 during life time of her spouse ie Vijeta @ Varsha by concealing the factum of his earlier marriage with Vijeta @ Varsha deceitfully causing the prosecutrix to believe that she is lawfully married to convict Mahendra @ Manish though she was not his legally wedded wife and cohabited with her and established physical relationship with prosecutrix. It is further submitted that from 30.08.2010 till the day on which it was revealed that convict was already married, he had used the prosecutrix, played with her sentiments and spoiled her entire life. It is further submitted that the prosecutrix in this case is "DIVYANG" (physically challenged). It is also submitted that on 23.07.2011, an FIR No.190/11 u/s 379/380/411 of IPC was registered with PS Vasant Kunj (N) with regard to theft committed by convict and in that case on 03.08.2011, the convict and his first wife Ms. Vijeta @ Lali were apprehended and Rs.78, 26,500/- along with stolen jewelery and i10 car were recovered at their instance from their rented accommodation at H.No.85, Ashok Vihar, Sanjay Nagar, Bareily. It is also submitted that such act of the convict is heinous in nature and no leniency should be granted to the convict while awarding him maximum sentence so that a message should also go to the society that any other person would not entangle in such type of offence. On these grounds, it is prayed that the convict should be awarded maximum punishment as provided in section 376, 493 and 495 of IPC.
Rape in any form is one of the most barbaric and heinous crimes not only against the victim of the rape but also against the society as a whole. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, I am also constrained to observe here that no one should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta.
FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 2 of 8 It is appalling to see that rape rears its ugly facade almost every day. As per the National Crime Record Bureau, in India, a rape is committed every 20 minutes. Rape being the fastest growing crime is undoubtedly one of the most deplorable, belligerent and atrocious act committed against the dignity of a woman. Rape has been held to be even more serious than murder which not only destroys the woman physically but also shatters her inner self by destroying her each living moment emotionally and psychologically.
Rape is a crime against one's mind psyche and reputation. Rape leaves a permanent scar on the life of the victim and it becomes horrendous for the victim of rape to deal a dignified and well respected life in the society. It is very unfortunate that there is a high increase in the rape instances and ravenous maniacs are not even sparing the girls of a very tender age. Some of the recent rape cases have been so horrifying that the entire nation protested to condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment.
These days, the crime of sexual assault on woman/girl is rising day by day. The court of the undersigned is a designated court dealing with case of sexual assault on woman. The cases filed have individual story and factual aspects. Most of the cases may be genuine wherein the girl or woman is a victim of this heinous crime by a male like forceful physical relationship, entered into relationship by blackmailing, relationship on the pretext or upon the false promise of marriage and in some of the cases to calm down onces lust. However, the case in hand is totally different and peculiar case. In the present case, prosecutrix is a handicapped lady. Finding not suitable groom for her marriage, her parents gave advertisement in a news paper inviting proposal of marriage of prosecutrix from the prospective grooms who were interested in living in the house of prosecutrix's father. Seeing the said advertisement, convict Mahendra @ Manish made a plot in his mind. Convict Mahendra @ Manish approached the family of the prosecutrix, introduced himself as unmarried person. He intentionally concealed the factum of his earlier marriage with a view to ensure the prosecutrix to believe that convict FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 3 of 8 Mahendra is unmarried. He succeeded in execution of his plot and convict Mahendra @ Manish contracted the second marriage with prosecutrix on 30.08.2010 during life time of her spouse by concealing the factum of his earlier marriage with Vijeta @ Varsha. The convict deceitfully caused the prosecutrix to believe that she is his legally wedded wife, cohabited with her and established physical relationship with prosecutrix. Huge amount in the form of stridhan like, flat to reside, four wheeler and huge cash amount to run business was given to convict after marriage. Prosecutrix and his family members came to know about entire criminal episode of convict only when a news was flashed regarding apprehension of convict in a theft case. Had he not been apprehended in theft case, the prosecutrix might have never come to know about the criminal intention of convict.
In the Ankush Maruti Shinde vs. State of Maharashtra, IV (2009) SLT 470= III (2009) DLT (Crl.) 16 (SC)- (2009) 6 SCC 667, the Supreme Court relied upon its earlier judgments and in particular upon the following extract from the judgment rendered in State of Madhya Pradesh vs. Munna Choube, I (2005) SLT 628=I (2005) CCR 105 (Sc)= 2 SCC 710: (SCC, Page 714) "9. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that : 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 4 of 8 modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of death. But an organized crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. this Court while refusing to reducing the death sentence observed thus: (SCC p.82, para 6) It will be a mockery of justice to permit [the accused] to escape the extreme penalty of law when faced with such evidence and such cruel facts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.
10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.
11. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that special facts of reach case. Judges in essences affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 5 of 8 result of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
13. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court."
In view of the settled principles of law and considering the fact and peculiar nature of case that in the present matter, the convict Mahendra @ Manish not only ravished the prosecutrix physically but he also ravished her mentally knowing very well that prosecutrix is a DIVYANG and is totally dependent upon him. He further ruined the entire family of the prosecutrix and committed the breach of the trust imposed by the family that he will look after the prosecutrix being "Ghar Jamai" ($ar jma;) and for the said reason, the prosecutrix family left no stone unturned to proivde him all the facility. The convict left a permanent scare not only upon the prosecutrix but upon the entire family by contracting the second marriage with the prosecutrix and pretending himself to be the person who will look after the FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 6 of 8 prosecutrix at the time of need. From the act of the convict, it is clear that he is a manipulating man and he tried to all kind of advantages because of the vulnerability of the prosecutrix being a DIVYANG and contracted the second marriage and even cohabited with the prosecutrix and established physical relationship under misconception of the prosecutrix of being his legally wedded wife. In these circumstances, this court is of the opinion that in cases like in hand, there is no mitigating circumstances to take lenient view while awarding the sentence and the cases like in hand must set an example in the society that once there is conviction, there is no undue sympathy while awarding the sentence upon the convict.
Thus, considering the gravity of the offence and peculiar nature of the case, convict Mahendra @ Manish is sentenced as under:-
(I) For the offence punishable u/s 376 of IPC, he is sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5 lacs. In default of payment of fine, he is sentenced to undergo Simple Imprisonment for two years.
(II) For the offence punishable u/s 493 of IPC, he is sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1 lac. In default of payment of fine, he is sentenced to undergo Simple Imprisonment for one year.
(III) For the offence punishable u/s 495 of IPC, he is sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1 lac. In default of payment of fine, he is sentenced to undergo Simple Imprisonment for one year.
Fine not paid.
All the sentences shall run concurrently.
Benefit u/s 428 Cr.P.C be given to the convict.
It would be relevant to mention here that any amount of compensation though would not be sufficient to the agony suffered by the FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 7 of 8 prosecutrix but at least she will be compensated for the litigation costs which she had incurred in the present case as in the present case throughout the trial, the prosecutrix was represented through counsel who assisted the court with full diligence. Therefore, out of the fine amount, 50% amount be given to the prosecutrix as compensation/damages.
Convict Mahendra @ Manish be remanded to JC to serve the sentence.
A copy of the judgment and order on sentence be given to the convict free of cost.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/26.02.2016 Announced in open court on 26th February, 2016.
FIR No.324/13 PS Vasant Kunj (N) U/s 376/493/495/120B of IPC State vs Versha @ Vijeta etc. 8 of 8