Delhi District Court
This View Is Taken In State vs Gurmit Singh Air 1996 Sc 1393. on 30 July, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 186/1/09
State
Versus
Manoj S/o Ram Bhahadur Mehto,
R/o House No. 349, Hastal Gaon,
Uttam Nagar, Delhi.
(i)Case arising out of FIR No.53/2009
U/S: 376/511 IPC
P.S. Uttam Nagar
(ii) Date of FIR 23.02.2009
(iii) Date of Institution 15.05.2009
(iv)Date of Final Arguments 13.07.2010
(v) Judgment reserved on 13.07.2010
(iv) Date of judgment 21.07.2010
JUDGMENT
The facts as disclosed by Smt. Sita Devi mother of the victim Neelam are that on 22.02.2009 after finishing her work she came to her house and was sitting on the roof, it was 06:30 or 07:00 pm. She gave one rupee to Neelam for eating something and she went off. Her younger daughter after some time informed that Neelam was taken by the uncle in S.C. No. 186/1/09 Page1/24 his room and she went to the room of accused near her house. Her daughter was inside the room of accused and saw that accused was trying to wear his pant and underwear of her daughter Neelam was below her knees. On her enquiry her daughter Neelam informed her that accused had removed her underwear and had lied on her after removing his pant she had felt pain in her private part. PW4 Sita Devi also checked, there was some injury on the private part of her daughter Neelam. She called the police and accused was apprehended. Statement of PW4 Sita Devi was recorded vide Ex.PW4/A. Police had taken her daughter Neelam for medical examination at DDU hospital along with a lady police. Accused was arrested vide memo Ex.PW4/B and his search conducted vide memo Ex.PW4/C in her presence. She also identified the panty of her daughter.
PW-5 Dr. Ekta Mathur medically examined the prosecutrix Baby Neelam on 23.7.2009 in DDU Hospital being Sr. Resident vide MLC Ex. PW5/A and "found a laceration about 2 cm long present on right labia minora. Hymen was intact." Panty of prosecutrix Neelam was sealed in one pulanda and two slides were prepared and sealed separately, given to the police.
PW11 SI Rishal Singh is the IO of the case, who on 23.2.2009 on receipt of call vide DD No. 15A reached at Village Hastal with HC S.C. No. 186/1/09 Page2/24 Shyam Lal and met one Sita Devi who told him that on 22.2.2009 one accused Manoj had tried to rape her daughter Neelam aged about 4 years. She produced the accused Manoj who was already apprehended and recorded detailed statement of Sita Devi vide Ex. PW4/A and prepared Tehrir Ex. PW11/A and got the case registered. The accused as well as prosecutrix Baby Neelam were got medically examined from DDU Hospital through different constables and seized two sealed pulandas prepared by doctor in respect of Neelam and accused Manoj vide Ex. PW9/A and PW6/A. The accused was arrested, his personal search was taken out. IO recorded statement of witnesses, deposited the pulandas in the Malkhana and has also made inquiry from the girl Neelam and recorded her statement wherein she had alleged that accused had become naked and had lied on her.
SI Ved Parkash has obtained a priority letter and sent the exhibits of the case to FSL Rohini through Ct. Taufiq Khan and recorded statement of Ct. Taufiq Khan and HC Chand Vir MHC(M) and after completion of investigation challan was filed in the court.
After completion of committal proceeding u/s 207 IPC, charge for offence punishable u/s 376/511 IPC has been framed upon the accused on the allegation that on 22.02.2009 at about 4 pm at H. NO. 349, Hastsal S.C. No. 186/1/09 Page3/24 Village, Uttam Nagar, he assaulted and attempted to commit rape with baby Neelam 4 years of age. The accused after understanding the charge, pleaded not guilty and claimed trial.
In order to establish the case against the accused, prosecution in all examined 13 witnesses including PW4 Smt. Sita Devi complainant, who narrated the story as discussed in the preceding para of the judgment.
PW3 Baby Neelam, who is examined and stated that accused put off her and his cloths and lied upon her. She felt pain in her private part. She had pointed towards her private part and told about the incident to her mother. She had also told to police.
PW5 Dr. Ekta Mathur has proved the MLC of prosecutrix Neelam vide Ex. PW5/A and opined that " A laceration about 2 cm long present on right labia minora and hymen was intact".
PW7 Dr. Kumar Narender Mohan had examined accused Manoj KUmar vide MLC Ex. PW6/A and opined that there was nothing to suggest that the accused cannot perform sexual intercourse.
PW11 SI Rishal Singh and PW12 SI Ved Parkash are the IOs and deposed regarding the manner of investigation done by them as discussed in the preceding paras of the judgment.
S.C. No. 186/1/09 Page4/24
After closure of the prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. All the incriminating evidence come on record has been put to the accused. To which he denied, the same as false and incorrect and stated that he is innocent and has been falsely implicated in this case. The accused preferred to lead defence evidence but no witness has been examined by accused in his defence.
I have heard submission of Ld. APP for State and counsel for accused and also gone through the material on record.
Ld. APP for State argued that the prosecution examined all the witnesses to brought home the guilt against the accused beyond reasonable doubt and testimony of prosecution witnesses are trustworthy, corroborative and believable. On the contrary there is no iota of evidence to disbelieve them. The accused has also given an opportunity to lead defence evidence but he failed to brought any witness in his defence. In these circumstances, the accused is liable to be convicted as per charges framed against him.
Per contra, Ld. Counsel for accused submitted that the prosecutrix Neelam in her statement dated 28.07.2009 stated that after removal of her cloth, the accused has also removed his pant and underwear. Thereafter, he lied upon her and she felt pain on her private part. But she S.C. No. 186/1/09 Page5/24 cannot tell regarding that the accused touch her private part or the mode by which the accused has done such act after lied upon her which is not explained. Nor the reason for having pain on her private part is explained by the prosecutrix. The prosecutrix was cross examined on 27.4.2010 and in cross examination she admitted that whatever she had said today same has been told by her parents. She has met to police and not told anything to police. Manoj took her at his house and she remained in the house of accused Manoj for about three hours. The door of the room was closed as latch was put on. Her mother has not told her this fact. She did not tell to her mother that Manoj has done something wrong with her. Police has seized her underwear on the same date when she told the facts to police and her mother.
It is further contended by Ld. Defence Counsel that PW5 Dr. Ekta Mathur who has medically examined the prosecutrix Baby Neelam and opined that there was a laceration about 2 cm long present on right labia minora and hymen was intact. Since there was no sexual intercourse was done by the accused there is no question of injury on the labia minora. IT is also contended that the the underwear and blood sample and semen were sent to the FSL Rohini. There was no reaction of semen stain on the underwear and accordingly on the cloths swab and semen cannot be S.C. No. 186/1/09 Page6/24 detected on Ex. P-1 i.e. underwear of the Baby Neelam and on the pullanda No. 4 i.e. the underwear of the accused any human semen was detected but there was no reaction. PW4 Smt. Sita Devi is not an eyewitness nor made complaint on 22.2.2009 soon after the incident. She had taken a thoughtful consider the matter and after due consultation with the family members she has lodged the complaint Ex. PW4/A. Therefore , same is seems to be motivated , concocted and after thought.
It is further contended that there are material contradiction between the statement of PW4 Smt. Sita Devi PW3 Neelam and PW11 SI Rishal Singh in consonance with the comparison of deposition of the other witnesses. PW4 Smt. Sita Devi stated that her daughter informed her that accused has removed her underwear and lie on her after removing his pant and felt pain on her private part. Then she also checked that injuries on her private part and accused run away. The accused was arrested in her presence. T he house in which Manoj was residing having seven rooms. Other rooms are occupied by the tenants. Three persons were residing in the same room where Manoj was residing. She never visited his room. The room was closed. She also raised alarm but nobody come and she did not complaint to the polcie on 22.2.2009 i.e. the date of the incident. PW6 HC Shyam Lal has stated that on 23.2.2009 he along with SI Rishal S.C. No. 186/1/09 Page7/24 Singh has reached at H. No. 349 Hastal village where one Sita Devi met them and informed that one Manoj had did wrong act with her daughter Neelam aged about 4-5 years. IO recorded the statement of Sita Devi and Baby Neelam was taken for medical examination to DDU Hospital. The accused was arrested and got medically examined. PW4 Smt. Sita Devi told that on 22.2.2009 accused has tried to rape of her daughter, she produced the accused who was also apprehended at the spot. PW11 SI Rishal Singh deposed that no public witness was examined regarding the incident. He did not record the statement of father of the victim and investigation was not being done by lady police. The prosecutrix 's statement u/s 164 Cr.P.C was not recorded nor she has been examined by any Counselor . The MLC of the prosecutrix is proved as PW5/A wherein it is opined that the " Hyman was intact". Under these circumstances prosecution failed to prove its case against the accused beyond reasonable doubt for the alleged charges and hence the accused is liable to be acquitted.
In view of the submission of Ld. APP for state and counsel for accused and material placed on record, in case of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be correct to acquit the accused solely on account of defect in S.C. No. 186/1/09 Page8/24 investigation. To do so would tantamount to playing into the hands of the Investigation Officer even if the investigation is designedly defective. This view is taken in State Vs Gurmit Singh AIR 1996 SC 1393.
In another judgment titled AIR 1995 SC 2472, it was observed that the rape was committed on a laborer by the accused by bodily lifting her inside the factory premises. She narrated the incident to two of her co- laborers. Neither the statements of two ladies were recorded nor they were examined by the prosecution. It was contended that non-examination of two co-laborers was fatal to the prosecution. The Supreme Court, however, negatived the contention. The court stated that "we must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor presecutrix, a labourer. To acquit solely on that ground would be adding insult to injured/prosecutrix.
It has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility S.C. No. 186/1/09 Page9/24 when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
Modi in his well known work "Medical Jurisprudence and Toxicology" states that "to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to S.C. No. 186/1/09 Page10/24 commit legally the offence of rape without producing any injury tot he genitals or leaving any seminal stains. In such a case medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, nor a medical one. The above observations are quoted with approval by the Supreme Court in Madan Gupal Kakkad Vs Naval Dubey 1992 AIR SCW 1480.
The court also relied upon Parikh's Textbook of Medical Jurisprudence and Toxicology, wherein it is observed: "Sexual intercourse - in law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
S.C. No. 186/1/09 Page11/24
The Supreme Court has held that absence of injuries on the private parts of the prosecutrix would not rule out her being subjected to rape.
Absence of semen or spermatozoa in vaginal swab collected from dead body of the deceased girl was held as not disproving sexual molestation of the victim when the post mortem report indicated bruises of tissues on right side of vagina, reddish blue in colour and bruising over the anterior lip of the cervix. This feature was held consistent with the victim offering resistance against forcible intercourse.
In case titled State Vs Suresh Nivrutti Bhusare 1997 Cri LJ 2003 (Bom), it was held that in absence of such injury, it cannot be concluded that the incident had not taken place or that the sexual intercourse was committed with the consent of the prosecutrix. It always depends upon the facts and circumstances of the case.
Modi states that "injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion, or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, S.C. No. 186/1/09 Page12/24 due to the forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.
In case titled Bharwada Bhiginbhai Hirjibhai AIR 1983 SC 753, the Supreme Court observed that "In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief of suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. Corroboration may be considered essential to establish a sexual offence in the back drop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society and its profile."
The Supreme Court held that, corroboration of testimony of prosecutrix by medical evidence was not essential. The court held that where the prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement had remained unchallenged S.C. No. 186/1/09 Page13/24 in the cross examination, the opinion of the doctor that no rape appeared to have been committed being based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix, could not throw out an otherwise cogent and trustworthy evidence of the prosecutrix. The opinion of the doctor was held to be based on 'no reasons'.
In case of family animosity revealed from the circumstances of the case, it would not be ruled out that false report was lodged against the accused by the prosecutrix and her mot her PW4 Sita Devi. The deposition of the prosecutrix was held reliable and worthy of relevance which corroborated through the testimony of her mother. Therefore, any advice can not be drawn against the accused of falsely implicating the accused with a dispute of the property or money landing with the parents.
In the present case the victim PW3 Neelam in his deposition has stated that "the accused present in court had removed her kachhi and lie down on her and she had felt pain in her private part". In cross examination on 27.4.2010 stated that Manoj took her at his house. She remained in the house of accused Manoj for about three hours. The door of the room was closed as latch was put. It is denied that accused has not done anything wrong with her and did not take her to his room. Further after the incident the younger daughter of the PW4 Sita Devi told that S.C. No. 186/1/09 Page14/24 Neelam was confined by one uncle and Sita Devi went to the house of the accused when the Neelam was inside the room of the accused and saw that accused was trying to wear his pant and underwear of her daughter was below her knees. On her enquiry her daughter had informed her that accused had removed her underwear and had lied on her after removing his pant she had felt pain in her private part. She also checked there was some injury on her private part.
PW-5 Dr. Ekta Mathur medically examined the prosecutrix Baby Neelam on 23.7.2009 in DDU Hospital vide MLC Ex. PW5/A and found a laceration about 2 cm long present on right labia minora. Hymen was intact. Since the hymen was intact there is no question of sexual intercourse with the victim Neelam by the accused Manoj. Even through the FSL report does not found detected any semen on the labia minora and on the underwear of the victim Neelam. From lying upon by t he accused on the child of 4-5 years does not mean that he made an attempt to commit rape.
The presumption of English law that a boy under fourteen years of age is under a physical incapacity to commit the offence of rape has no application to India. Indecent assault upon a woman does not amount to an attempt to commit rape, unless the court is satisfied that there was a S.C. No. 186/1/09 Page15/24 determination in the accused his passion at all events, and in spite of all resistance.
In a case titled as Guddu (2206) 5 SCALE 238 it was observed that " The accused taking advantage of the absence of the parents of the prosecutrix a minor girl, came to her house , took her to Tapariya, put off her chaddi and pulling down his trousers sat upon her and when her grandfather came, he fled away. The doctor found a selling over her private part and it had become reddish. Although her hymen was intact but also had become red. The Supreme Court held that it was not a case where merely a preparation had been undergone by the appellant. Evidently , the appellant made an attempt to criminally assault the prosecutrix. The court held that in the instant case the appellant could not be said to have intended to commit an indecent assault on the prosecutrix. The fact of the matter clearly demonstrated that his conduct was indicative of his determination to gratify his passion.
In the present case the deposition made by prosecutrix Neelam and complainant Sita Devi does not prove any indication of having attempted to commit sexual intercourse by accused Manoj and expert opinion also S.C. No. 186/1/09 Page16/24 proved that there was no sexual intercourse committed with the prosecutrix. Mere having a naked view of the accused with the prosecutrix does not mean that the accused has made an attempt to commit rape. PW4 Smt. Sita Devi has categorically stated that " She saw that that accused was trying to wear his pant and underwear of her daughter Neelam was below her knees". PW3 Neelam has also stated that "the accused present in court had removed her kachhi and lie down on her and she had felt pain in her private part".
The difference between preparation and an at tempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove that an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her in flat on the ground undresses himself and then forcibly rubs his erected penis on the private parts of the girl but fails to penetrate the same into the vagina and on such private parts of the girl but fails to penetrate the same into the vagina and on such rubbing ejaculates himself then it cannot be held that it was a case of mere assault under section 354 and not an attempt to commit rape under section 376 read with section 511.
S.C. No. 186/1/09 Page17/24
In case titled as Tarkeshwar Sahu (2006) 8 SCC 560 wherein it was held that " In the absence of any attempt to penetrate, the conviction under section 376/511 is wholly illegal and unsustainable. Conviction u/s 376/511 is not sustainable where the information has stated that she was caught hold by the accused with an intention to commit rape on her but when she raised alarm, the accused was seen fleeing away from the spot. It was held that an offence under section 354 is made out against the accused for which ] he cannot escape from the punishment. The important ingredient of the offence under section 375 is altogether missing in such a case."
For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination. Where the accused had taken off his pant and had made an attempt to thrust his male organ in the private part of the prosecutrix and in that process laceration to left labia minora was caused to her but penetration had not taken place, the offence attempt to commit rape could only made out, as observed in (1988) 2 Crimes 597 (599): (1988) 1 Rec Cri R 495 (DB) (P&H). S.C. No. 186/1/09 Page18/24
Further in cross examination PW3 Neelam has stated that on the previous date whatever she deposed the same was told by her parents or she has not given any affirmative answers. In these circumstances deposition made by both PWs i.e. PW3 and PW4 Sita Devi is not consistent to brought home the guilt of the accused u/s 376/511IPC even though the report Ex. PW5/A does not support the charges leveled against the accused. A the most offence u/s 342/354 IPC is made out. Since the prosecutrix has been wrongfully confined in room which was locked by putting latches from inside and outraged the modestly of victim Neelam.
Keeping in view the aforesaid discussion and deposition of the prosecution witnesses, the prosecution is succeeded to prove its case against the accused for offence punishable u/s 342/354 IPC as the testimony of prosecution witnesses is believable, trustworthy and corroborative to brought home the guilt of the accused for offence u/s 342/354 IPC. Accordingly accused Manoj S/o Ram Bahadur Mehto is hereby convicted for offence punishable u/s 342/354 IPC. ANNOUNCED IN THE OPEN COURT TODAY ON 21.7.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 186/1/09 Page19/24 IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 186/1/09 State Versus Manoj S/o Ram Bhahadur Mehto, R/o House No. 349, Hastal Gaon, Uttam Nagar, Delhi.
FIR No.53/2009 U/S: 376/511 IPC P.S. Uttam Nagar ORDER ON SENTENCE:
Present: Sh. Mukul Kumar, Additional Public Prosecutor for State.
Convict/accused from J/C with Ms. Chitra Mal, Amicus Curie. The accused/convict has been convicted for offence punishable u/s 342/354 IPC vide separate detailed judgment dated 21.07.2010.
I have heard submission of Ld. APP for State and counsel for accused on the point of sentence and carefully gone through the material on record.
Ld. APP for state argued that the prosecution proved its case against the accused beyond all reasonable doubts for offence punishable u/s 342/354 IPC and accused be given maximum sentence as prescribed under the the aforesaid offences.
S.C. No. 186/1/09 Page20/24
Ld. defence counsel submitted that the case of the prosecution is not proved for offence punishable u/s 376 IPC, however the accused has been convicted for offence punishable u/s 342/354 IPC. The accused is having responsibility to feed his family being sole bread earner of his family and if he will be kept behind the bars, it will not only punish him but it would be a punishment to his family members. The Ld. defence counsel further submitted that accused has suffered physically and mentally a lot and is in J/C since the date of his arrest i.e. from 22.2.2009.
In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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. 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 reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentence 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 S.C. No. 186/1/09 Page21/24 of circulation, and sometimes even the tragic results of his crime. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, cannot be lost sight of and perse require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offence will be result wise counter productive in the long run and against social interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system. Ld. counsel for accused submitted that accused is innocent and falsely implicated in this case and he has nothing to do with the offence. Therefore, he may be released to undergone imprisonment.
In view of the aforesaid submission of Ld. APP for state and Ld. defence counsel, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in S.C. No. 186/1/09 Page22/24 which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
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 decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
S.C. No. 186/1/09 Page23/24
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. In view of the facts and circumstances of the case, the punishment for the offence u/s 342 IPC is imprisonment of either description for a term which may extend to one year and shall also be liable to fine or with both. Further the punishment for the offence u/s 354 IPC is imprisonment of either description for a term which may extend to two years and shall also be liable to fine or with both.
Considering the nature of offence and facts and circumstances and judicial custodial period of convicted i.e. more than one years the convicted Manoj S/o Ram Bahadur Mehto is hereby sentenced for the imprisonment already undergone by him during investigation, inquiry and trial of this case with fine Rs. 2000/- in default of payment of fine the accused shall undergo SI for 15 days for offence punishable u/s 342/354 IPC. The sentence awarded to the convicted shell meet the end of justice. Copy of this order be given to the convicted free of cost forthwith. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 30.07.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 186/1/09 Page24/24