Delhi District Court
State vs Mr. Ghanshyam Mehto on 28 August, 2010
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE -01, WEST, DELHI
Sessions Case Number : 106 of 2009.
Unique Case ID Number : 02401R0464852009.
State versus Mr. Ghanshyam Mehto
Son of Mr. Yogeshwar Mehto,
Resident of Jhuggi B-64, Sanjay Camp,
Kirti Nagar, New Delhi.
FIR Number 195/2009.
Police Station Kirti Nagar.
Under sections 376 of the Indian penal Code.
Date of filing of the charge sheet before : 18.09.2009.
the Court of the Metropolitan Magistrate
Date of receipt of file after committal : 09.10.2009.
Date of judgment : 02.08.2010.
Arguments on sentence concluded on : 28.08.2010.
Date of order on sentence : 28.08.2010.
Appearances: Mr. Vinod Kumar Sharma, Additional Public
Prosecutor for the State.
Convict has been produced from judicial custody.
Mr. Manish Chauhan, advocate, amicus curie for the convict.
Ms.Vandana and Ms.Raj Kumari Banju, counsel from the Delhi
Commission for Women.
ORDER ON SENTENCE
1. In pursuance of judgment dated 02.08.2010 as passed by this Court
convicting the accused namely Mr.Ghanshyam Mehto for offence of
attempt to rape his minor daughter aged 13 years punishable under
Sessions Case Number: 106 of 2009.
Unique Case ID Number: 02401R0464852009
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sections 376/511 of the Indian Penal Code (hereinafter referred to as
the IPC), I have heard the Additional Public Prosecutor for the State
and the advocate, amicus curiae for the convict as well as the
convict on the point of quantum of sentence to be awarded to the
convict and also perused the case record.
2. It has already been observed in the judgment that this case is a
glaring example of the growing menace of sexual abuse of young
children. Rape is an abominable and ghastly and it worsens and
becomes inhuman and barbaric when the victim is a small female
child, his own daughter, as in the present case who is subjected to
unwanted physical contact by a perverted male adult.
3. Where the father is the perpetrator of the abuse on his daughter
despite being the guardian of the child, he should not only be
arrested but also punished sternly for the offence of rape.
4. "The psychological harm on the victim is massive as it evokes
doubts, raises questions for which answers are not easy to get. The
victim may suppress emotions or be filled with feelings of rage,
guilt and shame. It is difficult for such victims to trust others later on
in life. The victim needs to stand up for himself/herself and not
allow the trauma to make them psychologically and socially weak.
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Active social support from family, friends, guidance centres and
counselors can bring the victim's faith in the goodness of human
beings back." ---Dr.Sanjay Chugh, Senior Consulting Psychiatrist.
5. The victim lacks self-confidence and is always under a sense of
guilt and denial. It's not about the body. It's more about the mind.
Child sexual abuse is a rape of the mind and thought processes.
6. The Additional Public Prosecutor for the State has requested for the
maximum sentence to be imposed upon the convict submitting that
he does not deserve any leniency keeping in view the offence
committed by him.
7. The convict and the amicus curiae, on the other hand, have
requested for a lenient view to be taken against him and for his
release on probation as the convict hails from poor family. He has
remained in judicial custody since the date of his arrest i.e.
13.07.2009. He is aged about 40 years and is the sole bread winner
of his family which comprises of two minor female motherless
children and one minor male child. He was working as a labourer
prior to his arrest and since then he is in custody. He is a first
offender and has never committed any offence earlier. It is also
submitted that he shall not commit any offence in future.
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8. Whether the case is one of those cases which require the maximum
sentence to be imposed is a question which has to be determined on
the facts of each case. Where the culpability of the convict has
assumed depravity or where the accused is found to be an ardent
criminal and menace to be society and where the crime is
committed in an organized manner and is gruesome, cold-blooded,
heinous and atrocious; where innocent and unarmed persons are
attacked and attempt to murder is made without any provocation
requires the sternest of views to be taken while awarding the
sentence.
9. I am of the considered opinion that despite the nature of offence
being very grave and that there are no mitigating factors except for
the family circumstances of the convict, as such but still maximum
sentence should not be awarded to the convict as an opportunity
should be given to the convict to reform and repent for the offence
he has committed.
10.Section 376 IPC reads that Punishment for rape:- (1) Whoever,
except in the cases provided for by sub-section (2), commits rape
shall be punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for life or
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for a term which may extend to ten years and shall also be liable to
fine unless the woman raped is his own wife and is not under twelve
years of age, in which case, he shall be punished with imprisonment
of either description for a term which may extend to two years or
with fine or with both.............
11.Section 511 of the IPC provides that the punishment in case of
attempt to commit offence is to half the punishment for the offence.
12.Child sexual abuse, incest, murder of children or attempt to murder
children are dark realities in Indian society like in any other nation.
53 per cent of our children are sexually abused, according to a
statistic from a survey done by the Government of India. The Indian
legal statutes do not find mention of any specific provisions against
incest. Incestuous conduct is almost never consensual. Instead it is
rooted in physical force as well as familiar and other power which
the abuser uses to pressure his victim. Nor is child abuse by parents
and other elders confined to a single political ideology or to one
economic system. It transcends barriers of age, class, language,
caste, community, sex and even family. The only commonality is
power which triggers and feeds incest in families. The power is
multiplied several times over when the relationship between the
abuser and the abused is of father and daughter. Disbelief, denial
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and cover-up to "preserve the family reputation" are often then
placed above the interests of the child and its abuse (Reliance on the
material on the internet).
13.This case is a glaring example of the growing menace of sexual
abuse of young children. Rape is an abominable and ghastly and it
worsens and becomes inhuman and barbaric when the victim is a
small female child who is subjected to unwanted physical contact by
a perverted male adult.
14.Considering the aforesaid submissions from both the sides, the
family circumstances of the convict Mr.Ghanshyam Mehto and
perusing the case record, I consider it proper to award a substantive
sentence upon the convict.
15.I am of the considered opinion that the convict should be awarded a
substantive, stern and firm sentence because she has committed
offence of very serious nature. It has been held in a catena of cases
that 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.
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16.Considering the aforesaid submissions from both the sides, the
family circumstances of the convict and perusing the case record, I
consider it proper to award a substantive sentence upon the convict.
Keeping in view the offence committed by the convict, I am not
inclined to take a lenient view against him and release him on
probation. He has raped his own 13 years old minor female child
who was motherless, helpless, defenceless, vulnerable and an easy
prey.
17.I am of the considered opinion that the convict should be awarded a
substantive, stern and firm sentence because despite being the
custodian and protector of the child, he has defiled her. As per social
morality which attaches highest importance to the chastity of a
woman and a minor daughter, the outrage and breach of her privacy
and modesty is a heinous offence.
18.I am of the opinion that in the present case, keeping into
consideration the fact that the act of rape on his own daughter, aged
about 13 years, is an act of a perverted man, he shold not escape
with a minor punishment.
19.The convict has two minor motherless daughters including the
prosecutrix and one minor son and their welfare and interest also
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need to be protected for the reason that if the convict is released
before they attain majority, the daughters may not be able to stop
him from committing similar offence with them. It is essential that
the convict should be made to stay away from his minor daughters
to save them from a similar fate as that of the prosecutrix, as in the
present case.
20.In such a situation, it is essential that the victim who is a minor
female child should be protected from the convict as in case any
lenient view is taken against victim he may harm the victim in order
to take revenge. It must also be ensured that the victim attains the
age of sufficient maturity and physical power and strength that she is
able to prevent the convict from taking vengeance from her. The
interest of child victim needs to be protected.
21.It has been held in the judgment reported as State of Karnataka v.
Raju, 2007 (11) SCC 490 that:
The measure of punishment in a case of rape cannot
depend upon the social status of the victim or the
accused . It must depend upon the conduct of the
accused, the state and age of the sexually assaulted
female and the gravity of the criminal act. Crimes of
violence upon women need to be severely dealt with.
Public abhorrence of the crime needs reflection
through imposition of appropriate sentence by the
Court. There are no extenuating or mitigating
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circumstances available on the record which may
justify imposition of any sentence less than the
prescribed minimum on the respondent. ? To show
mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence.
22. A similar view was taken by the Hon'ble Supreme Court in Siriya @ Shri Lal v. State of Madhya Pradesh, wherein it was held that:
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..
23. In AIR 2000, Supreme Court, 1470, the Supreme Court held has under:
'Socio-economic, status, religion, race caste or creed o the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape Sessions Case Number: 106 of 2009.
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on innocent helpless girls of tender years, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court.
24. In the present case, the convict has committed the offence of attempt to rape on his 13 years old minor motherless daughter. Due to her tender age, neither the body of the child was fully developed nor she was in a position to offer any resistance to the convict. The convict has taken advantage of a helpless and defenceless child who may have even not understood the gravity of the offence or try to escape and was an easy and vulnerable prey. She must have undergone immense physical pain and agony when the offence was committed. Inspite of the tender age of the child, the convict went on to commit the ghastly, abominable, inhuman and barbaric act of rape, violating the person of the child and giving her a lifelong trauma.
25. Keeping in view the ghastly and inhuman act of the convict, a substantive and stern sentence is required to be imposed upon the convict so that it is not only in commensuration with the gravity of the crime but also serves as an example for the others who might also venture on the same forbidden path. The convict does not deserve any leniency.
Sessions Case Number: 106 of 2009.
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26. Therefore, considering these aggravating facts, I hereby sentence Mr.Ghanshyam Mehto, the convict to undergo rigorous imprisonment for a period of seven years and a fine in the sum of Rs.25,000/- in default of payment of which, he shall undergo rigorous imprisonment for a period of one year. Both the sentences shall run concurrently, in the event of the fine not being realized.
27.The convict has remained in judicial custody since the date of his arrest i.e. 13.07.2009. The period of custody already under gone by him be set off against the sentence awarded to the convict, granting him the benefit of section 428 of the Criminal Procedure Code.
28. The entire amount of fine, if realized, is awarded to the prosecutrix as compensation for the benefit of the prosecutrix and shall remain deposited in the form of FDR under the guardianship of the Child Welfare Committee till the attainment of majority by the prosecutrix without the facility of advance / loan or withdrawal. The Child Welfare Committee shall also look after the welfare of the child and take steps for ensuring her rehabilitation. Further, the monthly or quarterly interest, as applicable regarding the FDR, may be withdrawn by the Child Welfare Committee for the benefit of the child prosecutrix.
Sessions Case Number: 106 of 2009.
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29.The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
30.A copy of the judgment dated 02.08.2010 and a copy of the order on sentence, duly attested, besides the complete set of copy of the relevant case record, in compliance of direction of the High Court, be given to the convict, namely, Mr.Ghanshyam Mehto, free of cost immediately.
31.A copy of the order on sentence be also sent to the Child Welfare Committee for information and compliance.
32.Copies of one set of the judgment dated 02.08.2010 and order on sentence also be given to Additional Public Prosecutor, as requested.
33. After completion of the formalities, the ahlmad is directed to consign the file to the record room.
Announced in open Court on (NIVEDITA ANIL SHARMA) this 28th day of August, 2010. ASJ-01, West, Delhi.
Sessions Case Number: 106 of 2009.
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