Delhi District Court
State vs . Lokesh Mishra on 29 April, 2010
State Vs. Lokesh Mishra
IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS
PATIALA HOUSE COURTS, NEW DELHI
Date of Institution: 15.07.2008
Order reserved on : 25.03.2010
Date of pronouncement : 15.04.2010
SC No. 170/08
ID No. 02403R0621312008
FIR No. 161/2008
P.S. Defence Colony
U/s. 376 / 506 IPC
State Vs. 1. Lokesh Mishra
S/o Sh. Prabhu Dayal
R/o. H.No. 142, Second Floor,
Gujjar Dairy, Gautam Nagar,
New Delhi.
(Convicted)
JUDGMENT
1. Prosecution case is that on the night of 16/17.05.08, prosecutrix came with her mother Babita at the police post and lodged a complaint that her father has been committing rape upon her for one year and threatens to kill her, in case, she would report the matter. She was produced before SI Arvind Sharma where she got Page numbers State Vs. Lokesh Mishra recorded her statement alleging interalia :
th She has been studying in 7 class and living with her two sisters, father and stepmother. Her mother had expired about 3 years ago. Her father did the second marriage with Babita. During the lifetime of her real mother, her father had molested her which was in the knowledge of her mother. After her death, he continued molesting her. About two years ago, when her mother was away from the house, he did the wrong act with her. She had complained to her stepmother who sent her to the village. After about seven / eight months, she came back. She did not find any improvement in the conduct of her father . About a year ago, her father had sent her mother and sister away from the house and committed rape upon her. She complained to her mother who developed a quarrel with him. Her father threatened both of them and tendered apology. After sometime, when her mother had gone to her parent's house, her father again committed rape upon her. She told this incident to her mother who told that she would lodge complaint with the police, however her father intimidated them. After that, her father committed rape one or two times upon her. About two months ago, they shifted in a house at Gujjar Dairy. On 14.05.08 her father had given beatings to her mother. She left the house with her son. On the same night, her father raped her. When she told her father that she would report to the police, he remained quiet for two days. After arrival of her mother, she has come at the police post to lodge report.
2. The girl was sent to the hospital for medical examination Page numbers State Vs. Lokesh Mishra through W/HC Toppo. The doctor, found her hymen ruptured. On her statement and the MLC, case u/s 376/506 IPC was registered. Further investigation was conducted by SI Saroj Bala. She went to the house at Gujjar Dairy with the prosecutrix, seized the bed sheet on which accused had committed rape, got her statement recorded u/s. 164 CrPC and arrested the accused. She had taken him to AIIMS where the doctor, after examination opined that the accused was capable of performing sexual intercourse in normal course of nature. His underwear was seized. Blood in gauze was also collected. The exhibits were sent to FSL. As per the report, human blood 'B' group was detected on the gauze cloth piece. Human semen was detected on the bed sheet and the underwear. Her date of birth as per the school record was found to be 05.08.1996. After investigation, the accused was sent for trial.
3. On his appearance, after supplying the copy of the charge sheet, the case was committed to this court on 20.09.2008.
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4. After making out a primafacie case, the charge was framed against the accused u/s 376/506 (I) IPC. Accused pleaded not guilty and claimed trial.
5. To substantiate its case against the accused, prosecution examined as many as 12 witnesses. PW1 is the victim/prosecutrix. PW2 Inspector Arvind Kumar had recorded the statement of the prosecurtix on the night of 16/17.05.08. He had sent Pw1 with the lady HC Clara Toppo Pw3 to the hospital for her medical examination. She had also accompanied SI Saroj Bala and the prosecutrix to her house at Gujjar Dairy from where the bed sheet torn at two places Ex.P1 was seized. She had taken Pw1 to the Court where her statement u/s 164 Cr.PC was recorded. PW4 Constable Kishan Pal was present when the accused was arrested. PW5 HC Chander Veer Singh had taken the accused to AIIMS for medical examination. He had collected the sealed pullandas and the Page numbers State Vs. Lokesh Mishra sample seal from the doctor vide memo Ex.PW5/A. PW6 Ms. Charan Sakhi was the viceprincipal of the school. She had given a certificate Ex.PW6/A to the investigating officer giving her date of birth as 05.08.1996. As per the certificate the name of the prosecutrix is Preeti Mishra. She has admitted that the prosecutrix Preeti had never told her about this incident. PW7 Ct Rama Kant was present at the police post, Gulmohar Park. He had recorded the complaint in the roznamcha vide DD No. 38 Ex.PW2/A. PW8 Ms. Geetanjali Goel had recorded the statement of the prosecutrix u/s 164 Cr.PC vide Ex.PW8/A and sent the girl to Nirmal Chhaya.
PW9 Dr. Arvind Vaid was the senior resident gynaecology, AIIMS. He deposed on behalf of Dr. Shikha Sarangi who had examined the girl vide MLC Ex.PW9/A. PW10 Dr. Sushil Sharma was the senior resident, Deptt. Of Forensic medicine, AIIMS. He had examined the accused vide MLC Ex.PW10/A. He had handed over the blood in gauze and the underwear of the accused alongwith the sample seal to PW5. PW11 Dr. Dhruv Sharma had examined the Page numbers State Vs. Lokesh Mishra exhibits and detected blood on the blood gauze Ex.P2, human semen on the torn bed sheet Ex.P1 and the underwear Ex.P3 vide his report Ex.PW11/A. He had also conducted serological examination of the exhibits and detected blood of group 'B' on Ex.P2 however, gave inconclusive report Ex. PW11/B on Ex.P1 and P3.
PW12 W.SI Saroj Bala had investigated the case after its registration. She had prepared the site plan Ex.PW12/A at the instance of Pw1, seized the bed sheet vide Ex.PW1/B and arrested the accused. She had sent the accused for medical examination, collected the exhibits from HC Chander Veer, produced the girl before Pw8 and sent the exhibits to FSL. She had also collected the proof of her date of birth.
6. Statement of accused was recorded u/S 313 Cr.PC wherein he controverted the prosecution case and stated that no such incident had ever occurred. He was falsely implicated by his daughter as she had illicit relations with Ramu and Rakesh which he never liked. He Page numbers State Vs. Lokesh Mishra examined two witnesses in defence i.e. DW1 Sh. Brij Nandan and DW2 Dolly.
DW1 is the brother of the accused. He stated that on 14.05.08, Kumari Aarti was in the temple with them. The police had taken her from there. Babita had come to him and demanded money for getting the matter settled. He stated that the prosecutrix is a girl of loose character and had affairs with Ramu which the accused never liked. DW2 is the daughter of the accused/real sister of the prosecutrix PW1. She stated that PW1 is five years elder to her. When the police came, Kumari Aarti was with her at Arya Samaj Mandir. She stated that on one day Ramu uncle had come to meet Aarti but her father had objected. She stated that her sister had never told her such incident.
7. I have heard the arguments advanced by Ld. APP and Ld. Counsel Sh. Ashish Sharma for the accused.
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8. Ld. Counsel vehemently argued that that there is marked improvement in the testimony of PW1. She has deposed in a humpty dumpty manner. Prosecution did not examine Babita with whom PW1 had gone to lodge report. According to PW2, Babita had gone with PW1 at the time of medical examination but the MLC does not show her presence. Vaginal swab of the prosecutrix was not taken to find out the presence of semen. The serelogical report is inconclusive for semen. There was no physical injury either on the vagina of the prosecutrix or the penis of the accused. The possibility of rupture of hymen could also be due to jumping etc. The testimony of DW1 and DW2 show that on 14.05.08, PW1 was present at Arya Samaj Mandir. There is no corroboration to the testimony of PW1 from any independent witness or the family members. The accused had strained relations with Babita. She wanted to extort Rs.3 lacs from him. The prosecutrix had affairs with Ramu which the accused never liked.
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9. Ld. APP per contra argued that the prosecutrix is the real daughter of the accused. It is highly improbable that she would falsely implicate her father in a case of rape. She has categorically denied the suggestions that she had affairs with Ramu and has falsely implicated the accused at the instigation of Babita. The accused had molested her even during the lifetime of her real mother. The accused finding the prosecutrix alone on many occasions molested her and threatened that in case, she would report the matter, he would kill her. It was not once but on many times she was subjected to rape. The medical evidence duly corroborates her testimony as the doctor had found her hymen ruptured. The doctor has denied the suggestions of the accused that there was no possibility of victim being raped. The bedsheet Ex. P1 had the semen marks of the accused. Since the report was lodged on 17.05.08, so the possibility of not detecting semen in her vaginal swab could be there. For an offence of rape, mere penetration is sufficient and it is not necessary that the semen be emitted at the time of intercourse.
Page numbers State Vs. Lokesh Mishra There is no reason to doubt on the testimony of PW1. DW2 is five years younger to PW1, who too was about 12 years old, so possibility of not telling this fact to DW2 could be there. DW1 is an interested witness. He did not lodge any complaint that it was a case of false implication. Effort was made to trace Babita but she was not found. After the incident, Pw1 either remained in Nirmal Chhaya or the Rehabilitation Centre "Prayas" so there was no question of her tutoring by Babita. Her statement was recorded thrice and she remained consistent and cogent on the point of rape upon her person.
10. I have considered the rival contentions and perused the evidence and the documents.
11. Section 375 IPC defines rape which reads as : A man is said to commit 'rape' who, except in the case hereinafter excepted, had sexual intercourse with a women under circumstances ie against her will, without her consent, with or without her consent when she is Page numbers State Vs. Lokesh Mishra under 16 years of age..... with an explanation that penetration is sufficient to constitute the sexual intercourse necessary to the commission of rape.
12. Here the prosecutrix / victim Pw1 is none else but a minor girl. She is the real daughter of the accused. As per the school record Ex. PW6/A her date of birth is 05.08.1996 and her name is Preeti Sharma. Pw1 has stated that she used to be called in the name of Preeti. The accused had also given an affidavit to the school authorities to that effect. At the time of incident she was below 12 years. She has testified on oath that during the lifetime of her real mother Poonam, when she had been living at Vasant Kunj, accused had called her in the bathroom for rubbing his back and tried to molest her. Her mother had raised quarrel with the accused and sent her to her native place where she remained for 8 months. After her death, accused married to Babita and they started living at Gautam Nagar. She stated that after about two months, her father sent her Page numbers State Vs. Lokesh Mishra mother Babita outside the house and in her absence, he committed rape upon her. She stated that once he had sent her mother to Dehradun for Mundan of her brother and thereafter raped her. When she returned home, she told her about this incident who asked her to lodge a complaint but the accused threatened her not to disclose it to anyone. She stated that she did not complaint the act of her father to her teachers / friends since her mother wanted that the matter should not go in public. She stated that the accused used to send her mother outside the house on one pretext or the other and in her absence used to commit rape. She stated that when they had been living at Gujjar Dairy, the accused had committed rape and due to this, her mother went somewhere for three days. She stated that on the same night, the accused committed rape upon her. When she told her father that she would do something, he intimidated her. On the third day, when her mother returned, she told her the whole incident who took her to the police station where her statement Ex. Pw1/A was recorded. She stated that she was taken to the hospital Page numbers State Vs. Lokesh Mishra where she was medically examined. She stated that police had seized the bedsheet Ex. P1 on which the accused had raped her. She also stated that police had got her statement recorded u/s. 164 CrPC Ex. PW1/E. She was subjected to detailed cross examination but she remained consistent and cogent. She has testified that the accused had told her mother that he was under the influence of some "jinn". She stated that at the time of rape her father used to threaten her to shut her mouth. She denied that she knew Ramu and her father had objected on the coming of Rakesh, the brother of her step mother.
13. Testimony of Pw1 reveals that accused had committed rape upon her not once but number of times. I do not find any substance in the contention of Ld Defence Counsel that Pw1 has deposed in a humpty dumpty manner or at the instigation of Babita. She has specifically denied the suggestion that she was in love with Ramu and wanted to marry him. It is relevant to mention that her statement was Page numbers State Vs. Lokesh Mishra recorded thrice. Once at the police station, second before the Magistrate u/s. 164 CrPC and third in this Court and in all the three statements, she has categorically stated that accused had raped her number of times. No daughter would like to implicate her father in such an immoral act unless subjected thereto. It is also relevant to mention that after her statement u/s. 164 CrPC she was sent to Nirmal chaya. He had come in the witness box from "Prayas" where she has been staying for long. She at the time of alleged incident was below 12 years and could not think of love or marriage with someone. Facts and circumstances show that she kept mum when she was molested / sexually assaulted once or twice but when the accused crossed all his limits / lost decency of behaviour and values and had kept his evil eye on her as and when he found her alone, she lodged the report.
14. In the case of Madan Gopal Kakkad V. Naval Dubey MANU/SC/0599/1992 ; [1992] 2SCR 921: the Apex court has Page numbers State Vs. Lokesh Mishra expressed concern that all sexual assaults on female children are not reported and do not come to light, there is an alarming and shocking increase of such cases. Children were ignorant of the act of the rape and also not able to offer resistance and become easy pray by lusty brutes who display unscrupulous, deceitful and insidiuos art of luring female children and young girls.
15. In the instant case, Pw9 Sr. Resident Gynecology AIIMS has stated that as per the history given on the MLC, it was a case of sexual assault by her father for one year. He had done intercourse 45 times and lastly on 14.5.2008. On local examination the hymen was found raptured. On the basis of examination, the possibility of rape cannot be ruled out. Though the MLC Ex. PW9/A was prepared by Dr. Shikha Sarangi but he has stated that he has seen her writing and signing during the course of his duty with her. He is also a specialist in this field. He has denied the suggestions that there was no possibility of victim being raped. Human semen was detected on Page numbers State Vs. Lokesh Mishra the bed sheet Ex. P1 as per FSL report Ex. PW11/A. No doubt vaginal swabs of the prosecutrix were not taken but it is equally important to note that the incident had happened on 14.5.08 and the matter was reported on 17.5.2008 when she was taken by her mother to the police station. By that time semen if any might have been washed out from the vagina. Further absence of spermatozoa cannot negative rape. The MLC of the accused Ex. PW10/A nowhere suggests that he was incapable of performing sexual intercourse in the normal course of nature. As regards physical injury on the vagina of the prosecurtix or the penis of the accused, it has come in the testimony of PW1 that it was not once accused had raped her. The accused taking advantage of absence of her stepmother used to rape her off and on. To constitute penetration it must be proved that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. The only thing to be ascertained is whether the private parts of the accused did enter into the person of the woman.
Page numbers State Vs. Lokesh Mishra It is not necessary to decide how far they entered. Seminal emission is not necessary to establish rape. What is necessary is that there must be penetration.
16. Medical Jurisprudence and Toxicology (Twenty First Edition) by Modi at page 369 reads thus :
"To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rapture 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 commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
17. In the case Dalchand Vs. State AIR 1969 All 216 it was held :
Medical evidence in a rape case is a great corroborative evidence in support of the charge of rape. Laceration of hymen, posterior Page numbers State Vs. Lokesh Mishra perineum and vaginal walls of the victim have been proved by medical evidence. In such a case, absence of injury on the person of the accused and particularly penis cannot be sole ground for discarding prosecution evidence.
18. In the case of Madan Gopal Kakkad supra from Parikhs Textbook of Medical Jurisprudence and Toxicology, the following passage was referred :
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.
In Encyclopedia of Crime and Justice (Vol. 4) at page 1356, it is stated :
... even slight penetration is sufficient and emission is unnecessary.
Therefore, absence of injuries on the private parts of a victim cannot, ipso facto, lead to an inference that no rape has been committed."
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19. No doubt, prosecution did not examine Babita who had taken the prosecutrix to the police post but I do not find any reason to disbelieve PW1 whose testimony is corroborated by medial evidence. Summons to Babita were sent number of times but she could not be traced. Testimony of prosecutrix (victim) in cases of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the court find no difficulty in convicting the accused on prosecutrix testimony alone. A mere act of helpless resignation in the face of inevitable compulsion, quiescence nonresistance passive giving in, when volitional faculty is either clouded by fear or vitiated by duress is a relevant fact. In this case, the accused committed an act of gross indecency towards her minor daughter. The offence was inhumane which was a result of perverse mind. It is well settled law that a woman's complaint that she has been raped must be taken at face value in a conservative society like India where indelible stigma is attached to the victim unless of course there appears to be a blatant flaw in the case. The Page numbers State Vs. Lokesh Mishra Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC 753 said that in the Indian setting refusal to act on the testimony of the 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 or suspicion?
To do so is to justify the charge of male chauvinism in a male dominated society. The Court outlined the following reasons for not insisting on corroboration :
(1) A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours.
(3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home.
(5) If she is unmarried, she would apprehend that it Page numbers State Vs. Lokesh Mishra would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her.
(8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is a taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy and disrepute. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.
(11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent.
20. In the case of Radhu Vs. State of Madhya Pradesh 2007 Crl LJ 4704 it was held :
It is now well settled that a finding of guilt in a case Page numbers State Vs. Lokesh Mishra of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is incorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape
21. In the case of Moti Lal Vs. State of M.P. MANU/SC/7825/2008 the Apex Court has observed :
that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys and physical body of his victim, a rapist degrades the very soul of the helpless female. The court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, Page numbers State Vs. Lokesh Mishra which are not of a fatal nature, to throw out an otherwise reliable prosecution case.
22. After examining her testimony in the context of the social milieu from which she hails, her educational back ground coupled with the medical records, irresistible conclusion is that the accused had raped the prosecutrix number of times. I do not find any reason to disbelieve her.
23. As regards defence, Dw2 is five years younger to the prosecutrix. Pw1 at the time of alleged incident was below 12 years. The question of bringing this incident to the notice of Dw2 at this tender age would have not been there. She at that time was not even capable of understanding what is rape or sexual assault. DW1 has alleged the prosecutrix is a girl of loose character but there is no evidence to corroborate his testimony. Pw1 has denied her relations with Ramu or Rakesh. He did not complain to any officer when the Page numbers State Vs. Lokesh Mishra accused was arrested by the police. Keeping these facts into consideration, no credence can be given to the defene witnesses.
24. As regards the allegations of extortion by Babita, it is an admitted case that she is the mother of a male child from the accused. The child was living with the accused. The accused could not give satisfactory answer as to why she wanted to extort money from him. Facts and circumstances show she had come to meet the accused in Jail. His previous conduct also shows that he had molested Pw1 even during the life time of his first wife. He finding Pw1 alone on many occasions sexually assaulted her and intimidated her not to report the matter to anyone.
25. During arguments ld counsel had pointed out that according to PW2, Babita had gone with Pw1 for medical examination but the MLC does not show her presence. Testimony of Pw1 reveals that the police officials had taken her to the hospital where she was medically Page numbers State Vs. Lokesh Mishra examined. After perusing the record coupled with the testimony of prosecution witnesses I find that the prosecutrix had gone with Babita at the police post to lodge report. From the police post itself, she was sent to the hospital for medical examination which fact is also evident from the testimony of Pw2.
26. Ld counsel further argued that there is an improvement as to whether Pw1 had gone with her parents in the mundan ceremony or whether the accused had stayed at the house with Pw1 and committed rape upon her. Perusal of testimony of Pw1 reveals that it was not once when she was subjected to rape. The accused raped her on number of times. She has given specific incident of 14.5.08 when the accused had raped her. She has stated that she was raped when her step mother had gone for mundan ceremony of her step brother and it happened after about 1 month of the second rape. Since her father had threatened her, due to fear she did not lodge report. She stated that at the time of rape, her father used to threaten Page numbers State Vs. Lokesh Mishra her to shut her mouth. She has stated that the rape was committed on her when her mother Babita had gone to Dehradun to give card for the Mundan of his brother Piyush. In this case Pw7 had recorded the complaint in the roznamcha Ex. Pw2/A wherein she had alleged rape by her father. The bedsheet was taken from the spot which had semen stains. Pw1 has stated that on the same bed sheet, the accused had committed rape upon her. In this view of the matter, the contentions of Ld defence counsel do not carry any weight and no inference can be drawn that it was a case of false implication.
27. In the case of State of Andhra Pradesh Vs. Gangula Satya Murthy AIR 1997 SC 1588 it was held :
"The courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and to get swayed by minor contradictions or insignificant discrepancies in the statement of he witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of the crime against women in general and Page numbers State Vs. Lokesh Mishra rape in particular is on the increase".
28. In the case of Zahira Habibulla H. Sheikh & Anr V. State of Gujarat & Ors AIR 2004 SC 346 it was held :
A criminal trial is a judicial examination of the issues in the cases and its purpose is to arrive at judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings ; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not be an isolated scrutiny.
29. In the case of Inder Singh & Anr Vs. The State (Delhi Administration) (1998) 4 SCC 161 Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in Page numbers State Vs. Lokesh Mishra all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic."
30. During arguments ld counsel referred cases of Abbas Ahmed Choudhary Vs. State of Assam 2010 III AD (S.C.) 506 and Dinesh Jaiswal Vs. State of MP 2010 III AD (SC) 339 to contend that in a criminal trial, broad principle that the prosecution has to prove its case beyond reasonable doubt applies ..... and there can be no presumption that a prosecutrix would always tell the entire story truthfully.
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31. There is no dispute about this legal proposition but in the present case the testimony of prosecutrix is consistent and cogent which is duly corroborated by medical evidence. Her statement was recorded thrice. It was not once but number of times the accused had committed rape upon her. In the case of Ahmed Abbas Supra, the prosecutrix had not attributed any rape to Abbas Ahmed in her statement recorded on 17.9.97, she had stated that he was not one of those who kidnapped her. In her statement before the Court, she had attributed rape to Abbas Ahmed. In the instant case she has attributed rape to the accused during investigation and before the Court. In the case of Dinesh Jaiswal supra the appellant who was known to the prosecutrix had entered the house and after having inflicted tangi blows on her head and hands, raped her. The prosecutrix in her defence had snatched the tangi from the appellant and caused several injuries on his head while he was leaving the room. Both had become unconscious. Husband of the proseturix had arrived at the scene and she had told him about what had happened.
Page numbers State Vs. Lokesh Mishra The doctor was unable to confirm the factum of rape. Her husband did not come in the witness box. In the instant case the medical evidence shows the rapture of hymen. The doctor did not rule out the possibility of rape on the person of Pw1. For these reasons, the case laws supra do not help the accused in any manner.
32. On considering the facts, case laws, the documents and the testimony of witnesses after its detailed scrutiny I am of the considered opinion that prosecution has proved its case against the accused Lokesh Mishra beyond reasonable doubt. I therefore, convict him for the offences u/s. 376 (2) and 506 (1) IPC. Announced in the open court on this 15th day of April, 2010 (Sanjiv Jain) Special Judge - NDPS Patiala House Courts : New Delhi Page numbers State Vs. Lokesh Mishra IN THE COURT OF SH. SANJIV JAIN : SPECIAL JUDGE - NDPS PATIALA HOUSE COURTS, NEW DELHI SC No. 170/08 FIR No. 161/2008 P.S. Defence Colony U/s. 376 IPC State Vs. Lokesh Mishra ORDER ON SENTENCE
1. Vide separate judgment accused has been convicted of the offence punishable u/s. 376(2) and 506(1) IPC.
2. I have heard Sh. Ashish Sharma, ld counsel for the accused and Ld APP for the State on the point of sentence.
3. Ld counsel Sh. Ashish Sharma submits that the convict is aged about 36 years, does not have any previous involvement, has a family comprising of his two minor daughters and one son. Except him there is no one to look after them. Ld counsel has requested for taking lenient view keeping in view his age and antecedents.
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4. Ld APP per contra submits that the convict is involved in heinous offence involving moral turpitude and does not deserve any leniency. He had committed rape on his minor daughter.
5. I have considered the submissions. It was held in the case Narayan Vs. State of Mahrashtra 1994 Crl LJ 1752 that no leniency could be shown to an accused, a young man who has committed rape on a seven years old girl. In the case of State of Maharastra Vs. Rajandra Jawanmal Gandhi (1997) 8 SCC 386 it was held that in the absence of external circumstances, the court cannot award less than the minimum statutory sentence.
6. In the instant case, the convict is involved in the rape of his own daughter who was below 12 years. Rape is the most hated crime. It is a crime against basic human rights and is also violative of the victims most cherished of the fundamental rights, namely the Page numbers State Vs. Lokesh Mishra "Right to Life and Liberty" contained in Article 21. He had exceeded all the limits of moral decency. I do not find any extraneous circumstance in this case to award less than minimum statutory sentence. In order to uproot the menace of sex violence against minors / infants, deterrent punishment is called for.
7. Taking into consideration the facts and circumstances of the case, his age, antecedents and family background I sentence the convict to undergo Life Imprisonment and also to pay fine of Rs. 5,000/ in default thereof to undergo simple imprisonment for a period of six months u/s. 376 IPC. This view is supported with a celebrated authority reported in State of Himachal Pradesh Vs. Asha Ram 2005 X AD S.C. 255. He is also sentenced to undergo rigorous imprisonment for a period of two years for offence punishable u/s. 506(1) IPC. Both the sentences shall run concurrently. He is given benefit of Section 428 CrPC.
File be consigned to record room.
Page numbers State Vs. Lokesh Mishra Announced in the open court on this 29th day of April, 2010 (Sanjiv Jain) Special Judge - NDPS Patiala House Courts : New Delhi Page numbers