SAKTHIVEL Vs. STATE

JUDGEMENT

(1.) THESE appeals have been preferred against the Judgment in Spl.S.C.No.47 of 2003 on the file of the learned Special Judge (Principal Sessions Judge) Coimbatore. A1 to A3 who have charged under Section 376(2)(g) of IPC who have been convicted and sentenced to undergo ten years rigorous imprisonment and a fine of Rs.10,000/- each, are the appellants herein (Crl.A.No.1072 of 2004 by A1 and A2. Crl.A.No.371 of 2005 by A3).

(2.) THE short facts of the prosecution case relevant for the purpose of deciding these appeals sans irrelevant particulars are as follows: P.W.1 the victim herein is a sweeper in a private company and while she was on her way to the workspot near the place of occurrence, A1 to A3 waylaid P.W.1 Tulsi pushed her towards nearby maize field belonging to one Senthil Gounder and committed an offence of gang rape. She immediately rushed to the near by Mahaliamman Temple from where she got a saree from P.W.8 and returned home with the help of an elderly persons and since it was late in the night, and her husband was also not in the house at that time, the following day, she went and informed the occurrence to the President of Co-operative Society and according to his instructions, a complaint was drafted with the help of the son of Panchayat Board President and presented before the Madukarai Police Station on the next day i.e., on 28.12.2001 at about 3.00p.m. Ex P1 is the complaint. P.W.10, the then Sub Inspector of Police, Madukarai Police Station, has registered the case under Crime No.559 of 2001 under Section 376 of IPC r/w 3(i)(iii) and 3(1)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the basis of the Complaint Ex P1 preferred by P.W.1. Ex P15 is the first information report. THE copies of the same have been sent to the Judicial Magistrate as well as the police higher officials.

(3.) P.W.1 is the victim girl Tulsi who would depose that she is aged 24 and is working in a private radiator company as a sweeper and that A1 and A2 belongs to Okkiliar Caste and A3 belongs to Scheduled Caste to which she also belongs and that on the date of occurrence, while she was going to work place A1 to A3 way laid her and dragged her to the maize field belonging to one Senthil Gounder and after removing her saree and inskirt and torn her jacket A1 toA3 have forcibly raped her and that she ran away from the place of occurrence to the nearby Mahaliamman Temple within half an hour in a nude posture and at that time, poojas were performed in the said Mahaliamman Temple, on hearing her call a lady by name Dhanapackiam brought a towel from the priest of the temple and also gave water to her and at the instance of Dhanapackiam, Chandran a tailor brought a saree for her and that she had narrated what had happened to her,to Dhanapackiam, temple priest and also to Chandran. She would further depose that A1 and A2 followed her to the temple and she identified both of them to the people present in the temple in a scooter that they are the persons who have raped her and that since it became dark, she returned to her house with the help of an elderly person and after her husband came to the house, she went and met the President of the Cooperative Society who in turn had advised her to complain with the President of Pichanur Panchayat. Accordingly, she went to the President of Pichanur Panchayat and narrated the instance who in turn had instructed her to prefer a complaint to the police and he asked his younger son to prepare a complaint and accordingly his younger son prepared a complaint which was shown to her and she has signed in the complaint, after going through the same and on the following day, she went to the police station in the evening and preferred a complaint which is Ex P1. The distance between the place of occurrence and Madukarai Police Station is about 10 km. The police had sent her to Government Hospital, Coimbatore for treatment. Since there was no doctor available in the evening, she returned to her house and on the next day morning, she went to the hospital. She had handed over to the police M.O.1 Nylon Jacket, M.O.2 green colour inskirt, M.O.3 saree which she wore at the time of occurrence. 5a. P.W.2 is the doctor who had examined A1 to A3 and issued Exs P2 to P4 potency certificate. P.W.3 is the Tahsildar who had issued community certificaite to P.W.1 and A1 to A3 under Exs P5 to P8 respectively. P.W.4 would depose that M.O.1 Jacket was seized by the police in his presence under Ex P9 mahazar at the hospital on 28.12.2001 at about o6.00p.m., 5b. P.W.5 is Suseela who runs a tea shop near Mahaliamman Temple. She would say that Dhanapackiamm, received a towel from the temple priest and from her, she came to know that the towel is required for a woman who is standing near the temple without any saree and that she along with Dhanapackiam went and saw the said lady who was wearing only torn jacket and a towel. Chandran, a tailor gave a saree to the said lady through Dhanapackiam and after wearing the said saree, the lady Tulsi came to her tea shop and also informed her(P.W.5) that three persons have raped her and at that time , two persons came in a moped who were identified by Tulsi as the person who had raped her. She has also identified A1 and A2 as the person who were riding on the moped on the said date. She would further depose that temple priest Velusamy is now no more. 5c. P.W.6 is the doctor who had examined P.W.1 on 29.12.2001 and issued Ex P10 copy of the accident register. The doctor has opined that P.W1 had already undergone tubectomy and that nail marks were seen on her right hand and that she is not a virgin. The doctor has further deposed before the Court that P.W.1 has informed her that her inskirt, saree which was worn by her at the time of occurrence were taken away by three persons who had gang raped her. 5d. P.W.11 is the then Inspector of Police who had given Ex P16 requisition to the Government Hospital, Madukarai for examining P.W.1. Ex P18is the radiologist's report for fixing the age of the victim girl P.W.1. Through Ex P17, the victim girl was sent to the Government Hospital for examination. 5e. P.W.12 is the then Deputy Superintendent of Police, Pothanur Division, Coimbatore. After hearing about the registration of the case, under Crime NO.559 of 2001 of Madukarai Police Station under Section 376(2)(g) of IPC, he immediately rushed to the Government Hospital , Coimbatore and examined P.W.1 and had recovered M.O.1 Jacket, in the presence of witnesses under Ex P9 mahazar and thereafter he went to the place of occurrence and prepared Ex P11 Observation Mahazar, at about 8.30p.m. On 28.12.2001 in the presence of P.W.7 and also recovered M.O.4 series a pair of chappels under Ex P12 Mahazar in the presence of P.W.7. M.O.5 series are the photo's and negatives for the place of occurrence taken through the photographer. He(P.W.12) has examined witnesses and recorded their statements. Ex P19 is the rough sketch prepared by P.W.12. On 30.12.2001 at about 12.15p.m., he had arrested the accused and recorded the confession statement of A1 in the presence of P.W.7 and another witness. Ex P 13 is the admissible portion of the confession statement of A1 . On the basis of the admissible portion of the confession statement , A1, took him to a bush behind the compound wall of Pichanur radiator company and took out M.O.2 inskirt and M.O.3 saree worn by the victim girl at the time of occurrence, from the hidden place, which were seized under Ex P4 mahazar in the presence of P.W.7 and another witness. He had sent the accused for chemical examination along with Ex P21 requisition letter. M.O.6 TVS moped used by the accused was recovered on 2.1.2002 from the house of one Gurusamy and Manickam under Ex P22. Blood samples were taken from P.W.1 and sent for chemical analysis. Ex P23 is the special report submitted by the radiologist. Through Ex P24, letter of requisition the material objects connected with this case were sent to forensic science laboratory for analysis. Ex P26 is the requisition letter given by the Court. Ex P27 is the chemical analyst's report. Exs P28 and P29 are the serologists' report. Under Ex P30 letter of requisition, the material objects connected with this case were sent to chemical laboratory for analysis. Ex P31 is the analyst's report. 5f. P.W.8 Chandran would depose that on information from Dhanapackiam, he gave a saree to P.W.1 on 27.12.2001 at about 4.30 p.m., when she was found near the Mahaliamman Temple. P.W.8 has also deposed that P.W1 has identified two persons who came in a moped at the time, as the persons who had raped her. He has identified as A1 and A2 are the persons who came on the other day in the moped and identified by P.W.1. He has further stated that P.W.1 had informed him that three persons have raped her. 5g. P.W.9 would depose that A1 took his moped some 2 " years back at 11.00a.m., and on the same day night, he returned the moped. After completing investigation, P.W.12 has filed his final report against the accused.