MUTHUPANDI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) C.A. No. 650 of 1983 is an appeal by the State represented by the learned Public Prosecutor under Section 377 Cr. P.C., for enhancing the sentence, imposed for the offence under Section 376 I.P.C. on the respondents, who were accused 1 to 3 in S.C. No. 44 of 1981 on the file of the Fifth Additional Sessions Judge, Madras. C.A. No. 651 of 1983 is a similar appeal by the State, preferred under Section 378 Cr. P.C. against the acquittal of the same respondents, challenging the correctness of the acquittal of respondents 1 and 2 for an offence under Section 366 I.P.C. and the acquittal of the third respondent for an offence under Section 366 read with Section 34 I.P.C. Cr1. RC. No. 470 of 1982 has been preferred by A-3, whose conviction imposed for the offence under Section 376 I.P.C., by the trial Judge, was confirmed in C.A. No. 217 of 1982, on the me of the Sixth Additional Sessions Judge, Madras, while the sentence of imprisonment was reduced from three years Rigorous Imprisonment to two years rigorous imprisonment Cr1. RC. No. 561 of 1982 has been preferred by A.-i, whose conviction for the offence of rape was confirmed by the Sixth Additional Sessions Judge in C.A. No. 250 of 1982, while reducing the sentence of imprisonment awarded by the Trial Court from three years to two years Rigorous Imprisonment.

(2.) The second respondent in C.A. Nos. 650 and 651 of 1983, who was convicted for an offence under Section 376 I.P.C., by the Trial Court, was acquitted by the Sixth additional Sessions Judge in C.A. No. 221 of 1982. The appeals and revisions arise out of the same Sessions case and hence are being disposed of by a common judgment.

(3.) The brief facts, which led to this victim, can now be stated: P.W. 2 Selvi Anthony is the victim. She is aged about 16 years. Her younger brother K. John, aged about 12 years, has been examined as P.W. 1 P.W. 3 Dhandapani is the maternal uncle of P.W s. 1 and 2 P.W. 9 is the father of P.Ws.i and 2.P.Ws.i and 2 were residing with their parents at No. 51 Ralaya Vazhaima Nagar, Ottery, Madras-12. On the night of 1-12-1980 P.Ws.i to 3, who had gone for witnessing a picture at Saraswathi Theatre, were returning home at or about 1 A.M. on the early morning of 2-12-1980, after the termination of the cinema show. When they were nearing S.P.T. rice shop on the Strahans Road, A-i to A-3 and another wrongfully re-strained them. A-i, who was armed with a knife, threatened P.W. 3, the uncle of P.Ws. 1 and 2. A-2 slapped P.W. 3 on his cheek, while A-3 gagged his mouth, P.W. 2 shouted and cried. A-i threatened her with a knife. A-i andA-2 jointly put a cloth in her mouth and pushed it in to prevent her from raising a hue and Cry. P.W. 1 was beaten by the juvenile accused and thrown over a single bullock cart near the scene. A-i and A-2 dragged P.W. 2, whose mouth had already been stuffed with cloth, to Kannappa Mudali Street. P.W. 3 has dragged by A-3 and another. In a building in Kannappa Mudali Street, A-i raped P.W. 2. A-2 told A-i that they could change the venue to the good faith pit and there after A-i to A-3 and the juvenile took P.W. 2 and P.W. 3 to a hut in good faith pit P.W. 3 was left near the Odai, guarded by A-3 and the juvenile, while A-i andA-2 took P.W. 2 inside the hut. Though P.W. 2 was not agreeable to lie down as commanded by them, she was threatened by A-i with a knife and out of fear, she had no alternative other than lying down on the floor, where straw had been spread. A-2 committed rape on P.W. 2 A-i directedA-2 to get the other two persons inside. A-i and A-2 went out and took charge of P.W. 2; while A-3 and juvenile came inside the hut. Both A-3 and the juvenile raped P.W. 2, by threat. After the act was over, she was brought out of the hut and left in the custody of P.W. 3. The accused threatened P.Ws.2 and 3, not to divulge this incident, and if they did so, their lives would not be spared. The accused went towards the main road. P.W. 2, who was in tears, in the company of her uncle P.W. 3, went towards the road. Near Edward Park, an Assistant Sub Inspector of Police and two police constables in the company of P.W. 1 came from the opposite direction and enquired her. Her narration was reduced to writing and her signature was obtained. Her petticoat, half saree and jacket M.Os. 1 to 3, were seized. P.W. 2 was sent to the hospital on the next morning. P.W. 4, who was coming behind P.Ws. 1 to 3 and who know the accused earlier, asked them not to indulge in such activities.