IN THE MADURAI BENCH OF MADRAS HIGH COURT
S. NAGAMUTHU, J.
G. Muthuvel – Appellant
Versus
The State, rep by Inspector of Police – Respondent
Criminal Appeal (MD).No. 238 of 2013
Decided On : 08-04-2015
Code of Criminal Procedure, 1973 – Sections 313, 428 – Penal Code, 1860 – Sections 342, 377, 376 and 506 – Order of Conviction – Appellant is the sole accused in S.C. on the file of the learned Assistant Sessions Judge, Kovilpatti. – He stood charged for offences under Sections 342, 377, 376 and 506(i) IPC. The trial Court by judgment found him guilty under all the charges and sentenced him to undergo rigorous imprisonment for one year and to pay Rs.1,000/-, in default, to undergo simple imprisonment for one month for offence under Section 342 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 377 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for six months for offence under Section 376 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for one month for the offence under Section 506(i) IPC. – Challenging the said conviction and sentence, the appellant is before this Court with this appeal. – Held, Court is fully empowered to decide. – Going by the age of the accused, his economic condition, his family background, the chance of his reformation, his antecedents and all other circumstances and balancing between all these mitigating circumstances and the aggravating circumstances, Court hold that imposing of sentence of rigorous imprisonment of seven years for the offence under Section 376 IPC as well as for the offence under Section 377 IPC with fine would meet the ends of justice. – So far as the fine amount is concerned, the economic status of the accused, whether the accused could pay the fine amount, is also a matter to be taken into account. – Admittedly, the appellant is a poor man. – Here, in this case, the trial Court has imposed a total fine of Rs.1,54,000/-. – This is exorbitant and hence, the fine amount also deserves to be reduced. So far as the offences under Sections 376 and 377 are concerned, apart from the substantive sentence of imprisonment, he may be directed to pay a fine of Rs.50,000/- for each offence. – Similarly, for the offence under Section 342 IPC, a fine of Rs.1,000/- needs to be confirmed. – For the offence under Section 506(i) IPC, apart from substantive sentence of imprisonment, the fine amount may be reduced to Rs.1,000/-.– Appeal Partly Allowed
1. The appellant is the sole accused in S.C.No.202 of 2005 on the file of the learned Assistant Sessions Judge, Kovilpatti. He stood charged for offences under Sections 342, 377, 376 and 506(i) IPC. The trial Court by judgment dated 16.10.2012, found him guilty under all the charges and sentenced him to undergo rigorous imprisonment for one year and to pay Rs.1,000/-, in default, to undergo simple imprisonment for one month for offence under Section 342 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 377 IPC; to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/-, in default, to undergo simple imprisonment for six months for offence under Section 376 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for one month for the offence under Section 506(i) IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
P.W.2 is the victim in this case. She was a resident of K. Shanmugapuram Village in Ottapidaram Taluk. During the year 2005, she was hardly aged 6 years. P.W.1 is her mother. P.W.13 is her father. P.W.3 is her grandmother. P.W.2 was residing with her parents. On 26.04.2005, at about 4.30 p.m., P.W.2 was playing near the house of the accused. The accused is also a resident of the same locality. P.Ws.4 and 12 were also playing with her. At that time, the accused, by spotting these three girls playing there, came to the spot and lured P.W.2 to come with him by telling her that he would give sweet. P.W.2 followed him towards his house. P.Ws.4 and 12 also followed. But the accused wanted P.Ws.4 and 12 to stay back and he took P.W.2 alone to his house. On entering into the house, the accused raised the volume of Television, so that no possible alarm to be raised by P.W.2 could be heard. Thereafter, he removed the undergarment of P.W.2 and then, according to the case of the prosecution, he committed rape on P.W.2 by partially penetrating his male genitalia into her female genitalia. He also had unnatural carnal relationship with P.W.2 by inserting the male organ into her mouth. Thereafter, he criminally intimidated P.W.2 not to disclose the same to anybody. P.W.2 left the house and came straight to the house of her parents.
2.1. When she came out of the house of the accused, she was found weeping. P.W.1 enquired as to why she was weeping. Immediately, P.W.2 told P.W.1 about the harm done to her by the accused in a vivid manner. P.W.1 was very much depressed to hear the sexual abuse caused to her daughter. She also wept at her home. But since her husband was not at home at that time, P.W.1 did not choose to inform about the occurrence to anybody or to take P.W.2 to the police. In the evening, by 5.00 p.m., her husband (P.W.13) returned to his house. P.W.1 informed him about the said occurrence. Even then they did not choose to go to the police station. On 28.04.2005, at about 9.00 a.m., the accused was found moving on the road near the house of P.W.1. P.W.1 questioned him as to whether it was proper on his part to behave in such a fashion so as to harm her daughter sexually. The accused told P.W.1 that he would again do so, if the child came near his house for playing. Thereafter, P.W.1 took P.W.2 and along with her husband had gone to Ottapidaram Police Station.
2.2. P.W.8 was the then Sub Inspector of Police attached to Ottapidaram Police Station. At about 4.00 p.m., on 28.04.2005, P.W.1 made the complaint, upon which, he registered a case in Crime No.39 of 2005 under Section 376 IPC. Ex.P1 is the complaint and Ex.P5 is the FIR. He forwarded P.W.2 to the Government Hospital for medical examination and handed over the case diary to the Inspector of police for investigation.
2.3. P.W.17, a woman Con
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