BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. SUBBIAH, A.D. JAGADISH CHANDIRA, JJ.
S. Mareeshwaran and Ors. - Appellants
Vs.
State - Respondent
Criminal Appeal (MD) Nos. 239 and 498 of 2017
Decided On : 09-03-2018
Indian Penal Code,1860 - Section 377, 450, 302 , 212 and 109 - The Protection of Children from Sexual Offences Act - Section 6 - Code of Criminal Procedure,1973 - Section 313 , 223, 357-A and 357 (3) – Offence of murder – Harbouring offender –Unnatural offence - Deceased in this case is and he was studying VIII Standard in Government Boys Higher Secondary School at time of occurrence - PW 1 is father, PW 2 is mother and PW 3 is the sister of deceased - PW 3, sister of the deceased was also studying in same school along with her brother (deceased) - Deceased used to go to school by travelling in the Government bus - First accused was a school dropout - During summer vacation, first accused made deceased to indulge in such acts of unnatural oral sex with him - On for purpose of making the deceased to repeat such unnatural oral sex with him to give vent to his carnal desires, first accused had taken the deceased and four other boys to where first accused made deceased to perform such obscene acts of oral sex with him behind a boat - Apart from the four boys who accompanied deceased and first accused, PW 23, a class X student of school where deceased was studying, also witnessed obscene acts - Out of inhibition that incident will be revealed to one and all, first accused forced and compelled deceased – Held, In exercise of such powers conferred under Section 357 (3) of Code, trial Court has imposed a total fine amount on he first accused and such amount if remitted was directed to be paid to PW 1 and 2 as a measure of compensation – Court are informed that first accused did not pay the fine amount imposed on him, depriving PW 1 and 2 to get even fine amount imposed on first accused as compensation - However, sentence imposed on first accused for offence under Section 5 (1) and 6 of POSCO and Section 377 of IPC alone is set aside, while Court confirm sentence imposed on the first accused for offence - Resultantly, sentences imposed on the first accused/appellant by the trial Court for offences under Section 450 and 302 of IPC are ordered to run concurrently - While confirming conviction and sentence imposed on first accused/appellant, having regard to nature and magnitude of offence committed by first accused, particularly during broad day light in school premises making other students in school grip with panic - Criminal Appeal (MD) No. is partly allowed.
R. Subbiah, J.
1. The appellant in Criminal Appeal (MD) No. 239 of 2017 is the first accused in S.C. No. 60 of 2015 on the file of the learned Sessions Judge, Fast Track Mahila Court, Virudhunagar at Srivilliputhur. The appellant in Criminal Appeal (MD) No. 498 of 2017 is the second accused in the very same Sessions Case. The first accused stood charged for the offences punishable under Section 377, 450, 302 of IPC and Sections 5 (1) read with Section 6 of The Protection of Children from Sexual Offences Act (in short 'POSCO'). The second accused stood charged for the offences punishable under Section 212 and 302 read with Section 109 of IPC. After conclusion of trial, both the accused were convicted and sentenced to various terms of imprisonment as tabulated hereunder:-
Provision of law
Period of sentence
Fine
First Accused
Section 377 of IPC
Section 450 of IPC
Section 302 of IPC
Section 5 (1) read with Section 6 of POSCO Act
To undergo imprisonment life
To undergo rigorous imprisonment for a period of ten years
To undergo imprisonment for life
To undergo imprisonment for life
Rs. 25,000/- failing which to undergo simple imprisonment for a period of one year
Rs. 10,000/- failing which to undergo simple imprisonment for a period of six months
Rs. 50,000/- failing which to undergo simple imprisonment for a period of one year
Rs. 25,000/- failing which to undergo simple imprisonment for a period of one year
Second Accused
Section 302 read with Section 109 of IPC
To undergo imprisonment for life
Rs. 50,000/- failing which to undergo simple imprisonment for a period of one year
2. The sentences imposed against the first accused for the offences under Sections 377, 450 and 302 of IPC were ordered to run concurrently, however, the sentence imposed for the offences under Section 5 (1) and Section 6 of POSCO Act was ordered to run consecutively. The trial court also ordered that the total fine amount of Rs. 1,10,000/- imposed on the first accused shall be paid to PW 1 and PW 2, parents of the deceased, as contemplated under Section 357 (3) of the Code of Criminal Procedure, either before an appeal is preferred or such appeal is concluded
3. The case of the prosecution could succinctly be stated as follows:-
(i) The deceased in this case is Baskaran and he was studying VIII Standard in Government Boys Higher Secondary School, Pandalkudi, at the time of occurrence. PW 1 is the father, PW 2 is the mother and PW 3 is the sister of the deceased. PW 3, sister of the deceased, was also studying in the same school along with her brother (deceased). The deceased used to go to the school by travelling in the Government bus. The first accused was a school dropout. When the first accused was studying in the school, where the deceased was studying, the first accused indulged in acts of fellatio whereby he forced the deceased to indulge in unnatural oral sex with him to give vent to his pent up lust. After the first accused dropped out from the school, in the year 2013, during summer vacation, the first accused made the deceased to indulge in such acts of unnatural oral sex with him. On 02.08.2013, for the purpose of making the deceased to repeat such unnatural oral sex with him to give vent to his carnal desires, the first accused had taken the deceased and four other boys to Tiruchendhur, where, the first accused made the deceased to perform such obscene acts of oral sex with him behind a boat. Such act of unnatural sex the fir
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