JUDGMENT :

(Prayer: Criminal Revision Case has been filed under Section 397 r/w 401 of Cr.P.C., against the judgment dated 08.09.2014in C.A.No.13 of 2014 on the file of the Principal Sessions Judge, Dharmapuri confirming the judgment dated 04.12.2003 in S.C.No.334 of 2002 on the file of the Assistant Sessions Judge, Dharmapuri.)

1. This Criminal Revision Case by the accused is filed against the concurrent finding of facts by the courts below holding him guilty of offence punishable under Section 417 of IPC.

2. The facts leading to this revision petition are :-

‘X’ aged about 16 years, lodged a complaint to the Inspector of Police, Palacode, on 14/06/1999 to take appropriate action against Kandan S/o Mathan (petitioner herein) of her village, alleging that Kandan used to frequently visit her house, when her parents are not in the house. He befriended with her and promised to marry her. She believing his promise consented for pre-marital sex with him and also got conceived. When she insisted him to marry, he was evading with some excuse. When she was 5 months pregnant, Kandan got job in Postal Department at Hosur and left the village, promising her to marry on his return after joining duty. Since he did not return to village as promised, she got worried and disclosed her pregnancy to her brother Kuppusamy. She, her mother and brother went to Hosur and asked Kandan to marry her. Kandan refused to marry her and also disowned the paternity of the child in womb. One Manickam of Rettari Village and Vadivelu, Ganesan of her village know about the intimate relationship between her and Kandan.

3. PW-8[Mr.Ramandevar] Sub-Inspector of Police, Palacode received the above complaint (Ex.P-1) and registered FIR (Ex.P-9) in Crime No.370/1999 under Sections 417 and 376 of IPC against Kandan. PW-9 [Mr.S.K.Gopal], Inspector of Police took up the investigation and filed final report. Based on the documents, the trial Court framed charges under Section 417 of IPC and Section 376 of IPC against the accused Kandan. The accused denied the charges and claimed to be tried. Accordingly, to prove the charges the prosecution examined the defacto complainant–the victim as PW-1. Her complaint marked as Ex.P-1. Manickam, who witnessed the accused and PW-1 in compromise position was examined as PW-2. The brother of the defacto complainant was examined as PW-3. Muniappan, who signed the observation mahazar was examined as PW-4 and the observation mahazar was marked as Ex.P-2. Dr.Surabi, who conducted medical examination the victim girl and Dr.Venkatesan, who examined the accused are PW-5 and PW-6 respectively. Through PW-5 the medical report of the victim informing that PW-1 was 20 weeks pregnant marked as Ex.P-3 and through PW-6 the medical examination of the accused indicating he is potent was marked as Ex.P-5. Dr.Sunderavadanan, who conducted ossification test for the victim girl was examined as PW-7, who on examining the X ray[Ex.P-7 series] given the certificate Ex-P 8, with his opinion that the age of the girl on the date of examination may be between 16 to 18 years.

4. The trial Court, on considering the age certificate Ex.P-8 held that the age of the girl must have been between 16 to 18 years and she has consented for sex voluntarily. Therefore, the accused is not guilty of offence under Section 376 of IPC. However, the consent being obtained on the promise to marry and the same has been breached, he is liable for punishment under Section 417 of IPC. Accordingly, the accused was sentenced to undergo one year Rigorous Imprisonment and to pay fine of Rs.1,000/- in default, to undergo three months Rigorous Imprisonment.

5. Against the conviction and sentence passed by the Assistant Session Judge in S.C.No.334 of 2002, dated 04/12/2003, the accused preferred appeal before the Principal District and Sessions Judge in C.A.No.13 of 2004. On re-apprication of the evidence, the appellate Court dismissed the appeal, set aside the judgment of the trial court and remanded