JUDGMENT

This Criminal Appeal has been filed to set aside the judgement and order in Sessions Case No.79 of 2008 dated 03.12.2011 on the file of the Magalir Neethimandram, Chennai 600 104.

2. At the time of occurrence, the appellant herein was about 25 years and the victim girl was minor around 17 years old, pursuing her XII standard. The accused is the husband of the victim's cousin sister. The trial Court found the accused guilty of kidnapping the minor girl, rape and criminal intimidation and hence sentenced him as below:

(i) for the offences under Section 366A IPC, to undergo 5 years rigorous imprisonment and a fine of Rs.10,000/-, in default to undergo three months simple imprisonment.

(ii) for the offences under Section 376(1) IPC, to undergo 7 years rigorous imprisonment and a fine of Rs.10,000/-, in default to undergo three months simple imprisonment.

(iii) for the offence under Section 506(ii) of IPC, to undergo one year rigorous imprisonment and a fine of Rs.5,000/-, in default to undergo one month simple imprisonment.

Being aggrieved by the said conviction and the sentence of the trial Court, this Criminal Appeal has been filed by the accused.

3. The gist of the prosecution is:

3.1. The complainant is the maternal aunty of the victim girl. The accused is the son-in-law of the complainant. According to the complaint, the accused married her daughter/Saritha in the year 2006. Since her daughter Saritha was not well, she was staying with the complainant. The victim girl is the complainant's deceased sister's daughter. Since the death of their mother, the victim girl and her sister were living with the complainant.

3.2. The accused, taking advantage of his wife staying at her mother's home along with her cousin sisters, approached the victim girl, who is aged 17 years old studying XII Standard on 15.08.2007, on her way to the school to celebrate the Independence Day. He restrained her near the Sivan Park, Roundtana and took her in his two wheeler under the pretext of dropping her in the school. Instead he took her to a lodge at Vallakottai, booked a room in the name of David and had sexual intercourse with the victim minor girl in that room. Then, brought her back to K.K. Nagar Roundtana and dropped her. Again on 07.09.2007, the accused forcibly took the victim in his two wheeler to Vandalur Zoo and threatened her if she disclose the incident happened on 15.08.2007 to anyone, he will kidnap her to Bombay and sell her. The accused then dropped her at Roundtana at about 04:30 p.m. On that day, the victim girl came late to home and when the complainant enquired her why she is late, the victim girl started weeping and disclosed what happened to her on 15.08.2007 and 07.09.2007. Hence the complaint.

3.3. The complaint dated 10.07.2007 was taken for investigation in Crime No.2265 of 2007 by the respondent police. The statement of the victim girl, de facto complainant and her daughter, who is the wife of the accused were recorded by the learned Magsitrate under Section 164 CrPC. The school transfer certificate of the victim girl and the opinion of the Doctor, who conducted radiology test on the victim, were collected and the final report was filed. Based on the materials and evidence relied by the prosecution, the Mahila Court at Chennai, framed charges against the accused under Sections 366A, 376(1), 465 and 506(ii) IPC.

4. To prove the charges the prosecution had examined 17 Witnesses and marked 31 Exhibits and 6 Material Objects. The accused to prove his marriage with Saritha/PW3, who is the cousin of the victim, had marked the Marriage Registration Certificate during the cross-examination of PW1.

5. The trial Court, on appreciation of the evidence, held the accused guilty of offences under Sections 366A, 376(1) and 506(ii) IPC and acquitted him from the charge under Section 465 IPC.

6. The learned counsel for the appellant submitted that the prosecution had failed to prove that the PW2 was below 18 years old on the date of alleged oc