JUDGMENT

This Criminal Appeal is directed as against the Judgment dated 08.03.2019 passed in S.C.No.179 of 2017 on the file of the Sessions Judge, Mahila Court, Chennai, thereby convicted the appellant for the offence punishable under Section 417 of IPC.

2. The case of the prosecution is that the victim is affected by Polio and her both legs became dis-functional. The accused is none other than her own maternal uncle. Being close relative, he had acquittance with the victim as well as the brother of the victim from his school days. From the year 2005, the victim and the accused were fell in love and the accused assured that he would marry her. While being so, during the year 2011, when the family members of the victim had gone to attend a condolence by leaving the victim in the house, the accused came into her house on the pretext that he was directed to take care of the victim as all the family members had gone to attend the condolence of their relatives. Thereafter, the accused went away and purchased some cool drink, he went to kitchen and poured the cool drinks in a tumbler and mixing some drugs. It was given to the victim and after consuming the same, she became unconscious. Thereafter, the accused had taken the victim to the bed room and had sexual intercourse, without her knowledge, while she was unconscious. Thereafter, he informed that he had sexual intercourse with her and also assured that he would marry her. He also assured that after marriage of his sister he would marry her. In fact, he informed the same in front of his mother. However, his mother did not accept the same. He also informed the victim not to disclose anybody, since after getting permission from his house and he would marry her. She waited till 2014. In the year 2014, the sister of the accused got married and immediately, the victim called upon the accused to marry her. Thereafter, he informed that he fell in love with another girl and he could not marry her. Immediately, it was informed to the parents of the victim, who lodged a complaint.

3. On the said complaint, the respondent registered an FIR in Crime No.2 of 2016 for the offence punishable under Section 376, 417 and 506(ii) of IPC. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court in S.C.No.179 of 2017

4. In order to bring home the charges, the prosecution had examined P.Ws. 1 to 9 and marked Exs.P1 to 10. On the side of the accused, no one was examined and no document was marked.

5. On perusal of the oral and documentary evidence, the Trial Court found the appellant guilty for the offence punishable under Section 417 of IPC and sentenced him to undergo one year simple imprisonment and ordered fine of Rs.5,00,000/- to be paid to the victim. Aggrieved by the same, the present appeal.

6. The learned counsel appearing for the appellant would submit that there was a huge delay in lodgement of the compliant. Even according to the prosecution, the occurrence had taken in the year 2011, whereas the complaint was lodged in the year 2015. Therefore, the delay in registering the FIR is fatal to the case of the prosecution. There was a contradiction between the prosecution witnesses, which would affect the entire case of the prosecution. Even then the Court below, without considering the same, convicted the appellant for the offence punishable under Section 417 of IPC.

7. Admittedly, the victim fell in love with the accused and had physical relationship in the year 2011. At the time of alleged physical relationship she was a majority and she knows what is the consequence of the physical relationship. Therefore, it is nothing but concessional sex and the appellant never promised to marry her and had physical relationship. Therefore, the victim freely consented to have sexual intercourse for the past several years and as such, her consent was not in consequence of any misconception of fact. Therefore, the Trial Court ought not to ha