T. S. N. MURTHY, J. ( 1 ) COUNSEL representing the appellant-accused and Additional Public Prosecutor Sri Mohd. Osman Shaheed. ( 2 ) THE appellant-accused preferred the present criminal appeal as against the Judgment in Sessions Case No. 16 of 2000 on the file of the Special Judge-cum-I Additional Sessions Judge, Chittoor. ( 3 ) THE case of the prosecution, in brief, is that: p. W. 1 and the accused are residents of Pedda Garigapalle and P. W. 1 is a Dalit belonging to Madiga caste falling under the Scheduled Caste and her date of birth as per the school records is 25. 5. 1983. The accused is a Balija by caste. P. W. 2 is the mother of P. W. 1 and P. W. 3 is the younger brother of P. W. 1. P. W. 1s father is working as watchman in Software at Koramangala in Bangalore City. P. W. 2 used to go to coolly work in the surrounding villages leaving P. W. 1 alone in the house. P. W. 3 was studying 3rd class in a School situated at Garigapalle. On 27. 9. 1999, the accused trespassed into the house of P. W. 1 while she was alone, closed the doors, caught hold of her and committed rape on her, making her to believe that he would marry her. P. W. 1 believed the version of the accused. The illicit intimacy was continued, as a result of which, P. W. 1 became pregnant and the same was informed to the mother of the accused by name Lakshmamma, who promised that she would settle the issue. The accused also wrote letters to P. W. 1 to promising that he would marry her. Two months prior to 27. 9. 1999, the accused took away all the letters written to P. W. 1 forcibly, destroyed them and also refused to marry her. Then, P. W. 1 informed the same to her parents and P. W. 4-Krishnappa of their village questioned the accused and he admitted the illicit intimacy with P. W. 1, but refused to marry her. Then, the matter was brought to the notice of P. W. 6, P. W. 7, one Shankar (LW. 8) and some others and they in turn convened a panchayat, but the accused failed to attend the same. Thus, the accused cheated P. W. 1. Then, the matter was brought to the notice of P. W. 6, P. W. 7, one Shankar (LW. 8) and some others and they in turn convened a panchayat, but the accused failed to attend the same. Thus, the accused cheated P. W. 1. On the complaint given by P. W. 1, a case in crime No. 54 of 1999 on the file of Ramakuppam police station had been registered and the same was taken on file as PRC No. 17 of 1999 on the file of the Judicial First Class Magistrate, Palamaner and the learned Magistrate committed the same to the Court of Session and the Sessions Case No. 16 of 2000 was made over to the Special Judge-cum-I Additional Sessions Judge, Chittoor. ( 4 ) THE learned Judge had recorded the evidence of P. Ws. 1 to 11 and marked Exs. P-1 to P-9 and on appreciation of the evidence available on record, arrived at a conclusion that the accused is guilty of offences under Sections 448, 376, 420 IPC and under Section 3 (1) (xii) of SCs and STs (Prevention of Atrocities) Act, 1989, and accordingly, the learned Judge sentenced the accused to undergo rigorous imprisonment for six months for the offence under Section 448 IPC; to undergo rigorous imprisonment of seven years and to pay a fine of Rs. 500/- in default, to undergo rigorous imprisonment for six months for the offence under Section 376 IPC; to undergo rigorous imprisonment for five years and to pay a fine of Rs. 400/- in default, to undergo rigorous imprisonment for a period of five months under Section 420 IPC; and also to undergo rigorous imprisonment for four years and to pay a fine of Rs. 300/- in default, to undergo rigorous imprisonment for four months for the offence under Section 3 (1) (xii) of SCs and STs (POA) Act, 1989. ( 5 ) SRI T. S. N. Murthy, the learned Counsel representing the appellant would submit that the version of P. W. 1 as specified in Ex. 300/- in default, to undergo rigorous imprisonment for four months for the offence under Section 3 (1) (xii) of SCs and STs (POA) Act, 1989. ( 5 ) SRI T. S. N. Murthy, the learned Counsel representing the appellant would submit that the version of P. W. 1 as specified in Ex. P-1 and as deposed in the court was not consistent, even otherwise, in the light of the evidence available on record, the evidence of P. W. 1, at best, it can be taken to be a case of consent and also breach of promise on the part of the accused, who initially promised to marry and subsequently refused to marry, and inasmuch as it is also doubtful in the light of the medical evidence, the other evidence available on record and the evidence relating to the age of the P. W. 1 at the relevant point of time, it can be taken that P. W. 1 was not below the age of 16 years and hence, the ingredients of Section 375 IPC are not attracted. The learned counsel also would further contend that inasmuch as it is a case where the version of the prosecution is that he promised to marry, deceived P. W. 1 and subsequently committed breach of such promise, at the best, the offence may fall under Section 417 IPC and definitely would not fall under Section 420 IPC. The learned Counsel also would submit that the offence under Section 3 (1) (xii) of SCs and STs (POA) Act, 1989 definitely is not attracted, since it is not the case of the prosecution that the accused was in a position to dominate the will of a woman belonging to a Schedule Caste or a Schedule Tribe and used that position to exploit the woman sexually to which she would not have otherwise agreed, and even otherwise, the learned Counsel would contend that when conviction can be awarded under Section 376 IPC, again convicting the accused under the special provision, which is just against to the aforesaid provision under the Indian Penal Code, cannot be sustained. The learned Counsel ultimately would conclude that at any rate, the sentences imposed definitely are unduly harsh and are on the higher side. The learned Counsel ultimately would conclude that at any rate, the sentences imposed definitely are unduly harsh and are on the higher side. ( 6 ) ON the contrary, the learned Additional Public Prosecutor would contend that this is a case where the episode came to light only when there was breach on the part of the accused to marry P. W. 1 and this was a continuous affair and no doubt, the date of commencement is not clear, but the fact remains that the evidence of P. W. 1 is clear and categorical that taking advantage of the fact that she would be lonely in the house, the accused had trespassed into the house, bolted the doors and committed the offence. The learned Additional Public Prosecutor had also drawn the attention of this Court to the earliest version specified in Ex. P-1 and would contend that initially, the offence was committed and subsequent thereto, a promise was made by the accused that he would marry P. W. 1. The learned Additional Public Prosecutor also would submit that apart from the evidence of P. W. 1 the evidence of P. W. 3 is also available on record and P. W. 3 though a child witness, he had clearly deposed that several times, he witnessed the accused and his sister in his house, during the day time when he returned home in interval time and lunch time and this evidence definitely would corroborate with the evidence of P. W. 1. Relating to the age, the learned Additional Public Prosecutor would submit that in the light of the clear evidence available on record, it can be safely concluded that she was below 16 years on the relevant date of the commission of offence and it is not a case, where two views are possible to give benefit of doubt on the ground of age of prosecutrix-P. W. 1. The learned Additional Public Prosecutor had taken this Court through the other evidence available on record and would conclude that in the facts and circumstances of the case, the prosecution had proved the guilt of the accused on all the charges beyond reasonable doubt and hence, the findings are to be confirmed and the appeal is liable to be dismissed. The learned Additional Public Prosecutor had taken this Court through the other evidence available on record and would conclude that in the facts and circumstances of the case, the prosecution had proved the guilt of the accused on all the charges beyond reasonable doubt and hence, the findings are to be confirmed and the appeal is liable to be dismissed. ( 7 ) P. W. 1 on the date of examination was shown to be aged about 16 years and she had clearly deposed that about a year back, she filed the case and a year prior to filing the complaint, the accused used to come to her house with his daughter aged about two years in his arms in the noon time and during the noon time, she will be alone in the house. She deposed that the accused promised that he would marry her, compelled her to have sexual intercourse with him and accordingly, she believed his version, fulfilled his desire by having intercourse, and that had been happened for about a year and all the times, he enjoyed her and accused wrote several letters to her stating that he would marry her and requested not to disclose the same to anybody including her parents. She further deposed that by the time she filed complaint, she became pregnant carrying six months and her parents asked her as to how she got pregnancy and she told what all had happened. She had deposed about all the other details also including lodging of the report. It is no doubt true that in Ex. P-1, it was stated as though in the absence of the parents of P. W. 1, the accused came to her house, by confirming that none else were present in the house, entered the house, bolted the doors suddenly caught hold of her and committed rape on her by saying that not to be afraid and that he would marry her, this version of P. W. 1 as stated in Ex. P-1, appears to be slightly different from what she had deposed as P. W. 1. This witness no doubt was cross-examined and certain suggestions were put, which she had denied. P-1, appears to be slightly different from what she had deposed as P. W. 1. This witness no doubt was cross-examined and certain suggestions were put, which she had denied. ( 8 ) P. W. 9 is the Headmaster of Z. P. High School, Pandyalamadugu and he deposed that P. W. 1 studied in that school in 6th Standard with admission No. 628 and he had issued Ex. P-6 admission extract of PW. 1 and he had also issued another certificate Ex. P-7 in respect of caste and date of birth of P. W. 1. He further deposed that as per Ex. P-7, P. W. 1 is Madiga by caste and her date of birth is 25. 5. 1983. Certain suggestions were put to this witness and the same had been denied. ( 9 ) P. W. 5 is the Civil Assistant Surgeon who examined P. W. 1 and made following observations: clinical findings: per Abdomen Flabby, laxed, striac Graridanum present, Uterus not pale able. Breast changes: Lactation present and breast engored per Vaginal: white discharge present not blood stained. Cervix: External OS patulas vagina admitted 2 finders and out let of vagina relaxed. Hymen: Borders of the Hymen Licatrised (Carunculas mytifornic) perineum: Muscles relaxed tears suggestive of 1st degree. P. W. 5 is of the opinion that the clinical findings would appear to have delivered within the six weeks period from the date of examination and exact time of confinement cannot be ascertained. Ex. P-2 is the certificate issued by her. This witness was cross-examined and she had deposed that DNA test discloses the paternity of the child and it is true that the time of examination is not mentioned in Ex. P-2 and as per the requisition filed by the police, which is brought by her from the hospital, P. W. 1 was produced before her at 11. 40 a. m. on 26. 10. 1999. ( 10 ) P. W. 2 is the mother of P. W. 1. P. W. 3 is the brother of PW. 1 and he is a child witness aged about 9 years on the date of examination. No doubt, P. W. 3 deposed about P. W. 1 and the accused being at his house while he was returning house in the interval time and the lunch time. He deposed that he had seen the accused and P. W. 1 chitchatting with each other. No doubt, P. W. 3 deposed about P. W. 1 and the accused being at his house while he was returning house in the interval time and the lunch time. He deposed that he had seen the accused and P. W. 1 chitchatting with each other. This witness also deposed that after completion of his lunch, the accused and P. W. 1 used to stay inside the house, close the doors by bolting inside when he was leaving for school. ( 11 ) P. W. 4 deposed about the panchayat held at the house of Muneppa. P. W. 6 was declared hostile. P. W. 7 also deposed about the panchayat, P. W. 8-VAO deposed about P. W. 1 giving birth to a male child on 30. 9. 1999. He deposed that P. W. 1 was unmarried and Ex. P-4 is the birth certificate of the child of P. W. 1, and that the male child of P. W. 1 died on 15. 10. 1999 and that he issued death certificate (Ex. P-5 ). On the strength of this evidence and certain inconsistencies, the learned Counsel for the appellant made certain submissions that inasmuch as there is so some discrepancy relating to the age and there is no clear proof available, benefit of doubt to be given to the appellant-accused. The benefit relating to age definitely may be given, if the margin of age is doubtful and it is within permissible limits. This is a clear case, where even as on the date of examination, she was aged about 16 years and though clear date, when the offence actually had commenced, is not specified it was being carried on for sufficiently for a long time. In the light of the evidence of P. W. 9 coupled with the evidence of P. W. 1, the finding recorded by the learned Judge that P. W. 1 should have been below the age of 16 years and hence, the consent is immaterial cannot be found fault in any way and hence, the said finding is hereby confirmed. ( 12 ) P. W. 10 is a Sub-Divisional Police Officer, who had registered the case, arrested the accused and filed the charge sheet after completing investigation. ( 13 ) P. W. 11 is the Sub-Inspector of Police, who also deposed about the details of investigation. ( 12 ) P. W. 10 is a Sub-Divisional Police Officer, who had registered the case, arrested the accused and filed the charge sheet after completing investigation. ( 13 ) P. W. 11 is the Sub-Inspector of Police, who also deposed about the details of investigation. ( 14 ) THE evidence available on record would disclose that the age of the prosecutrix-P. W. 1 was about 14 years on the date of commission of the offence and hence, the theory of consent, if any propounded by the learned counsel for the appellant, would be of no consequence. It is not the case of the prosecution that the accused was holding any position as such, so as to dominate the will of a woman so as to attract the ingredients of Section 3 (1) (xii) of SCs and STs (POA) Act, 1989. Section 3 of the said Act deals with punishments for offences of atrocities. Section 3 (1) (xii) of the said Act reads that, whoever, not being a member of a scheduled caste or scheduled tribe, being in a position to dominate the will of a woman belonging to a SC or a ST and uses that position to exploit her sexually to which she could not have otherwise agreed. Even as per the evidence available on record, none of the ingredients of this offence had been satisfied and the conviction and the sentence imposed as against the appellant-accused as far as this charge is concerned, cannot be sustained and accordingly, they are hereby set aside. ( 15 ) THE other charges are Sections 448 and 420 IPC. There is some evidence available on record that the accused trespassed into the house of P. W. 1 for the purpose of committing the offences and in fact, he committed the offence, as a result of which P. W. 1 became pregnant and subsequently, he refused to marry her and there is also some evidence that panchayat also had been held in this regard. ( 16 ) STRONG reliance was placed on Badi Chinna Rao Vs. State of A. P. (2003 (2) ALD (Crl.) 622 (AP)) wherein it was held that, the accused having sexual intercourse with a girl promising to marry her but refusing after she became pregnant it would amount to an offence under Section 417 IPC. The same view was expressed in Ravichandran V. Mariyammal (1992 Crl. State of A. P. (2003 (2) ALD (Crl.) 622 (AP)) wherein it was held that, the accused having sexual intercourse with a girl promising to marry her but refusing after she became pregnant it would amount to an offence under Section 417 IPC. The same view was expressed in Ravichandran V. Mariyammal (1992 Crl. L. J. 1675 ). In view of the same, there cannot be any doubt or controversy that the offence committed by the appellant-accused viz. , breach of promise to marry at the best would fall under Section 415 IPC punishable under Section 417 IPC. ( 17 ) FOR the foregoing reasons, the conviction and sentence imposed as against the appellant-accused under Section 3 (1) (xii) of SCs and STs (POA) Act had not been proved and the same are hereby set aside. ( 18 ) IN the result, the appellant-accused is convicted and sentenced as follows: (i) As far as the offence under Section 376 IPC is concerned, the conviction imposed by the Special Judge-cum-I Additional Sessions Judge, Chittoor, against the appellant-accused in Sessions Case No. 16 of 2000, on 05. 05. 2001, is confirmed, but the sentence of seven years rigorous imprisonment is modified and reduced to a period of 3 years (three and half years); but the imposition of fine of Rs. 500/- in default, to undergo rigorous imprisonment for a period of six months for the said offence is hereby set aside. (ii) As far as the offence under Section 448 IPC is concerned, the conviction and the sentence of six months rigorous imprisonment imposed by the learned Judge are confirmed; (iii) As far as the offence under Section 420 IPC is concerned, the conviction and the sentence imposed by the learned Judge are set aside. In view of the facts and circumstances of the case, the accused is convicted for the offence under Section 417 IPC and sentenced to undergo rigorous imprisonment for a term of six months. (iv) The conviction and the sentence imposed by the learned Judge for the offence under Section 3 (1) (xii) of SC and ST (POA) Act, 1989, are hereby set aside. (v) All the above sentences shall run concurrently. ( 19 ) IT is brought to the notice of this Court that the appellant-accused had been in jail and the sentence imposed by this Court already had been undergone by the appellant-accused. (v) All the above sentences shall run concurrently. ( 19 ) IT is brought to the notice of this Court that the appellant-accused had been in jail and the sentence imposed by this Court already had been undergone by the appellant-accused. It is needless to say that in case, the appellant-accused had already completed serving the sentence imposed by this Court as specified supra, the appellant-accused shall be set at liberty forthwith, after calculating the period, in accordance with law. The Criminal Appeal is partly allowed to the extent indicated above.