Judgment :- This revision has been preferred against the judgment in C.A.No.140 of 2004 on the file of the Principal Sessions Judge, Vellore, which had arisen out of the judgment in C.C.No.361 of 2003 on the file of the Judicial Magistrate, Gudiyatham. The accused has been charged under Section 417 & 506(ii) IPC. 2. After taking cognizance of the offence, the learned Judicial Magistrate has issued summons to the accused and on his appearance, furnished copies under Section 207 Cr.P.C, and when the offence was explained and questioned he pleaded not guilty. 3. Before the trial Court P.W.1 to P.W.12 were examined and Ex.P.1 to Ex.P.4 were marked. 4. P.W.1 is the victim girl. According to her, the accused is related to her and was studying in the decree class while she was studying in higher secondary school and that they fell in love with each other and at the pretext of marrying her, he had sexual intercourse with her, which resulted in her pregnancy. The accused took her to a doctor during December-2002 after mensural cycle stopped for a month had compelled herself to subject her for abortion. When she insisted to marry her on several occasions, the accused had demanded Rs.3,000/-since she was not having any amount of money, she gave her gold ring to the accused and when her mother enquired about the missing of the ring she (P.W.1) had narrated everything to her and also informed her that the accused had cheated her and had sexual intercourse with her on the pretext of marrying her and once she (P.W.1) compelled the accused to marry her, he informed her that he is loving another girl and he is going to marry only her and not P.W.1, which made her to prefer a complaint with All Women Police Station at Gudiyatham. Ex.P.1 is the compliant. 5. P.W.2 is the mother of P.W.1. She had corroborated the evidence of P.W.1 to the effect that P.W.1 had informed her that she gave her 1/2 soverign of gold ring to the accused believing that he will marry her. P.W.2 would further depose that since the accused has refused to marry P.W.1, she went to the extent of committing suicide by consuming poison and that she admitted P.W.1 in the hospital and saved her life. 6. P.W.3 is the brother of P.W.1. P.W.2 would further depose that since the accused has refused to marry P.W.1, she went to the extent of committing suicide by consuming poison and that she admitted P.W.1 in the hospital and saved her life. 6. P.W.3 is the brother of P.W.1. According to him, he came to know about the affairs of the accused with P.W.1 through P.W.2 his mother. 7. P.W.4 is another brother of P.W.1, who has also corroborated the evidence of P.W.3. 8. P.W.5 is also close relative of P.W.1, who would depose to the effect that both the accused and P.W.1 were moved together very closely. 9. P.W.6 is the uncle of P.W.1. According to him, he saw the accused at 11.00 pm in the house of P.W.1. 10. According to P.W.7, he had witnessed while the accused and P.W.1 cohabited each other. 11. P.W.8 has seen P.W.1 in the hospital while she was convalescing after undergoing an abortion. 12. P.W.9 also speaks about the love affair of the accused and P.W.1 and that he came to know from P.W.2 that the accused after moving with P.W.1 so closely had admitted P.W.1 in an hospital and subjected her to undergo an abortion. 13. P.W.10 is the doctor in the Government Hospital Gudiyatham, who had examined the accused on 8. 2003 at about 12.40 pm and has given Ex.P.2-certificate to the effect that the accused is potent. 14. P.W.11 is the Doctor, who had examined P.W.1 on 17. 2003 at about 1.05 pm and has issued Ex.P.3-certificate to the effect that P.W.1 is not virgin. 15. P.W.12 is the Investigating Officer, who had registered the complaint preferred by P.W.1 under Cr.No.5 of 2003 of All Women Police Station, Gudiyatham, under Section 417 and 506(ii) IPC. Ex.P.4 is the copy of the FIR. She had arrested the accused on 17. 2003 at about 9.00 pm and produced before the Judicial Magistrate for remand. She has examined the witnesses including the government doctors and after completing the formalities has filed the charge sheet against the accused. 16. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused denied his complicity with the crime. He has not examined any witness on his side. 17. She has examined the witnesses including the government doctors and after completing the formalities has filed the charge sheet against the accused. 16. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused denied his complicity with the crime. He has not examined any witness on his side. 17. After going through the oral and documentary evidence available before the Court, the learned trial Judge has held that the offence under Section 417 IPC has been proved beyond any reasonable doubt and accordingly convicted the accused and sentenced him to undergo 1 year SI and slapped a fine of Rs.1000/- with default sentence and acquitted the accused against the charge under Section 506(ii) IPC. Aggrieved by the findings of the learned trial Judge, the accused has preferred an appeal before the Principal Sessions Judge, Vellore, in C.A.No.140 of 2004. After due deliberations and after scanning the evidence and after going through the judgment of the trial Court, the learned first appellate Judge has dismissed the appeal confirming the judgment of the trial Court, which necessitated the accused to prefer this revision. 18. 18(i) The learned counsel Mr.S.Kaithamalai Kumaran, appearing for the revision petitioner relying on 2005(1) SCC 88 (Deelip Singh @ Dilip Kumar Vs. State of Bihar), would contend that once the victim has given her consent for sexual intercourse, she cannot take shelter under Section 90 of the Penal Code alleging that the consent was given by her under fear on injury or misconception of fact. The learned counsel would contend that in the case on hand, the case of P.W.1 is that the accused only under the pretext of marrying her had sexual intercourse with her to which she gave consent. The fact remains that his case was not charged under Section 375 r/w 90 IPC. But the specific charge against the accused is that he had cheated the victim girl. The charge levelled against the accused is one under Section 417 IPC wherein we have to see only whether the charge against the accused come within the definition of Section 415 IPC to warrant conviction under Section 417 IPC. The facts of the ratio relied on by the learned counsel for the revision petition is that: "The complainant-victim girl lodged the complaint against the accused on 211. 1988. The facts of the ratio relied on by the learned counsel for the revision petition is that: "The complainant-victim girl lodged the complaint against the accused on 211. 1988. She fell in love with the accused and one day in February 1988, the accused forcibly raped her and later consoled her saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her and therefore continued to have sex on several occasions. Even thereafter the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed and therefore she was constrained to file the complaint after waiting for some time. The victim girl was sent for medical examination. The medical officer of the hospital gave the opinion, on the basis of his own examination and the examination of the dental surgeon and the X-rays taken by the radiologist that her age was between 16 and 17 years. The trial Court accepted the prosecution case in this regard and found that the girl was aged less than 16 years at the relevant point of time. The High Court affirmed this finding. The trial court also recorded an alternative finding that she was forcibly raped on the first occasion and after that incident the accused went on making false promises to marry her. It was therefore held that either there was no consent or the consent was involuntary. Thus, according to the trial Court, it was a case of having sexual intercourse against the will of the victim girl or without her consent. If so, irrespective of the age of the girl, the offence is deemed to be committed. As regards this latter aspect the High Court did not enter into any discussion. Accordingly, the appellant was convicted under Section 376 IPC. The trial Court sentenced him to 10 years RI but the High Court modified the sentence to 7 years RI, which necessitated the accused to approach the Honourable Apex Court. As regards this latter aspect the High Court did not enter into any discussion. Accordingly, the appellant was convicted under Section 376 IPC. The trial Court sentenced him to 10 years RI but the High Court modified the sentence to 7 years RI, which necessitated the accused to approach the Honourable Apex Court. The Honourable Apex Court has held that after promising to marry the victim woman, the accused persuaded her to have sexual relations and caused pregnancy. This reprehensible conduct of the appellant left behind him a trail of misery, ignominy and trauma. The only solace is that she married subsequently. The female child born out of the illicit relationship is now living with her married mother and she is about 14 years old now. Though there is no evidence to establish beyond reasonable doubt that the appellant made a false or fraudulent promise to marry, there can be no denial of that fact that the appellant did commit breach of the promise to marry for which the accused is prima facie accountable for damages under civil law. The appellant on being asked for his response on this aspect so as to enable the Supreme Court to pass a suitable order in exercise of power vested under Article 142 of the Constitution, informed that he is prepared to pay a sum of Rs.50,000/-by way of monetary compensation irrespective of acquittal. Though the said amount is not an adequate compensation, the appellant need not be called upon to pay for more than one reasons; firstly, the appellant has been in jail for abut two years by now: secondly, the accused belong to a backward class and his family is not affluent though they have some agricultural lands; lastly, the incident took place about 15 years back and in the supervening period,the prosecutrix as well as the appellant married and he has two children. Only under such circumstances, the offer of the appellant/accused was accepted by the Honourable Apex Court and a compensation of Rs.50,000/- was awarded. " 18(ii) But that is not the case herein. According to P.W.1, the accused had cheated her by saying that he will marry her. Admitted by both the victim girl P.W.1 and the accused are close relatives and only on that ground he was allowed to have access to the house of P.W.1 by her parents. " 18(ii) But that is not the case herein. According to P.W.1, the accused had cheated her by saying that he will marry her. Admitted by both the victim girl P.W.1 and the accused are close relatives and only on that ground he was allowed to have access to the house of P.W.1 by her parents. A reading of the evidence of P.W.1 will go to show that at any point of time the accused ever ready to marry P.W.1. Whenever P.W.1 insisted the accused to marry her, under some lame excuses he avoided the same and had demanded Rs.3000/- from her to marry her. Only at that time she has given her 1/2 soverign ring to the accused and P.W.2, when came to know about the missing of the ring, asked P.W.1 about her ring, which necessitated P.W.1 to reveal the entire facts to P.W.2-her mother and also informed her(P.W.2) that her(P.W.1) mensural period stopped for about one year. It is in evidence from P.W.7 that P.W.1 was admitted in a private hospital by the accused and subjected her to abortion. At this juncture, the important observation of the Honourable Apex Court, which was extracted in the above said ratio, in my view, is note worthy, which reads as follows:- "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here that fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. But here that fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, "unless the court can be assured that from the very inception the accused never really intended to marry her." From the evidence adduced on the side of the prosecution it is clear that the accused never really intended to marry P.W.1. Under such circumstances, it cannot be said that the accused can take shelter under the provision of Section 90 IPC. On the other hand, as rightly held by the Courts below, an offence under Section 417 IPC has been made out against the accused. I do not find any reason to interfere with the well considered judgment of the learned first appellate Court in C.A.No.140 of 2004 on the file of the Principal Sessions Judge, Vellore. 19. In the result, the revision is dismissed confirming the judgment in C.A.No.140 of 2004 on the file of the Principal Sessions Judge, Vellore. The learned trial Judge is directed to secure the accused to undergo the remaining part of the sentence.