Judgment :- This appeal has been preferred by the accused in S.C.No.99 of 2004 on the file of Sessions Judge, Mahila Court, Salem. The complaint was preferred by the mother of the victim girl three days after the occurrence. On the basis of the complaint, the police took up the investigation and laid the charge sheet against the accused under Sections 450 and 376 of IPC. 2. The learned Judicial Magistrate, IV, Salem had taken the case on file, issued summons to the accused and on his appearance furnished copies under Section 207 of Cr.P.C. and since the case is exclusively triable by a Court of Sessions had committed the case to the Court of Sessions under Section 209 of Cr.P.C. The learned Sessions Judge, Mahila Court, Salem on appearance of the accused had framed charges under Sections 450 and 376 of IPC and when questioned the accused pleaded not guilty. 3. Before the trial Court P.Ws 1 to 12 were examined and Exs P1 to P10 were exhibited and no material object was marked in this case. 4. P.W.1 is the victim girl. According to her, at the time of occurrence, she was aged 17 and was studying in V Standard. On 20.1.2003 at about 10.00 a.m., while she was sleeping in the house, keeping the door ajar, the accused trespassed into the house and after gagged her committed the offencce of rape and hearing her alarm, the neighbour Pappu, P.W.3 came to her rescue which made the accused took to his heels through the back door. She had informed what had happened to her to P.W.3 Pappu and also to her mother, who in turn, had complained to the village headman and in the village panchayat, she had requested the accused to marry her daughter P.W.1. But he has refused to heed to the request made by her. Hence her mother had preferred a complaint. 4a. P.W.2 is the mother of P.W.1. According to her, on 20.1.2003, she was informed by P.W.3 and P.W.1 that the accused had committed the offence of rape on P.W.1 and that she pleaded before the village head man but in the panchayat the accused had refused to marry P.W.1. Hence the complaint was preferred on 21. 2003 under Ex P1. 4b. According to her, on 20.1.2003, she was informed by P.W.3 and P.W.1 that the accused had committed the offence of rape on P.W.1 and that she pleaded before the village head man but in the panchayat the accused had refused to marry P.W.1. Hence the complaint was preferred on 21. 2003 under Ex P1. 4b. P.W.3 Pappu, the neighbour of P.W.2 who would depose that one day in the first month of 2003, she heard hue and cry from the house of P.W.1 and immediately she rushed to the house of P.W.2 where she saw P.W.1 coming out of her house wrapped herself with a bed sheet and informing her that the accused had committed the offence of rape on her(P.W.1). According to her, she saw the accused inside the house along with P.W.1 and on seeing her, the accused ran away through the back door and in the panchayat convened, the accused had failed to heed to the request made by P.W.2, P.W.2 had preferred the complaint with the police. 4c. P.W.4 is the panchayatar, who would depose that on 20.1.2003 at about 5.00 p.m., P.W.2 and P.W.3 came to his house and informed that the accused had committed the offence of rape on P.W.1 Nandhini and that he had convened a panchayat but the accused had not heeded to the advise of the panchayat and since the accused had absconded from the village with his parents, P.W.2 had preferred the complaint with the police at his request. 4d. P.W.9 is the then Inspector of Police, Kannankurichi Police Station, who had registered the first information report on the basis of the complaint Ex P1 under Kannankurichi Police Station crime No.54 of 2003 under Sections 450 and 376 of IPC .Ex P6 is the first information report. He had examined the witnesses and recorded their statements. He had sent the victim girl P.W.1 through the woman constable 1571 for subjecting herself to the medical examination by the Government doctor. He had visited the place of occurrence at 3.00 p.m., on the same day and prepared Observation Mahazar Ex P2 in the presence of P.W.5 and another witness Singaravelan. He had drawn rough sketch Ex P7 in the presence of the same witnesses. Since the accused had surrendered before the Judicial Magistrate No.IV, Salem, he had applied for police custody on 21. He had drawn rough sketch Ex P7 in the presence of the same witnesses. Since the accused had surrendered before the Judicial Magistrate No.IV, Salem, he had applied for police custody on 21. 2003 and took the accused in the police custody and kept him for four days in the police custody and has recorded the confession statement of the accused on 2. 2003 and he has also subjected the accused for medical examination by a Government doctor. 4e. P.W.6 is the Doctor, who had examined the victim girl on 21. 2003 at 2.15 p.m, and issued Ex P3 wound certificate. She has not seen any external injuries on the body of the victim girl. But she would say that her hymen was found ruptured. Ex P4 is the final report dated 20.2.2003. 4f. P.W.7 is the radiologist, who had issued Ex P5 age certificate for the victim girl stating that the age of the victim girl must be above 14 years but below 16 years. P.W.8 is the witness in the confession statement of the accused. P.W.10 is the doctor, who had examined the accused and issued Ex P8 age certificate stating that the age of the accused must be above 20 years but below 25. He had collected sample blood and saliva from the accused, and had sent the same for chemical analysis through the Judicial Magistrate. Ex P9 is the analysts report. He has also examined the accused and issued Ex P10 certificate stating that the accused is potent. 4g. P.W.10 is one of the witnesses for the panchayat. According to him, there was a panchayat convened on the basis of the complaint made by P.W.2, but nothing fructified in the panchayat. He has signed as a witness in Ex P1 complaint preferred by P.W.2. P.W.12 is the successor of P.W.9, who after completing the investigation had laid the charge sheet against the accused. 5. When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, he would deny his complicity with the crime. He has examined D.W.1, his father-in-law Chandran to show that the accused had married one Gayathri, the daughter of D.W.1 and marked Exs D1 and D2 to show that his marriage with one Gayathri was conducted in a temple and the marriage was registered before the Sub Registrar, Salem West. 6. He has examined D.W.1, his father-in-law Chandran to show that the accused had married one Gayathri, the daughter of D.W.1 and marked Exs D1 and D2 to show that his marriage with one Gayathri was conducted in a temple and the marriage was registered before the Sub Registrar, Salem West. 6. The learned trial Judge, after meticulously going through the evidence both oral and documentary has come to a conclusion that the offence under Sections 450 and 376 of IPC has been made out against the accused and accordingly convicted the accused under Section 450 of IPC and sentenced to undergo four years rigorous imprisonment and a fine of Rs.500/- with default sentence and has also convicted the accused under Section 376 of IPC and sentenced to undergo seven years rigorous imprisonment and a fine of Rs.1000/- with default sentence, which necessitated the accused to prefer this appeal before this Court. 7. Now the point for consideration in this appeal is whether the conviction and sentence against the accused under Sections 450 and 376 of IPC is sustainable for the reasons stated in the memorandum of appeal? 8. Heard Mr. A. Padmanabhan, learned counsel appearing for the appellant and Mr. V.R. Balasubramaniam, learned Additional Public Prosecutor for the State and carefully considered their rival submissions. .9. The Point: .The learned counsel appearing for the appellant would contend that the offence under Section 376 of IPC is not made out against the accused. The learned counsel appearing for the appellant would focus the attention of this Court to the inordinate delay in preferring the complaint. According to the learned counsel, no wearing apparels of the victim girl was seized by the Investigating Officer and sent for chemical analysis and no wearing apparels from the accused was also seized and sent for chemical examination by the prosecution. According to the prosecution, the victim minor girl is between 14 and 16 years was gagged by the accused at the time of committing the offence of rape, according to P.W.1. But according to the Doctor, P.W.6, who had examined the victim girl , there was no external injury found on the body of the victim girl. .10. According to the prosecution, the delay in preferring the complaint by the P.W.2 is that after the occurrence, the panchayat was held and in the panchayat, the accused had refused to marry P.W.1. But according to the Doctor, P.W.6, who had examined the victim girl , there was no external injury found on the body of the victim girl. .10. According to the prosecution, the delay in preferring the complaint by the P.W.2 is that after the occurrence, the panchayat was held and in the panchayat, the accused had refused to marry P.W.1. Thereafter only, the complaint under Ex P1 was preferred by P.W.2, the mother of the victim girl. 11. According to the learned counsel appearing for the appellant, after the betrothal of the accused only, a false complaint has been preferred by P.W.2. Exs D1 and D2, which were produced by the accused, will go to show that the accused has subsequently been married. The learned counsel appearing for the appellant would rely on a decisions reported in Rajaram-vs-State of Rajasthan (2005) SCC (cri) 1050 and Jgan Seshadri-v- State of Tamil Nadu (2003 Supreme Court Cases (cri) 1494) would contend that if the witness of the prosecution deposes against the case of the prosecution and if the witness was not treated as a hostile then the said evidence would be binding on the prosecution and the same can be relied up by the defence. 12. According to P.W.3, after hearing hue and cry raised by P.W1, she rushed to the place of occurrence in order to rescue P.W.1. But P.W.1 in her evidence has not stated that at the time of occurrence, the accused had gagged her mouth with a piece of cloth and according to P.W.1 after committing the offence and on seeing P.W.3 approaching, the accused ran away through the back door of the house. But P.W.3 in her evidence has stated that when she entered into the house, she saw the accused present inside the house along with P.W.1 the victim girl and that after seeing her, he went through the back door. Pointing out the discrepancies found in the evidence of P.W.3 against the evidence of P.W.1, the learned counsel appearing for the appellant would submit that the prosecution has failed to treat P.W3 as a hostile witness and the accused is entitled to rely on the evidence of P.W.3 to show that the occurrence would not have been occurred as alleged by the prosecution. .13. .13. No doubt the Doctor P.W.6, who had examined the victim girl, four days after the occurrence, has stated that the hymen of the victim girl was not found in tact, but in the cross examination, she would admit that there is every possibility for the hymen of the lady to get ruptured. The delay in preferring the complaint after three days from the date of occurrence had raised a doubt in the mind of the Court. A minor girl, according to the prosecution, has been raped by the accused, the natural conduct of the victim girl is to approach the nearby police station immediately with the complaint. But in this case, P.W.2, the mother of the victim girl P.W.1 had approached P.W.4 Panchayatar. According to him, there was a compromise took place between the family of the victim girl and the parents of the accused. He has not specifically stated as to whether any decision in the panchayat was taken to insist the accused to marry the victim girl. 14. Under such circumstances, immediately P.W.2 ought to have preferred a complaint but according to P.W.1, on the date of occurrence, the accused entered into the house and had removed her wearing apparels. Further evidence of P.W.3 also corroborates to the effect that the accused was seen inside the house of P.W.2 along with P.W.1. Under such circumstances, even though, the accused is not guilty under Section 376 of IPC, he is guilty under Section 354 of IPC. 15. At this juncture, the learned counsel appearing for the appellant would represent that the accused is in jail for one year and that he may be awarded a sentence of period already undergone instead of sentence awarded by the trial Court. Under such circumstances, I am of the view that the accused can be convicted under Section 354 of IPC and sentenced for the period already undergone. 16. In fine, the appeal is partly allowed and the conviction and sentence by the learned trial Judge in S.C.No.99 of 2004 on the file of the Sessions Judge, Mahila Court, Salem under Sections 450 and 376 of IPC is hereby set aside but the accused is conviction and sentenced under Section 354 of IPC for the period already undergone and with the fine of Rs.5000/-. The entire fine amount is ordered to be paid to P.W.1 victim girl as compensation under Section 357(1) of Cr.P.C. The fine amount paid by the accused under Section 376 of IPC is to be treated as the fine paid by the accused under Section 354 IPC. The fine amount paid under Section 450 of IPC will sustain.