Judgment :- This appeal has been preferred against the judgment in S.C.No.24 of 2005 on the file of the learned Additional District and Sessions Judge, FTC.No.II, Ranipet. 2. According to the prosecution some 8 months prior to 38. 2002 the accused had cohabited with the complainant, which resulted in her pregnancy. It is the case of the prosecution that prosecutrix had given her consent because the accused under the pretext of marrying her had sexual intercourse with her. The accused has been charged under Section 417 & 376 IPC. 3. The learned Judicial Magistrate, after taking the case on file under PRC.No.15 of 2004, had 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 the Court of Sessions, had committed the case to the Court of Sessions under Section 209 of Cr.P.C. The learned Additional District and Sessions Judge, FTC.No.II, Ranipet, who tried the case, on the appearance of the accused had framed charges under Section 417 & 376 IPC and when questioned, the accused pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.14 were exhibited and no material object was marked. 4. P.W.1 is the prosecutrix. According to her, on the date of occurrence the accused, who is a married man, used to follow her when she was going to graze the cattle and under the pretext of marrying her, had cohabitation, which took place at the sugarcane garden on one Perumal. She would admit that even thereafter she had sexual intercourse with the accused on very many occasions, which resulted in her pregnancy. Since her father was admitted in Thambaram TB sanitarium for nearly four months and her mother was staying along with her father at Thambaram TB sanitarium, she could not inform her parents. After their return, they enquired about the structural changes in her body, which compelled her to reveal the fact that the accused under the pretext of marring her had sexual intercourse with her. Even though there was an attempt to abort the child it ended in futile. Thereafter she preferred a complaint with the police under Ex.P.1. She would further admit that she gave birth to a still born child. 5. P.W.2 is the father of P.W.1. Even though there was an attempt to abort the child it ended in futile. Thereafter she preferred a complaint with the police under Ex.P.1. She would further admit that she gave birth to a still born child. 5. P.W.2 is the father of P.W.1. He would depose that he heard from P.W.1, his daughter, that the accused had committed sexual intercourse with her and that he made a request to the accused to marry P.W.1, but the accused had failed to heed to the request. Hence, his daughter P.W.1 preferred Ex.P.1-complaint. 6. P.W.3 is the mother of P.W.1. She hasalso corroborated the evidence of P.W.1 & P.W.2. 7. P.W.8 is the then Sub-Inspector of Police, Annaikattu Police Station. According to him, on 9. 2002 at about 5.00 pm P.W.1 appeared in the police station and preferred Ex.P.1-complaint, which was registered by him under Annaikattu Police Station Cr.No.318 of 2002 under Section 376 & 417 IPC. Ex.P.9 is the copy of the FIR. 8. P.W.10 & P.W.11 are the investigating Officers in this case. P.W.10 on the basis of the complaint proceeded to the place of occurrence on 19. 2002 and examined the witnesses and prepared Ex.P.2-observation mahazar in the presence of P.W.4 and another witness Jegadesan. He has also drawn a rough sketch Ex.P.11 and on the same date he had arrested the accused at 2.00 pm and produced him before the Judicial Magistrate for judicial remand. He has also given a requisition for subjecting the accused for chemical examination. Ex.P.8 is the age certificate for the victim girl obtained by him from the headmaster of the Gyanaiya School. He also registered another case under Cr.No.372 of 2002 under Section 174 of Cr.P.C., on the basis of the complaint preferred in respect of the still born child to P.W.1. He has also visited the place of occurrence where the still born child was born and prepared Ex.P.3-observation mahazar and drawn Ex.P.12-rough sketch. He had conducted inquest on the death of the child. Ex.p.13 is the inquest report. Ex.P.14 is the FIR, regarding the birth of the still born child. 9. P.W.5 is the doctor, who had examined the accused and issued Ex.P.5-certificate stating that the accused is potent. 10. P.W.6 is the lady doctor, who had examined P.W.1 and issued Ex.P.6 and Ex.P.7 stating that P.W.1 was subjected to sexual intercourse and that P.W.1 was carrying about 32 weeks foetus. 9. P.W.5 is the doctor, who had examined the accused and issued Ex.P.5-certificate stating that the accused is potent. 10. P.W.6 is the lady doctor, who had examined P.W.1 and issued Ex.P.6 and Ex.P.7 stating that P.W.1 was subjected to sexual intercourse and that P.W.1 was carrying about 32 weeks foetus. 11. P.W.7 is the Headmaster of the School, who had issued Ex.P.8-birth certificate. P.W.9 is the doctor, who had conducted the autopsy on the deceased child born to P.W.1. Ex.P.10 is the postmortem certificate. P.W.11 after completing the investigation and after following the formalities, has filed the charge sheet against the accused. 12. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused would deny his complicity with the crime. The accused has produced Ex.D.1-report of DNA test. After going through the evidence available both oral and documentary, the learned trial judge has acquitted the accused for an offence under Section 417 IPC, but convicted the accused under Section 376 IPC and sentenced him to undergo 7 years RI and slapped a fine of Rs.5,000/- with default sentence, which necessitated the accused to prefer this appeal. 13. Now the point for determination in this appeal is whether the conviction and sentence under Section 376 IPC is sustainable for the reasons stated in the memorandum of appeal? 14. The Point:- 14(a) Heard the learned counsel appearing for the appellant Mr. N.S. Sivakumar and the learned Additional Public Prosecutor Mr. V.R. Balasubramanian and considered their respective submissions. The learned trial judge has convicted the accused only on the basis of the evidence of P.W.1. But the learned trial judge before convicting the accused under Section 376 IPC has failed to see whether the offence defined under Section 375 IPC has been made out against the accused to warrant conviction under Section 376 IPC. According to her (P.W.1) own statement under Ex.P.9-FIR, the age of the prosecutrix was 18 years. To show the age of the victim girl the prosecution has examined P.W.7 and marked Ex.P.8. Ex.P.8 is the age certificate given by P.W.7-Headmaster of the higher secondary school in which P.W.1 had studied. According to the evidence of P.W.7 the date of birth of P.W.1 as per the school records is 6. 1984. According to the case of the prosecution, the occurrence would have taken place 8 months prior to 89. 2002 ie., during January, 2002. According to the evidence of P.W.7 the date of birth of P.W.1 as per the school records is 6. 1984. According to the case of the prosecution, the occurrence would have taken place 8 months prior to 89. 2002 ie., during January, 2002. So on the date of occurrence prosecutrix P.W.1 must be about 17 years. The evidence of P.W.1 is that under the pretext of marrying her the accused had sexual intercourse with her for more than one occasion. But the trial Court had acquitted the accused from the charge under Section 417 IPC. There is no appeal preferred by the State Government against the findings of the learned trial Judge acquitting the accused from an offence under Section 417 IPC. According to P.W.1, the accused had sexual intercourse with her only with her consent. So under Section 375 IPC the descriptions under firstly, secondly, thirdly, fourthly, fifthly and sixthly will not be attracted. Admittedly P.W.1 is more than 16 years of age on the date of occurrence. Under such circumstances, the offence under Section 375 IPC cannot be said to be made out against the accused. 14(b) The learned counsel for the appellant relying on 2007(3) Supreme 489 (Naravan @ Naran Vs. State of Rajasthan), would contend that if there is no corroboration from any evidence to the testimony of prosecutrix then the accused cannot be convicted. But in the said case the offence of rape, according to the prosecution, was committed while the accused was traveling with the prosecutrix in a tractor, wherein according to the prosecutrix, the accused had committed the offence of rape thrice, but in the evidence she has stated the accused had raped twice. Further the evidence let in in that case would go to show that the prosecutrix did not raise any hue and cry at the time when she was subjected to the offence of rape on a rough surface, but the medical report shows no injury on her body or her private parts. Under such circumstances, it was held by the Honourable Apex Court in that case that the conviction and sentence against the accused under Section 376 IPC cannot be sustainable. 14(c) The learned counsel for the appellant relying on 2003 Crl.L.J. 1411 (Jintu Das Vs. Under such circumstances, it was held by the Honourable Apex Court in that case that the conviction and sentence against the accused under Section 376 IPC cannot be sustainable. 14(c) The learned counsel for the appellant relying on 2003 Crl.L.J. 1411 (Jintu Das Vs. State of Assam), would contend that even according to the case of the prosecution the prosecutrix at the time of the commission of offence was aged more than 16 years and under consenting to act of sexual intercourse on promise of marriage after knowing the nature of implication of such act will not attract an offence against the accused under Section 375 IPC warranting conviction under Section 376 IPC. The exact observation in the above said dictum runs as follows:- "In view of the evidence as discussed above and in the facts and circumstances, the irresistible conclusion is that if the accused had sexual intercourse with her it was with her consent. This has been corroborated by circumstances that she did not tell anybody about the sexual intercourse with the accused-appellant till she became pregnant. If a full grown woman 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. ........................ ..................................... 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 with the meaning of misconception of fact, the fact must have an immediate relevance. 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 and in such a case to pardon the act of the girl and fasten criminal liability on the accused." For the same proposition of law the learned counsel for the appellant would rely on a dictum in 2003 Crl.L.J. 1539 (Uday Vs. Section 90 IPC cannot be called in and in such a case to pardon the act of the girl and fasten criminal liability on the accused." For the same proposition of law the learned counsel for the appellant would rely on a dictum in 2003 Crl.L.J. 1539 (Uday Vs. State of Karnataka), wherein also in a similar situation Honourable Apex Court has held as follows:- "In the instant case the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. Further there is no evidence to prove conclusively that the appellant never intended to marry her. There is hardly any evidence to prove the fact that the prosecutrix had consented to have sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course on the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was that result of their deep love for each other." In the case on hand it is in evidence that the accused is a married man and after knowing about the affairs between the accused and the prosecutrix the wife of the accused had left the matrimonial home. It is further in evidence that the accused had no issues through his wife. It is the case of the prosecutrix that she became pregnant only because of the accused. To rebut this part of the evidence of the prosecutrix, the accused had produced Ex.D.1-reprot of DNA test conducted for the prosecutrix and the accused. The result of the report under Ex.D.1 reveals that the accused is not the father of the child born to P.W.1. So it goes without saying that apart from the accused the prosecutrix P.W.1 had sex with other person. So from the available evidence mentioned above will clearly go to show that an offence under Section 375 IPC has not been made out against the accused to warrant conviction under Section 376 IPC. Point is answered accordingly. 15. In fine, the appeal is allowed and the conviction and sentence against the accused in S.C.No.24 of 2005 on the file of the learned Additional District and Sessions Judge, FTC.No.II, Ranipet, is set aside and the accused is acquitted from the charges levelled against him. Bail bond shall stand cancelled. The fine amount, if any paid by the accused, shall be refunded to the accused.