JUDGMENT :- 1. The appellant is the sole accused in S.C.No.468 of 2005 on the file of the learned Additional Sessions cum Mahila Court, Madurai. He stood charged for the offences under Sections 363, 366-A and 376 of IPC. The trial Court convicted him under Sections 366 and 376 of IPC and sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 366 IPC and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 376 of IPC. The trial Court has also found him guilty under Section 363 IPC and accordingly convicted him. The trial Court did not impose separate sentence for the said offence. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows; (a) PW3 is the victim girl in this case. At the time of occurrence, she was hardly 15 years old. She is a poor village girl, having studied upto 9th standard. PW1 and PW22 are the father and mother respectively of PW3. The accused in this case was about 50 years of age at the time of occurrence. He was also married and having three children. When PW3 was studying in the school, on her way to school, the accused used to intercept her and to speak to her. In such a way, PW3 also had spoken to the accused on few occasions. (b) On 07.03.2004, PW3 alone was at her house. PW1 had gone out to a nearby village. PW2 had gone out to rear cattle. PW3's younger brother had gone out for playing. When PW3 alone was at home, at about 11.00 a.m., the accused came to her house. He told PW3 to heed to his words. He intimidated PW3 that he would kidnap her to a different place. He also told her that if she did not accompany him, he would kill her and he would not allow her family members also to live. Out of fear, PW3 accompanied the accused. She had taken with her two sets of dress, as directed by the accused. He intimidated PW3 that he would kidnap her to a different place. He also told her that if she did not accompany him, he would kill her and he would not allow her family members also to live. Out of fear, PW3 accompanied the accused. She had taken with her two sets of dress, as directed by the accused. (c) The accused took her to a nearby kanmoi (water body), where near a bush, at about 5.00 p.m., on the same day, the accused attempted to lure her to agree for sexual intercourse. PW3 raised hue and cry, but, since it was a distant lonely place, nobody came forward to her rescue. Then, by keeping her under threat, the accused had sexual intercourse with her. PW3 could not escape from the clutches of the accused. By then, it was about 07.00 p.m. He took her in a bus to a different place. The destination was not known to PW3. He took her into a coconut grove. There were no houses in the same. There was only a lady working in the said farm. The accused kept PW3 in that place for about 15 days. During that time, the accused had frequent sexual intercourse with her. One day, the accused had left PW3 in the company of the woman and left for a different place. At that time, PW3 narrated the entire occurrence to the said woman. She promised to help PW3. Accordingly, she allowed her to escape in a bus. PW3 returned to her native place on 22.03.2004 at about 11.00 a.m. (d) In the meanwhile, on the day of the occurrence, PW2, who had gone out for rearing cattle, returned to her house at about 06.00 p.m. To her shock, she found PW3 missing and her sons alone were there. Believing the words by accident that the victim would have fallen in the nearby Well, PW2 went to the Well and searched for the deceased. When she in search of the deceased, one Thangavelu told her that he had earlier seen PW3 going along with the accused. The said Thangavel further told that he could not catch hold of the accused. On hearing this message by about 07.00 p.m., on that day, he informed her husband. When she in search of the deceased, one Thangavelu told her that he had earlier seen PW3 going along with the accused. The said Thangavel further told that he could not catch hold of the accused. On hearing this message by about 07.00 p.m., on that day, he informed her husband. (e) PW1, on hearing the message from PW2, returned to the village on the next day at about 7.00 a.m. They went in search of PW3 but in vain. Thereafter, PW1 made a complaint to the Police. Ex.P1 is the complaint. PW11, the then Sub Inspector of Police attached to Melur Police Station, registered a case on the said complaint of PW1 in Crime No.200 of 2004 under Sections 366(A) r/w 109 and 506(i) IPC. Ex.P7 is the FIR. He proceeded to the place of occurrence, prepared an observation mahazar and a rough sketch showing the place of occurrence. Then, he recorded the statements of PWs.1 & 2 and few more witnesses, including Mr. Thangavel. Then, he handed over the Case Diary to PW12. (f) PW12, the then Inspector of Police, took up the case for investigation and examined few more witnesses. On 22.03.2004, he examined PW3 and recorded her statement. Then, on the same day, at about 5.00 p.m., he arrested the accused and brought him to the Police Station. Then, he forwarded the accused as well as PW3 for medical examination. PW7, Dr.Chithra examined PW3 on 24.03.2004 and found that PW3 had been subjected to frequent sexual intercourse. Ex.P4 is the certificate issued by her. PW6 Dr.Maiyalagan examined the accused and opined that he was not impotent. PW12, collected the medical records, examined the doctors and few more witnesses and recorded their statements and finally, laid the final report against the accused. (g) Based on the above materials, the trial Court framed appropriate charges. In order to prove the case of the prosecution, as many as 12 witnesses were examined and 12 documents were exhibited. As I have already stated, PWs.1 & 2 have spoken about missing of PW3 and PW3 vividly narrated about the entire occurrence. PW4 and PW5 have turned hostile. PW6 Dr.Maiyalagan and PW7 Dr.Chithra have spoken about the examination conducted on the accused and PW3 respectively. PW10 - Mr. Xavier has spoken that according to the school record, PW3 studied upto 9th standard and her date of birth is 29.07.1988. PW4 and PW5 have turned hostile. PW6 Dr.Maiyalagan and PW7 Dr.Chithra have spoken about the examination conducted on the accused and PW3 respectively. PW10 - Mr. Xavier has spoken that according to the school record, PW3 studied upto 9th standard and her date of birth is 29.07.1988. PWs.11 & 12 have spoken about the investigation done. (h) When the above incriminating materials were put to the accused, he denied the same as false. However, he did not examine any witness on his side. Having considered the above materials, the trial Court found him guilty as detailed in the first paragraph of this judgment and accordingly punished him, and that is how he is before this Court with this appeal. 3. In this appeal, the learned counsel for the appellant would submit that from the uncorroborated testimony of PW3, it is clear that at the time of occurrence, she voluntarily went along with the accused. The learned counsel would further submit that she did not raise any alarm and she did not raise any protest, when she went along with the accused. He would further point out that it is in evidence of PW3 that she was a consenting party for going with the accused as well as to have sexual intercourse with him. He would further submit that at the time of occurrence, according to Radiology report, PW3 had completed 18 years of age and not completed 21 years of age. The learned counsel, therefore, submitted that at the time of occurrence, PW3 was fully competent to give full consent for sexual intercourse and therefore, the offences said to have been committed by the accused are not made out. 4. The learned counsel appearing for the appellant would further submit that though it is admitted by PW3 that there is a birth certificate for her, the same has not been produced. The learned counsel would further point out that the suppression of the said document would give adverse inference to the accused under Section 118 of the Indian Evidence Act. The learned counsel would further submit that according to PW1, immediately after two days of the occurrence, the complaint was made, but the same has been suppressed. The present complaint is dated only 17.03.2004. The learned counsel would further submit that the suppression of the earliest information creates lot of doubts in the case of the prosecution. The learned counsel would further submit that according to PW1, immediately after two days of the occurrence, the complaint was made, but the same has been suppressed. The present complaint is dated only 17.03.2004. The learned counsel would further submit that the suppression of the earliest information creates lot of doubts in the case of the prosecution. He would also point out that the woman in whose company PW3 was kept at Peravoorani has not been examined. For these reasons, according to the learned counsel, the accused is entitled for acquittal as there are lot of doubts in the case of the prosecution. 5. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the delay in FIR in this case assumes no importance. He would submit that PWs1 & 2 were not aware of the fact that PW3 had been kidnapped by the accused. Therefore, quite naturally, it would have taken some time for them to make complaint. The learned Additional Public Prosecutor would further submit that according to Ex.P6, school certificate, the date of birth of PW3 is 29.07.1988 which means as on the date of the occurrence, she was hardly 15 years and 7 months old. He would further point out that the date of birth of PW3 has not been disputed at all by the accused during trial. The learned counsel would therefore submit that PW3 was not fully competent to give consent as her age at that time was less than 16 years. He would further submit that the non examination of the woman in whose company PW3 was kept at Peravoorani was immaterial, because even according to PW3, she could not recollect the person concerned. The learned counsel would further submit that non production of the birth certificate assumes no importance as the date of birth has not been disputed. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubts and therefore, the well considered judgment of the trial Court does not warrant any interference at the hands of this Court. 6. I have considered the above submissions. 7. Admittedly, at the time of occurrence, the accused was around 50 years of age and he was also married and having three children. There is no strong motive suggested even to remotely infer that this is a false case. 6. I have considered the above submissions. 7. Admittedly, at the time of occurrence, the accused was around 50 years of age and he was also married and having three children. There is no strong motive suggested even to remotely infer that this is a false case. PW3 is a solitary witness to speak about the entire occurrence. But, it is immaterial because, the evidence of solitary witness, if it inspires the confidence of the Court, can be the basis for conviction. PW3 has categorically stated as to the way in which she was taken under threat and how the accused had sexual intercourse near the bush in the Kanmoi and then, at Peravoorani, on a number of occasions. The medical evidence clearly corroborates the same. According to the Doctor, the vagina of PW3 allowed two fingers to move freely, which means, according to the Doctor, PW3 had been subjected to sexual intercourse. To this extent, the medical evidence also corroborates the evidence of PW3. 8. The main attack of the learned counsel for the appellant is that the narration of event made by PW3 would go to show that she was a consenting party, though PW3 has stated that she was taken under threat, she was kept under threat and sexual intercourse was committed by keeping her under threat. The learned counsel has also pointed out that from the evidence of PW3, there are materials to infer that she was a consenting party. Assuming that PW3 is a consenting party, now the question is whether she was competent to give consent for sexual intercourse, at the time of occurrence. As per the unamended Section 375 of IPC, the eligible age for giving free consent for sexual intercourse was 16 years. Therefore, in the instant case, the crucial question to be answered is as to whether on the date of the occurrence, PW3 was less than 16 years of age or not. 9. In this regard, PW10 - Mr. Xavier, Headmaster of the school, where PW3 had studied, had given evidence with regard to the school records to the effect that her date of birth is 29.07.1988, which means, on the date of occurrence, she was hardly 15 years and 7 months old. Ex.P6 is the certificate issued by the Headmaster. 9. In this regard, PW10 - Mr. Xavier, Headmaster of the school, where PW3 had studied, had given evidence with regard to the school records to the effect that her date of birth is 29.07.1988, which means, on the date of occurrence, she was hardly 15 years and 7 months old. Ex.P6 is the certificate issued by the Headmaster. Though it is now argued by the learned counsel for the appellant that the said evidence cannot be accepted for want of production of birth certificate, I am not persuaded by the said argument for the simple reason that when PW10 was examined, her date of birth and age were not at all disputed. Even in the chief examination, PW1 and PW2 have spoken about the age of PW3. But, the same also was not disputed. Thus, the evidence let in by the prosecution in respect of date of birth of PW3 and her age remains unasailed and undisputed by the accused. 10. The learned counsel for the appellant would, however, submit that the prosecution has failed to prove her date of birth and age. In my considered opinion, unless a fact spoken to in the chief examination is disputed in the cross-examination, the question of proving the said undisputed fact does not arise. If at all any fact is put in issue, then it needs to be proved. As I have already pointed out in this case, the age and date of birth of the accused were not at all disputed during trial. For the first time such a dispute is made only across the bar now. Therefore, this dispute, raised for the first time is only to be rejected. Thus, in my considered view, the prosecution has proved that as on the date of the occurrence, PW3 was less than 16 years of age and thus she was not competent to give consent for sexual intercourse. Therefore, assuming that PW3 was a consenting party for the sexual intercourse, since she was hardly 15 years of age, the said consent is no consent, as stated under Section 375 of IPC and thus, the said act of the accused in having sexual intercourse with PW3 amounts to rape punishable under Section 376 IPC. The non production of the birth certificate is immaterial, because as I have already pointed out, the date of birth of PW3 has not been disputed. 11. The non production of the birth certificate is immaterial, because as I have already pointed out, the date of birth of PW3 has not been disputed. 11. Now, turning to the delay in FIR, the learned counsel for the appellant has attempted to make a point, but I do not find anything in favour of the accused in this respect. PW1 & PW2 were not eyewitness to the occurrence so as to rush to the Police Station immediately to give a complaint. They are poor and illiterate villagers. Quite naturally, they went in search of their daughter, PW3, for some time. Thereafter, according to PW1, after two days, he went to the Police Station and made the complaint. As rightly pointed out by the learned counsel for the appellant that the said complaint has been suppressed. Subsequently only on 17.03.2004, a complaint has been obtained and a case has been registered by the police. This, in my considered opinion, is nothing but the handy work of the police and for that PW1 cannot be blamed. If it is any other case, on the ground of suppression of the earliest information, this Court can give the benefit of doubt to the accused, but, in this case, the FIR does not assume importance, because the same has not been given by any person, who had witnessed the occurrence. Assuming that Ex.P1 is hit by Section 162 of Cr.P.C., that will not demolish the evidence of PW3 which is so cogent and convincing. 12. The learned counsel for the appellant would nextly contend that the woman in whose company at Peravoorani PW3 was kept by the accused was not examined. Of-course it is true that there is a flaw in the investigation, but it will not cause in any manner dent in the case of the prosecution, because the evidence of PW3 is so strong enough. 13. From the discussion made herein above, I find that the accused had kidnapped PW3 and then had sexual intercourse with her which amounts to rape. Thus, the lower Court was right in convicting the accused under Sections 366 and 376 IPC. Since the accused has been convicted under Section 366 IPC, the conviction under Section 363 IPC is not sustainable. Therefore, the conviction of the accused under Section 363 IPC alone is liable to be set aside. 14. Thus, the lower Court was right in convicting the accused under Sections 366 and 376 IPC. Since the accused has been convicted under Section 366 IPC, the conviction under Section 363 IPC is not sustainable. Therefore, the conviction of the accused under Section 363 IPC alone is liable to be set aside. 14. Now, turning to the quantum of punishment, for the offence under Section 366 IPC, the lower Court has imposed a punishment of four years rigorous imprisonment, which, in my considered opinion, is very reasonable. For the offence under Section 376 IPC the trial Court has imposed the minimum sentence of seven years in which also I do not find any infirmity. The offence is so heinous, for an young girl who was aged hardly 15 years had been taken by the accused who was around 50 years of age having a wife and three children and mercilessly raped. The gravity of the offence is so heinous. There are no mitigating circumstances. Thus, I find that the sentences imposed on the appellant are very reasonable, which would meet the ends of justice, warranting no interference at the hands of this Court. 15. In the result, this appeal is partly allowed in the following terms; (i) the conviction of the appellant under Section 363 IPC is set aside and he is acquitted from the said charge; and (ii) the conviction of the appellant under Sections 366 and 376 IPC are confirmed and the sentences imposed for these offences are also confirmed. 16. The trial Court shall take steps to secure the accused to commit him in prison to serve out the remaining period of sentence.