ORDER : B. Rajendran, J. 1. The petitioner was prosecuted for the offence punishable under Section 417 and 376 of IPC and on completion of trial, the trial court convicted him for the offences under Section 417 and 376 IPC and sentenced him to undergo one year Rigorous Imprisonment and to pay a fine of Rs. 1,000/- and in default to undergo 3 months Rigorous Imprisonment for the offence under Section 417 IPC and sentenced him to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs. 7,000/- in default to undergo 2 years Rigorous imprisonment for the offence under Section 376 IPC. Aggrieved by the conviction and sentence imposed by the trial court, the petitioner filed Criminal Appeal in C.A. No. 33 of 2010 before the appellate Court and the appellant court confirmed the conviction and modified the sentence of Rigorous Imprisonment to Simple Imprisonment by the Appellate Court on 13.07.2010. As against the same, the petitioner has come forward with the present Criminal Revision. The case of the prosecution is that the accused and the victim are lovers and by giving false promise to marry her, had sexual intercourse with her on several occasions and she became pregnant and she also gave birth to a child viz., Akash. Thereafter, when she asked him to marry, he refused and threatened her in dire consequences. Therefore, PW 1 gave a complaint, based on which the case in Crime No. 309 of 2009 came to be registered against the accused for the offences punishable under Section 417 and 376 of IPC. 2. During the course of trial, on behalf of the prosecution, P.Ws. 1 to 11 were examined and Exs. P1 to P10 were marked. On behalf of the accused no documentary evidence were marked or witnesses were examined. On conclusion of trial and upon analysis of the oral and documentary evidence, the Trial Court convicted the accused. The appeal filed by the petitioner before the appellate Court. In the appeal, the appellate court also confirmed the conviction made by the Trial Court and modified the sentence of Rigorous Imprisonment to Simple Imprisonment. Against which, the present revision has been filed. 3. The learned counsel for the petitioner would contend that the lower Court failed to take into consideration the fact that no case is made out against the petitioner for the offence under Section 376 IPC. Against which, the present revision has been filed. 3. The learned counsel for the petitioner would contend that the lower Court failed to take into consideration the fact that no case is made out against the petitioner for the offence under Section 376 IPC. The learned counsel would further contend that P.W. 1 herself has clearly stated in the chief examination that she has not given complaint as if the petitioner has threatened her and raped her. The learned counsel would also contend that P.W. 1 has given complaint only after 6 months from the date of denial of the marriage by the accused. It is submitted by the learned counsel that P.W. 1 to P.W. 3 have stated that as the petitioner has promised P.W. 1 to marry her, she has given consent for intercourse with the petitioner and the same would not attract Section 376 IPC. According to the learned counsel, at the time of incident, P.W. 1 was major and hence, if at all the petitioner has committed any offence, it could be only under Section 417 Cr.P.C. It is submitted that the petitioner has already undergone sentence for a period of 6 months. Therefore, the learned counsel prays for showing leniency in reduction of sentence. 4. The learned Government Advocate would submit that the Court below, after taking into consideration the oral and documentary evidence, has rightly convicted the petitioner. The learned Government Advocate would further submit that the petitioner was in jail for the period from six months. The learned Government Advocate would also submit that P.W. 1 was major at the time of incident. 5. Heard both sides and perused the materials available on record. 6. The only point for consideration in this revision is as to whether the accused had committed the offence under Section 376 Cr.P.C. 7. On a careful perusal of the entire evidence, it is clear that on the date of incident, P.W. 1 was major. It is not in dispute that the accused had physical relationship with the victim/P.W. 1. P.W. 1 has clearly admitted in her cross examination that she never given complaint stating that she has been threatened by the petitioner by showing knife and raped her. It is not in dispute that the accused had physical relationship with the victim/P.W. 1. P.W. 1 has clearly admitted in her cross examination that she never given complaint stating that she has been threatened by the petitioner by showing knife and raped her. It is useful to extract the said statement given by P.W. 1, which reads as follows: Further, in the evidence, P.W. 1 has clearly stated that a she has not even disclosed the incident with her mother. Further, in the evidence, P.W. 1 has stated that only on the basis of the promise given by the accused that he will marry her, she had intercourse with the petitioner. Even in the cross-examination, P.W. 1 has admitted she failed to conduct the D.N.A. Test to prove paternity of the child. 8. Therefore, it is clear that P.W. 1 herself has given consent for having intercourse with the petitioner. Since P.W. 1 herself has given consent, the question of rape does not arise. Further, the very complaint itself would attract Section 417 IPC alone. Hence, I am of the view that the prosecution has not made out any case against the petitioner for having committed the offence under Section 376 IPC. 9. In the decision of the Hon'ble Supreme Court reported in Uday v. State of Karnataka, AIR 2003 SC 1639 , (2003) 4 SCC 46 , LNIND 2003 SC 228 wherein, in paragraph Nos. 10 and 25, the Hon'ble Para Nos. 7, 8 and 9, it was held as follows: "10. Learned counsel for the appellant submitted that in the context of Section 375 of the Indian Penal Code, which is a special provision, the general provision, namely, Section 90 of the Indian Penal Code was not of much assistance to the prosecution. According to him, Section 375 Thirdly, Fourthly and Fifthly exhaustively enumerate the circumstances in which the consent given by the prosecutrix is vitiated and does not amount to consent in law. According to him, one has to look to Section 375 alone for finding out whether the offence of rape had been committed. Secondly, he submitted that even under Section 90 of the Indian Penal Code the consent is vitiated only if it is given under a misconception of fact. A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. Secondly, he submitted that even under Section 90 of the Indian Penal Code the consent is vitiated only if it is given under a misconception of fact. A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. The question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else, and on that pretext sexual intercourse is committed. In such cases it cannot be said that she consented to sexual intercourse. He sought to illustrate this point by reference to English cases where a medical man had sexual intercourse with a girl who suffered from a bona fide belief that she was being medically treated, or where under the pretence of performing surgery a surgeon had carnal intercourse with her. In Stroud's Judicial Dictionary (5th Edn.) p. 510 "consent" has been given the following meaning: "Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." It refers to the case of Holman v. R. wherein it was held that. "there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent". Similar was the observation in R. v. Olugboja wherein it was observed that "consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction". Stephen, J. in R. v. Clarence observed: (All ER p. 144 C-D) "It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true." Wills, J. observed: (All ER p. 135 I) "That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent." 23. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent." 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the 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 them. 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 us 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. 24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. 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 the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent. 10. In view of the same, the conviction imposed against the petitioner for the offence under Section 376 is set aside and if the petitioner paid the fine amount of Rs. 7,000/- as ordered by the Courts below, the same shall be refunded to the petitioner. Insofar as the offence under Section 417 IPC is concerned, admittedly, the petitioner has cheated P.W. 1 by giving false promise to marry her and the same has been established by the prosecution beyond reasonable doubt and she also gave a birth to a child viz., Akash and now the child is in the custody of the P.W. 1's sister viz., Arokiamary. Hence, definitely, the child has to be compensated. It appears that the petitioner has already under gone sentence for a period of 2 months. Therefore, though the conviction ordered by the Courts below for the offence under Section 417 IPC is confirmed, the sentence to undergo one year Simple imprisonment and to pay a fine of Rs. 1,000/- for the offence under Section 417 is set aside as the petitioner has already under gone sentence for a period of 2 months. It is made clear that if the petitioner paid the fine amount of Rs. 1,000/- for the offence under Section 417 is set aside as the petitioner has already under gone sentence for a period of 2 months. It is made clear that if the petitioner paid the fine amount of Rs. 1,000/- as ordered the Courts below for the offence under Section 417 IPC, the same shall be refunded to the petitioner. However, the petitioner shall deposits a sum of Rs. 2,00,000/- (Rupees Two lakhs only) towards compensation to the credit of S.C. No. 79 of 2010 on the file of the Principal Assistant Sessions Judge, Villupuram, within a period of four weeks from the date of receipt of a copy of this order for the welfare of the minor child. On such deposit being made, the trial Court shall invest the said amount in any one of the nationalized bank, in an interest bearing Fixed Deposit, till he attains majority. Since it is stated that the child is in the custody of the P.W. 1's sister, viz., Arokiamary, she is permitted to withdraw the accrued interest on the fixed deposit once in six months on proper identification. In the event of failure to pay the amount ordered now and that too, within the time stipulated by this Court, the petitioner-accused has to undergo simple imprisonment for a period of one year. In such event, the Trial Court shall take appropriate steps as are necessary to secure the presence of the petitioner-accused to undergo the sentence of one year simple imprisonment imposed now by this court in this criminal revision case. With the above modification in sentence, the Criminal Revision Case is partly allowed.