JUDGMENT : (Prayer: Petition filed under Sections 397 and 401 of the Criminal Procedure Code, against the order of conviction and sentence passed by the learned II Additional Sessions Judge, Puducherry, dated 14.02.2017 in C.A.No.14 of 2016 confirming the conviction and sentence passed by the learned Principal Assistant Sessions Judge, Puducherry, in S.C.No.72 of 2009, dated 23.03.2016.) 1. The matter is heard through “Video Conference”. The sole accused is the revision petitioner herein. He has preferred this criminal revision case against the order of conviction and sentence passed by the learned II Additional Sessions Judge, Puducherry, in C.A.No.14 of 2016, dated 14.02.2017, confirming the conviction and sentence passed by the learned Principal Assistant Sessions Judge, Puducherry, in S.C.No.72 of 2009, dated 23.03.2016. 2. The case of the prosecution is that on 18.11.2006, the victim/P.W.1 lodged a complaint before the Superintendent of Police, Villupuram, against the revision petitioner and the same was forwarded to the Inspector of Police, Villupuram Taluk Police Station and on the basis of the said complaint, a case was registered in Crime No.154 of 2007 dated 14.02.2007 against the revision petitioner for the offences under Sections 376 and 417 of IPC and for want of jurisdiction, the case was transferred to Kirumambakkam police station, Puducherry/respondent herein and renumbered as Crime No.64 of 2007 for the offences under Sections 376 and 417 of IPC as against the petitioner. After completing the investigation, the respondent police has filed final report for the offences under Sections 376 and 417 of IPC before the learned Judicial Magistrate No.I, Puducherry in P.R.C.No.22 of 2009 and made over the same to the learned Principal Assistant Sessions Judge, Puducherry and after committal proceedings, the learned Principal Assistant Sessions Judge, Puducherry framed charges against the accused/revision petitioner herein for the offences under Sections 376 and 417 of IPC. 3. The suggestive case of the defence is that there is no such promise to marry. If at all there was sexual intercourse between the prosecutrix and the accused, it ought to have been con-sexual and consensual act. 4. 3. The suggestive case of the defence is that there is no such promise to marry. If at all there was sexual intercourse between the prosecutrix and the accused, it ought to have been con-sexual and consensual act. 4. The trial Court, after considering both oral and documentary evidence adduced on behalf of the prosecution, has come to the conclusion that the victim/P.W.1 is a consenting party and the physical relationship between the accused and the victim was consensual and convicted the accused under Section 417 IPC and sentenced to undergo Rigorous Imprisonment for a period of one year. However, the trail Court has acquitted the accused from the charge under Section 376 IPC. Aggrieved against the said conviction and sentence, the accused has preferred an appeal in Crl.A.No.14 of 2016 and the learned II Additional Sessions Judge, Puducherry, after trial, confirmed the conviction and sentence passed by the trial Court and dismissed the said criminal appeal and hence, the present criminal revision case has been preferred before this Court. 5. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor, Pondicherry, appearing for the State. 6. The revision petitioner herein is the accused in S.C.No.72 of 2009 on the file of the learned Principal Assistant Sessions Judge, Puducherry. The accused was charged for the offences under Sections 417 and 376 IPC. The trial Court found not guilty of the accused under Section 376 IPC and acquitted the accused from the said charge under Section 376 IPC. As against the order of acquittal under Section 376 IPC, no appeal is preferred by the State. 7. The learned counsel for the revision petitioner/accused would contend that there is a material contradiction as to the date of the occurrence, place of the occurrence and the evidence of the victim/P.W.1 is not trustworthy to place reliance. Non examination of the material witnesses viz., the Inspector of Police and Superintendent of Police, before whom, the first FIR was given and the son of the owner of the lodge with whom P.W.1 had permission for entering the premises of bachelor room and one Nurse Sivanthi with whom P.W.1 was said to have spoken about the alleged incident occurred on 14.08.2004, is fatal to the prosecution case. Further, the evidence of P.W.1 goes to show that only after the occurrence, the accused has expressed his willingness to marry the victim/P.W.1 and it is not otherwise as it is pleaded by P.W.1. 8. To recapitulate the evidence that was adduced before the trial Court is that [i] P.W.1 is the victim girl. She was working as a Nurse in Mahatma Gandhi Medical College during the year February 2004 till November 2005. When she was attending duty in Emergency Unit, the accused was introduced as a Doctor by her colleague, namely Sridevi. While conversation with the accused, she came to know that he was the nearby resident of her village and so, she used to clarify her doubts with him in her profession. [ii] On 12.08.2004, the accused called P.W.1 over phone and informed about a book and so she came to the room of the accused. During conversation, the accused plucked her handbag; he locked the door and came nearer to her, meanwhile, kissed her, so she slapped him. Since she was tensed, he gave her a glass of water. By conversing, the accused tore off her Churidar tops, later he brought her to the bed. The accused promised her that he would marry her and kissed her. The accused removed her pant along with inner-ware and had sexual intercourse. During that time, the accused removed all of her clothes and crushed her breast. Later, she went to the toilet, there also the accused came and made her naked. The accused assured her that he would marry her, until then she should not take any wrong decision and made her to promise him. Since P.W.1 was crying, the accused consoled her that his friends might think badly and so she should left the place. The incident was narrated by the accused to nursing sister Sivanthi. [iii] On 14.08.2004, P.W.1’s mother was admitted in the hospital and at that time, the accused called P.W.1 over phone to have a talk about their marriage and she went to see him at 07.00 p.m. on the same day. Without her consent, the accused again had sexual intercourse. The whole night she was in his room and he had 4-5 times sexual intercourse with her on different angles. She had her bath on the next day and left his room. Without her consent, the accused again had sexual intercourse. The whole night she was in his room and he had 4-5 times sexual intercourse with her on different angles. She had her bath on the next day and left his room. [iv] In the year 2005, the accused got appointment order in the Ilavanar Government Hospital. The father of the accused came along with four persons and asker the victim to leave his son. She told his father that without her consent, the accused had sexual intercourse with her. The father told that during six months period, many people contacted over phone that they are ready to give their daughters to marry the accused, but she is the real hindrance for the same. The father of the accused called upon the maternal uncle of the victim and her maternal uncle asked her to come along with his family to Kallakurichi. [v] During the year 2006, the father of the accused called the victim/P.W.1 to Kallakurichi Court complex and it is alleged that the victim was subjected to criminal intimidation and dire consequences and thus, the victim/P.W.1 has given a complaint before the Superintendent of Police, Villupuram, on 18.11.2006. [vi] P.W.1 is the victim, P.W.2 is the mother of the victim and P.W.3 is the relative of the victim. P.Ws.2 and 3 are hearsay witnesses and they have not preferred any complaint. P.W.7 is the Doctor attached to Mahatma Gandhi Medical College & Research Centre, who could depose that he did not receive any complaint from the victim against the accused. [vii] On a perusal of the chief examination of P.W.1, this Court finds that the victim was more than 18 years old and she was alleged to have raped by the accused on 12.08.2004. Further evidence is that P.W.1, before entering the room of the accused, she informed the apartment owner’s son. The victim conveyed about the alleged act committed by the accused to one Sivandhi. [viii] Even as per the testimony of the victim/P.W.1, it is clear that even after the alleged rape on 12.08.2004, the victim continued to have relationship with the accused and on 14.08.2004, the accused had physical relationship with the victim for nearly five times in different angles. [viii] Even as per the testimony of the victim/P.W.1, it is clear that even after the alleged rape on 12.08.2004, the victim continued to have relationship with the accused and on 14.08.2004, the accused had physical relationship with the victim for nearly five times in different angles. It is also significant to note that the victim went to the place of the accused (Bachelor manson), stayed there throughout the night and left the place on the next day morning, after taking bath in his place. Committing sexual intercourse without the consent of the victim is highly improbable and thus, her evidence is that she did not resist the act of the accused. [ix] At this juncture, as per the evidence of Dr.Sivasankari/P.W.8, who had examined P.W.1, it is seen that there is any evidence to prove the alleged act of rape. It appears that both the Courts below have taken note of the evidence of P.W.1 in the chief examination and forgot to see the answer elucidated in the cross examination which are relevant for consideration and extracted hereunder: “Other Language” [x] In the cross-examination, P.W.1 has deposed as follows:- “Other Language” Court question “Other Language”. 9. While the evidence of the victim/P.W.1 in the cross examination is being so, P.W.4, in his cross-examination, has categorically stated that after consulting his Advocate Mr. Subramani, they have given a complaint before the Villupuram Police station and he has not stated anything regarding the physical relationship of P.W.1 in the complaint. 10. P.W.8, Dr. Sivasankari, in her chief examination, has deposed as follows:- “Other Language” Since medical examination was conducted after two years, it pale into insignificance. 11. P.W.10, who had registered the present FIR, in his cross examination has stated as follows:- “Other Language” 12. Contradiction of place of occurrence: In the FIR, it is stated that the occurrence took place at Mahatma Gandhi Medical College, Pillayar Kuppam, Kirumambakkam, Puducherry. In the content of FIR also the victim had categorically stated that the occurrence took place at Mahatma Gandhi Medical College, Pillayar Kuppam, Kirumambakkam, Puduchery. Whereas in the final report, it is stated that the occurrence took place at Room No.9-C, Thiru Muthukrishna Gounder Building, Cuddalore-Puduchery Main Road, Pillayar Kuppam, Puduchery. P.W.10, who is investigation officer, had stated in his evidence that he prepared the rough sketch at Thiru Muthukrishna Gounder Building, Cuddalore-Puduchery Main Road, Pillayar Kuppam, Puduchery. Whereas in the final report, it is stated that the occurrence took place at Room No.9-C, Thiru Muthukrishna Gounder Building, Cuddalore-Puduchery Main Road, Pillayar Kuppam, Puduchery. P.W.10, who is investigation officer, had stated in his evidence that he prepared the rough sketch at Thiru Muthukrishna Gounder Building, Cuddalore-Puduchery Main Road, Pillayar Kuppam, Puduchery. Whereas in the cross-examination he had stated as follows:- “Other Language” 13. In his examination, P.W.11 also categorically stated as follows:- “Other Language” 14. P.W.11, the Investigating Officer, who conducted investigation, in his cross-examination has categorically admitted that all the witnesses viz., P.Ws.1 to 4 have stated that the scene of the crime is at Mahathma Gandhi Medical College Hospital and P.Ws.2, 3 and 4 are only hearsay witnesses. From the answer elucidated in the cross examination of P.W.1, it is seen that she has not given any complaint for two years after the alleged occurrence that took place on 12.08.2004 and 14.08.2004 till the accused got employment in the Government as a Government Medical Officer and it is her specific evidence that only thereafter, he contacted her parents and pressed for marriage. 15. On the point as to whether the evidence of P.W.1 is trustworthy to place reliance, in the FIR-Ex.P.8, she has stated as follows:- “Other Language” In her evidence, she has stated as follows:- “Other Language” 16. Thus, this Court finds that though the victim/P.W.1 could depose that she went to the bachelor room of the accused on his request, she has not stated so before the Investigation Officer, P.W.11 during the enquiry as could be seen from the evidence of Investigating Officer assumes significance. As stated supra, in Ex.P.8-FIR, occurrence is said to have taken place before two years from 14.02.2007 whereas in the final report, it is stated that the occurrence has taken place on 12.08.2006 at 17 hours. The evidence of P.W.1 is that the occurrence has taken place on 12.08.2004 and 14.08.2004. 17. After perusing the oral evidence of P.W.1 and the Investigating Officer-P.W.10 and Ex.P.8-FIR, I find that there is a material contradiction as to the alleged place of occurrence till the case is being taken up and the enquiry is conducted by the present Investigating Officer. The place of occurrence is at Mahatma Gandhi Medical College Hospital at Puducherry. Thereafter, the scene of the occurrence seems to have been shifted to the bachelor room of the accused. The place of occurrence is at Mahatma Gandhi Medical College Hospital at Puducherry. Thereafter, the scene of the occurrence seems to have been shifted to the bachelor room of the accused. Furthermore, it is also remains to be stated that it is the specific evidence of P.W.1 that for the second time before she entering into the house, where the bachelor accommodation is provided which is situated opposite to Mahatma Gandhi Medical College Hospital, had spoken to the son of the owner of the building who is running a pharmacy shop in the ground floor. 18. For the reasons best known, the prosecution has not examined the said son of the owner of the mansion who is admittedly said to have been running a pharmacy with whom P.W.1 has informed about her visit before entering into the building. As per the final report, the scene of the crime is the room of the accused. It is in the first floor of the mansion situated opposite to Mahatma Gandhi Medical College Hospital. The victim is 24 years old qualified nurse. As to whether the victim has entered into the said mansion or not. Except the evidence of P.W.1, there is no other evidence to corroborate her presence in the said mansion which is exclusively meant for bachelors. When P.W.1’s evidence is specific that before entering the mansion which is specifically meant for bachelors on 12.08.2004 and 14.08.2004, she met and spoken with the son of the owner of the building and hence, as rightly pointed out by the learned counsel for the revision petitioner/accused that the son of the owner of the building is a material witness to speak about the presence of the accused, is upheld. Immediately after the occurrence on 12.08.2004, it is the specific evidence of the victim that she had spoken to her co nurse Sivandhi and she has reiterated the same in the cross-examination but the prosecution has not examined the said witness, who is material witness on the facts and circumstances of the case. 19. The next alleged incident has taken place on 14.08.2004. 19. The next alleged incident has taken place on 14.08.2004. It remains to be stated that the answer elucidated in the cross examination of P.W.1 goes to show that on 14.08.2004, she had some body pain as could be seen from the evidence as extracted above and hence, this Court feels that neither the son of the mansion owner nor the nurse Sivandhi, who had knowledge about the incident was not examined by the prosecution. The alleged incident of entering the building was exclusively meant for bachelors. Furthermore, the evidence of P.W.1 is that on the second alleged date viz., 14.08.2004, she stayed there over night between 7.00 p.m. and 7.00 a.m. and had sexual intercourse multiple times and after taking bath, she left the building on the next day morning and hence, the failure of the prosecution to examine the material witness, above said person, shuts the case of the prosecution. 20. The above facts create doubts on the prosecution theory. No reason has been given by the prosecution for non examination of the said witnesses. The prosecution lacks its credibility because not only the scene of the crime has been shifted from Mahatma Gandhi Medical College Hospital to a bachelor mansion, and that too to the place of bachelor room of the accused. 21. Though P.W.1 could depose that the matter has been revealed to her mother viz., P.W.2 when she was admitted in the hospital, her evidence is contrary to the said version. In other words, P.W.2, in her cross-examination, has admitted that her daughter P.W.1 has not disclosed anything while she was taking treatment about the alleged incident taken place in the year 2004. The other private witnesses are only hearsay which came to light only in the year 2007. Admittedly, there is a delay of two years. The entire episode appears to have been generated. 22. The accused was appointed as a Government Doctor in Government Hospital. Till such time, the question as to whether they had any continuous conversation or a formal relationship is not clear. From the evidence of P.W.1, it could be seen that after the alleged incident on 12.08.2004 or 14.08.2004, there was no physical relationship between the accused and the victim. From the evidence of P.W.1, except these two incidents, no other incident has been whispered by P.W.1 regarding the physical relationship for two more years. 23. From the evidence of P.W.1, it could be seen that after the alleged incident on 12.08.2004 or 14.08.2004, there was no physical relationship between the accused and the victim. From the evidence of P.W.1, except these two incidents, no other incident has been whispered by P.W.1 regarding the physical relationship for two more years. 23. Yet another point is that mere delay in matters of this nature is not fatal to the prosecution. However, on entirety of the circumstances, when the facts are cumulatively read together, it causes serious doubt, the alleged occurrence took place in the year 2004 and P.W.1 lodged a complaint on 18.11.2006 viz., after two years and FIR was registered on 14.02.2007. There is no proper reason adduced by the prosecution for the delay in lodging the complaint. 24. In the cross-examination, P.W.1 also alleged that after the occurrence only the accused has expressed his willingness to marry her also assumes significance. In view of the material contradiction on the material fact as to the alleged factum of promise to marry by the accused, the description of the act of the accused by P.W.1 in the witness box, the answer elucidated in the cross-examination of P.W.1 and shifting of the scene of the crime from Mahatma Gandhi Medical College Hospital to the private bachelor mansion in the room of the accused and also non-examination of material witnesses Sivandhi and son of the owner of the building, this Court finds that it is very hard to believe and accept the version of P.W.1. 25. The Hon’ble Apex Court in the decision rendered in Crl.A.No.1095 of 2018, dated 29.08.2018 [Dola @ Dolagobinda Pradhan and another Vs. State of Odisha] has held that the testimony of the victim girl can be relied upon provided it inspires the confidence and supported the medical evidence and further held that when the case of the victim girl is not supported by the medical evidence and the whole surrounding circumstances are also highly improbable and belie the case set up by her. 26. In the decision reported in 2013 (3) CTC page 567 [Deepak Gulati Vs. State of Haryana], the Hon’ble Apex Court has held that what is the consent and the consent of falls promise of marriage. The relevant portion reads as follows:- “There is a distinction between the mere breach of a promise, and not fulfilling a false promise. 26. In the decision reported in 2013 (3) CTC page 567 [Deepak Gulati Vs. State of Haryana], the Hon’ble Apex Court has held that what is the consent and the consent of falls promise of marriage. The relevant portion reads as follows:- “There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.” 27. Thus, this Courts holds that the complaint at the earliest point of time said to have given to the Superintendent of Police at Villupuram was burked by the prosecution and both Ex.P.1-complaint dated 14.02.2007 and Ex.P.2-FIR dated 14.02.2007 have been given after due consultation with Advocate as admitted by P.W.4, who had accompanied P.W.1 in all the earlier proceedings viz., complaint before the Villupuram police station, in the Criminal Original Petition filed before this Court. In Ex.P.1-complaint and Ex.P.2-FIR, the scene of the crime is mentioned as Mahatma Gandhi Medical College Hospital and not the private room of the bachelor accommodation as mentioned in the final report. After the alleged two incidents i.e., on 12.08.2004 and 14.08.2004, the evidence of P.W.1 is totally silence as to whether they had any physical intimacy thereafter till the accused got Government employment in Tamil Nadu medical service. After the alleged two incidents i.e., on 12.08.2004 and 14.08.2004, the evidence of P.W.1 is totally silence as to whether they had any physical intimacy thereafter till the accused got Government employment in Tamil Nadu medical service. Neither the co-nurse Anitha with whom P.W.1 said to have shared the alleged incident on 12.08.2004 nor the co-nurse Sivandhi with whom P.W.1 alleged to have stated about the incident happened on 12.08.2004 who are material witnesses were examined and non examination of those material witnesses along with non examination of the son of owner of the building with whom P.W.1 said to have sought prior permission for entering the bachelors building coupled with the fact that P.W.2 mother was not appraised have caused serious doubts on the prosecution theory. 28. In view of the material contradiction and the lacuna in the case of the prosecution as extracted supra, this Court finds that the theory of the prosecution is bristle infirmity with regard to the alleged factum of happenings and suffers from material contradiction on the material particulars regarding the charges and hence, this Court is conscious of the fact that when the charge under Section 417 IPC corroboration from the material evidence is not absolute one. However, when the evidence of P.W.1 suffers from material contradiction on material factors, on the facts and circumstances of the case, in view of the admission of P.W.1 in her cross-examination as extracted supra, this Court is of the considered view that corroboration of the independent witnesses shall also through a light, failing which, the suggestive case of the defence during the cross-examination of P.W.1 caused serious dent in the prosecution theory and hence, the version of P.W.1 held to be not reliable and trustworthy and accordingly, this Court holds that the prosecution has failed to prove the charges framed against the accused beyond reasonable doubt and therefore, by operation of law, the benefit of doubt goes to the accused and he is entitled for acquittal. 29. In the result, this Criminal Revision Case is allowed and the conviction and sentence imposed on the revision petitioner/accused by the learned Principal Assistant Sessions Judge, Puducherry, in S.C.No.72 of 2009, dated 23.03.2016, are set aside and the revision petitioner/accused is acquitted of the charges levelled against him. 29. In the result, this Criminal Revision Case is allowed and the conviction and sentence imposed on the revision petitioner/accused by the learned Principal Assistant Sessions Judge, Puducherry, in S.C.No.72 of 2009, dated 23.03.2016, are set aside and the revision petitioner/accused is acquitted of the charges levelled against him. The bail bond executed by the revision petitioner/accused shall stand cancelled and the fine amount paid, if any, is ordered to be refunded to him.