JUDGMENT : (Prayer: Criminal Appeal filed under Section 378(1)(b) of Cr.P.C., against the Judgment passed in S.C.No.160 of 2016 on the file of the learned Principal District and Sessions Court, Krishnagiri, dated 01.08.2017 and to set aside the same.) 1. The State has preferred this criminal appeal against the order of acquittal passed by the learned Principal District and Sessions Judge, Krishnagiri, in S.C.No.160 of 2016, dated 01.08.2017. 2. Initially, a case was registered by the Deputy Superintendent of Police, All Women Police Station, Hosur, in Crime No.15 of 2011 for the alleged commission of the offences under Sections 417, 376 and 506(ii) of IPC read with Section 3(2)(r) of SC/ST (Prevention of Atrocities), Amendment Act, 1989 and after investigation, based on the statements of the witnesses and documents, the Investigation Officer has laid a charge sheet for the offences under Sections 417, 376 and 506(i) IPC r/w. Section 3(1) (x) and 3(1)(xii) of SC/ST (POA) Act. The consequences quoted by the learned Sessions Judge in her Judgment is found to be incorrect. However, the learned Sessions Judge, taking into consideration the date of occurrence being 17.05.2010, has framed the charges under Sections 376 and 506(i) IPC r/w. Section 3(1) (x) and 3(1)(xii) of SC/ST (POA) Act. [It appears that the learned Sessions has passed the order based under amendment Act and not based upon the charges framed during trial on 06.10.2016]. 3. The sum and substance of the final report is that the accused belonged to Boyer Community (MBC) and PW1 belongs to Adidravida Community aged about 16 years. On 17.05.2010, at about 12.00 noon against the will of PW1/victim girl, on false promise to marry her, the respondent/accused had physical relationship with her and made PW1 pregnant and when the parents of PW1 viz., PW2, PW3 and PW4/brother of PW3 asked the accused to marry PW1, he uttered caste words and thereby, committed the offence as stated supra. 4(a). The case of the prosecution is that the accused viz., Manjunath belongs to Boyer Community, a Section of community enlisted under MBC community and the victim girl viz., Roopa, aged about 16 years belongs to Adidravida Community. The accused had love affair with the victim girl. 4(a). The case of the prosecution is that the accused viz., Manjunath belongs to Boyer Community, a Section of community enlisted under MBC community and the victim girl viz., Roopa, aged about 16 years belongs to Adidravida Community. The accused had love affair with the victim girl. While so, on 17.05.2010 at about 12.00 p.m., the accused came to the house of PW1 and on promising to marry her, had sexual intercourse with the victim girl, without her consent and threatened her that if she discloses the matter to others, he will kill her and her mother. Thereafter, several times, the accused had sexual intercourse with the victim girl without her consent, due to that, the victim girl got pregnancy. When the parents of P.W.1 asked the accused to marry her, the accused refused to marry and abused that “TAMIL” Boyer Community “TAMIL” and also threatened with dire consequences. 4(b). Hence, the victim girl has given a complaint and based on the said complaint, a case was registered in Crime No.15 of 2011, in All Women Police Station, Hosur, for the offences under sections 417, 376, 506(i) of IPC read with Section 3(2)(r) of SC/ST Act 1989 on 17.08.2011. 4(c). After completion of thorough and detailed investigation, based on the statements of the witnesses and documents, the investigation officer has laid charge sheet for the offences under Sections 417, 376 and 506(i) of IPC read with Section 3(1)(x) & 3(1) (xii) of SC/ST (POA) Act against the accused and the same was submitted before the Judicial Magistrate Court No.II, Hosur and the number was assigned as PRC.No.15 of 2011. Subsequently, the case was committed to Court of Sessions and learned Principal District and Sessions Judge, Krishnagiri, has taken the case on file in S.C.No.160 of 2016. 4(d). During the course of trial, on behalf prosecution, PW1 to PW11 were examined and Exs.P1 to P21 were marked. On behalf of the defence, no witness has been examined and no document has been marked. 4(e). The learned Principal District and Sessions Court, Krishnagiri after full-fledged trial, by an order dated 01.08.2017, has acquitted the accused from the charges under Sections 376 and 506(i) of IPC and Sections 3(1)(r) & 3(1)(s) of SC/ST (POA) Act. Aggrieved against the said order of acquittal, the State has preferred this Criminal Appeal before this Court. 5. 4(e). The learned Principal District and Sessions Court, Krishnagiri after full-fledged trial, by an order dated 01.08.2017, has acquitted the accused from the charges under Sections 376 and 506(i) of IPC and Sections 3(1)(r) & 3(1)(s) of SC/ST (POA) Act. Aggrieved against the said order of acquittal, the State has preferred this Criminal Appeal before this Court. 5. Heard Mr.R.Vinoth Raja, learned Government Advocate (Crl.Side) appearing for the State and Mr.A.Balamurugan, learned counsel appearing for the respondent/accused and also perused the materials placed on record. 6. The learned Government Advocate appearing for the State/appellant would contend that the Trial Court has not appreciated the version of the prosecuterix in proper prospective and committed an error in acquitting the accused on flimsy grounds. 7. The learned counsel for the respondent/accused would contend that the age of the accused was not proved in the manner known to law and the School Certificate cannot be taken as a proof for the age and further, he would rely upon the Judgments in Crl.A.No.747 of 2007, dated 19.01.2010 and Criminal Appeal No. 2308 of 2009, dated 04.12.2009. 8. In reply, the learned Government Advocate would contend that a snap answer given by PW1/victim girl is outcome of factum that she is an illiterate woman belongs to Gandhi Nagari, Hanlet of Pommandapalli Village in Hosur Taluk in Krishnagiri District and she is a Telugu speaking girl and working in the agricultural field. 9(a). After hearing both the parties and also taking note of the oral and documentary evidence viz., Exs.P1 & Ex.P6, this Court finds that a case was registered in Crime No.15 of 2011 for the offences under Sections 417, 376 and 506(i) of IPC read with Section 3(2)(V) of SC/ST Act, 1989. The alleged occurrence took place on 17.05.2010 in the house of PW1 and the complaint was made only on 17.08.2011. The learned Sessions Judge has taken the delay to disbelieve the version of PW1. 9(b). As per Ex.P20/ School Certificate issued by Head Master of P.U.M.School, Bommandapally, Kothagondapally Post, Hosur Taluk, the date of birth of PW1 is 26.12.1996. The attendance sheet and admission card were also marked. As per Ex.P21/birth certificate, PW1 gave birth to a female child on 17.10.2011 at Government Hospital, Denkanikottai Road, Hosur. 9(b). As per Ex.P20/ School Certificate issued by Head Master of P.U.M.School, Bommandapally, Kothagondapally Post, Hosur Taluk, the date of birth of PW1 is 26.12.1996. The attendance sheet and admission card were also marked. As per Ex.P21/birth certificate, PW1 gave birth to a female child on 17.10.2011 at Government Hospital, Denkanikottai Road, Hosur. In other words, two months after filing Ex.P1/complaint, PW1 gave birth to a female baby and at the time of giving Ex.P1/complaint, she was eight months pregnant. 10. The question is as to whether the delay in preferring the complaint is fatal to the prosecution case as observed by the learned Sessions Judge. Mere delay is not fatal but however, the point is whether the delay has been properly explained by the prosecuterix or not is to be considered. 11. The delay in filing the complaint has been properly explained by the prosecution witnesses. PW1 was aged 15 years at the time of the occurrence and her evidence before the Court is clear and cogent. The delay in filing the case is also spoken to by her convincingly. PW1 has given birth to a female baby viz., Anushree. As per Ex.P7 to Ex.P9, the accused is the biological father of the child and that was proved through the prosecution witnesses and documents. 12. Hence, taking note of the fact that PW1 hails from Denkanikottai, which is situated at the border of Tamil Nadu and Karnataka State, she belongs to linguistic minority and also belongs to Schedule Caste Community, working as a hard labour in the agricultural field. The delay has also been properly explained as, since there was a panchayat conducted between the parties, wherein, family of PW1 had asked the accused to marry PW1 and since the accused had refused their request and hence the delay. Hence, this Court finds that considering the age of the victim girl and the action of PW2 in begging the accused to get PW1 marry and on the refusal by the accused, the complaint has been lodged, when PW1 was eight months pregnant at the age of 15 plus. 13. Age of the victim girl: (a). The learned Sessions Judge has taken the snap answer given by P.W.1 in the cross-examination regarding her age. (b). Admittedly, PW1 is a poor literate girl and rustic girl living Hamlet of a village near Thenkanikoota in Hosur Taluk. 13. Age of the victim girl: (a). The learned Sessions Judge has taken the snap answer given by P.W.1 in the cross-examination regarding her age. (b). Admittedly, PW1 is a poor literate girl and rustic girl living Hamlet of a village near Thenkanikoota in Hosur Taluk. The age of the victim girl was 15 years at the time of the occurrence. As per the School Record Sheet/Ex.P20 produced before the trial Court, date of birth of PW1/victim girl is 26.12.1996 and the first day of rape was on 17.05.2010. Hence, as per Ex.P20, on the date of occurrence, PW1 was aged 15 years. The prosecution has proved the age of the victim through the witnesses and documents. Hence, the finding rendered by the trial Court that there is no school records was filed for determining the age of the victim girl is erroneous and the same is against the established principles of law, as held by the Hon’ble Apex Court in several judgments. (c). It remains to be stated that as per Ex.P20, at the time of the occurrence, PW1 was aged 15 years and hence, in view of the definition under Section 375 of I.P.C, her consent is immaterial. 14. On a perusal of the records, it is seen that the victim girl was examined as PW1; father of the victim girl was examined as PW2; mother of the victim girl was examined as PW3; PW4 is the brother of PW3; while PW15, PW5 & PW6 are the revenue witnesses, who had issued community certificate for the accused and PW1 under Exs.P3 & P4. 15. On perusal of Ex.P1/complaint and the evidence of PW1, I find that PW1 is a member of the Scheduled Caste community and his father was engaged in agricultural coolie for driving the tractor. Further, the accused has approached PW1 to have a sexual intercourse and the same was resisted by her and then, the accused has made two attempts. Subsequently, on 17.05.2010 at about 12.00 p.m., the accused came to the house of PW1 and on promising to marry her, had sexual intercourse with her, despite her resistance. The accused also threatened her not to disclose the same to others. Subsequently, on 17.05.2010 at about 12.00 p.m., the accused came to the house of PW1 and on promising to marry her, had sexual intercourse with her, despite her resistance. The accused also threatened her not to disclose the same to others. Few months after, PW2/father of P.W.1/victim girl has found bulging of the stomach of PW1 and when PW2 and PW3 had repeatedly enquired, she had disclosed the factum of the physical relationship had with the accused and thereafter, they went to meet a Doctor and the Doctor has confirmed the pregnancy. 16(a). Thereafter, the parents of PW1 approached the accused and requested him to marry PW1, but the accused has refused to marry P.W.1, since the accused belonged to Boyer Community, which is a lower community included in M.B.C category list and the victim belongs to Schedule Caste Community. Hence, the victim girl/PW1 has given a complaint/Ex.P1 on 17.08.2011, before the All Women Police Station, Hosur and on the basis of the said complaint, a case was registered in Crime No.15 of 2011 and it was taken on file as S.C.No.160 of 2016 before the learned Principal District and Sessions Judge, Krishnagiri and the learned Judge has referred the victim girl to medical examination. 16(b). PW7/Dr.Nandhini had examined PW1/victim girl and issued Ex.P5/Medical Examination Report by stating that PW1/victim girl is 7 months pregnant and after three months, she gave birth to a female baby by name Anusri on 07.10.2011, and the same has been reflected in Ex.P21/Birth Certificate. Subsequently, at the request of the Investigation Officer, the learned Judicial Magistrate has sent both P.W.1 and the accused to D.N.A test under Exs.P11 & P12 and the Doctor has opined that the accused viz., Manjunath is the biological father of the female child Anusree born to P.W.1 and the Doctor’s confirmation report was marked as Ex.P10. 17(a). The learned Sessions Judge appears to have been swayed by the answer and the act of P.W.3/mother of the accused that after the birth of the female child, they have solemnized the marriage of PW1 with one Raghu and accordingly, the learned Judge has held that the subsequent marriage of the victim girl with one Raghu is a ground for acquittal. 17(b). This Court is unable to affix the seal of approval for such a finding. 17(b). This Court is unable to affix the seal of approval for such a finding. The strata of the society to which P.W.1 belongs and the area in which the family of PW1 are residing itself has to be considered. P.W.3 being mother of P.W.1, to save her face in the society and to save the name and fame of the family, they have found a man by name Raghu in the village and solemnized the marriage so as to give a social protection for the poor innocent victim girl/P.W.1, since P.W.1 was below 16 years at the relevant point of time. 18. It is stated by PW1 that on a false promise to marry her, the accused raped her and made her pregnant. The subsequent conduct of P.W3/mother of PW1, in conducting the marriage of the victim girl with one Raghu cannot be a ground for acquittal of the accused in a rape of a minor girl. The consent of the minor is not a consent in the eye of law and hence, I find that the same was not taken note of by the learned Session Judge and accordingly, the said finding of the learned Sessions Judge hereby stands vacated. 19. A good hearted man magnanimously married the victim girl/PW1 is not a ground to exonerate the accused from the charges framed against him under Sections 376, 506(i) of IPC read with Section 3(1)(x) & 3(1)(xii) of SC/ST Act. The accused has refused to marry PW1/victim girl on the ground that she belongs to Schedule Caste Community. When the accused refused to marry PW1/victim girl, the parents of P.W.1 arranged the marriage of P.W.1 with one Raghu, who is a relative of her. In this case, not only the victim girl but also her female child Anushree are suffering in the society. 20. At the risk of repetition, however for the sake of clarity, in view of the documentary evidence of Ex.P20/School Record Sheet, the date of birth of P.W.1 is 26.12.1996 and at the time of occurrence, PW1 was aged 15 years. The first day of the rape was on 17.05.2010 and at the time of giving Ex.P1/complaint, she was found to be 7 months pregnant and subsequently, she gave birth to a female child by name Anushree. 21. The first day of the rape was on 17.05.2010 and at the time of giving Ex.P1/complaint, she was found to be 7 months pregnant and subsequently, she gave birth to a female child by name Anushree. 21. As per Exs.P7 to P9, the accused is the biological father of the child and as per Ex.P8, the accused is found to be man of potent and hence, the learned Sessions Judge has committed an error in brush aside the medical evidence produced by the prosecution viz., Ex.P14/Certificate issued by PW10/Dr. Gokularaman, wherein, the doctor has opined as follows: “Opinion: There is nothing to suggest that he is impotent” 22. Hence, on a combined reading of the oral evidence of P.W.1 which is found to be materially corroborated by the medical evidence of P.W.7/Dr.Nandhini coupled with the medical evidence of P.W.10/Dr.Gokularaman along with Ex.P5/medical report, Ex.P10/D.N.A report issued to the accused and Ex.P14/Certificate issued by the doctor, this Court finds that the version of P.W.1 stands duly corroborated with the aforementioned documentary evidences and P.W.1 was below 16 years at the time of the occurrence and she was found to be 7 months pregnancy at the date of the filing of the complaint and the accused is man of potent as per medical records and PW1 gave birth to a female child by name Anushree and the accused is found to be the biological father of the baby Anushree born to P.W.1. 23. The learned Sessions Judge has rendered a finding that coming to the existence of Ex.P1/complaint, it is doubtful at the instance of PW1. After perusing the evidence of PW1 and also taking note of the fact that PW1 had signed on Ex.P1/complaint in Telugu and so is also the signature of the student found in Ex.P21/School Register. This Court has given its anxious consideration and found that the learned Sessions Judge has failed to appreciate the evidence of PW1 and the evidence of PW8 in proper prospective. 24. It is a specific evidence of PW1/Ruba that she went to give a complaint to the writer, head constable, in Telugu and the same was translated into Tamil and so is the evidence of PW10/Chitra, who had registered Ex.P1/Complaint as Ex.P6/FIR. 25. 24. It is a specific evidence of PW1/Ruba that she went to give a complaint to the writer, head constable, in Telugu and the same was translated into Tamil and so is the evidence of PW10/Chitra, who had registered Ex.P1/Complaint as Ex.P6/FIR. 25. It is a specific evidence of PW8/Devi that since PW1 was studied in Telugu medium in Thenkannikottai Village, she has given the complaint orally in Telugu and the same was translated into Tamil. This Court has judicial notice of the fact that Thenkanikottai Village at Hosur Taluk is a triple point junction for State of Tamil Nadu, Andhra Pradesh and Karnataka and people are of all the three languages used to reside and in the schools in the said locality, both Telugu and Kannada were tough as per the Government of Tamil Nadu Education Policy. Hence, the version of PW1 regarding her complaint to the police and the said complaint was translated into Tamil by PW8/Inspector of Police cannot be found fault with and hence, the learned Sessions Judge has failed to appreciate the evidence of these two witnesses in proper prospective. Hence, the finding rendered by the learned Sessions Judge as to coming into existence of Ex.P6 is hereby stands vacated and based upon the above said analysis, it is held that Ex.P1 and Ex.P6 were taken into existence as delivered by P.W.1 and the prosecution has successfully proved the registration of the complaint at the instance of P.W.1. 26(a). With regard to charge under Section 376 of IPC, this Court finds that the evidence of PW1 inspires the confidence of this Court. Furthermore, it remains to be stated that there is nothing in the cross-examination to discredit her evidence. Except the fact that subsequent to the complaint and subsequent to the birth of the child, she got married a person in their relatives circle and hence, the snap answer given by PW1 in the cross-examination as to her age cannot be put against her. Accordingly, the finding rendered by the learned Sessions Judge as to the age of PW1/victim girl is erroneous and the same is hereby stands vacated. The learned Sessions Judge has erred in brush asiding the medical records. 26(b). This Court finds that the delay in filing the complaint has been properly explained and the same is not fatal to the prosecution case. The learned Sessions Judge has erred in brush asiding the medical records. 26(b). This Court finds that the delay in filing the complaint has been properly explained and the same is not fatal to the prosecution case. The age of the victim girl on the date of the occurrence is held to be 15 years and consequently, the consent said to have been given by the victim girl is immaterial and on promising to marry P.W.1, the accused had physical relationship with her and made her pregnant. Subsequently, P.W.1 gave birth to a female baby viz., Anushree and hence, I find that the charge under Section 376 of IPC has been proved by the prosecution beyond reasonable doubt and accordingly, the finding of the learned Sessions Judge in respect of the acquittal of the accused from the charge under Section 376 I.P.C, stands vacated and the respondent/accused shall stands convicted for the said charge viz., under Section 376 of IPC. 27. As per the evidence of PW1, when the parents of PW1 went to meet the accused and asked to get her marry, the accused said to have uttered the caste words by saying that he was not responsible for pregnancy. The evidence of PW1 was not supported by the evidence of PW2 and PW3 and hence, the charge under Section 3(i)(x) of SC&ST is not made out. 28. On perusal of the evidence of PW1, PW2 & PW3, the essential ingredients of Section 506(i) I.P.C and the utterance of caste words as stated under Section 3(1)(x) & 3(1)(xii) of SC & ST Act are not made out. Accordingly, the order of acquittal passed by the learned Principal District and Session Judge, Krishnagiri, under Sections 3(1)(r) & 3(1)(s) of SC/ST Act (POA Act 1989), (as typed in the judgment) is hereby confirmed. Further, the order of acquittal passed by the learned Sessions under Section 506(i) IPC is also hereby confirmed. 29. In view of the fact that the accused has been acquitted by the learned Sessions Judge under Section 376 IPC and the said order of acquittal has been set aside and now the accused stands convicted in this appeal under the said Section, as to the point of sentence, the accused has to be heard. 30. In view of the foregoing discussion: (i). 30. In view of the foregoing discussion: (i). The order of acquittal passed by the learned Principal District and Session Judge, Krishnagiri, for the offence under Section 3(1)(r) & 3(1)(s) of SC/ST Act (POA Act 1989), as mentioned in the judgment copy and Section 506(i) of IPC are hereby confirmed. (ii) The charges framed by the learned Sessions Judge under Section 3(1)(x) & 3(1)(xii) of SC & ST are not made out and hence, the order of acquittal passed in the Special Criminal Enactment is also hereby confirmed. (iii) The order of acquittal passed by the learned Sessions Judge under Section 376 of IPC is hereby set aside and the respondent/accused is convicted for the offence under Section 376 of IPC. (iv) Since the respondent/accused was set at liberty by the learned Sessions Judge after the judgment, the respondent/accused is directed to appear in person before this Court on 22.12.2021 for being questioned as to the quantum of sentence as contemplated under the Criminal Procedure Code. (v) In order to ensure the presence of the respondent/accused, the Registry is directed to issue Non-bailable arrest warrant to the respondent/accused. The Inspector of Police, All Women Police Station, Hosur, or anyone of his subordinates may execute the warrant issued against the respondent/accused and the arrested accused may be produced before this Court on 22.12.2021. Call on 22.12.2021 The accused Manjunath is present today. 2. When the accused is questioned about the proposed punishment, he pleaded that he belongs to poor family and he is the only breadwinner of the family. 3. Learned counsel for the accused, on considering the facts and circumstances of this case, prayed for minimum punishment. 4. Per contra, the learned Government Advocate (Crl.Side) argued that the accused has committed the henious offence of sexual assault against the victim girl and hence, on considering the same, he prayed for maximum punishment to the accused. 5. This Court has considered the aforesaid submissions made by the learned counsel for the accused and the learned Government Advocate (Crl.Side). 6. Thus, considering the nature and gravity of the offence committed by the accused, this Court sentences the accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for one month. In the result, this Criminal Appeal is allowed in part in the above terms.