JUDGMENT : A.D. JAGADISH CHANDIRA, J. 1. The Criminal Appeal has been filed against the judgment of conviction and sentence dated 30.7.2019 passed by the Special Judge/Principal District and Sessions Judge, Salem in S.C. No. 306 of 2015. 2. By the judgment of the Trial Court, the appellant stands convicted and sentenced as under: Provision of conviction Sentence Section 417 IPC R.I. for one year with fine of Rs. 1000/- in default, R.I. for four months. Section 3(1)(x) of SC and ST (POA) Act, 1989 R.I. for one year with fine of Rs. 1000/- in default, R.I. for four months The substantive sentences awarded was directed to be run concurrently. 3. Brief facts of the case evinced from the complaint and the version of the prosecution witnesses are as under: (i) The de facto complainant/PW-1 and the accused/appellant were classmates in Thiyagaraja Engineering College, Salem during the period from 2008 to 2011. They started to move as friends at the inception and during the second year course, they fell in love. (ii) On 21.3.2010, on the birth day of the de facto complainant, they went to the Kailasanathar Temple, Dharamangalam and when the de facto complainant was worshipping, the appellant had tied mangal sutra to her and on the same day, he had forcible sexual intercourse with her at her grandmother's house and thereafter, the appellant had sexual intercourse with her on several occasion resultantly, the de facto complainant was pregnant in the year 2010, however, it was aborted. (iii) Later, the appellant had gone to Chennai on getting a job, after completing the course, however, they met once in fortnight and had sexual intercourse on those occasions, as a result, she was once again pregnant in the year 2014 and the same was also medically terminated and likewise, she got pregnant thrice and terminated her pregnancy at the instance and instigation of the appellant. (iv) However, when the de facto complainant had demanded the appellant to marry her, the appellant had evaded the same initially by taking some vague reasons like his father's illness, his mother's dislike, etc., ultimately, he had bluntly refused on the ground that she belongs to a community which does not suit for their family and hence, she had lodged the complaint, Ex.P1 dated 11.6.2015. (v) PW-19, Inspector of Police, All Women Police Station, Salem, on receipt of the complaint, Ex.P1, registered a case in Crime No. 11 of 2015 against the appellant for the offence punishable under Section 417 IPC, Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 and Section 3(1)(x) of SC and ST (Prevention of Atrocities) Act, 1989 and the FIR is EX.P13. PW-19 had sent the original FIR and the complaint to the Mahila Court and copies to her higher officials. (vi) Subsequently, as per the proceedings of the Superintendent of Police in Ex.P19, PW-20, the then Assistant Commissioner of Police, South Range (L&O), Salem took up the investigation. He proceeded to the scene of occurrence on 11.6.2015 at 5.30 p.m. and prepared observation mahazar, Ex.P6 and rough sketch, Ex.P14 in the presence of PW-7 Srinivasan and one Thangaraj. Thereafter, he had enquired PWs. 1, 5 and 6 and recorded their statements. (vii) On 12.6.2015, having received information, PW-20 had arrested the accused at Salem Old Bus Stand in the presence of PW-15 Sekar, Village Administrative Officer and his Assistant Ravi. Thereafter, PW-20 had enquired the witnesses and recorded their statements and after recording the voluntary confession statement of the accused, remanded him to judicial custody. Thereafter, he had issued requisition to the Tahsildar for issuance of community certificate of the accused and the de facto complainant. The community certificate of the de facto complainant is Ex.P11 and that of the accused is Ex.P12. On 13.6.2015, he had enquired the witnesses, PW-8 Angammal, PW-10 Gopal and PW-11 Hussain and recorded their statements. On 16.6.2015, he had once again enquired the de facto complainant and recorded her statement and thereafter, he had enquired the witnesses PW-18 Ilakkia and PW-12 Manikandan and recorded their statements. The statements given by the de facto complainant and PW-18 Ilakkia were recorded in Memory Card, M.O.1 and sent the same to the Judicial Magistrate under Form 91, Ex.P15. On 18.6.2015, PW-20 had enquired PW-16 Sumathi, Head Constable and recorded her statement. On 19.6.2015, he had enquired the witnesses PW-17 Kannan, Head Constable and one Boopathy and recorded their statements. On 20.6.2015, PW-20 had enquired PW-3 Dr. Revathi, who is said to have conducted abortion to the de facto complainant and recorded her statement. On 18.6.2015, PW-20 had enquired PW-16 Sumathi, Head Constable and recorded her statement. On 19.6.2015, he had enquired the witnesses PW-17 Kannan, Head Constable and one Boopathy and recorded their statements. On 20.6.2015, PW-20 had enquired PW-3 Dr. Revathi, who is said to have conducted abortion to the de facto complainant and recorded her statement. On 22.6.2015, he had enquired the Tahsildar, PW-14, who had issued community certificate to the de facto complainant and the accused and recorded his statement. On 6.7.2015, he had enquired the Assistant Director of Forensic Sciences Department, PW-9, who had conducted medical examination on the de facto complainant and the accused and recorded his statement. He had also examined PW-2 Dr. Madheswari, Assistant Professor, Government Mohan Kumaramangalam Medical College Hospital, Salem and recorded her statement. The requisition letters issued by PW-20 for medical examination of the accused and medical treatment of the de facto complainant are Ex.P16 and Ex.P17 respectively. He had also sent the copy of birth certificate and transfer certificate of the de facto complainant, Ex.P18 series to the Judicial Magistrate Court. The proceedings of the Superintendent of Police, Salem directing PW-20 to conduct the investigation is marked as Ex.P19. On 14.8.2015, after completion of investigation, PW-20 had filed charge sheet against the accused for the offence punishable under Sections 417 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 and Section 3(1)(s) of SC and ST (Prevention of Atrocities) Act, 1989 and Section 376 IPC. (viii) On the above factual background, the Trial Court had framed charges against the accused under Section 376(1) read with Section 3(2)(v) of SC/ST (POA) Act 1989, 417 IPC, Section 3(1)(x) of SC/ST Act and Section 4 of TNPWH Act against the accused. When questioned, the accused denied the charges, pleaded not guilty and sought to be tried. (ix) During trial, on the side of the prosecution, PWs. 1 to 20 were examined and Exs.P1 to P19 were marked and M.O.1 was produced while the defence has not examined any witness nor marked any document. (x) On conclusion of the trial, the Trial Court, found the accused guilty for the offences punishable under Sections 417 IPC and Section 3(1)(x) of SC&ST (POA) Act, 1989 and convicted and sentenced him as stated above, aggrieved against which, the present Criminal Appeal has been filed by the accused. 4. (x) On conclusion of the trial, the Trial Court, found the accused guilty for the offences punishable under Sections 417 IPC and Section 3(1)(x) of SC&ST (POA) Act, 1989 and convicted and sentenced him as stated above, aggrieved against which, the present Criminal Appeal has been filed by the accused. 4. Assailing the judgment of conviction and sentence, the learned counsel for the appellant would submit as under: (i) A case of consensual affair between two grown up adults of different communities had been projected as a case of rape. Even if the allegations of the prosecution is taken on their face value and accepted in their entirety, they do not make up a case against the appellant. Even as per the prosecution, the prosecutrix and the appellant were class mates in Polytechnic College during the academic year 2008-2011 and during the year 2010, the appellant and the prosecutrix started loving each other pursuant which, on 21.3.2010, the appellant, on the false promise of marriage, is said to have had sexual intercourse with her and thereby she became pregnant during the year 2011 and that it was medically terminated. It is the further case of the prosecutrix that after completing the course in the year 2011, the appellant got employment in Chennai, however, he used to visit Salem once in 15 days and they used to have sexual intercourse with each other, as a consequence, she had become pregnant twice during the year 2014 which were also aborted during April 2014 and November 2014 at the instance of the appellant. It is her further case that even thereafter, the appellant had sexual intercourse with her on many occasion, however, later, he had refused to marry her and that on finally on 26.4.2015, when PW-1, the prosecutrix insisted him to marry her, the appellant had insulted her by stating that he would not marry her because she belongs to Scheduled Caste Community. It is her further case that again on 7.6.2015, the appellant had met her at Dharmapuri while whey were returning from Dharmapuri to Salem in a bus where the appellant is alleged to have told the prosecutrix that he had already married one Kavitha on 29.5.2015 and that if the prosecutrix belongs to Boyar Community, he would have married her whereas she belongs to Parayar Community. Thereby, it is clear that even as per the prosecutrix, their the sexual relationship continued for a period of five years and she is said to have medically terminated her pregnancy for three times. (ii) It is not a case where the accused had no intention to marry the prosecutrix at all. On the first occasion during 2015, when the prosecutrix had asked the appellant to marry her, the appellant had informed his mother and the mother of the appellant had refused for the marriage stating that if the appellant marries the prosecutrix, their relatives will not visit their house and the mother of the appellant had warned him that if marries the prosecutrix against her wish, she would commit suicide. Therefore, there is absolutely no evidence to show that at the relevant time, i.e. at the initial stage itself, the accused had no intention whatsoever to keep up his promise to marry the victim. Failure to keep up the promise made with future uncertain date due to reasons that are not very clear from the evidence available does not amount to misconception of fact. (iii) There is nothing on record to show that the accused/appellant, from the beginning, had never really intended to marry her. In order to convict a person for an offence punishable under Section 417 IPC, the promise of marriage must have been a false promise given in bad faith with no intention of keeping up when it was given. The false promise must be of immediate relevance or more direct nexus to the woman's decision to engage in the sexual act. In this case, even admittedly, on several instances the prosecutrix is said to have aborted. Though the victim is said to have aborted thrice, the medical evidence does not support the case of the prosecution in respect of abortions alleged to have been done. (iv) The Trial Court, without there being any legal evidence and essential ingredients of the offence being shown, had erred in convicting the appellant for offence under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. To convict a person under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the offence should have been done in the public view and it should have been witnessed by others. To convict a person under Section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the offence should have been done in the public view and it should have been witnessed by others. In this case, though the occurrence is said to have happened in a bus, no evidence has been let in by the prosecution to show that it was viewed by any other person and no witness has spoken about the same. (v) In support of his contention, the learned counsel for the appellant has relied upon the following judgments: (1) Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 (2) Promod Suryabhan Pawar vs. State of Maharashtra and Another, (2019) 9 SCC 608 (3) Dr. Dhruvaram Muralidhar Sonar vs. State of Maharashtra, (2019) 18 SCC 191 (4) Ramesh vs. State, (2021) SCC Online Mad. 2156 5. Per contra, Mr. S. Sugendran, learned Government Advocate (Criminal Side) appearing for the Respondent would submit that the appellant and de facto complainant are class mates during the academic year 2008-2011 and the appellant had developed intimacy with the victim girl in the year 2010 and on the false promise of marrying her, he had sexual intercourse with her due to which, the victim had become pregnant thrice and those pregnancies were aborted. He would further submit that the prosecutrix had believed the appellant and she had been cheated and when they were returning in a bus Dharmapuri to Salem, the appellant had abused her by calling her with her caste name. However, he would fairly concede that no evidence had been let in by the prosecution to the effect that it was viewed by any other person. He would also submit that though the prosecutrix, as PW-1, has spoken that she got pregnant thrice, the medical evidence does not support her case. 6. Before proceeding further, this court feels that it would be apt to have an understanding on the principles laid down by various courts on the issue. 7. In Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 , the Apex Court has held as under: “21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. 7. In Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 , the Apex Court has held as under: “21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala-fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. 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 misrepresentation 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala-fide and that he had clandestine motives. .................... 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact” the fact must have an immediate relevance.” Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.” 8. In Promod Suryabhan Pawar vs. State of Maharashtra and Another, (2019) 9 SCC 608 , the Apex Court has held as under: “18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.” 9. Relying on the decision in Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 and some other decisions, it has been held by the Apex Court in Dr. Dhruvaram Muralidhar Sonar vs. State of Maharashtra and Another, (2019) 18 SCC 191 , as under: “23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala-fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala-fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.” 10. Relying the above three judgments, this court has held in Ramesh vs. State, (2021) SCC Online Mad. 2156, as under: “Taking into consideration the over all circumstances in this case, the evidence do not indicate that the promise by the appellant was false or that the prosecutrix engaged in sexual relations with the appellant on the basis of the promise on misconception. Admittedly, there had been love affair between the prosecutrix and the appellant for eight years and there was physical relationship between them which was spread over a period of two years. In between, the prosecutrix has also become pregnant twice and she had aborted it twice and she had not disclosed it to anybody. Whereas it is the evidence of the prosecutrix that the sexual relationship between her and the appellant was known to both the families for about four years. Further the prosecution has not let in any evidence to establish that the consent of the prosecutrix was obtained by misconception of fact and the prosecution has also failed to establish that the promise of marriage was false from the beginning and it was given in bad faith and given with no intention of being adhered to at the initial stage. Further, the alleged false promise itself has no immediate relevance and also does not bear direct nexus to the decision of the prosecutrix to engage in the sexual act. .................... Further, the alleged false promise itself has no immediate relevance and also does not bear direct nexus to the decision of the prosecutrix to engage in the sexual act. .................... If the appellant had any mala-fide intention and if he had clandestine motives, it could be brought into the ingredient of rape. The acknowledged consensual physical relationship between the parties would not constitute the offence u/s. 376 I.P.C. Further as stated above no evidence has been made out for the offence u/s. 417 I.P.C.” 11. While dealing with the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989, the Apex Court in Swaran Singh vs. State, (2008) 8 SCC 435 has clarified the legal position as under: “28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a ‘Chamar’) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression ‘place within public view’ with the expression public place. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies. .................... 33. We have already stated above that in today's context even calling a person ‘Chamar’ ordinarily amounts to intentionally insulting that person with intent to humiliate him. .................... 33. We have already stated above that in today's context even calling a person ‘Chamar’ ordinarily amounts to intentionally insulting that person with intent to humiliate him. It is evident from a perusal of the FIR that appellant No. 1, Swaran Singh joined his wife and daughter in insulting Vinod Nagar, and he also used the word ‘Chamar’ in a derogatory sense. However, a perusal of the F.I.R. shows that Swaran Singh did not use these offensive words in the public view. There is nothing in the F.I.R. to show that any member of the public was present when Swaran Singh uttered these words, or that the place where he uttered them was a place which ordinarily could be seen by the public. Hence in our opinion no prima facie offence is made out against appellant no. 1.” 12. Having a light thrown on the subject by the ratio laid down in the above decisions and on traversing through the factual aspects of the present case, this court finds that as rightly pointed out by the learned counsel for the appellant, this is a case of consensual affair between two grown up and matured adults which has been projected as a case of rape. Such a view could be derived from the evidence of PW-1, the de facto complainant herself. The evidence of PW-1 reveals that herself and the appellant were classmates in Thiyagaraja Engineering College, Salem during the period 2008 to 2011 and their relationship initially started only as friendship and then it developed as love affair during their second year course. Though she says that the appellant had tied the mangal sutra to her in a temple during her worship on 21.3.2010 and he had sexual relationship with her in her grandmother's house, it is seen that their relationship with sexual intercourses continued even after completion of their education and after the appellant had gone for his job at a different place and as a result of their relationship, she got pregnant thrice and got aborted the same medically, however, she had not chosen to make any complaint immediately and she woke up from deep slumber and lodged her complaint, Ex.P1 only on 11.6.2015, after more than five years. Thus, it is clear that the consent given by the de facto complainant for the sexual relationship with the appellant could not be by misconception of facts and it would not attract the offence punishable under Section 376 or 417 IPC. 13. A careful analysis of the evidence of PW-1 shows that there could not be any mala-fide intention on the part of the appellant to cheat the de facto complainant by making false promise to seduce her to have sexual intercourse with her. Further, the evidence of PW-2, Dr. Madheswari, who had examined the de facto complainant has stated that the de facto complainant had reported to her that she had sexual relationship with a person known to her for about five years and on examination of the de facto complainant, she found that the de facto complainant must have had sexual relationship, but, she had not found any traces to opine that she had pregnancy. Dr. Revathi, PW-3 who is said to have conducted abortion to the de facto complainant had turned hostile. The direct nexus between the promise made by the appellant and the consent given by the de facto complainant proximate to the complaint made by her has not been proved by the prosecution. 14. There is nothing on evidence to show that at the initial stage itself the accused had no intention whatsoever of keeping his promise to marry the victim. This could be brought within 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 the misconception created by the accused. If the appellant had any mala-fide intention and if he had clandestine motives, it could be brought into the ingredient of rape. The acknowledged consensual physical relationship between the parties would not constitute the offence u/s. 376 I.P.C. Further as stated above no evidence has been made out for the offence u/s. 417 I.P.C. 15. So far as the offence punishable under Section 3(1)(x) of the SC&ST (POA) Act, 1989 is concerned, this court finds that the case of the prosecution is that the de facto complainant was insulted by calling her caste name in a public bus, while they were returning from Dharmapuri to Salem when she demanded him to marry her. So far as the offence punishable under Section 3(1)(x) of the SC&ST (POA) Act, 1989 is concerned, this court finds that the case of the prosecution is that the de facto complainant was insulted by calling her caste name in a public bus, while they were returning from Dharmapuri to Salem when she demanded him to marry her. Of course, calling a person by his caste name in public with an intention to humiliate him is certainly an offence punishable under Section 3(1)(x) of the SC&ST (POA) Act, 1989, but, as held in the decision in Swaran Singh's case (supra), it should be seen as to whether there was any intent to insult or humiliate the de facto complainant by using the caste name as it depends on the context in which it was used. Even as per the case of the prosecution, it was uttered by the appellant as a reason for his inability to marry her. Further, the place where the appellant is said to have uttered such a word is a public bus, which could certainly have some public apart from the de facto complainant and the appellant and even if there was no other public, the driver and conductor of the bus could be there and if at all the appellant had uttered the caste name to humiliate the de facto complainant, such an expression with some emotion, which could be a part of such intent, could certainly have been noticed by others, but, surprisingly, none has been examined on the side of the prosecution to prove that the appellant had humiliated the de facto complainant by calling her caste name. Therefore, this court is of the opinion that the ingredients required to attract the offence punishable under Section 3(1)(x) of the SC&ST (POA) Act, 1989 have not been satisfied by the prosecution. 16. In view of the above facts and discussion, this court is of the opinion that the prosecution has not proved the charges against the appellant u/s. 417 I.P.C. and Section 3(1)(x) of SC&ST (POA) Act, 1989 and the Trial Court, on wrong appreciation of facts, evidence and law had wrongly convicted and sentenced the appellant. 17. 16. In view of the above facts and discussion, this court is of the opinion that the prosecution has not proved the charges against the appellant u/s. 417 I.P.C. and Section 3(1)(x) of SC&ST (POA) Act, 1989 and the Trial Court, on wrong appreciation of facts, evidence and law had wrongly convicted and sentenced the appellant. 17. In the result, the Criminal Appeal stands allowed and the judgment of conviction and sentence in S.C. No. 306 of 2015 dated 30.7.2019 passed by the Special Judge/Principal District and Sessions Judge, Salem is hereby set aside. Bail bond, if any, executed by the appellant shall stand cancelled and fine amount paid, if any, shall be refunded.