JUDGMENT : This Criminal Appeal has been filed to set aside the Judgment dated 03.12.2018 passed by the learned Principal District and Sessions Judge, Tiruppur in Spl.S.C.No.29 of 2014. 2. The Prosecution came to be launched against the Appellant by the complainant-PW1, who is also the victim in this case. It is the case of the complainant that during the year 2011, a phone call was received in her brother's mobile phone and when she attended it, the line was disconnected. Therefore, PW1 sent a message as to who he is and why he called the mobile number of her brother. The Appellant replied by stating that he is the friend of the brother of PW1. Thereafter, both of them mutually exchanged messages through the mobile phone number of P.W-1 bearing No. XXXXXXXXXX. Later, the Appellant Accused said that he fell in love with her. In response, the Appellant said to have informed that she belonged to a different caste. However, the Appellant said that he will manage everything. Accordingly, on 30 th November 2011, the Appellant called P.W-1 in her mobile number and ascertained that there is none in the house and P.W-1 is alone. Therefore, at about 10.30 am the Appellant came to the house of the Accused and under the pretext of marrying her, had sexual intercourse with her. By adopting this mode, the Appellant had sexual intercourse with the Prosecutrix for two years. However, from the year 2013, the Appellant did not attend the phone calls made by her and also refused to meet her. Ultimately, when the Appellant attended the phone call, he has categorically said that since the Prosecutrix belonged to a lower caste, he could not marry her. When this was informed by the Appellant to her parents, they went to meet the Appellant Accused, but he was not in his house. On 01.07.2014, the Appellant Accused came to the house of PW1 and categorically asserted that PW1 belongs to Sakkiliya community and therefore, he could not marry her and also abused PW1 and her family members. The quarrel between the Appellant, PW1 and her family was witnessed by the neighbours. On 01.07.2014, the Appellant Accused came to the house of PW1 and categorically asserted that PW1 belongs to Sakkiliya community and therefore, he could not marry her and also abused PW1 and her family members. The quarrel between the Appellant, PW1 and her family was witnessed by the neighbours. It is in this context, on 02.07.2014, PW1 has given a complaint against the Appellant based on which the case in Crime No. 4 of 2014 was registered on 02.07.2014 for the offences under Sections 417 , 506 (ii) of IPC read with 3 (1) (w) (i) and 3 (2) (va) of The SC/ST, Prevention of Atrocities Act. Ex.P7 is the First Information Report. 3. On receipt of Ex.P-7, P.W-13, Inspector of Police took up the investigation in this case and proceeded to the house of PW1 at about 8 am on 03.07.2014. She drew a rough sketch and observation mahazar, Ex.P-9 in the presence of witnesses Raman and Ashok. She also enquired P.W-1, P.W-2, P.W-3, P.W-4, Shalini-P.W-5, Palanisamy-P.W-6 and Murugan and recorded their statement. Thereafter, she proceeded to Moolanur Bus Stand upon intimation that the Appellant- Accused is waiting to board a bus and arrested him. After arrest, the Appellant was sent to judicial custody for remand. P.W- 13 also taken steps to subject the Prosecutrix to medical examination besides collected the community certificate of P.W-1 as well as the Accused from Pws 10 and 11. On 05.07.2014, both the Prosecutrix as well as the Appellant were subjected to medical examination and she has also recorded the statement of Doctor Ravi and Doctor Divya. P.W-13 also submitted an alteration report to the Court under Ex.P10 as per which the offences for which the case was registered under Ex.P-7 from Section 417 , 506 (ii) of IPC and 3 (1) (w) (i), 3 (2) (va) of SC/ST POA Act was altered into one under Section 376 , 417 , 294 (b) , 506 (ii) of IPC and Section 3 (1) (w) (i), 3 (2) (va) of SC/ST (PoA) Act. After concluding her investigation, on 30.07.2014, P.W-13 filed the charge sheet in this case against the Appellant in this case before the learned Judicial Magistrate, Dharapuram. After concluding her investigation, on 30.07.2014, P.W-13 filed the charge sheet in this case against the Appellant in this case before the learned Judicial Magistrate, Dharapuram. The learned Judicial Magistrate, Dharapuram had taken cognizance of the offences under Sections 376 , 417 , 294 (b) , 506 (ii) of the Indian Penal Code and under Sections 3(1)(w)(i), 3(2)(va) of SC/ST (PoA) Act, 1989, since the offences alleged against the Accused are exclusively triable by Court of Sessions, the learned Judicial Magistrate, Dharapuram had taken the charge sheet on file as P.R.C. No. 19 of 2014 and issued summons to the Accused. On appearance of the Accused on summons, copies were furnished to the Accused under Section 207 of Cr.P.C. and the case was committed to the Court of Sessions. The Accused was bound over to the Court of the learned Principal District Judge, Tiruppur. 4. On appearance of the Accused before the learned Principal District and Sessions Judge, Tiruppur and on receipt of records in P.R.C.No.19 of 2014, the learned Principal District and Sessions Judge, Tiruppur renumbered the case as Spl.S.C.No.29 of 2014. After hearing the arguments of the learned Public Prosecutor, Tiruppur and the learned Counsel for the Defence (Accused), the learned Principal District and Sessions Judge, Tiruppur had framed charge against the Accused under Sections 376 , 417 , 294 (b) , 506 (ii) of the Indian Penal Code and under Section 3(1)(w)(i), 3(2)(va) of SC/ST (PoA) Act, 1989. Charges were explained in Thamizh to the Accused. The Accused pleaded not guilty and claimed to be tried. Therefore, trial was ordered by the learned Principal District and Sessions Judge, Tiruppur. In order to prove the charges framed against the Accused, the Prosecution had examined 13 witnesses as P.W-1 to P.W-13 and marked 10 documents as Ex.P-1 to Ex.P-10. 5. The learned Principal District and Sessions Judge, Tiruppur upon considering the oral and documentary evidence, acquitted the Appellant/Accused for the offences under Sections 294 (b) , 506 (ii) , 376 of Indian Penal Code and Section 3 (1) (w) (i), 3 (2) (va) of Tamil Nadu SC/ST (POA) Amendment Act, 2015. However, he was found guilty of the offence under Sections 417 of the Indian Penal Code and sentenced to undergo simple imprisonment of one year with fine of Rs.5,000/-, failing which to undergo simple imprisonment for a period of three months. 6. However, he was found guilty of the offence under Sections 417 of the Indian Penal Code and sentenced to undergo simple imprisonment of one year with fine of Rs.5,000/-, failing which to undergo simple imprisonment for a period of three months. 6. As against the Judgment of acquittal of the Appellant/Accused, neither the Prosecution nor the defacto complainant has preferred any appeal. This appeal is at the instance of the Appellant questioning the correctness and legality of the Judgment dated 03.12.2018 passed in C.C. No. 29 of 2014, convicting him for the offence punishable under Section 417 of IPC . 8. The learned Counsel for the Appellant further submitted that from the complaint, it can be presumed that she is a major, she knows the consequences of having pre-marital sex and had taken the risk. She is not an illiterate or ignorance and she was a graduate. As per her own complaint, on the date of lodging the complaint, she has completed 21 years and she had completed her degree. The learned Counsel for the Appellant also invited the attention of this Court to the evidence of the Prosecutrix-P.W-1, the parents of the Prosecutrix as P.W-2 and P.W-3, P.W-4/brother of the Prosecutrix, the sister-in-law of the Prosecutrix-P.W-5. In their cross examination, they admitted that the parents of PW1 themselves are Intercaste couples. Therefore, the claim of the Prosecutrix that the Accused came to their residence and abused them in harsh words, claiming that they belong to schedule caste and he could not marry the Prosecutrix is not acceptable. The evidence of P.W- 5/sister-in-law of the Prosecutrix indicates that she belongs to backward class and she is a postgraduate and the elder brother of the Prosecutrix passed 10th standard and they are not residing with their parents. It is admitted that they are residing 40 km away from the residence of the Prosecutrix and parents. The claim of the Prosecutrix that the parents and elder brother, sister-in-law went to the house of the Accused and the Accused was not at home is therefore unbelievable. The allegation that the Appellant came to the residence of the Prosecutrix and abused the entire family members in front of the house is not proved by examining any witness. The claim of the Prosecutrix that the parents and elder brother, sister-in-law went to the house of the Accused and the Accused was not at home is therefore unbelievable. The allegation that the Appellant came to the residence of the Prosecutrix and abused the entire family members in front of the house is not proved by examining any witness. When the learned Sessions Judge had acquitted the Accused from charges under Sections 376 , 294 (b) , 506 (ii) of IPC and Section 3 (1) (w) (i), 3 (2) (va) of SC/ST (Prevention of Atrocities) amendment ordinance, 2014, automatically she should have acquitted the Accused from the charge under Section 417 of IPC also. The reasoning of the learned Sessions Judge convicting the Accused for offence under Section 417 of IPC is perverse and is to be set aside. P.W-1 is not subjected to cross- examination. The learned Judge herself had put questions under Section 165 of Indian Evidence Act to P.W-1 answered. She had stated clearly that from 30.11.2011 till May, 2013, they had sexual intercourse for 25 times. She had also stated that she had studied up to B.Sc., and she had also completed B.Ed., Therefore it is clear that the Prosecutrix clearly consented for the sexual intercourse with the Appellant and she cannot now turn around and claim that she was exploited by the Accused for sexual pleasures and discarded her on the ground that she was a member of the schedule caste. Therefore, it is a case of consensual sex and not a case of rape or sex under the pretext of marriage. 9. The learned counsel for the Appellant further submitted that the Investigation Officer had not examined any of the members of the public regarding the claim that the Accused abused them in filthy language from the road, opposite to the residence of the victim. The complainant's case has been demolished in the cross examination of her parents - P.W-2, P.W-3 and P.W4/elder brother and P.W-5/sister-in-law. The learned Sessions Judge, without considering those evidence, erroneously convicted the Appellant for the offence under Section 417 of IPC . Therefore, the conviction of the Accused under Section 417 of IPC is perverse and is to be set aside. 10. The learned Counsel for the Appellant invited the attention of this court to Section 90 of the Indian Penal Code which does not define consent. Therefore, the conviction of the Accused under Section 417 of IPC is perverse and is to be set aside. 10. The learned Counsel for the Appellant invited the attention of this court to Section 90 of the Indian Penal Code which does not define consent. The complainant/victim claims that she had intercourse with the Accused for 25 times and there are no witnesses. It is the defence of the Accused that the Accused is the friend of the elder brother and she had attempted to force him to marry her using the relationship of the Accused with the elder brother. The Accused claims that he did not have any intercourse with Prosecutrix at all and this is a foisted case only to pressurize and to threaten the Accused to marry the Prosecutrix. There is no proof that the Accused had visited her house as claimed by the complainant. The evidence of the P.W-13 clearly indicates that that the mobile number of the complainant and the mobile number of the Accused were not subjected to any examination with the connected mobile service providers regarding the messaging or interactions. The learned Judge failed to consider those aspects and merely based on the evidence of P.W-1 and P.W-8/Doctor, the Accused was convicted for the offence under Section 417 of IPC . Under those circumstances, based on the report of P.W-8 under Ex.P-3 and the report of P.W-9 under Ex.P-4, the Accused cannot be convicted for offence under Section 417 of IPC . In this context, the learned Counsel for the Appellant relied on the ruling reported in ( 2019) 9 SCC 608 in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another . In Deepak Gulati Vs. State of Haryana reported in (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660. The relevant portion is extracted hereunder: “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. 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.” 25. ...........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......” 11. Therefore, the learned Counsel for the Appellant seeks to set aside the Judgment of Conviction recorded by the learned Sessions Judge as perverse. 12. Per contra, the learned Additional Public Prosecutor, by way of reply, submitted that here was a case where the victim was exploited by the Appellant. After having sexual intercourse, he had cheated her by citing her caste. Therefore, the complaint was registered by the sub inspector of Police, All Women Police Station under the provisions of Sections 417 , 506 (ii) of IPC and Section 3 (1) (w) (i), 3 (2) (va) of SC/ST (Prevention of Atrocities) amendment ordinance, 2014. After completion of investigation, the Deputy Superintendent of Police filed alteration report by including the offence under Section 376 of IPC . After completion of investigation, the Deputy Superintendent of Police filed alteration report by including the offence under Section 376 of IPC . It is to be noted that the Prosecutrix was not at all cross examined by the learner Counsel for the Accused and that shows that there was no defence for the Accused to project in this case. The learned Judge, on her own, had put up questions to the Prosecutrix and it is legally permissible. It is true that PW1 is a graduate. It is also true that she is a B.Ed., degree holder but under the pretext of promise to marry, the Accused had indulged in repeated offences. The learned Sessions Judge had on proper appreciation of evidence, aquitted the Accused from all the charges but had convicted under section 417 of IPC alone. As per the ruling reported in ( 2019) 9 SCC 608 in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, cited by the learned Counsel for the Appellant itself, the Hon’ble Judges of the Supreme Court had discussed the distinction between obtaining consent and misconception of fact. The same Judgment applies to the facts of this case to record conviction against the Appellant. The fact that the Prosecutrix was not cross examined itself was considered by the learned Judge. Further, the evidence of the Prosecutrix inspires confidence of the court and which led to the conviction of the Appellant. This court, sitting in appeal, cannot acquit the Accused on the ground that there are loopholes in the prosecution case. The learned trial Judge had observed the demeanour of the victim/Prosecutrix and that the Accused who appeared before the trial Court while passing the judgment of conviction. Therefore, the appreciation of evidence by the learned Principal Sessions Judge, by which, she had recorded conviction against the Accused for the offence under Section 417 of IPC cannot be said to be perverse. Therefore, the Judgment of Conviction had to be maintained. The Appeal lacks merits and is to be dismissed. Point for consideration: Whether the Judgment of Conviction recorded by the learned Principal Sessions Judge, Tiruppur in Spl.S.C. No. 29 of 2014 dated 03.12.2018 is to be set aside as perverse? 13. Heard the learned Counsel for the Appellant and the learned Additional Public Prosecutor. The Appeal lacks merits and is to be dismissed. Point for consideration: Whether the Judgment of Conviction recorded by the learned Principal Sessions Judge, Tiruppur in Spl.S.C. No. 29 of 2014 dated 03.12.2018 is to be set aside as perverse? 13. Heard the learned Counsel for the Appellant and the learned Additional Public Prosecutor. Perused the evidence of P.W-1 to P.W-13, documents under Ex.P-1 to Ex.P-10 and the Judgment of the learned Principal Sessions Judge, Tiruppur. 14. The learned Trial Judge had on appreciation of evidence has rightly concluded that the offences of this nature there will not be any witnesses and if the testimony of the Prosecutrix is found to be natural and inspiring the confidence of the Court, a conviction can be recorded. The contention of the counsel for the Appellant that there are no witness in this case and merely on the basis of the evidence of the Doctors, the Accused cannot be convicted. This contention of the counsel for the Appellant cannot be countenanced. Here is a case the Prosecutrix due to her helplessness was forced to approach the Police station seeking remedy by registering a case. In fact, after having sexual intercourse for about two years, the Appellant neglected PW1. It is her deposition that she repeatedly called the Appellant but he did not respond. On examining the deposition of PW1, she has admitted that she is a graduate and had sexual intercourse with the Appellant for over 25 times under the belief that the Appellant would marry her. However, by citing the caste or community to which PW1 belonged to she refused to marry her. In fact, even at the first meeting, the Appellant must have knowledge about the caste to which PW1 belonged to. The Appellant is none other than the class mate of the brother of PW1. Therefore, the Appellant cannot, at the outset, feign ignorance about the caste to which PW1 belonged to. Therefore, it is clear that even though PW1 consented for the sexual intercourse, such a consent was obtained by a false promise to marry or on misconception of fact. Such a consent cannot be considered to be a consent at all in the Criminal Law Jurisprudence. 15. PW8 is the Doctor, who subjected PW1 to medical examination. Therefore, it is clear that even though PW1 consented for the sexual intercourse, such a consent was obtained by a false promise to marry or on misconception of fact. Such a consent cannot be considered to be a consent at all in the Criminal Law Jurisprudence. 15. PW8 is the Doctor, who subjected PW1 to medical examination. Upon examination, PW8 submitted her report stating that the hymen of the Prosecutrix is not intact and her vagina admits two fingers with ease. In the cross-examination PW8 has said that when enquired, PW1 has informed her that she had sexual intercourse with a known person. Therefore, the deposition of PW1 that she got acquainted with the Appellant and had sexual intercourse with him under the promise that he will marry her cannot be simply brushed aside. 16. On perusal of the discussion of evidence by the learned Principal District and Sessions Judge, in paragraphs 12 and 13 the Trial Judge concluded that the offence under Section 417 of IPC is attracted. The learned Judge had arrived at such a conclusion by referring to the fact that from the inception, the Accused had no intention to marry PW1. He had given a false belief to the Prosecutrix in order to exploit her and it can be inferred through the deposition of PW1. Therefore, under the pretext of marriage, he had obtained consent and such consent is not valid. While so, the Appellant cannot claim that a false case had been foisted on him. 17. In the ruling of the Hon’ble Supreme Court referred to by the counsel for the Appellant, it was a case where the Appellant therein had sexual intercourse with the Prosecutrix on a false promise to marry her. In that case also the Prosecutrix consented for sexual intercourse and they had exchanged sexual bliss for over a period of five years. Ultimately, on coming to know that the Appellant therein got married to another woman, the prosecution came to be launched against the Appellant. In that case, it was held that 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. Ultimately, on coming to know that the Appellant therein got married to another woman, the prosecution came to be launched against the Appellant. In that case, it was held that 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. In that case, referring to the acquaintance of the Appellant and Prosecutrix since 1998 and the complaint was filed on 17.05.2016, the Honourable Supreme Court has held that even the plea of the Prosecutrix that there was a false promise to marry her cannot be believed. This judgment will not help the case of the Appellant in this case in any manner. In this case, the Prosecutrix was made to believe that the Accused will marry her. The Accused was the friend of the elder brother of the Prosecutrix and it is not denied. Therefore, the Appellant knew the caste to which the Prosecutrix belong to. There are minor contradictions in the cross examination of P.W-2 to P.W-5 which, in the opinion of this Court, will not help the Appellant/Accused to wriggle out of the case. Just because, the Investigation Officer did not verify the mobile number of the Accused and the mobile number of the Prosecutrix or did not obtain call records from the service providers of the mobile phone of Accused as well as the Prosecutrix, it will not be a ground to disbelieve the testimony of the Prosecutrix. When the Appellant claims that at no point of time he had sexual intercourse with the Appellant, he ought to have proved it by stepping into the witness box by himself. In the present case, the Appellant maintained stoic silence without examining any witness to strengthen his defence. In such circumstances, even on the basis of the testimony of the Prosecutrix, which is free from any blemish or suppression, a conviction can be based against the Appellant for the offence under Section 417 of IPC . The deposition of PW1 that she had sexual intercourse with the Appellant for over 25 times cannot be discredited with. It is also to be pointed out that in the absence of a promise to marry, the Prosecutrix could not have consented to have sexual intercourse for over 25 times within a period of two years from 2011 to 2013. The deposition of PW1 that she had sexual intercourse with the Appellant for over 25 times cannot be discredited with. It is also to be pointed out that in the absence of a promise to marry, the Prosecutrix could not have consented to have sexual intercourse for over 25 times within a period of two years from 2011 to 2013. In such view of the matter, the Trial Court rightly convicted the Appellant for the offence under Section 417 of IPC , which does not require any interference by this Court. It is a case of obtaining consent under the pretext of marriage and a love affair with an intention to exploit the Prosecutrix sexually and later, by citing the caste as a reason for not marrying her. The questions put to the Prosecutrix by the learned Sessions Judge under Section 165 Cr.P.C., indicates that there was consent on the part of the Prosecutrix as she believed the words of the Accused that he would marry her. 18. As rightly pointed by the learned Additional Public Prosecutor, in the above judgment, the Honourable Supreme Court has held that “misconception of fact amounts to absence of concept- consent based on misconception of fact is not consent in the eyes of law.” The learned Additional Public Prosecutor pointed out that there is a distinction between mere breach of promise and not fulfilling the false promise. The court must examine whether consent was made at an early stage with a false promise of marriage by this Accused. Here it was a false promise and initially the Prosecutrix did not consent. The Appellant prevailed on her that he will take care of the problems relating to the caste between the two. The Accused did not have any valid defence to disprove this and therefore he did not cross examine the prosecution witnesses. The observation of the Hon’ble Supreme Court in the reported ruling that “misconception of fact alleged by the complainant is the Appellant's promise to marry her squarely applies to this case. The false promise was given by the Appellant/Accused from the beginning with a clear understanding that he can breach it at a later point of time by referring to the caste as a reason. The false promise was given by the Appellant/Accused from the beginning with a clear understanding that he can breach it at a later point of time by referring to the caste as a reason. Therefore, this Court is of the view that the breach of promise by the Appellant/Accused in this case is not made in good faith even at the threshold. 19. In the ruling reported in ( 2019) 9 SCC 608 in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, the case is under Section 375 of IPC whereas the learned Judge in this case had acquitted the Accused from the charge under Section 376 of IPC , but convicted the Accused for the offence under Section 417 of IPC . Therefore, the ruling cited by the learned Counsel for the Appellant will not be applicable to this case. 20. As rightly pointed by the learned Additional Public Prosecutor, this is a case where the Accused had obtained consent under the pretext of marrying the Prosecutrix. Even though the Prosecutrix refused, he made her believe that he will marry her and she believed such promise. In the cross examination of the parents of the victim, P.W-2 and P.W-3 it was stated that they belong to two different communities. The elder brother of the victim, P,W-4 and his wife P.W-5 also belong to different communities and they are also intercaste couple. Therefore, the Accused is alleged to have made her to believe that he will marry her as like her parents who belong to different community. He is aware of the status of the family of the victim and also was aware that such a promise is false and it was made only to have sexual intercourse with the Prosecutrix. The Prosecutrix also believed the promise made by the Appellant, but after he openly neglected and exploited her, the complaint was given. It is also to be mentioned that the sentence of one year of simple imprisonment imposed on the Appellant is also lesser and befitting the nature of offence committed by him. Therefore also, this Court declines to interfere with the judgment of the Trial Court. 21. In the light of the above discussion, the point for consideration is answered in favour of the Prosecution and against the Appellant. Therefore also, this Court declines to interfere with the judgment of the Trial Court. 21. In the light of the above discussion, the point for consideration is answered in favour of the Prosecution and against the Appellant. The Judgment passed by the learned Principal District and Sessions Judge, Tiruppur in Spl.S.C.No.29 of 2014 dated 03.12.2018 is well reasoned judgment. It is found proper. It does not warrant any interference by this Court. 22. In the result, this Criminal Appeal is dismissed. The Judgment passed by the learned Principal District and Sessions Judge, Tiruppur in Spl.S.C.No.29 of 2014 dated 03.12.2018 is confirmed. The learned Sessions Judge, Thirupur is directed to take steps to secure the Appellant so as to undergo the remaining period of sentence.