According to her, A3 after knowing that the illicit intimacy between A1 and P.W.2 abused her in filthy language and had warned not to continue her illicit relationship with A1 and that A1 offered Rs.50/- to take nutritious diet after the abortion.P.W.5 is the uncle of P.W.2 the victim girl.On 24.12.2003, he went to the house of P.W.2 at the request of her parent,after knowing that P.W.2 had developed intimacy with A1 and P.W.2 had also informed him that only under the pretext of marrying her A1 had sexual intercourse with her and in this regard , he along with his other brothers and father of P.W.2 went to the house of the accused for a mediation.But A2 and A3 have abused P.W.2 and at that time A1 and A4 were not available in the house.Ex P5 is the copy of the first information report.Ex P10 is the certificate issued by the doctor, after examination of A1 certifying that he is potent.Ex P11 is the letter of requisition issued by the Court to the Government Hospital requesting the doctor to subject P.W.2 for medical examination to ascertain her age.ExP12 is the age certificate issued by the doctors.Ex P13 is the requisition given by P.W.7 to the doctor.He has also examined the Doctors viz., Dr.Saravanan and Dr.Karthikeyan and recorded their statements.JUDGMENT A.C. Arumugaperumal Adityan, J.This appeal has been preferred by the accused in S.C.No.124 of 2004 on the file of the Additional Sessions Judge, (Fast Track Court) Ariyalur, Perambalur District.According to the prosecution, on 10.7.2002 ,A1 under the pretext of marrying the victim girl had subjected her to the offence of rape and in the course of the transaction, the accused had given tablet to abort the featus and in the panchayat conducted in this connection on 17,.2.2003, A1 to A3 have abused the victim girl in filthy language and on the same day, A4 had criminally intimidated the victim girl and the accused under the pretext of marrying the victim girl had committed the offence of rape.So the accused have been charged under Sections 417, 313, 294(b), 506(ii) and 376 of IPC.The case was taken on file by the learned Judicial Magistrate, perambalur and on the appearance of the accused, had furnished the copies under Section 207 of Cr.P.C. and since the case is triable by a Court of Sessions, the learned Judicial Magistrate had committed the case to the Additional Sessions Judge,(Fast Track Court) Ariyalur under Section 209 of Cr.P.C. On appearance of the accused, the learned Sessions Judge had framed charges against A1 under Sections 417, 313 and 294(b) and 376 of IPC , against A2 and A3 charge under Section 294(b) IPC and against A4 charge under Section 506(ii) of IPC have been framed and when questioned, the accused pleaded not guilty.On the side of the Prosecution , P.Ws 1 to 8 were examined.Exs P1 to P15 were exhibited.P.W.1 is the Doctor who had examined the victim girl P.W.2 on 31.12.2003 at about 1.30p.m., on the basis of the letter of requisition Ex P1 from the Court for ascertaining the age of the victim girl.After hearing that A3 had abused her(P.W.2) , her mother enquired and that she had revealed the entire facts to her and that her uncle and another Ramalingam and Ganapathy took her to the accused's house for mediation.There also A1 had abused her in filthy language and A2 had also intimidated her along with A4 and thereafter she approached the police and preferred Ex P3 complaint.She would corroborate the evidence of P.W.2 to effect that A3 came to her house and abused P.W.2 in filthy language which made her to enquire P.W.2 who had admitted the illicit relationship, she had developed with A1 and that P.W.2 had made an attempt to commit suicide which was prevented by her.When her husband(P.W3's husband) and his brother made an attempt to mediate at the house of the accused, both A2 and A3 have abused and A4 has pushed them on the ground.Thereafter, P.W.2 had preferred the complaint with the police.P.W.4 Chinnaponnu has not supported the case of the prosecution hence she was treated as a hostile witness.Hence P.W.2 has preferred the complaint with the police.She has examined the witnesses and recorded their statements.Ex P6 is the rough sketch drawn by her.She had sent P.W.2 along with Ex P7 requisition to the Court to subject herself for medical examination by a Government Doctor.She had arrested A2 and A4 on 29.12.2003 and produced them before the Judicial Magistrate for judicial remand.A1 and A3 have obtained anticipatory bail.Under Ex P8, he had given another requisition to the Court on 18.2.2004 with a request to send A1 for medical examination regarding his potency.After completing the formalities, he has filed the final report against the accused.When incriminating circumstances under Section 313 Cr.P.C. were put to the accused, they would deny their complicity with the crime.After going through the evidence both oral and documentary, the learned trial Judge has come to a conclusion that an offence under Sections 376, 417, 294(b) of IPC have been made out against A1 and accordingly convicted and sentenced A1 under Section 376 of IPC to under go seven years rigorous imprisonment and a fine of Rs.2000/0 with default sentence and has convicted and sentenced A1 under Section 417 of IPC to undergo six months Rigorous imprisonment and was also convicted and sentenced under Section 294(b) to pay a fine of Rs.500/- along with A2 and A3 each.A4 was convicted and sentenced under Section 506(II) to under go six months rigorous imprisonment and a fine of Rs.500/- with default sentence.Aggrieved by the findings of the learned trial Judge, the accused have preferred this appeal.Now the point for consideration in this appeal is whether the conviction and sentence of the learned trial Judge against the accused under Sections 376, 417, 294(b) and 506(ii) of IPC is liable to be set aside for the reasons stated in the memorandum of appeal?Heard Mr. S.Samuel Rajapandian(Amicus Curiae),the learned counsel appearing for the appellants and Mr.V.R. Balasubramaniam, learned Additional Public Prosecutor for the State and carefully considered their rival submissions.8 The Point:A2 and A3 have been convicted by the trial court under Section 294(b) of IPC and A4 has been convicted and sentenced under Section 506(ii) of IPC.On 24.12.2003, P.W.5 along with P.W2's father and other relations like Ramalingam and Chitra went to the house of the accused and at that time A2 and A3 have abused them and A1 and A4 were not present in the house.According to P.W.2, at the time, when P.W.5 and other relations went to the house of A2, A1 had abused her in filthy language and A2 had intimidated her and A4 also criminally intimidated her.In Ex P3 complaint, there is absolutely no allegation against the accused that they have abused P.W.2 at the time when the mediation took place at 7.00p.m., on 24.12.2003 in the house of the accused.Under such circumstances, it cannot be said that the charge levelled against A2 and A3 under Section 294(b) of IPC and against A4 under Section 506(ii) of IPC have been proved beyond any reasonable doubt.So the conviction and sentence by the trial Court against A2 and A3 under Section 294(b) of IPC and as against A4 under Section 506(ii) of IPC is liable to be set aside and the same is hereby set aside.Now the remaining charge against A1 is under Sections 376, 417 and 294(b) of IPC.According to the case of the prosecution, the victim girl P.W.2 was a minor at the time of occurrence and it has been proved through the evidence of P.W.1, the doctor who had issued Ex P2 copy of the accident register which shows that the victim girl has been subjected to sexual assault.The doctor has opined in Ex P2 that the age of the victim girl P.W.2 must be below 18 years.Ex P1 is the letter of requisition given by the Judicial Magistrate, Perambalur to the Superintendent Government Headquarters Hospital, Perambalur wherein it has been specifically requested to furnish the age certificate and also virgin certificate for the victim girl.P.W.1 has not stated anything in her deposition about the examination conducted by the victim for ascertaining her age.According to P.W.7, the Investigation Officer, P.W.2 was subjected to radiology test by two doctors viz.Saravanan and Dr.Karthikeyan to ascertain her age.Ex P13 is the letter of requisition given by P.W.7 to the Judicial Magistrate, Perambalur.In the letter of requisition, the Investigation Officer P.W.7 has stated that as per the opinion of P.W.1 the doctor Premasakunthala, the age of the victim girl P.W.2 is below 18 years.But the complainant has stated her age in the complaint as 19 and according to her school certificate her date of birth is 15.4.1986 and on that score, he had requested the Court to subject P.W.2 for a radiology test to ascertain her correct age.But unfortunately in this case, even according to P.W.7, P.W.2 was examined by the Radiologist viz., Dr.Saravanan and Dr.Karthikeyan neither Dr.Saravanan nor Dr.Karthikeyan was examined before the trial Court and the X-rays were taken for the victim girl to show that ossification test was conducted on her and the Radiologist report showing her age are all not produced before the trial Court.So absolutely there is no medical evidence to fix the age of the victim girl at the time of occurrence.To prove ExP14, school record sheet, the author of Ex P14 namely the headmaster of the school which issued Ex P14 was not examined.According to P.W.5, P.W.2 had preferred a complaint with the police at 5.00p.m., on 24.12.2003 itself on the date of occurrence.According to P.W.1, she had informed about the occurrence ie., the offence of rape committed by A1 on her (P.W.2) to one Chinnaponnu.But she has not supported the case of the prosecution.Hence she was treated as a hostile witness by the Assistant Public Prosecutor.According to P.W.2, A1 had raped her for the first time on 10.7.2002 and according to her, A1 used to continue the same on several occasions and that she became pregnant and the accused had advised her to take tablets for aborting the featus.But the trial Court has not convicted the accused under Section 313 of IPC on the ground that the charge has not proved against him.But unfortunately in this case, the prosecution has miserably failed to prove through convincing and acceptable medical evidence to show that at the time of occurrence, the victim girl was a minor.Even according to P.W.7, the Doctor, radiologists viz., Dr.Saravanan and Dr.Karthikeyan who have examined P.W.2 the victim girl were not examined on the side of the prosecution to prove the age of the victim girl.But still the fact remains that the victim girl P.W.2 has been deceived by A1 in having sexual intercourse with her on the pretext of marrying her for nearly one year.It is in evidence that subsequent to the occurrence, P.W2 has been married to another person and she is now settled in life.The trial Court is directed to secure A1 to undergo unexpended portion of the sentence.The set off is ordered under Section 428 of Cr.P.C. The fine amount paid by A1 for an offence under Section 376 of IPC and A2 , A3 and A4 are to be refunded to them.

Cited provisions: Section 294(b) in The Indian Penal Code; Section 376 in The Indian Penal Code; Section 417 in The Indian Penal Code; Section 506 in The Indian Penal Code; Section 313 in The Indian Penal Code; Section 375 in The Indian Penal Code; Section 323 in The Indian Penal Code; Section 326 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 307 in The Indian Penal Code