Petitioner is the sole accused in S.C.No.160 of 2002, on the file of the Assistant Sessions Judge, Kallakurichi.. By judgment dated 19.3.2003, the learned Judge convicted the petitioner for offences under Sections 417 and 376 IPC., and sentenced him to undergo rigourous imprisonment for six months under Section 417 IPC and to undergo rigourous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default to undergo three months rigourous imprisonment under Section 376 IPC. He was also directed to pay a sum of Rs.1,00,000/- as compensation under Section 357(3) Cr.P.C. Challenging the same, he preferred Criminal Appeal No.47 of 2003. The learned Addl. District Sessions Judge (Fast Track Court), Kallakurichi, by judgment dated 5.4.2004, confirmed the substantive sentence of imprisonment imposed under Sections 417 and 376 IPC., and set aside the imposition of fine of Rs.5,000/-. The learned Judge also reduced the compensation to Rs.40,000/-. Challenging the above, the petitioner has come up with this Revision.

2. The case of the prosecution in brief is as follows :-

3. P.W.8, who was then Inspector of Police at Arakandanallur Police Station, received the said complaint of P.W.1 at 9.00 a.m., on 9.10.1999 and registered a case in Crime No.161/99 under Sections 417 and 376 IPC. Ex.P-1 is the complaint and Ex.P-5 is the First Information Report. Since the Inspector of Police attached to the said police station was on leave, P.W.8 himself took up the case for investigation on the direction of the Deputy Superintendent of Police. On the same day, he examined P.Ws.1 to 4 and 6 and recorded their statements. He arrested the accused at 11.00 a.m. near Mallapuram Bus Stand and then sent him for judicial remand. On the same day he sent P.W.1 for medical examination through Court.

4. P.W.9 Dr. Padmini was a Civil Surgeon of Government Hospital, Villupuram. On 10.10.1999 at 10.30 a.m., on the request of the Sub-Inspector of Police, she examined P.W.1. She found that P.W.1 was 5 to 5 = months pregnant. From her appearance, she estimated her age at 14. Then she took X-rays and finally opined that P.W.1 was 16 years old. In continuation of the investigation, P.W.8 examined P.W.9 and collected the medical records. He sent the accused also for medical examination through Court. P.W.5 examined him and certified that the accused was capable of performing sex. Ex.P-2 is the Certificate issued by him. P.W.8 examined the said Doctor and collected the medical records. Then, he handed over the investigation to the Inspector of Police attached to the police station. P.W.11, the then Inspector of Police, took up the case for further investigation. On 30.6.2001 he verified the correctness of the investigation and finally laid the charge-sheet.

5. Thus, on the above materials, the trial court framed charges under Sections 417 and 376 IPC. In order to prove the case, the Prosecution examined 11 witnessess and produced 12 documents. P.W.1., the victim girl, has elaborately spoken to about the alleged act of rape committed on her by the accused. P.Ws. 2 to 4 being the family members have spoken to about what they had heard from P.W.1 and also spoken to about the Panchayat and the ultimate refusal of the accused to marry P.W.1. P.W.6 has spoken to about the fact that P.W.1 and the accused were found together in his motor-shed. The other witnesses are official witnesses. When the incriminating evidence available on record were put to the accused under Section 313 Cr.P.C., he had denied the same. According to him, he never committed any sexual intercourse with P.W.1. However, he has not examined any witness. Having considered all the above materials, the trial court found the accused guilty, which was confirmed by the lower appellate court. Against the same, the petitioner has approached this Court.

6. I have heard the learned counsel appearing for the petitioner and the learned Addl. Public Prosecutor appearing for the State and also perused the records.

7. The foremost contention of the learned counsel for the petitioner is that the age of the victim P.W.1 has not been proved beyond reasonable doubt that she was less than 16 years on the date of occurrence. He would submit that the school records, namely, Ex.P-10, cannot be construed to be conclusive proof in respect of the age of P.W.1. Similarly, according to the learned counsel, the evidence of P.W.10 also would not prove the date of birth of P.W.1. He would further submit that the medical evidence in respect of age is always subject to error. Therefore, according to him, two years margin on either side should be given and, if that is given, the age of the P.W.1 would have been more than 16 years on the date of occurrence. He would further submit that in the present case there was a mutual love affair between the accused and P.W.1 as has been spoken to by the witnesses. He would further add that P.W.1 being a fully grownup girl, knowing the consequences, had exchanged sexual pleasure, which can never be termed as rape in terms of section 376 IPC. Learned counsel would further submit that the consent given by P.W.1 is free and voluntary and, therefore, even assuming that the accused had sexual intercourse with P.W.1., the said act would not amount to rape. He would further add that the conviction under Section 417 IPC., is also not sustainable inasmuch as absolutely there is no evidence to show deception or fraud played on P.W.1. by the accused.

8. Learned Addl., Public Prosecutor would, however, oppose the Revision in strong terms. According to him, Ex.P-10 school certificate coupled with the evidence of P.W.10 would establish the date of birth of P.W.1 as 12.2.1984 and as on the date of the complaint, namely, 9.10.1999, she had not completed 16 years. Therefore, according to him, assuming that even there was consent given by P.W.1 for sexual intercourse, the same is immaterial. He would further submit that the first act of rape was committed one year before and, on that date, undoubtedly, P.W.1 would have been less than 16 and, therefore, the consent allegedly given by P.W.1 is not a valid consent to exonerate the accused. He would further submit that even the said consent cannot be construed to be a true consent in terms of Section 90 of the Indian Penal Code. He would submit that when there was a false promise of marriage given by the accused and since consent was obtained by making her to believe that such marriage would take place, according to the learned Addl. Public Prosecutor, the consent is not a consent provided in Section 375 IPC. Therefore, the offence would clearly fall under Section 376 IPC. In so far as conviction under Section 417 IPC is concerned, the learned Addl. Public Prosecutor would fairly concede that the accused is entitled for acquittal under this charge since the accused was convicted for a graver offence under Section 376 IPC. He would further add that there is no reason much less any valid reason to disbelieve the evidence of the prosecutrix, namely, P.W.1, whose evidence is duly corroborated by the medical evidence and the evidence of P.Ws. 2 to 4. He would further submit that now P.W.1 has given birth to a child and she has been put in lurch. From all these factual position, the learned Addl. Public Prosecutor would pray for dismissal of the Revision.

9. I considered the rival submissions and perused the records very carefully.

10. The first and foremost argument advanced by the learned counsel for the petitioner is in respect of the age. Ex.P-10 Transfer Certificate issued by the Headmaster of the Government Girls High Court at Mallapuram, where P.W.1 was admitted in IX Std. According to the school records, the date of birth of P.W.1 is 12.2.1984. P.W.10 is the Headmaster of the school, who has spoken to about the entries in the school records. Ex.P-10 is the certificate issued by him. It is needless to point out that mere entry in the school records would not go to conclusively prove that the date of birth mentioned in the school certificate is the correct date of birth. Under Section 35 of the Evidence Act, such entry made in the school records by the school authorities is a relevant fact. To that extent, it can be safely concluded that Ex.P-10 is a document admissible in evidence. But, the said provision does not contemplate that a presumption is either refutable or conclusive in respect of the correctness of such entries made in the school register. Under illustration (e) to Section 114 of the Evidence Act, the Court may presume that judicial and official acts have been regularly performed. In this case, there shall be a presumption that the entry in the school records in respect of date of birth of P.W.1 was duly made by the school authorities. To put it otherwise, there could be no doubt raised that the school authorities entered a different date of birth as date of birth in the school records than the date of birth supplied to them by the informant. Thus, the presumption is only very limited. What is material is that whether the information furnished to the school authorities in respect of date of birth is correct information or not.

11. Simply because an information furnished by someone else had been duly entered in the school records giving a date of birth at the time of admission of the student, it cannot be presumed that such date of birth is the correct date of birth, unless the informant comes to the court and deposes that it was he who gave such information to the school authorities and unless he establishes that the said information furnished by him was relating to the correct date of birth. To see whether this condition precedent has been satisfied, I have gone through the evidence of P.Ws. 1 to 4. P.Ws 2 and 3 would be the proper witnesses to speak about this information. When P.W.1 was admitted initially in an elementary school at Mallapuram, for the first time the information regarding the date of birth of P.W.1 would have been given either by P.W.2 or by P.W.3 or by some other relative. But, neither P.W.2 nor P.W.3 has spoken to anything about the date of birth of P.W.1 or the information furnished by either of them to the elementary school. In the absence of any evidence, either from P.W.2 or P.W.3 or any other relative regarding the date of birth of P.W.1 while she was admitted initially in the elementary school, it cannot be conclusively held that the date of birth originally entered in the elementary school records of P.W.1 reflects the correct date of birth of P.W.1. P.W.10 speaks about the admission of P.W.1 in the high school in IX Std. It is quite natural that the date of birth as found in the elementary school transfer certificate would have been entered by P.W.10 in the high school register. Therefore, unless it is established that the original entry made in the elementary school register is correct, it cannot be concluded that the entry of date of birth found in the high school register is correct. In this regard I may also refer to a judgment of the Honourable Supreme Court in the STATE OF CHHATTISGARH v. LEKHRAM reported in 2006(2) CRIMES 91(SC), wherein it was observed:-

12. In the case on hand, as I have already stated, the correctness of the entries regarding the date of birth in Ex.P-10 by P.W.10 has not been established through the evidence of either the parents of P.W.1 or any other relative, who gave the information at the time of admission in the elementary school. Thus, Ex.P-10 and the evidence of P.W.10 cannot be relied on to hold that P.W.1 was born on 12.2.1984.

13. Now coming to the medical evidence in this regard, P.W.9 has stated that as on the date of examination, that was on 10.10.1999, P.W.1 was 16 years old. In the Chief Examination she, however, stated that P.W.1 would have been only 14 years of age on the said date. Assuming that her opinion that P.W.1 was 16 years old as on 10.10.1999 is true, since the first act of sexual intercourse was committed on P.W.1 by the accused one year prior to 09.10.1999, there could be no doubt at all that she would have been less than 16 years of age. If this conclusion is safely arrived, then there would be no difficulty in holding that the consent obtained from P.W.1., as claimed by the learned counsel for the petitioner, is immaterial for the purpose of holding the petitioner guilty under Section 376 IPC. As provided in Section 375 IPC., the consent obtained from a girl whose age was less than 16 years is no consent in the eye of law for the purpose of Section 375 IPC.

14. Learned counsel for the petitioner would submit that the opinion of a Doctor in respect of the age is always subject to error by two years on either side. Regarding this legal position, there can be no doubt. Assuming that such margin of two years can be given on the higher side of the age spoken to by the Doctor, it could be only said that as on the date of examination she was around 18 years. According to the evidence of P.W.1, the first act of rape was committed one year before, that is to say at that stage she would have been more than 16 years of age. Assuming that this argument of the learned counsel for the petitioner could be accepted, it can be only held that she was more than 16 years of age as on the date of the first act of commission of rape. But, even then, the guilt of the accused under Section 376 IPC cannot be erased for a simple reason that the so called consent obtained in this case is not a consent in the eye of law as required under Section 375 IPC. To come to this conclusion, I would like to state the following reasons:

15. It is the evidence of P.W.1 that when she was doing 8th standard, the accused expressed his love for her. It is also in evidence that initially P.W.1 was not ready to accept the said love. It was only after a long persuasion she also reciprocated her love for the accused. It is not as if immediately after exchange of love, exchange of sexual pleasure had happened. On the first occasion, when the accused expressed his desire for having sexual intercourse, P.W.1 did not agree. She told him that she would give consent for sexual intercourse only after marriage as it was proposed by the accused. The accused in turn made her to believe that he would certainly marry her in future and so she should agree for sexual intercourse. From the categorical evidence of P.W.1., it can be seen that thereafter she agreed for having sexual intercourse with him only because of such promise given by the accused. Then, the accused took her to a nearby sugarcane grove, where he had sexual intercourse. P.W.1 has further stated that, subsequently when she was staying in the school hostel, once again the accused wanted her to give consent for sexual intercourse. When she declined once again, he repeatedly promised to marry her. As a matter of fact, according to P.W.1, the accused told that he would not marry anybody else except P.W.1 and further requested her to come with him for one day to have sexual intercourse. It is only on such assurance again she was taken to the motor shed belonging to P.W.6, where the accused had sexual intercourse with her. The evidence of P.W.6 corroborates the evidence of P.W.1 in this regard. According to P.W.6, he found P.W.1 and the accused in the motor shed on the crucial date. On the next day, according to P.W.1, the accused had gone to Bangalore. I find no reason to reject the evidence of P.W.1 in this regard. The fact remains that subsequently he declined to keep up his promise to marry her. It is also not the case of the accused that though initially such promise was given by him honestly but, later on due to some other cause he had to withdraw such promise. The defence of the accused is a total denial inasmuch as according to him there was no such sexual intercourse at all with P.W.1. This defence is obviously a false defence. In a case of this nature, the false plea of the accused is also an incriminating circumstance against the accused.

16. From the above narration of the evidence of P.W.1, it is crystal clear that the consent for sexual intercourse was obtained by the accused only by means of deception. In this regard, a reference may also be made to Section 90 of the Indian Penal Code, which reads as follows :-

17. A plain reading of the above provision would go to show that consent obtained under a misconception of fact is no consent as contemplated in Section 375 IPC. In the case on hand, from the evidence of P.W.1, it is crystal clear that P.W.1 was under the misconception that the accused would marry her. It was only because of the said misconception, she gave consent on two occasions for sexual intercourse. Therefore, the consent given by P.W.1 cannot be termed as a free consent as required under Section 375 IPC to exonerate the accused. In this regard, the learned counsel for the petitioner would rely on a decision of the Honourable Supreme Court in UDAY v. STATE OF KARNATAKA reported in 2003 SCC (Cri) 775, wherein the Honourable Supreme Court has held as follows :-

18. As held by the Honourable Supreme Court in the said judgment there cannot be any straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact. It is ultimately a dispassionate conclusion to be arrived at by the court on various materials placed. At this juncture, yet another judgment of the Honourable Supreme Court in YEDLA SRINIVASA RAO v. STATE OF ANDHRA PRADESH reported in (2006) 11 SCC 615, relied on by the learned Addl. Public Prosecutor, is to be referred to. In paras 16 & 17 of the judgment, the Honourable Supreme Court held as follows :

19. In the case on hand also P.W.1 did not give consent for sexual intercourse voluntarily. As already narrated, she resisted and said that she would agree for sexual intercourse only after marriage. But, because the accused assured P.W.1 that he would marry her, she consented for the sexual intercourse. Therefore, there can be no doubt at all that the consent given by the P.W.1 was under the misconception that the accused would marry. In the light of the fact that the accused has not taken a stand that, though initially assurances given by him are true, later on due to certain changed circumstances, unavoidably, he had to with draw the promise, it has to be necessarily held that from the very inception the assurance given by the accused to marry P.W.1 was only a false promise. Therefore, I have no hesitation to hold that the consent given by P.W.1 was not a voluntary consent and, therefore, the act of sexual intercourse committed by the accused on P.W.1 amounts to rape.

20. The evidence of P.Ws. 2 to 4 would go to show that when they questioned the accused about the sexual intercourse he had with their daughter, the accused agreed to marry P.W.1. They were also under the impression that after returning from Bangalore the accused would marry their daughter. But, after knowing that P.W.1 was pregnant, the accused has declined to marry. This conduct of the accused is yet another incriminating circumstance to show that from the very inception the accused was playing only fraud on P.W.1.

21. At this juncture, I have to state that it is well settled that the evidence of prosecutrix in a case of rape is itself sufficient to impose conviction even in the absence of any corroboration from any other independent source. The true test is as to whether the evidence of prosecutrix inspires the confidence of the Court or not. In this case, the trial court has found that the evidence of P.W.1 fully inspires the confidence of the judicial mind. I find no reason to take a different view. Apart from that, the evidence of P.W.1 is duly corroborated by the evidence of P.Ws 2 to 4 and various other circumstances about which I have made reference supra. Thus, the prosecution has clearly established the guilt of the accused under Section 376 IPC.

22. In so far as the offence under Section 417 IPC., is concerned, the act of deception played by the accused to get consent was for sexual intercourse and thus cheating is a part of the offence under Section 376 IPC. Therefore, when there is a conviction recorded for the offence under Section 376 IPC., there cannot be any separate conviction under Section 417 IPC. Therefore, the conviction and sentence imposed on the accused under Section 417 IPC., is liable to be set aside. The conviction under Section 376 IPC requires to be confirmed.

23. Now coming to the quantum of sentence, the learned counsel for the petitioner would submit that the petitioner is married, he has got two children, he is a poor agricultural coolie and his old father needs the support of the petitioner. Learned counsel for the petitioner would further submit that the petitioner has reformed himself and he will not indulge in any such crime in future. In the light of the above, the learned counsel for the petitioner would submit that the substantive sentence imposed on the accused may be reduced appropriately and instead the amount of compensation awarded by the lower appellate court at Rs.40,000/- may be enhanced. Learned counsel would further submit that since the petitioner is already married and has got two children, the question of effecting compromise between the parties to marry P.W.1 is impossible.

24. I have considered the aforesaid submissions of the learned counsel for the petitioner. Having regard to all the above undisputed facts, I am of the view that it is a fit case where the sentence of imprisonment for the term of less than seven years can be imposed as the above reasons, in my considered opinion, constitute adequate and special reasons for such a lesser punishment. Having regard to the entire facts and circumstances of the case, I deem it appropriate to reduce the substantive sentence of imprisonment to five years instead of seven years and to enhance the compensation from Rs.40,000/- to Rs.50,000/-.

25. In the result, the Criminal Revision is partly allowed in the following terms:-

1. The Assistant Sessions Judge, Kallakurichi, Villupuram District.

2. The Additional District and Sessions Judge (Fast Track Court), Kallakurichi, Villupuram District.

3. The Section Officer, V.R.Section, High Court, Madras.

4. The Public Prosecutor, High Court, Madras