The main legal point established in the judgment is that the accused was convicted under Section 376 of the IPC based on the evidence of sexual assault, while the provisions of the SC/ST Act were found inapplicable due to the lack of material supporting the offence under that Act.

JUDGMENT :

B.A. Patil, J.

The State has preferred these appeals against the judgment dated 18.08.2010 passed by the learned District and Sessions Judge, Uttara Kannada, Karwar, in Special Case No.4/2009. Criminal Appeal No.2735/2011 has been filed challenging the acquittal of respondent/accused under the provisions of Scheduled Cast and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act', for short) and Criminal Appeal No.2736/2011 has been filed seeking modification of the sentence for the offence punishable under Section 376 of IPC.

2. I have heard the learned HCGP for the State and the learned Amicus Curie appearing for the respondent-accused.

3. The case of the prosecution in brief is that, CW1 sister of victim, filed the complaint alleging that she is residing with her husband and children and her victim sister is residing by the side of her house along with her father and her children. The victim's husband left her and his whereabouts were not known since last eight years. The victim is a deaf and dumb lady. She understands her language of sign. She belongs to Scheduled Caste and Scheduled Tribe. Accused was known to the complainant and their family members. He belongs to Lingayat community. On 12.02.2009, the victim had gone to Mundgod along with her father to get the ration card in her name and also in her father's name. At about 5.30 pm, when the victim was returning to house, the accused by telling the father of the victim that he will drop her to house, took her on the motorcycle and on the way he committed forcible sexual intercourse with her. She came weeping. Her hair was disorderly and her bangles had been broken. On enquiry, she revealed the said fact and after return of the father, the said information was told to him and thereafter complaint was registered. On the basis of the complaint a case is registered and after investigation charge sheet has been filed.

4. Thereafter the presence of the accused was secured and after hearing the accused and the learned Public Prosecutor, the charge was framed. In order prove the case of the prosecution, the prosecution got examined in all 17 witnesses and got marked Exs.P1 to P21 and M.Os. 1 to 11. During the course of cross-examination, Exs.D1 to D43 were also got marked. Thereafter the statement of the accused was recorded under Section 313 Cr.P.C. He denied the allegations. After hearing the learned Public Prosecutor and the learned counsel for the accused, the Court below came to the conclusion that, there is no material insofar as Section 3(1)(xi) and 3(2)(v) of the SC/ST Act and the accused was acquitted for the said offence and as there was evidence on record, the accused was convicted for the offence under Section 376 of the IPC and was sentenced to undergo Rigorous Imprisonment for four years and to pay a fine of Rs.5,000/-, in default to undergo RI for six months. Being aggrieved by the order of acquittal for the offence punishable under Section 3(1)(xi) and 3(2)(v) SC/ST Act and also imposition of lesser sentence for the offence under Section 376 of IPC, the State is before this Court.

5. It is the submission of the learned HCGP that, though there is sufficient material to connect the accused to the alleged crime, that the accused sexually assaulted the victim knowingly full well that she belongs to the scheduled caste, though the prosecution has established the said fact and there is evidence of PWs.5, 4 and 8, and the Caste Certificate has also been produced at Ex.P7, the Court below has come to a wrong conclusion and has acquitted the accused for the alleged offence. It is his further contention that the learned Sessions Judge has not properly appreciated the evidence on record. It is further contended that, as the Court below has come to the conclusion that the accused has committed rape on the victim, he ought to have been punished with maximum punishment under Section 376 of the IPC. The accused is liable to be puni