Important Point
Where accused committed rape on a minor girl who belonged to scheduled caste but there was no evidence that rape was committed for reason that victim belonged to scheduled caste, conviction u/s. 3(2)(v) of SC & ST (Prevention of Atrocities) Act could not be sustained though accused stood convicted u/s. 376 (2)(f) IPC.

Order

Bilal Nazki, J.— Heard learned counsel for the appellant as well as learned Public Prosecutor. These are two appeals, one directly filed by the accused and one has been filed on his behalf through Legal Services Authority against same judgment. Therefore, both the appeals are being decided by this common judgment.

2. The accused was charged with an offence under Section 376(2)(f) of I.P.C. and Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. He pleaded not guilty and was tried. Prosecution examined 16 witnesses and exhibited 16 documents. The trial Court convicted him under both the charges and sentenced him to undergo life imprisonment and to pay a fine of Rs. 200/-, in default he had to undergo simple imprisonment  for one month for the offence u/s. 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 and rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/-, in default he had to undergo simple imprisonment for three months for the offence u/s. 376(2)(f) of I.P.C.

3. The case of the prosecution was that the accused, on 7-11-2000 at about 2.00 P.M., took the victim i.e., P.W. 2, a minor girl, on a scooter to a distant place and committed rape on her. The victim was taken on the promise that he would give her some chocolates and biscuits. The victim was a member of scheduled caste. A report was filed by her mother on the same day on which the occurrence took place. The victim was examined by the doctor on the same day i.e. 7-11-2000 at 8.05 P.M. We have gone through the evidence of the prosecution and record. In view of the evidence of the victim girl which was corroborated by the medical evidence, we do not find that there is any defence with which the accused could come out of the offence u/s. 376(2)(f), I.P.C.

4. Briefly the testimony of P.W. 2 is discussed. She stated that she was 7 years old. She stated that she knew the accused. While she was playing outside the house of her maternal grand-mother at about 2.00 p.m. the accused came to her on a scooter and asked her to follow him in order to purchase chocolates and biscuits for her. She herself sat on the rear seat of the scooter. The accused asked to follow him to the house of Arogyam who was her house owner, but she was taken to Duppalipalli road near Pulse Mill and then to a lemon garden. The accused, after entering into the lemon garden, took her to a thick bush where the accused fell on her, removed underwear then he removed his pant and underwear and fell on her and committed rape on her. Nothing worthwhile could be made out in her cross-examination. On the same day she was ex­amined by the doctor P.W. 14 who stated that he found blood stains around external genitalia. By vaginal examination, he found hymen with fresh, irregular tears, it would bleed on touch, vagina admitting one finger and uterus anteverted. Vaginal examination was painful. There was severe bleeding on the left side of abdomen. There were abra­sions caused by nails of fingers. The victim was referred to

Nilofer hospital. Post-vagi­nal tear repaired. According to the report of the Forensic Science Laboratory, human semen and spermatozoa detected on item Nos. 2, 3 and 4 viz. cut drawers of the vic­tim and accused. The accused was also ex­amined by doctor P.W. 12 who certified that the accused was potent. For these reasons we do not find that there is any defence for the accused for the offence of rape under Section 376(2)(f), IPC since the victim was a minor less than 12 years old on the date of occurrence.

5. Now coming to the offence under Sec­tion 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989, it reads as under:

“(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—­

(v) Commits any offence under the In­dian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of scheduled caste or a