The judgment emphasizes the importance of proving the age of the prosecutrix beyond reasonable doubt and the necessity to establish the accused's domination over the will of the victim in cases under Section 3(1)(xii) of the Special Act.

1. This appeal is directed against the judgment of conviction and order of sentenced awarded to the appellant in Sessions Trial No. 389/2001 on 13-2-2002 by the Special Judge, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bastar at Jagdalpur, whereby the appellant has been convicted under Section 376(1), IPC and Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Special Act') and sentenced to undergo RI for 7 years and to pay a fine of Rs.3000/-, in default of payment of fine to further undergo R.I. for 1 1/2 years and RI for 3 years and fine of Rs.2000/-, in default of payment of fine to further undergo RI for six months, respectively.

2. The case of the prosecution is that the prosecutrix Ku. Javendri @ Pushpa, a girl aged about 15 years, was subjected to sexual intercourse by this appellant for many times saying that he would marry her. As a result of their long sexual relations, the prosecutrix became pregnant on account of which, a meeting in the village was held and when nothing fruitful came out from the meeting, a First Information Report was lodged by the prosecutrix on 18-6-2001. In this report, she makes allegations that she was subjected to sexual intercourse by this appellant for the first time one year prior to the lodging of report. The FIR has been proved as Ex. P-3. On this report, the investigation commenced and ultimately after completion thereof, charge-sheet was filed under the aforesaid section of the IPC and the Special Act. On conclusion of trial, the appellant was held guilty under the said Section of IPC and Special Act and was directed to suffer the sentences, concurrently, referred to above.

3. On the basis of conduct of the prosecutrix, Ku. Javendri @ Pushpa (P.W. 3), the Special Judge, recorded a finding vide Para 15 of the judgment that all the times the sexual intercourses were done with the consent of the prosecutrix and she was a consenting party which is also supported by the contents of the FIR (Ex. P-3). However, he also recorded a finding that since the age of the prosecutrix was proved to be below 16 years, therefore, her conduct showing her consent will have no meaning and the appellant would be held guilty of offence under Section 376(1) of IPC. For the offence under the Special Act, the Special Judge said that since the prosecutrix belongs to Gond caste which has been scheduled as a Scheduled Tribe for the purposes of the said Act and the appellant being in a position to dominate the will of the prosecutrix has sexually exploited her, therefore, he would also be guilty of an offence punishable under Section 3(1)(xii) of the Special Act.

4. Learned Counsel for the appellant argued that the finding in relation to the age of the prosecutrix is not in accordance with law and, in fact, the prosecution has been failed to prove that the prosecutrix was below 16 years of age on the date of incident. He secondly argued that in the facts and circumstances of this case, when the prosccutrix was a consenting party with the appellant and both had enjoyed their long sexual relations, therefore, only because the prosccutrix happens to be the member of Scheduled Tribe, an offence under Section 3(1)(xii) of the Special Act would not be made out.

5. On the other hand, learned State Counsel opposed these arguments. He supported the finding of the age recorded by the Special Court and he also supported the conviction and sentences awarded under both the counts.

6. I have heard learned Counsel for the parties at length and have also perused the records of the special case.

7. For proving the age of prosecutrix, the prosecution has examined Raja Ram (P.W. 3), father of the prosecutrix and it has also examined the Headmaster of the School, Chamru Ram Gowde (P.W. 5) and has produced the age declaration form, proved as Ex. P-5 and copy of admission register (Ex. P-6). After proving these docu