Point of Law: As per Section 3(1)(xii) of said Act, it must be proved that accused was in a position to dominate will of a woman belonging to a Scheduled Caste or Scheduled Tribe Community and uses that position to exploit her sexually to which she would not have otherwise agreed.

JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under Section 374(2) of the Code of Criminal Procedure is directed against the impugned judgment of conviction and order of sentence dated 22.1.2016 passed by the learned Special Judge, Kabirdham (Kawardha) (CG) in ST No.144/2015, whereby, the learned Special Judge has convicted and sentenced the appellant in the following manner :

2. Case of the prosecution, in brief, is that on 26.7.2015, at about 7:00 p.m., in Gram Maradabhra, Police Station Chilphi, the appellant abducted the minor victim (PW-1) from the lawful guardianship of her father Dhanau Maravi (PW-2) and committed sexual intercourse with her knowing fully well that she is a member of Schedule Tribe Community and the said act is punishable under the provisions of Section 3 (2)(v) and 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (unamended) (in short “the SC/ST Act”). Further case of the prosecution is that on the fateful day, when the minor victim (PW-1) had gone to answer the call of nature along with her sister Pramila, a minor girl about 7 years, near a place adjoining to her house, the appellant came there and abducted her. The said fact was informed by Pramila to her father Dhanau Maravi (PW-2), who searched for the prosecutrix, but when he could not find her, he lodged an FIR-Ex.P/9 in the Police Station. Thereafter, on investigation, the prosecutrix was recovered from the possession of the appellant near Bus Stand, Kawardha. It was alleged that the appellant abducted the victim and thereafter, committed sexual intercourse with her. The prosecutrix was medically examined by Dr. Astha Mishra (PW-10) and Dakhil-Kharij register was seized from her school. The undergarments of the prosecutrix and the appellant were also seized and sent for FSL examination. As per the FSL report, on Article – A i.e. underwear of the appellant, the stains of semen of human sperm was found. In Articles - B, C, D & E belonging to the victim, nothing was found to implicate the appellant in the crime in question.

3. After usual investigation, the appellant/accused was charge-sheeted for offences punishable under Sections 363, 366, 376 of IPC and Section 3(2)(v) and 3(1) (xii) of the SC/ST Act and under Sections 3 & 4 of the POCSO Act, which was committed to the Court of Sessions for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.

4. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 33 documents. Further, vide Article A 1 – Mark Sheet and A 2 – School Transfer Certificate of the victim were brought on record. The defence has examined none and no document has been exhibited on their behalf.

5. The trial Court upon appreciation of oral and documentary evidence on record, proceeded to convict and sentence the appellant under Sections 363, 366, 376 of IPC, Section 3(2)(v) and 3(1) (xii) of the SC/ST Act and under Sections 3 & 4 of the POCSO Act in the manner mentioned in the opening paragraph of the judgment against which the instant appeal has been preferred.

6. Mr. Dharmesh Shrivastava, learned counsel for the appellant, would submit that an offence under Section 3(2) (v) of the SC/ST Act (as amended) is not made out against the a