Point of Law: Just because the accused was knowing the prosecutrix belonging to the vulnerable caste cannot itself take the matter in that ambit and it is relevant to mention that when offence of rape is not proved then there is no question of punishment under Section 3(2)(V) of SC/ST Act.

JUDGMENT :

Ajai Tyagi, J.

1. By way of this appeal, the appellant-Anil Kumar Bind has challenged the Judgment and order 30.08.2018 passed by Additional Sessions Judge (Court No.12), Allahabad, in Special Session Trial No.56 of 2016 (State Vs. Anil Kumar Bind) arising out of Case Crime No.119 of 2016 under Section 376 Indian Penal Code and Section 3(2)(V) SC/ST Act and Section 3/4 POCSO Act, Police Station-Handia, District-Allahabad whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for 10 years with fine of Rs.10,000/-and in case of default of payment of fine, to undergo further imprisonment for one year and for life imprisonment and fine of Rs.10,000/-under Section 3(2)(V) SC/ST Act and in case of default of payment of fine, to undergo further imprisonment for one year. Appellant was acquitted under Section 3/4 POCSO Act.

2. The brief facts of the case are that complainant Chote Lal Pasi submitted written report Ex.Ka-1 to the Police Station-Handia, District-Allahabad on 24.03.2016 stating that his daughter prosecutrix, age 15 years, went to ease herself at about 10:00 pm in the night near the pond. From there Anil of his village took her daughter forcible by sequeezing her mouth to nearby hut and committed rape with her. On hearing the noise of crying, his son Hausila Prasad and other people ran towards the place of occurrence and his son caught Anil Bind red handed but he fled away from the spot. On the basis of this report an FIR was registered on Case Crime No.119 of 2016.

3. Ravi Shankar Prasad C.O. took up the investigation, I.O. visited the spot and prepared site-plan, recorded the statements of witnesses under Section 161 Cr.P.C. Prosecutrix was medically examined. Her statement under Section 164 Cr.P.C. was recorded by competent authority. After completing the evidence I.O. submitted charge sheet against the appellant. The case being exclusively triable by court of sessions was committed to the sessions court by competent magistrate for trial.

4. So as to bring home the charge, prosecution produced following witnesses, namely :

5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence.

6. Apart from oral evidence, following documentary evidence was produced by the prosecution and proved by leading evidence:

7. Heard Shri M. A. Siddiqui, learned counsel for the appellant, learned AGA for the State and also perused the record.

8. Learned counsel for the appellant submitted that appellant has been fasely implicated in this case. There is no evidence of rape. It is further submitted that as per prosecution case, prosecutrix was of age of 15 years at the time of occurrence, but when she was medically examined by radiologist, her age was found between 18 and 22 years. It clearly shows that at the time of alleged incident prosecutrix was major.

9. It is next submitted by the learned counsel for the appellant that as per medical examination report of prosecutrix, no evidence of rape was found. Doctor, who medically examined the prosecutrix, has opined that at the time of examination it was not found that any intercourse has been committed with the prosecutrix. In chemical examination report no spermatozoa was found. There were no injury marks on h