HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Court No. – 47

Case :- JAIL APPEAL No. – 2845 of 2011

Appellant :- Zukkur Ali

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Amrendra Pratap Singh

Counsel for Respondent :- A.G.A.

Hon’ble Shri Narayan Shukla,J.

Hon’ble Chandra Dhari Singh,J.

(Delivered by Hon.Chandra Dhari Singh,J.)

01. Heard Sri Amrendra Pratap Singh, learned counsel for the appellant and Sri Nagendra Bahadur Singh, learned A.G.A. for the State.

02. The present jail appeal has been filed by the appellant-Zukkur Ali against the judgment and order dated 24.11.2010 passed by the Special Judge, S.C. S.T. Act, Basti in S.S.T. No.31 of 2010 whereby Special Judge, S.C. S.T. Act after proceedings, convicted the accused/appellant for offence punishable under Section 376 I.P.C. and Section 3(2) 5 of the S.C. S.T. Act for raping a minor girl of 14 years who belongs to Scheduled Caste. The accused/appellant was sentenced to imprisonment for life and also fine of Rs.50,000/- for the offence punishable under Section 376 I.P.C. and Section 3(2) 5 of the S.C. S.T. Act. In default of payment of fine of Rs.50,000/- he shall undergo further one year simple imprisonment.

03. Brief facts of the case

I. According to the prosecution story, the appellant committed repeatedly rape upon the prosecutrix and whenever she opposed his act, he threatened to the prosecutrix to kill her, if she will tell anybody about the incident. Due to repeated rape, the prosecutrix became pregnant and after 5-6 months pregnancy, ladies of the family noticed her pregnancy and asked about the pregnancy. She narrated the whole incident and said that she was repeatedly raped by the appellant and due to that she became pregnant. On 6.10.2009, mother, brother and other people of the village went to the house of the appellant and asked about the incident, on the query, the appellant started abusing and quarreling with them and also threatened to kill all of them, if they shall lodge any complaint in the police station regarding the incident. The brother of the prosecutrix made a written complaint on 6.10.2009 at the police station Chhawani. On the report of the informant, a case was registered as Case Crime no.680 of 2009 against the appellant. The prosecutrix was medically examined by Doctor Neelam Singh, Medical Officer, New C.HC, District Sant Kabir Nagar. As per the medical report, the prosecutrix was pregnant of 5-6 months and hymen was torn but no semen was found. She further stated that no injury was found on private part. Doctor has proved the report Ext.Ka-3. The appellant was arrested on 7.10.2009 in the presence of the victim, who identified the accused-appellant. The accused-appellant has also confessed his guilt before the Investigating Officer.

II. The statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 22.10.2009. In her statement she stated that about 5-6 months ago, when she went to the field with her goats for grazing, at that time the appellant met there. He caught the prosecutrix and by applying force he committed rape with her. Whenever she tried to escape herself, he threatened to kill her. Due to fear she never disclosed the incident to any relative or any member of the family. Appellant had committed rape repeatedly 3-4 times and due to that she become pregnant. She further stated in the statement that she was raped 3-4 times in the interval of 4-5 days. When she became pregnant and pregnancy of 5-6 months, the member of the family noticed her pregnancy and then asked about the reason of the pregnancy. The accused was also sent for medical examination after arrest.

III. The accused was charged under Section 376 I.P.C. for committing rape. The appellant was also charged under Section 3(2) 5 of S.C. S.T. Act for committing offence of rape upon the scheduled cast girl. The charges were denied by the appellant-accused and claimed for trial.

IV. The prosecution examined nine witnesses to prove charges against the accused-appellant namely P.W.1 prosecutrix, P.W.2 complainant-Santoshi, brother of the prosecutrix, P.W.3, Smt. Sunra Devi, mother of the prosecutrix, P.W.4, Dr.D.K.Srivastava, P.W.5, Dr.Neelam Singh, P.W.6,Smt.Sunita, sister-in-law of the prosecutrix, P.W.7,Radhey Shyam, Deputy S.P., P.W.8,Jai Shanker Tiwari, Constable and P.W.9,Raj Bahadur Singh, Deputy S.P.. The accused-appellant examined D.W.-1, Ramjan Ali. D.W.2 Lallu Singh was examined as defence witness.

V. P.W.1, the prosecutrix stated in her testimony that the incident took place one year before and at that time her age was 14 years. She was under the guardianship of mother and brother as her father had died. She further stated in the testimony that she went to field for grazing the goats and at that time, the appellant who belongs to the same village met her and by applying force he committed rape in the field of sugarcane. She further stated in the testimony that she was raped repeatedly 3-4 times in the interval of 4-5 days. She did not disclose the fact to the mother and brother as the appellant threatened her to kill, if she will disclose anything about the incident to anyone. Due to the repeated rape, she became pregnant and after 4-5 months’ pregnancy, member of the family noticed her pregnancy than she was asked about pregnancy. She told the members of the family that she was repeatedly raped by the applicant but due to fear, she did not disclose to anyone. She further stated in the testimony that when she disclosed the facts to the sister-in-law and mother about rape, they went to the house of the appellant and asked about the incident. On the query, he started quarreling and abusing to the family members and villagers. The appellant threatened to kill all of them, if they will lodge any report in the police station. He further stated in the testimony that her brother P.W.2 made a written complaint at the police station and she was sent to the hospital for medical examination. On the same day the police had come her house and recorded her statement. She stated in the testimony that she had given birth a baby girl after 3-4 months from the date of the complaint. She further stated that her statement was recorded by the Magistrate under Section 164 Cr.P.C. and she had given thumb impression on the statement . She had also proved the statement which was given before the Magistrate. It was exhibited as Ext. Ka-1. The prosecutrix stated that now she is married and she came here for testimony for deposing her statement with her husband. In the cross examination she had narrated the same thing as narrated in the chief examination of testimony. No contradictory material has come out in her cross examination.

VI. P.W.2, stated in the testimony that she belongs to scheduled caste and the appellant is also resident of the same village. The prosecutrix is his sister. At the time of the incident she was only 14 years old. His father had died. He was only the person to look after her. He further stated in the testimony that one year ago, when her sister used to go in the filed for purpose of grazing goats, at that time appellant met her and raped forcibly. The appellant also threatened her sister to kill her, if she will make anything about the incident. Due to fear, she never told anything about the incident to family members. When she became pregnant of 4-5 months, ladies of the family noticed her pregnancy, then she was asked about the reason of the pregnancy then she narrated the whole incident which took place 4-5 months ago. He also narrated in the testimony that her sister told them that the appellant raped repeatedly 4-5 days and due to that rape, she became pregnant. He further stated in the testimony that he went along with other members to the house of the appellant and asked about the incident. He started abusing and threatening all of them. He wrote written complaint in the police station regarding accident and on the complaint the police lodged an F.I.R. He took his signature on the complaint. He also stated that on his instance the complaint was written i.e. Ext. Ka-1 A. He stated that C.O. of police came at the place of the incident and recorded the statement of the witnesses.

In the cross examination, he again narrated that her sister was repeatedly raped and due to rape, she became pregnant. Nothing contradictory material has come out in the cross examination of P.W.2. He has fully supported the prosecution case.

VII. P.W.3, Sunra Devi, mother of the prosecutrix stated in her testimony that her daughter was 14 years old at the time of incident. She used to go to the filed for purpose of grazing the goats. The appellant belongs to the same village. He met the prosecutrix at the field when she was away from the house for grazing the goats in the field. She was raped forcibly by the appellant-accused. She further stated that prosecutrix was raped repeatedly by the appellant and due to that she became pregnant. After 4-5 months of pregnancy, she noticed her pregnancy and then asked to the prosecutrix about her pregnancy. She informed P.W.3 about the incident of rape committed by the appellant. She along with daughter-in-law and son went to the house of the accused and asked about the incident of rape which was committed by him. He started abusing and threatening to kill all of them, if complaint will be lodged by her son at the police station about the incident. In the cross examination, she narrated same thing which was narrated in the chief examination of testimony. No contradictory material has come out in the cross examination.

VIII P.W.4, Dr. D.K. Srivastava stated in the testimony that on 8.10.2009, he was posted as Radiologist in the District Hospital Basti. On that date, the prosecutrix along with lady constable Savitri Mishra came to the hospital for examination of age. X-ray of the prosecutirx was done for purpose of examination of her age. On the basis of X-ray report and after analysis of the medical report, it was found that prosecutrix was 15 years old. He has also proved the X-ray and medical report that was exhibited as Ext.Ka-2.

IX P.W.5, Dr. Neelam Singh stated in the testimony that on 7.10.2009, she was posted as Medical Officer, B.R.T.K., Women Hospital, Basti. She further stated that on 7.10.2009 at about 2.30 p.m., the prosecutrix came with lady constable Savitri Mishra for her medical examination. She stated in the testimony that at that time prosecutrix’s height was 4′ 10″ weight 32 Kg. After examination she found that the prosecutrix was pregnant of 20-22 weeks. She also stated in the testimony that no injury was found on private part. No semen was found on the body of the prosecutrix. She proved the medical report as Ex.Ka-3.

X P.W.6 Sunita is sister-in-law (Bhabhi) of the prosecutrix. She stated in the testimony that at the time of incident age of the prosecutrix was about 14 years. She stated that the appellant, who belongs from her village, committed rape forcibly upon the prosecutrix and due to rape the prosecutrix became pregnant. She stated in the deposition that the prosecutrix narrated the facts to her and also stated that she was pregnant due to repeated rape committed by the appellant. When mother-in-law and husband along with other villagers went to the house of the appellant, he started abusing and threatening all of them. She further stated that her husband made a complaint to the police station and on his complaint the F.I.R. was lodged.

XI P.W.7, Radhey Shyam, Deputy S.P. stated in his testimony that on 9.10.2009, he was posted as Circle Officer, Hariya. He stated that C.O. Rudhauli, conducted the investigation of case crime no.680 of 2009 at the initial stage. On 9.10.2009, he had taken over the investigation of the said case. He proved the remand of the appellant and also proved the report in which it was stated that the prosecutrix had recorded statement under Section 164 Cr.P.C. before the Magistrate. On his direction, the prosecutrix was sent for X-ray and medical test in the respective hospitals. He narrated in his statement that he recorded the statement of lady constable Savitri Mishra. On the basis of the statement of the witnesses and after the inspection of the site of the incident, sufficient materials were collected against the accused-appellant, therefore, chargesheet was filed for the offence punishable under Section 376, 504 and 506 I.P.C. and 3 (2) 5 S.C. S.T. Act against the appellant.

XII P.W.8, Jai Shanker Tiwari, Constable-Muhrir stated in the statement that on 6.10.2009, he was posted as Constable- Muharir at Police Station Chhawani. He had prepared Chik No.116 of 2009 and also registered case crime no.680 of 2009 for the offence punishable under Section 376, 504 and 506 I.P.C. and Section 3 (2) (5) S.C. S.T. Act against the appellant. He proved his signature on the Chick and also proved Ext.Ka-7. In the cross examination, he stated that it is wrong to say that case was registered as ante time and ante dated.

XIII P.W.9 Raj Bahadur Singh, Deputy S.P. stated in his statement that on 6.10.2009, he was posted as C.O., Rudhauli. He went to the site and made site plan. He also recorded the statement of complainant Santoshi and the prosecutrix. He proved site plan Ext.Ka-9. He also proved the signature on the site plan. He was informed that the appellant was arrested. On that information, he went to the police station Chhawani and recorded the statement of the accused-appellant and same was entered in the case diary.

04. Sri Amrendra Pratap Singh, learned counsel for the appellant contended that F.I.R. was delayed and no explanation has been given. F.I.R. was lodged after six months from the date of alleged incident with malafide and malicious intention to falsely implicate the appellant in the said crime. He further contended that no independent witness were examined by the prosecution. No D.N.A Test of blood of the appellant was conducted by the prosecution to prove that the appellant is father of the child. He further contended that at the time of the incident, the victim was major and prosecution has not established any prove/evidence to establish her age. He contended that the accused was not present during the period when incident was took place. He was in Delhi. The appellant was falsely implicated in the case. The learned counsel for the appellant contended that the commission under Section 3(2) v of the S.C./S.T. Act was born only the presumption and no evidence was produced by the prosecution to prove the said allegation.

05. Sri Nagendra Bahadur Singh, learned Advocate appearing for the State of U.P. vehemently opposed the jail appeal. He contended that the prosecutrix was a minor on the date of the incident. The prosecution has explained the delay in lodging the F.I.R.. He further contended that non examination of independent witness would not discredit the investigation or the prosecution case. An accused can be convicted on the sole testimony of the prosecutrix. The appeal lacks merit and is liable to be dismissed.

06. We have considered the rival submissions made by the learned counsel for the parties and perused the materials on record.

Before we proceed to examine the impugned judgment of the court below and the facts of the case, it may be desirable refer to settled legal proposition which has to be applied in the present case.

07. In State of Rajasthan vs. Om Prakash (2002) 5 SCC 745 the Supreme Court has held that “as regards the contention regarding the delay in lodging the FIR, the real question is about the explanation for the delay. It is not at all unnatural for the family members to await the arrival of the elders in the family when an offence of this nature is committed before taking a decision to lodge a report with the police. The reputation and prestige of the family and the career and life of a young child is involved in such cases. Therefore, the presence of the brother of the prosecutrix at home is not of much consequence. It has been established that the father of the girl along with his brother came back to their house at 7 O’clock in the evening. The girl was unconscious during the day. PW2 told her husband as to what had happened to their daughter. The police station was at a distance of 15 km. According to the testimony of P.W.1 no mode of conveyance was available. The police was reported to the next day morning and FIR was recorded at 11.30 a.m. The delay in reporting the matter to the police has thus been fully explained.”

08. In State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 the Hon’ble Supreme Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice.

The Court observed as under:-

“15. It is necessary at the outset to state what the approach of the Court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex-offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue. Under the said statute ‘Evidence’ means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section. 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).

16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no C more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:

“It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.”

09. In State of Punjab v. Gurmit Singh and others, AIR 1996, 1393, the Honb’le Supreme Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurance of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplish.

10. In State of Himachal Pradesh v. Raghubir Singh (1993) 2 SCC 622, the Supreme Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Conviction can be recorded on the sole testimony of the prosecuterix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity.

A similar view has been taken by the Hon’ble Supreme Court in State of Tamil Nadu v. Ravi (2006) 10 SCC 534 and Wahid Khan vs. State of Madhya Pradesh, (2010) 2 SCC 9.

11. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

12. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth from untruth exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused.

13. Thus, in view of the above, law on the point can be summarized to be that the evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, should not be taken into consideration as they cannot form grounds to reject the evidence as a whole.

14. The Hon’ble Supreme Court held in several judgments that the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance on the part of the prosecutrix. Case requires to be considered in the light of the settled legal proposition.

15. The submission of learned counsel for the appellant is that Section 376 speaks about the punishment for rape. Sub-section (2) (f) makes it clear that whoever commits rape on a woman when she is under 12 years of age would be punished with R.I. for a term which shall not be less than 10 years but which may be for life and also be liable to be fine. Proviso appended to sub- section (2) makes it clear that Court, may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term less than 10 years.

16. He further contented that at the time of the incident the accused was not aware about the caste whether she belongs to Scheduled Caste or not, therefore, the appellant’s conviction under Section 3 (2) v of the S.C. S.T. Act be set aside.

17. It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years but which may extent to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence, if the victim/prosecutrix is below 12 years of age.

18. Learned counsel for the appellant has relied on a decision of Bavo @ Manubhai Ambalal Thakore vs. State of Gujarat 2012 (2) SCC 684 and contented that life imprisonment is not warranted and sentence may be reduced to the period already undergone i.e. more than 12 years.

19. To adjudicate the conviction of appellant under Section 3 (2) (v) of the SC/ST Act, 1989. We have perused Section 3 (2) (v) of the Act which reads as under:-

“(v) commits any offence under the Indian Peal 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 a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;”

20. We have considered the finding given in the impugned judgment dated 24.11.2010 passed by the trial court for the offence related to offence under Section 3(2) (v) of S.C. S.T. Act, 1989 in the light of evidence on the record. The trial court observed in the finding for offence under Section 3(2) (v) of the Act that there is no question of direct evidence but on the basis of facts and circumstances, that appellant had committed the offence of rape against the prosecutrix on the ground that she belongs to Scheduled Caste is not acceptable. It emerges from the statement of prosecutrix that no allegation was leveled by her that rape was committed by the accused/appellant, because she belongs to Scheduled Caste Category, therefore, there is no basis for presumption drawn by the trial court, so as to convict the accused appellant for the offence under Section 3 (2) (v) of the Act, 1989.

21. In the case of Masumsha Hasanasha Musalman V. State of Maharashtra, AIR 2000 SC 1876 Hon’ble Supreme Court held in para 9 :-

“9. Section 3 (2) (v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code 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 a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.

22. In the case of Ramdas And Others vs State Of Maharashtra AIR 2007 SC 155 the Hon’ble Supreme Court held as under:-

“At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The court below has not noticed any evidence to support the charge under the SC ST Act and was perhaps persuaded to affirm the conviction on the basis that the prsecutrix belongs to a scheduled caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.”

23. In view of the above, sine quo non for application of Section 3(2) (v) is that an offence must have been committed against a person on the ground that such person is a member of the S.C. S.T.. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the prosecutrix since she was a member of a Scheduled Caste. In the absence of the offence to that effect Section 3(2) (v) of the S.C. S.T. Act has no application.

24. For the foregoing reasons, in the instant case Section 3 (2) (v) of the SC/S T Act is not applicable; the sentence provided in Section 376 I.P.C. does not per se become life sentence. The court below, only by applying Section 3 (2) (v) of the SC S.T. Act, the life sentence was awarded. It is abundantly clear that words ” on the ground” show that the prosecution is required to prove that the target of crime was selected on the ground that he/she belongs to Scheduled Caste or Scheduled Tribe Category or that crime was committed for the reason that such person belongs to such community.

25. For the reasons stated above; Jail appeal being no.2845 of 2011 is partly allowed, the conviction of appellant under Section 3(2) v of S.C. S.T. Act is set aside. The conviction of appellant under Section 376 of I.P.C. is maintained and he is sentenced to undergo ten years R.I. and fine of Rs.20,000/- in default, to further undergo R.I. for six months. Impugned judgment stands modified to the above extent.

26. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.

Order Date :- 19th December, 2017`

Asha

(Chandra Dhari Singh,J.) (Shri Narayan Shukla,J.)