Judgment :- KRISHNAN UNNI, J. Appellant is the accused in S.C. No.6 of 1992 before Sessions Court, Wayanad. He was charged for the offences punishable under Sections 376 and 506 (1) IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Act"). The Court below found him guilty, convicted him and sentenced him to undergo rigorous imprisonment for 10 years under Section 376 IPC and rigorous imprisonment for 6 months under Sec. 506 IPC and imprisonment for life under Section 3(2)(v) of the Act. 2. Crl.A. No. 103 of 1993 is filed by the appellant-accused through the Superintendent of Central Prison challenging the conviction and sentence entered against him. Crl.A. No. 367 of 1993 is also filed by him through counsel. Crl.R.C. No. 24 of 1993 is registered as per the direction of a learned Judge of this Court at the time of calendar revision. All the three cases were heard jointly and are being disposed of by this common judgment. 3. The prosecution case is that the accused who was a Security Guard of Priyadarshini Estate, Mananthavady and who was residing in one of the quarters there, raped PW.1, minor girl, on 2-3-1991 at about 1 p.m. threatening to kill her if she did not accede. She was also warned by him not to tell the incident to anyone. The scene of occurrence was the house of the accused. His wife and children were not present there. They had gone to Vithiri to attend a festival. The accused had asked PW.1 on 1-3-1991 to come to his house in the afternoon of 2-3-1991 for some household work. When she went she was forcibly taken to the bed-room and is alleged to have been raped by appellant. After the incident PW.1 was asked to wash herself and the evidence is that she did so. She then returned to her house and told her mother (PW.2) and her elder sisters about the incident. PW.3 is Kalyani's husband who is also residing in the same house. All of them are workers in the estate. PW.1 used to do petty jobs for others whenever required. These persons belong to Paniya community, included in the list of Scheduled Tribes. The accused belongs to an upper caste. 4. PWs. 2 and 3 took PW.1 to the Assistant Manager (PW.4) and reported the matter to him. All of them are workers in the estate. PW.1 used to do petty jobs for others whenever required. These persons belong to Paniya community, included in the list of Scheduled Tribes. The accused belongs to an upper caste. 4. PWs. 2 and 3 took PW.1 to the Assistant Manager (PW.4) and reported the matter to him. He stated that the Secretary of the estate, PW.5 was on leave and asked them to wait till he returned. On 12-3-1991 when PW.5 returned from leave, PW.4 told him about the incident. He reported the matter to the Managing Director of the Estate, who is none other than the Sub-Collector of Mananthavady. He directed PW.1 to go to the Government Hospital and accordingly on 13-3-1991 she was examined by PW.9 doctor who referred the girl for detailed examination to PW.10, Dr. Sumathi, a Gynaecologist and they had issued a joint certificate Ext. P5. PW.1 was also examined by PW.12 the District Police Surgeon who conducted physical, dental and radiological tests and issued Ext. P7 certificate stating that PW.1 was aged above 14 but below 16 years. 5. After PW.1 was admitted in the hospital, the police was intimated and PW. 13 (Head Constable) went there and recorded Ext. P1 First Information statement of PW.1 and Ext. P8 F.I.R. Ext. P9 is the intimation given to the police in pursuance to which PW.13 went to the hospital. Thereafter investigation was taken over by PW.14. C.I. of Police. The accused was arrested on 14-3-1991 and was sent for potency test. He was examined by Dr. Balakrishnan (PW.11) on 15-3-1991 who issued Ext. P6 certificate. On receipt of F.I.R. in the case. PW.14 proceeded to the place of incident and prepared Ext. P2 scene mahazar and questioned the witnesses. PW.3 produced the saree, blouse and skirt, MOs. 1 to 3, worn by PW.1 at the time of incident which were taken into custody as per Ext. P3 mahazar. Statement of the witnesses was recorded and remand report was sent to the Magistrate. The material objects were sent to the chemical laboratory through Court. Ext. P13 is the chemical examination report. After completing investigation the C.I. of Police filed charge-sheet against the accused on 29-6-1991. Ext. P14 is the community certificate showing that PW.1 belongs to a Scheduled Tribe. In Ext. The material objects were sent to the chemical laboratory through Court. Ext. P13 is the chemical examination report. After completing investigation the C.I. of Police filed charge-sheet against the accused on 29-6-1991. Ext. P14 is the community certificate showing that PW.1 belongs to a Scheduled Tribe. In Ext. P15 certificate the Tahsildar has stated that the accused is a Tamilian and his caste could not be ascertained. 6. Heard counsel for appellant and Public Prosecutor. 7. Shri. Ramakrishnan Nair, learned counsel appearing for the appellant, raised the following aspects as weakness of the prosecution case : 1) Apart from the victim prosecutrix, nobody has seen the incident and given direct testimony. 2) The other witnesses, namely, PWs. 2 and 3, are related to the prosecutrix and their version that they reported the matter to the Assistant Manager of th estate cannot be believed. 3) There is considerable delay in lodging the F.I. statement. The incident was on 2-3-1991 and it was recorded only on 13-3-1991. The delay is not explained satisfactorily. 4) At any rate, there is nothing to show that the accused belongs to a higher caste as no community certificate is produced regarding him and it is not established that the offence is committed because PW.1 belongs to a Scheduled Tribe, and the application of Sec. 3(2)(v) of the Act and the conviction thereunder are illegal. Counsel further argued that another daughter of PW.2 had landed in a brothel in Mysore State and she was captured and rehabilitated here, and PW.3 who married another daughter Kalyani is a Christian and it was a love marriage. On these submissions learned counsel would argue that no credence can be given to their evidence. 8. The direct testimony regarding the incident is that of PW. 1 herself. She was a minor at the relevant time, according to the doctor who examined her. She was not a regular worker in the estate but used to do sundry job for others whenever required. The accused as well as PW. 2's family are residing nearby in the same padi or cluster of houses meant for workers of the estate. It is a Government estate and its Secretary is appointed from Co-operative Department. The case of the prosecution is that she is residing with her two elder sisters, Kalyani and Santha, PW.2, mother and Kalyani's husband Sunny (PW.3), and Sunny is managing the house. PW. It is a Government estate and its Secretary is appointed from Co-operative Department. The case of the prosecution is that she is residing with her two elder sisters, Kalyani and Santha, PW.2, mother and Kalyani's husband Sunny (PW.3), and Sunny is managing the house. PW. 2's husband had deserted her and he is living with another woman. According to PW.1. she was aged 15 at the time of examination and has not studied in school. She knows the accused who was residing nereby. On 1-3-1991, the previous day, the accused asked her to go to his house next day afternoon and at about 1 p.m. that day she went there. The wife and children of the accused were not there. But the accused was present. Accused invited her inside, caught hold of her hands, dragged her inside and raped her. She felt pain and cried, but he warned her not to make any sound. After the incident the accused asked her to wash herself and warned her not to state to anyone what happened. When she wept she was threatened. After she went home, she narrated the incident to her mother and sister when they returned from work. Then they went to PW.4 and reported the incident. PW.5, the Secretary was not in station and they were told by PW.4 to wait the return of PW.5. On 12-3-1991 PW.5 returned and the matter was reported to him. He directed them to the Managing Director. PW.1 has also spoken about going to the hospital, giving the F.I. Statement and questioning by C.I. of Police. She has also stated that immediately after the incident, she washed her private parts. She has given evidence that she had washed her clothes which she was wearing two or three times thereafter. In Ext. P1 statement recorded on 13-3-1991, i.e. 11 days after the incident, PW. 1 has stated that she told her mother about the incident and pain in her private parts the previous day. But we think this is only a mistake because there is clear evidence of PWs. 4 and 5 stating that PWs. 1 to 3 met PW.4 at about 7 p.m. on 2-3-1991 itself. Therefore, there is no force in the contention that PW.1 stated the incident to her mother only on 12-3-1991. 9. The evidence of PWs. But we think this is only a mistake because there is clear evidence of PWs. 4 and 5 stating that PWs. 1 to 3 met PW.4 at about 7 p.m. on 2-3-1991 itself. Therefore, there is no force in the contention that PW.1 stated the incident to her mother only on 12-3-1991. 9. The evidence of PWs. 4, 5, 6 and 7 clearly establishes that at the time of incident the accused was not on duty and that he took leave from evening duty and left the place. The evidence of PW.6 will clearly establish that the wife and children of the accused left the house at 9.30 a.m. Therefore the accused must have been alone in his house. 10. The evidence of PW.2, the mother of PW.1. substantially corroborates the testimony of PW.1. She says that she belongs to Paniya community and does not know the caste of the accused. According to her, PW. 1 was aged 15 when she was examined. She remembers that the incident took place on a Saturday and when herself and daughters came to take food from the house, PW.1 was not present there, though she had prepared food and kept it for them. They took food and left for work again and when they returned in the evening they found PW.1 weeping and when asked about the reason she stated that she had gone to the house of the accused and she was raped by him. She says that immediately herself. Kalyani and PW.3, son-in-law along with PW.1 went to PW.4 and reported the matter. That is the custom in the estate. The Assistant Manager, PW.4 told them that the Secretary was on leave and asked them to wait for his return. It is seen that questions are put to this witness that one of her son-in-law is a Christian, it was a love marriage and her moral standards are not high. We do not think that these circumstances will in any way discredit the testimony of PW.2. PW.2 is the mother of PW. 1 and as soon as her daughter complained about the incident, she naturally went and reported the matter to PW.4 and she was asked to wait till the Secretary returned. There is absolutely nothing unnatural in her evidence. Her evidence would establish that soon after the incident PW.1 mentioned it to PW.2 and thereafter the authorities were informed. 11. 1 and as soon as her daughter complained about the incident, she naturally went and reported the matter to PW.4 and she was asked to wait till the Secretary returned. There is absolutely nothing unnatural in her evidence. Her evidence would establish that soon after the incident PW.1 mentioned it to PW.2 and thereafter the authorities were informed. 11. PW.3 is the son-in-law of PW.2 and his evidence corroborates that of PW.2. Some suggestion is put to him that he was not in good terms with the accused and he had engineered the whole incident against the accused out of his enmity. It it true that his marriage was a love marriage. But there is nothing to show that he cannot be believed when he had stated that immediately after the incident he along with PWs. 1 and 2 went to PW.4 which is corroborated by the evidence of PW.4. He has stated that it was the custom that whenever there is complaint against workers, it is to be reported to him and he will-report it to the Secretary. As Secretary was on leave, be asked PWs. 1 to 3 to wait till he returned. He also stated that he got statements from PWs. 1 to 3. PW.5 Secretary states that he was on leave from 28-2-1991 to 11-3-1991 and when he returned from leave, PW.4 reported about the complaint and incident and he informed the Managing Director (Sub-Collector). The statements made by the witnesses and PW.1 were placed before him and on his advice PW.4 sent PW.1 to the Government Hospital. 12. The medical evidence would show that no injuries were noticed in the private parts and her hymen was torn. The doctor would say that there is no evidence of an injury and the vaginal swab was not taken as the incident was on 2-3-1991 and the examination was on 13-3-1991 and spermatozoa would have died by the time and no purpose will be served. Anyway she has also stated that if there were minor abrasions, within that period of time it would have healed. As regards the presence of spermatozoa in the clothes worn by the victim at the time of incident, the evidence is that MOs. 1 to 3 were washed at least three times before they were produced and the chemical examiner naturally did not detect any spermatozoa in those clothes. 13. As regards the presence of spermatozoa in the clothes worn by the victim at the time of incident, the evidence is that MOs. 1 to 3 were washed at least three times before they were produced and the chemical examiner naturally did not detect any spermatozoa in those clothes. 13. There is thus only the testimony of PW.1 as direct evidence of the incident. Certain portions of the prosecution story received support from her evidence. The substantial circumstance is the fact that the girl reported the matter to her mother immediately on her return from work and the mother took the girl to the Assistant Manager immediately at 7 p.m. on the same day which is corroborated by the Assistant Manager (PW.4) himself, which is a strong circumstance. There is no reason at all to disbelieve the evidence of the prosecutrix who is an Adivasi uneducated girl. It is seen that the accused was preparing for this because he knew that his wife and childern would go to Vythiri for the festival and he had asked the girl to go to his house in the afternoon after sending them in the morning. He went to Vythiri only in the evening. 14. Though Sri. Ramakrishnan Nair argued that there is delay in filing the F.I. Statement after the incident, there is clear and satisfactory explanation for this because on the very same day the matter was reported to PW.4. 15. Then the question remains whether the victim had given consent. The evidence of PW. 12, the District Police Surgeon shows that he conducted physical, dental and radiological tests and has given evidence that the girl must be above 14 but below 16. The mother of the victim also stated that her daughter was about 15 years at that time. It is therefore clear that the victim was a minor at the time of incident and no question of she being a consenting party to the incident arises. The Court below was therefore right in finding the accused guilty of the offence under Sec. 376 IPC. The accused had threatened her not to reveal the incident to anyone. The Court below was right in convicting him under Sec. 506 IPC. 16. The other point for consideration is whether the accused is guilty of the offence under Sec. 3(2)(v) of the Act. The accused had threatened her not to reveal the incident to anyone. The Court below was right in convicting him under Sec. 506 IPC. 16. The other point for consideration is whether the accused is guilty of the offence under Sec. 3(2)(v) of the Act. There is evidence to show that the victim belongs to a Scheduled Tribe. There is absolutely no evidence to show that the accused belongs to higher caste. He is a Tamilian and in Ext. P15 certificate the Tahsildar states that his caste is not known. When questioned under Sec. 313 the accused stated that he belongs to Thiyya community. The Court below seems to have accepted this and the evidence of PWs. 2 and 3 in coming to the conclusion that he belongs to an upper caste. 17. Sec. 3(2)(v) reads thus : "Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - xxx xxx xxx (v) 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." This Act was enacted to prevent atrocities against members of Scheduled Castes and Scheduled Tribes and to provide special Courts for trial of such offences. "Atrocity" is defined in Sec. 2(1)(a) to mean an offence punishable under Sec. 3. Sec. 3 creates independent offences relating to such atrocities and they stand by themselves. To attract Sec. 3(2)(v) the following ingredients must be established : 1) the offender should not be a member of a Scheduled Caste or a Scheduled Tribe; 2) he must commit an offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more; 3) the commission of such offence must be against a person or property of a member of a Scheduled Caste or a Scheduled Tribe; 4) the offence must have been committed on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe. All the above ingredients must be established by the prosecution before requesting the Court to enter a conviction under this Section. All the above ingredients must be established by the prosecution before requesting the Court to enter a conviction under this Section. The burden is certainly on the prosecution in this respect as in any other criminal cases. The accused is a Tamilian and Ext. P15 certificate issued by the Tahsildar shows that his caste is not known. The Court below appears to have entered a conviction only because the accused stated that he is a Thiyya (which is not a fact) and the victim belongs to a Scheduled Tribe. It is not proved that the accused is not a member of a Scheduled Caste or a Scheduled Tribe. The prosecution ought to have investigated into this aspect and obtained a certificate from the concerned Tamilnadu authorities as to the community to which the accused belongs and the fact whether he is a member of a Scheduled Caste or a Scheduled Tribe. No evidence is adduced by the prosecution to show that the accused committed rape on PW.1 on the ground that she is a member of a Scheduled Tribe. It is not enough if the victim is a member of a Scheduled Caste or a Scheduled Tribe. The offence must have been committed because the victim is a member of Scheduled Caste or a Scheduled Tribe. The cause for the offence must contain an element of racial prejudice. 18. The Madhya Pradesh High Court Karansingh v. State of M.P. (1992 Crl.L.J. 3054) has observed that as special and stricter provisions have been made in the Act, it is the duty of the prosecution to examine the case more carefully. Registration of the offence under the Act only because the complainant party belonged to a Scheduled Tribe and the accused persons did not belong to a Scheduled Tribe or Scheduled Caste was a mechanical exercise of authority and it has to be deprocated. It is also observed that the Courts have to see immediately after a case is brought to it whether an offence under the Act is purely made out prima facie on the material available in the case diary. 19. Sec. 376(2)(f) of the Indian Penal Code states that whoever commits rape on a woman who is under twelve years of age shall be punished for a term which shall not be less than 10 years. PW.1 was aged above 14 but below 16. 19. Sec. 376(2)(f) of the Indian Penal Code states that whoever commits rape on a woman who is under twelve years of age shall be punished for a term which shall not be less than 10 years. PW.1 was aged above 14 but below 16. So the provision contained in Sec. 376 (2) (f) will not be attracted in this case. Under Sec. 376 (1) IPC which is the general Section, any other cases of rape shall be punishable with imprisonment for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years. In this case, we are of the view that the minimum sentence of 7 years imprisonment would meet the ends of justice. 20. In view of the above discussion, the conviction of the accused under Sec. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the sentence imposed cannot be sustained and they are set aside. The conviction under Sec. 376 IPC is confirmed but the sentence is reduced to rigorous imprisonment for a period of seven years. The conviction and sentence for the offence under Sec. 506 IPC are confirmed. The sentences shall run concurrently. 21. The appeals are allowed in part as above. The Crl.R.C. is allowed. Appeals partly allowed.