Judgement L. MOHAPATRA, J. :- Both the appeals are directed against the judgment and order dated 3-5-2000 passed by the learned Additional District and Sessions Judge, Nayagarh in Special G. R. Case No. 48 of 1998 convicting appellant Dhirendra alias Muna Patra in CRLA No. 137 of 2000 for commission of offence under Sections 366/ 34 and 368/34 of the I. P. C. read with Section 3 of the S. C. and S. T. (P.A.) Act, 1989 as well as under Section 376 of the I. P. C. Appellants in both the appeals have been convicted under Section 3(i)(xi) of the S. C. and S. T. (P. A.) Act. Appellants Tutu alias Bijay Kumar Pattnaik, Debraj Biswal, Balia Baral and Muna Patra alias Dhirendra have also been convicted for commission of offence under Section 366/34 of the I. P. C. Appellants Tutu alias Bijaya Kumar Patnaik. Ayub Khan, Tulu alias Pralaya Kumar Jagdev, Debaraj Biswal, Balia Baral, Gandhia alias Umesh Palal and Dhirendra alias Muna Patra have been convicted for commission of offence under Section 368/34 of the I. P. C. Appellant Debaraj Biswal has further been convicted for commission of offence under Section 25 of the Arms Act. Trial Court has imposed different sentences for conviction under different provisions of the I. P. C. as well as the S. C. and S. T. (P. A.) Act and the Arms Act. 2. Case of the prosecution is that the victim is the daughter of the informant Banamali Jena. The informant at the relevant time was working as a Chief Medical Officer at Gouripur in the State of West Bengal, but the family members were staying in his native village Bhusundpur in the district of Khurda. On 7-4-1998 the victim while standing near Ramachandi temple of Chandpur and waiting for a bus to travel to Khurda for appearing + 2 final year examination at about 12.30 p.m., the appellant Muna Patra came near her driving a jeep bearing Registration No. OAC-2681 and asked her as to where she was to go and also offered her a lift in his vehicle. The victim boarded the jeep on the request of the said appellant and occupied the rear seat. Thereafter said appellant drove the jeep towards Khurda and after covering about 4 k.ms. The victim boarded the jeep on the request of the said appellant and occupied the rear seat. Thereafter said appellant drove the jeep towards Khurda and after covering about 4 k.ms. he stopped the jeep on the direction of other four appellants, namely Tulu Patnaik, Debaraj Biswal, Balia Baral and another who also boarded the jeep in the rear seat and thereafter appellant Muna Patra drove the vehicle towards Chandpur. After crossing some distance on a Kacha road the vehicle stopped near a house situated away from the village Naramanabi. It is alleged that they confined the victim in the said house belonging to one Dinabandhu Ranasingh and thereafter all of them left the place leaving appellant Muna Patra and the victim in the said house. It is also alleged by the prosecution that appellant Muna Patra forcibly committed sexual intercourse with the victim. P. W. 9 was informed about the said kidnapping by his son P. W. 6 on the same day and he came down to his village. He requested appellants Tutu Patnaik and Ayub Khan to give information regarding whereabouts of the victim and only on 10-4-1998 the informant with family members went to the house of appellant Tutu Patnaik from where they were taken to village Badapadar where they met the victim who was found to be surrounded by the appellants. When the informant tried to rescue her, appellant Debaraj threatened him by showing a gun and therefore they could not rescue the victim. Thereafter, all of them came back and tried to rescue the victim in different ways, but having failed in their attempts, they reported the matter to the police at Chandpur by lodging an F. I. R. on 12-4-1998. After receipt of the F. I. R. steps were taken for rescuing the victim and investigation was undertaken. After completion of investigation charge sheet was filed for commission of the offences as stated earlier. It is the case of the prosecution that the victim belongs to Katia by caste which is a Scheduled Caste and therefore the appellants were also liable for commission of offence under Section 3 of the S. C. and S. T. (P. A.) Act, 1989. 3. Plea of defence is complete denial of the prosecution case. It is the case of the prosecution that the victim belongs to Katia by caste which is a Scheduled Caste and therefore the appellants were also liable for commission of offence under Section 3 of the S. C. and S. T. (P. A.) Act, 1989. 3. Plea of defence is complete denial of the prosecution case. It is specific case of defence that the victim had love relationship with Muna Patra and as her marriage was settled by P. W. 9 with another person, and she was not willing to get married at the place where her father had decided, she had expressed her desire to take away from her parents' house. Appellant Muna Patra being an unemployed man, P. W. 9 never approved of such relationship and false case was foisted against him as well as other accused persons. 4. Prosecution in order to prove the charges examined as many as 12 witnesses, but none was examined on behalf of the defence. Trial Court on the basis of the evidence of the victim (P. W. 10) and other evidence available on record found the appellants guilty of the charges as stated earlier and convicted them. 5. Out of 12 witnesses examined on behalf of the prosecution, P. W. 9 is the father of the victim. The victim herself was examined as P. W. 10. P. W. 2 is the uncle of the victim and P. W. 6 is the brother of the victim. P. W. 7 is the mother of the victim. These witnesses stated about kidnapping of the victim by the appellants on 7-4-1998. P. W. 1 is a witness to the seizure of the Jeep in which the victim was taken and P. Ws. 3, 4 and 5 are residents of village Badapadar who have practically stated nothing about the incident. P. W. 3 is stated to be owner of Renubala Bhawan where the victim was kept to meet parents of this witness but this witness supports the case of the prosecution. P. W. 8 is a witness to the seizure and P. W. 11 is the doctor who examined the victim on police requisition and P. W. 12 is the I. O. 6. P. W. 8 is a witness to the seizure and P. W. 11 is the doctor who examined the victim on police requisition and P. W. 12 is the I. O. 6. Learned counsel appearing for the appellants assails the impugned judgment on the ground that conviction of the appellants under Section 3 of the S. C. and S. T. (P. A.) Act is not tenable considering the fact that there is no evidence on record to show that the appellants had knowledge that the victim is a Scheduled Caste and committed the offence as alleged by the prosecution on the ground that the victim is a Scheduled Caste. It was also contended by the learned counsel for the appellants that so far as offence under Section 376 of the I. P. C. is concerned, the two letters exhibited in course of hearing prove that the victim had an affair with appellant Muna Patra and only when P. W. 9 tried to give her in marriage with someone else, she expressed her desire to run way with appellant Muna Patra and she being a consenting party, none of the appellants could have been convicted for commission of offence under Section 366 and 368 of the I. P. C. So far as offence under Section 376 of I. P. C. is concerned, it was contended that the said offence is only attributed to appellant Muna Patra with whom the victim had developed an affair and the victim being aged about 17 years, possibly sexual relationship was with consent and therefore he could not have also been convicted under Section 376 of I. P. C. Learned counsel for the State referring to the evidence of P. W. 10 the victim girl, submitted that neither she had consented for running away with appellant Muna Patra nor she had consented for any sexual intercourse. From her evidence, it appears that she did not know the appellants. In view of such nature of evidence of the victim, corroborated by other evidence, the trial Court was justified in convicting all the appellants for commission of the offences as stated above. 7. In a case of such nature evidence of the victim is of paramount consideration. The victim was examined as P. W. 10. She, in her statement has stated that she is 'Katia' by caste which is a Scheduled Caste. 7. In a case of such nature evidence of the victim is of paramount consideration. The victim was examined as P. W. 10. She, in her statement has stated that she is 'Katia' by caste which is a Scheduled Caste. She has further stated that the occurrence took place on 7-4-1988 and at the time of the incident she was 17 years of age. She has stated that on 7-4-1998 at about 10.30 p.m. she left her house and came to Chandpur to go to Khurda to appear in + 2 examination and reached Chandpur at about 12.30 p.m. She did not find her friends or the bus to go to Khurda. At that time, a jeep came from the taxi stand and stopped near her and the driver of the jeep asked her as to where she would go. She said, that she would go to Khurda and the driver of the Jeep requested her to accompany him since he was also going to Khurda. Thereafter, she boarded the jeep in the rear seat. She has also stated that accused Muna Patra, the driver of the jeep, was not known to hen After proceeding for about 4 kms. the jeep stopped near a lonely place on the indication of a person who was standing with three others there. All the four persons boarded the Jeep in its rear seat. Out of them two caught hold of her two hands and closed the backside by putting the hoods. The jeep moved back and returned towards Chandpur. Her mouth was gagged and she could not raise her voice. After crossing Chandpur the jeep proceeded towards a jungle in a 'katcha-rasta' and stopped near a house. All of them got down and dragged her into the house and after consulting with owner of the house, she was put in a room along with appellant Muna Patra. Appellant Balia guarded the jeep and others dragged her into the house. She was also threatened by all the appellants. After sometime all of them except appellant Muna Patra left the place and then it was 4.30 p.m. Finding the appellant Muna Patra alone in the room, she requested to leave her, but appellant Muna Patra forcibly committed rape on her by undressing her. She has also stated that she was kept in the house from 7-4-1998 to 12-4-1998. After sometime all of them except appellant Muna Patra left the place and then it was 4.30 p.m. Finding the appellant Muna Patra alone in the room, she requested to leave her, but appellant Muna Patra forcibly committed rape on her by undressing her. She has also stated that she was kept in the house from 7-4-1998 to 12-4-1998. During that period appellant Muna Patra committed sexual intercourse on several occasions forcibly. She has also narrated the entire incident as to how she was rescued from the said house. In course of her examination she correctly identified all the appellants in Court. In cross-examination, she has stated that except appellant Muna Patra, other appellants had not shown any indecent behaviour towards her and they also did not have sex with her. The two letters were admitted to be in her handwriting but she stated that she has (scribed the two letters at the instance of the appellant Muna Patra on 10-4-1998 and those letters were exhibited as A and B. Nothing has been brought out in the cross-examination to disbelieve her statement. The evidence of the victim gets corroborated from other sources also. P. W. 2 is the uncle of the victim. He has stated in his evidence that on 7-4-1998 the victim left the house for Khurda to appear in + 2 examination but she did not return till 5 p.m. When she did not return to home her brothers came in search of her and informed him about the said fact. He thereafter accompanied the brothers of the victim and searched for the victim in the house of their relatives, but the victim could not be traced. In Chandpur market, he got information that the victim had been kidnapped by appellant Muna Patra in the jeep belonging to appellant Tutu Patnaik. P. W. 9, father of the victim, came on 8-4-1998 and on 9-4-1998 at about 9 a.m. They met appellant Tutu Patnaik in his house. Father of the victim requested the said appellant to send back the victim and he promised to help, but he was not found in the house from the said date thereafter. On 10-4-1998 at about 9 a.m. they went to the house of the said appellant and they were asked to come at 6 p.m. to meet the victim. At that time, appellant Ayub Khan was also present. On 10-4-1998 at about 9 a.m. they went to the house of the said appellant and they were asked to come at 6 p.m. to meet the victim. At that time, appellant Ayub Khan was also present. P. W. 9, this witness and their respective wives and sons of P. W. 9 came to the house of Tutu Patnaik and waited till 1 a.m. in the night. Thereafter, appellant Tutu Patnaik took all of them in the jeep along with two other appellants namely Ayub Khan and Devaraj Biswal. All of them were taken to Badapadar village near Nachuni to the house namely 'Renubala Bhawan'. On reaching there they found the victim surrounded by some of the appellants. When P. W. 9, father of the victim, tried to rescue her, appellant Devaraj brought a gun from the house and threatened P. W. 9 to kill if, he tries to rescue the victim. Thereafter all of them left the place out of fear and an F. I. R. was lodged. P. W. 6 is the brother of the victim who has also corroborated the evidence of P. W. 2. Similarly, P. Ws. 7 and 9 who are parents of the victim have supported the evidence of P. W.2. From the evidence of these witnesses, it is clear that the victim was kidnapped by the appellants and two of the appellants who took the witnesses to the place where the victim had been kept and P. W. 9, father of the victim, tried to rescue her but he was threatened by appellant Devaraj. Much argument was advanced on behalf of appellant Muna Patra to the effect that the evidence of the victim with regard to the offence under Section 376 of I. P. C. is not corroborated by evidence of P. W. 11, the doctor who examined her. On perusal of the evidence of P. W. 11, we find that the victim was used to sexual intercourse. The doctor has also opined that in absence of any injury on private parts, rape can also be committed. Considering the evidence that the victim was used to sexual intercourse, possibility of injury will be remote. As observed earlier, evidence of P. W. 10, the victim girl, has remained unshattered in cross-examination and it is clear from her evidence that she even did not know the appellants. Considering the evidence that the victim was used to sexual intercourse, possibility of injury will be remote. As observed earlier, evidence of P. W. 10, the victim girl, has remained unshattered in cross-examination and it is clear from her evidence that she even did not know the appellants. It was contended by the learned counsel for the appellant Muna Patra that the victim was having an affair with the said appellant and requested the said appellant to take her away. The two letters exhibited as A and B on which much reliance was placed by the learned counsel for the appellants were written by the victim at the instance of the appellant Muna Patra while the victim was in confinement. We are, therefore, of the view that the prosecution has successfully proved commission of offences under Sections 366/ 368 of the I. P. C. against the appellants as stated earlier as well as the offence under Section 25 of the Arms Act against appellant Debaraj. So far as offence under Section 376 of I. P. C. is concerned, it is well proved so far as appellant Muna Patra is concerned. 8. Coming to the question as to whether appellants could be convicted for commission of offence under Section 3 of the SC and ST (P. A.) Act or not, it appears from the evidence of the prosecution witnesses that nothing has been said by any witnesses to the effect that the victim girl was 'Katia' by caste and the appellants committed the offence on the ground that she is a Scheduled Caste. Similarly, there is also no evidence to show that the appellant Muna Patra committed rape on her on the ground that she is Scheduled Caste. In this connection, reference may be made to a decision of the Apex Court in the case of Masumsha Hasansha Musalman v. State of Maharashtra, reported in (2000) 1 OCR (SC) 521 : ( AIR 2000 SC 1876 ). In this connection, reference may be made to a decision of the Apex Court in the case of Masumsha Hasansha Musalman v. State of Maharashtra, reported in (2000) 1 OCR (SC) 521 : ( AIR 2000 SC 1876 ). Para-9 of the judgment is quoted below : "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." On examination of the entire evidence led by the prosecution before the trial Court, we do not find anything to support the observations made by the Apex Court in the aforesaid paragraph of the judgment. We are, therefore, of the view that conviction of the appellants under Section 3 of the S. C. and S. T. (P. A.) Act is unsustainable. 9. In view of the discussions made above, the appeals are allowed in part. We are, therefore, of the view that conviction of the appellants under Section 3 of the S. C. and S. T. (P. A.) Act is unsustainable. 9. In view of the discussions made above, the appeals are allowed in part. Order of conviction and sentence dated 3-5-2000 passed by the learned Additional District and Sessions Judge, Nayagarh in Special G. R. Case No. 4 of 1998 convicting the appellants in CRLA No. 108 of 2000 under Section 3(1)(ix) of the S. C. and S. T. (P. A.) Act, 1989 and the appellant in CRLA No. 137 of 2000 under Section 3(2)(v) of the said Act are set aside. 10. Conviction of the appellants for rest of the offences is confirmed, so also the sentences imposed by the trial Court. It is stated by the learned counsel for the appellant Dhirendra alias Muna Patra that the said appellant has already served sentence imposed by the trial Court for commission of offence under Section 376 of the I. P. C. as well as other offences, the sentences having been directed to run concurrently. If that be so, he be set at liberty forthwith, if, his detention is not required in connection with any other case. 11. So far as other appellants, namely, Tutu alias Bijaya Kumar Patnaik, Ayub Khan, Gandhia Palei, Balia Baral, Debaraj Biswal and Tulu Jagadev alias Pralaya Kumar Jagadev are concerned, it appears that they have not served sentences imposed by the trial Court and are on bail at present. The trial Court is directed to take steps for apprehending those appellants to serve rest of the sentences. 12. B. K. PATEL, J. :- I agree. Order accordingly.