JUDGMENT: A.B. CHAUDHARI, J.: 1. Being aggrieved by the judgment and order dated 28.3.2008 in Session Trial No.54/2006 passed by the Additional Sessions Judge, Akola, convicting the appellant/original accused for the offence punishable under Section 377 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and fine of Rs.1,000/- (Rupees One Thousand Only) in default rigorous imprisonment for one month and further convicting him for the offence punishable under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing him to suffer imprisonment for life and fine of Rs.5,000/- (Rupees Five Thousand Only), in default simple imprisonment for fifteen days, the appellant above named has preferred this appeal. 2. In support of the appeal, the learned Counsel for the appellant made the following submissions. (A) That admittedly there is no direct evidence in the instant case in respect of the commission of the offence for which the appellant was charged and the prosecution is merely relying on the circumstantial evidence. (B) The learned trial Judge committed an error in relying upon the evidence of complainant P.W.3 Sadhana Solanke, the mother of the victim Pinky. There are reasons more than one for which her testimony should have been rejected. In the first place, there is enough evidence on record to show that P.W. 3 Sadhana was residing as a tenant of the appellant on rent of Rs.100/- per month along with her children. There was a dispute amongst landlord and tenant and there is evidence on record to show that an amount of Rs.4,000/- borrowed by her as hand loan was not being repaid and therefore, in order not to repay the amount, she lodged report with the police station. (C) There is evidence on record to show that almost 22 neighbourers had filed a complaint with the police station against the complainant P.W.3 - Sadhana for falsely implicating the appellant. The evidence of P.W. 3 Sadhana, therefore, ought to have been cautiously appreciated, which has not been done by the trial Court. (D) The prosecution did not lead any satisfactory evidence to show that there was really any offence of the unnatural sex as contemplated by Section 377 of the Criminal Procedure Code and no blood was found on the person of the victim. (D) The prosecution did not lead any satisfactory evidence to show that there was really any offence of the unnatural sex as contemplated by Section 377 of the Criminal Procedure Code and no blood was found on the person of the victim. Mere redness of anus was not enough to presume that there was a carnal intercourse. (E) Chemical Analyzer's report clearly supports the case of the accused since the Chemical Analyzer's report does not at all show any blood or semen stains anywhere and therefore, there was no corroborative evidence also. The medical evidence if carefully seen cannot be accepted. (F) The prosecution has thus completely failed to prove offence under Section 377 of the Indian Penal Code for which the appellant was charged. (G) The trial Judge committed a serious error in convicting the appellant for the offence punishable under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, herein after referred to the Act of 1989) when there was absolutely no evidence to show that any offence under the said provisions was at all constituted. The trial Judge further committed an error in awarding sentence of life imprisonment for the said offence under Section 3 (2) (v) of the Act of 1989 particularly when he awarded sentence of 7 years for the offence punishable under Section 377 of the Indian Penal Code. There is absolutely no reason or justification as to why the sentence of imprisonment for life has been awarded for the offence under Section 3 (2) (v) of the Act of 1989. 3. Per contra, the learned A.P.P. supported the impugned judgment and order. She relied on the evidence tendered by the prosecution. She also argued that the evidence of the mother of the victim is fully corroborated by the F.I.R., which was immediately lodged so also the medical report and there is no reason why the prosecution case should be disbelieved on that score. She, thus, prayed for dismissal of the appeal. 4. We have gone through the entire evidence that was adduced by the prosecution before the trial Court. We have heard learned Counsel for the rival parties. P.W.3 Sadhana Solanke, the mother of the victim lodged complaint with the Police Station, Murtizapur on the next day of the incident, which took place on 17.3.2004. 4. We have gone through the entire evidence that was adduced by the prosecution before the trial Court. We have heard learned Counsel for the rival parties. P.W.3 Sadhana Solanke, the mother of the victim lodged complaint with the Police Station, Murtizapur on the next day of the incident, which took place on 17.3.2004. In her deposition before the trial Court, she clearly deposed that on the date of the incident in the night while she was cooking food, her 11 months' daughter Pinky was weeping in the cradle when the appellant came and told her that he would take her care. Accordingly, he took her outside and returned back at 11:00 p.m. with the girl when she was crying loudly and continued to cry for the whole night. In the morning, when she examined her daughter, she found some blood while washing her anus and that the anus was reddish, inflamed and torn. On the next day, she went immediately to the hospital but then Doctor there told her to go to police station. Accordingly, she lodged report to the police station and thereafter process of examination by Doctor etc. was undertaken. She denied the suggestion given to her that she had borrowed Rs.4,000/- from the accused and that she was required to repay that amount to him. The accused also gave her suggestion that he had returned the girl to her after taking her at about 9:00 p.m. within 5 to 10 minutes. Thus, it is the case of the accused that he had taken away the girl at 9:00 p.m. outside the house of this witness and thus there should be no difficulty in rejecting the defence of total denial. According to her, the girl was brought back at 11:00 p.m. by the accused. She produced her caste certificate that she belongs to the Scheduled Tribe 'Pardhi' caste. This certificate has not been seriously challenged. In our opinion, the caste certificate of this witness P.W.3 Sadhana, the mother of the victim is of no relevance since the prosecution failed to produce caste certificate of father of the victim. The evidence of P.W.3 Sadhana on the incident proper is however fully corroborated by F.I.R. (Exh.36) that was lodged by her. Proceeding further with the appreciation of evidence we find that P.W.1 Dr. The evidence of P.W.3 Sadhana on the incident proper is however fully corroborated by F.I.R. (Exh.36) that was lodged by her. Proceeding further with the appreciation of evidence we find that P.W.1 Dr. Nitin Misurkar, Medical Officer deposed that he examined the accused and found him to be competent to perform sexual intercourse. P.W. 2 Dr. Shital Ravankar attached to District Hospital examined the girl and stated that there was redness of anal region so also abrasion as 1 O' clock position and she thus confirmed about carnal intercourse. The fact that anus was torn has not been disputed. The submission made by the learned Counsel for the appellant that absence of smegma and blood stains would negate the prosecution case does not appeal to us. We have substantive evidence of P.W.3 Sadhana Solanke corroborated by F.I.R. (Exh.36) and the evidence of P.W.2 Dr. Shital Ravankar. Apart from that the defence of the appellant/accused is that he had taken the custody of the girl at about 9:00 p.m. and had gone out of the house of the P.W.3 Sadhana, but returned the girl in 5 to 10 minutes. The burden to show that he had returned the girl in 5 to 10 minutes was on the accused but then the same was not discharged by him nor there is anything about it in the statement under Section 313 of the Code of Criminal Procedure. But he maintained the defence of total denial. We, therefore, find that the prosecution has led sufficient evidence to show that the appellant had taken the custody of the girl at 9:00 p.m. from the house of P.W.3 Sadhana and had carnal intercourse with the victim Pinky who was a girl of only 11 months and is thus guilty of the offence punishable under Section 377 of the Indian Penal Code. In so far as the sentence awarded to him is concerned, we do not think that the sentence of 7 years can be said to be on higher side in the peculiar facts of the case, namely the victim being a child of only 11 months and the appellant being a married person subjected the victim to the carnal intercourse. 5. 5. Coming to the next aspect regarding offence under Section 3 (2) (v) of the Act of 1989, it would be appropriate for us first to quote the provisions of Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 which read thus : "Section 3 (2) (v) commits any offence under the Indian Penal 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. (emphasis supplied) 6. Perusal of the above provisions of Section 3 (2) (v) of the Act of 1989 to us clearly show that it must be shown by appropriate and satisfactory evidence that the offences spoken of in sub clause (v) i.e. under Indian Penal Code is committed by the accused on the ground that such person (victim) is a member of Scheduled Caste or Scheduled Tribe. In the case at hand, such person (victim) is a girl of only 11 months. Secondly, P.W. 3 Sadhana, who is the only witness to throw light on this aspect, has nowhere stated in her entire evidence before the trial Court that the commission of the unnatural offence under Section 377 of the Indian Penal Code by the appellant was made with intent by the appellant in his mind or expressed through any other process was on the ground or for the reason that the victim Pinky; a girl of 11 months belonged to Scheduled Tribe. On the contrary, reading of evidence of P.W.3 Sadhana shows that this is a plain and simple case of the accused taking away the girl of 11 months from the custody of this witness and then putting her to carnal intercourse and then returning her back and nothing more. In the case of Dinesh Alias Buddha...Versus...State of Rajasthan, reported in 2006 (3) Supreme Court Cases 771 in para 15, the Apex Court said thus : "15. Sine qua 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 Scheduled Castes or the Scheduled Tribes. Sine qua 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 Scheduled Castes or the Scheduled Tribes. 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 victim since she was a member of a Scheduled Caste. ... In the case of Ramdas and others...Versus...State of Maharashtra, reported in2007 (2) Supreme Court Cases 170 in paragraph no.11, the Apex Court said thus : "11. 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 Castes 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 High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside. 7. We, therefore, find that this is a case of no evidence for recording any adverse finding against the appellant for the charge under Section 3 (2) (v) of the Act of 1989. That apart, perusal of the reasons for holding the appellant guilty for the said offence under Section 3 (2) (v) of the Act of 1989 recorded by the trial Judge nowhere show as to why the appellant has been convicted for the said offence under Section 3 (2) (v) of the Act of 1989 nor the learned Judge has at all referred to the said legal and factual aspect qua Section 3 (2) (v) of the Act of 1989. It appears that the trial Court having found that the victim belonged to Scheduled Tribe jumped to the conclusion that offence under Section 3 (2) (v) of the Act of 1989 was proved. That is not the correct legal position. We, therefore, find consequently that the conviction under Section 3 (2) (v) of the Act of 1989 must be held to be illegal and so also the sentence. In the result, we pass the following order. ORDER (i) Criminal Appeal No.779/2008 is partly allowed. (ii) The judgment and order dated 28.3.2008 passed by the Additional Sessions Judge, Akola in Session Trial No.54/2006 in so far as conviction for the offence punishable under Section 377 of the Indian Penal Code and sentence to suffer rigorous imprisonment for seven years and fine of Rs.1,000/- (Rupees One Thousand Only) in default rigorous imprisonment for one month is confirmed. (iii) The judgment and order dated 28.3.2008 passed by the Additional Sessions Judge, Akola in Session Trial No.54/2006 in so far as conviction for the offence punishable under Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentence to suffer imprisonment for life and fine of Rs.5,000/- (Rupees Five Thousand Only) in default simple imprisonment for fifteen days is set aside. The appellant shall not now undergo sentence for imprisonment for life. (iv) Fees payable to Ms P.D. Rane, learned Counsel appointed for the appellant is quantified at Rs.5,000/- (Rupees Five Thousand Only).