Judgment : Sudhanshu Dhulia, J. This criminal appeal arises out of a judgment and order dated 18.10.2003 passed by the learned Additional Sessions Judge/2nd F.T.C. Nainital in Sessions Trial No. 296 of 1998, by which trial court has convicted present appellant, namely, Javid under Sections 452, 363, 376 and 323 read with Section 34 of IPC as well as under Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (from hereinafter referred to as “SC/ST Act”) and consequently has sentenced accused/appellant Javid under Section 452 IPC for three years rigorous imprisonment and fine of 1000/-, under Section 363 IPC for three years rigorous imprisonment and fine of 1000/-, under Section 376 IPC for ten years rigorous imprisonment and fine of 1000/-, under Section 323/34 IPC for one year rigorous imprisonment, and in default of payment of fine he was also directed to undergo rigorous imprisonment for six months in each case. The trial court has sentenced accused/appellant Javid under Section 3 (2) (v) of SC/ST Act for life imprisonment and a fine of `2000/- and in default of payment of fine he was also directed to undergo rigorous imprisonment for one year. All the sentences were ordered to run concurrently. 2. Heard Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Amit Kapri, Advocate for the appellant and Mr. P. S. Bohara, Brief Holder for the State. 3. The complainant Man Singh (PW1) son of Madari resident of Village Baanskhera P.S. Kashipur District Nainital, is a “Harizan”* by caste, reported to Station House Officer, Kashipur (Nainital) that his daughter “Nirmawati” was sleeping inside the “Chhappar” (thatched house), and he was sleeping in another room on the night of 23.3.1996. In the morning, his daughter could not be found in the house and he apprehends that someone took her away in the night itself. A search for the girl was made in the morning, but in vain. On 25.3.1996, the complainant along with some other persons again started searching for the girl when they finally discovered the girl in the graveyard. The girl was in a semiconscious state. There were visible injuries on the neck and head of the girl and she was taken to the hospital, where she was admitted. On 25.3.1996, the complainant along with some other persons again started searching for the girl when they finally discovered the girl in the graveyard. The girl was in a semiconscious state. There were visible injuries on the neck and head of the girl and she was taken to the hospital, where she was admitted. The report further states that the age of girl is 12 years and after the girl came to her senses she was taking name of a man called Javid (the present appellant before this Court). Javid son of Folde @ Chhannu resident of village Baanskhera, Nainital, who is also a Wrestler (“Pahalwan”) took away his daughter in the night of 23.3.1996. While the girl was sleeping in her quilt her mouth was clasped and she was lifted and taken to a graveyard and according to the girl she was continuously kicked and slapped. Then, she was forced to take alcohol. She also vomitted. Thereafter, her mouth and eyes were closed by a red cloth. The girl further takes a name of a person who had moustaches, who was amongst the persons who were assaulting her. Later she was also raped. The assailants also tried to throttle her but later gave up the idea. The complainant Man Singh has narrated all these facts in the First Information Report (from hereinafter referred to as FIR). The chik FIR shows that the FIR though was lodged on 26.3.1996 at 6.45 AM and case was registered being crime no. 294 of 1996 against Javid son of Folde @ Chhannu and another persons whose name is not known. The FIR itself has stated that the girl was discovered on 25.3.1996. 4. During the investigation, “Fard” memo of clothes recovered from the girl was also prepared by the police according to which - (1) one white cardigan of which both the sleeves were torn and it had blood stains, (2) one red colour salwar which was torn and having blood stains and (3) one “kurta” which was also torn and having blood stains. 5. The prosecutrix was medically examined by Dr. Yashpal Singh Rawat (who was posted at L. D. Bhatt Government Hospital, Kashipur) for the first time on 25.3.1996 at 8.30 AM. 5. The prosecutrix was medically examined by Dr. Yashpal Singh Rawat (who was posted at L. D. Bhatt Government Hospital, Kashipur) for the first time on 25.3.1996 at 8.30 AM. He noticed and recorded two injuries on the body of the prosecutrix, which are as follows: “(i) Lacerated wound over post auricular region of Size 2 cm X 1 cm X muscle deep – serum present no bleeding. Bluish discolouration of skin present. (ii) Swelling over left side neck area of 2 cm X 8 cm. Bluish discolouration of skin present.” 6. According to the opinion of Dr. Yashpal Singh Rawat, injury nos. 1 and 2 are caused by hard blunt object and both the injuries were caused between 12 to 18 hours prior to the medical examination. According to him the injuries are simple in nature and the age of the prosecutrix is about 15 years. 7. Later on the next day i.e. on 26.3.1996 at 10.30 AM, the prosecutrix was again examined by a lady doctor, namely, Dr. Lilly Khanna who was posted at the relevant time at L. D. Bhatt Government Hospital, Kashipur. She notices old scar mark over left side of cheek of size 8 cm X 1 cm hemispherical, and that the girl is of average built unable to open her mouth and that her weight could not be taken as the patient was bed ridden. In the vaginal examination, she says that vagina shows old healed tear and certain discharges as well. Vagina admits two fingers easily. Two slides made from posterior fornix of vagina, were also taken. Patient was referred to Emergency Medical Officer for other injuries. 8. After recording all this, this lady doctor gives her medical opinion as follows: “no opinion regarding rape can be given as patient is habitual to sexual intercourse!” 9. We must note here that according to the prosecution the age of the prosecutrix is 15 years. It cannot be said with certainty that she is actually 15 years of age but from the records it becomes clear that she in any case is under 16 years of age. The police after investigation filed a charge-sheet against Javid and other four persons, namely, Sher @ Sher Mohhamad, Jagga @ Jagtar Singh, Balram Singh, Raj Pal Singh before the Chief Judicial Magistrate, who committed the case to the court of sessions for trial on 23.6.1998. 10. The police after investigation filed a charge-sheet against Javid and other four persons, namely, Sher @ Sher Mohhamad, Jagga @ Jagtar Singh, Balram Singh, Raj Pal Singh before the Chief Judicial Magistrate, who committed the case to the court of sessions for trial on 23.6.1998. 10. The prosecution in all examined five persons as witnesses. 11. PW1 is Man Singh (complainant) is father of Nirmawati (prosecutrix). Let us first examine the statement of the complainant Man Singh (PW1). 12. (PW1) Man Singh was examined on 25.1.2000. This witness PW1 in his examination-in-chief states that on 23.3.1996 when he was sleeping in the house and his girl was sleeping in the adjacent “Chhappar”, the girl vanished in the night. He searched for her daughter but failed. On 25.3.1996, he along with other persons again searched for the girl and they finally discovered the girl in a graveyard in a semi conscious and injured state. The age of his girl at that time was about 12 years. He admitted his girl to L. D. Bhatt Government Hospital at Kashipur. When the girl gained consciousness, she stated that Javid son of Folde @ Chhannu and other persons took her away when she was sleeping in her “Razai” (quilt). Her mouth was clasped by the intruders and she was lifted forcibly. Thereafter she was kicked and slapped by these persons and then raped. He (PW1) further states that he moved a typed report of this incident on 26.3.1996 at Police Station, Kashipur. The cross-examination of this witness was deferred and was done later on 3.7.2002. He states that he realized in the morning that his daughter has been taken away in the night when she was sleeping with her brother, namely, Hariom whose age at the relevant time was seven years. No other person except the two i.e. brother and sister were sleeping in the “Chhappar” at the relevant time. He further states that he was sleeping in a room which was 2-3 steps away from the place where his daughter was sleeping with her brother. His daughter was discovered about 6.30 AM in the morning of 25.3.1996 in the graveyard. He further states that there was no Chowkidar in the graveyard and the passage to the graveyard is frequented by people who keep coming and going from this passage. When his daughter was discovered from graveyard she was unconscious. His daughter was discovered about 6.30 AM in the morning of 25.3.1996 in the graveyard. He further states that there was no Chowkidar in the graveyard and the passage to the graveyard is frequented by people who keep coming and going from this passage. When his daughter was discovered from graveyard she was unconscious. She was later put on a cot and this cot was loaded on a trolley, which was attached to a Tractor. Thereafter she was taken to the Government Hospital at Kashipur. Near the railway line he (PW1) met the Inspector (“Daroga”). This witness though states that the inspector already had the knowledge about the disappearance and the recovery of the girl but the witness fails to state as to who could have informed the inspector. The inspector, however, immediately took his daughter from the tractor and put her in his vehicle and, the two were taken to the Government Hospital. By this time some other persons of the village also reached the Government Hospital. He does not remember whether during that time elections were going on in the village, as suggested by the defence or that in that election “Pradhan” Avtaar Singh, the brother of accused Jagtaar Singh was contesting for the post of “Pradhan”. 13. (PW2) Nirmawati (prosecutrix) was examined on 25.1.2000. She, in her examination-in-chief, states that her name is Nirmawati. She is wife of Charanjit and her age is between 16 to 17 years*. She further narrates the incident, as already been stated by PW1, that she was taken away on that fateful night by Javid son of Folde @ Chhannu along with another person who had a moustache. They took her to a graveyard and she was asked to drink alcohol and later her feet and hands were tied. She was first taken to the “Kothri” of Jagga where Sher @ Sher Mohhamad, Jagga @ Jagtar Singh, Balram Singh, Raj Pal Singh, Javid and another person who had moustaches were present. All these persons started beating her. Thereafter she was taken near a canal, where she was raped. Her hands and feet were tied with a string. Thereafter she was taken to the graveyard where she was left in an unconscious state. She was kept one night in the “Kothri” of Jagga and one night in the graveyard. She gained conscious only after three days when she met her mother and father. Her hands and feet were tied with a string. Thereafter she was taken to the graveyard where she was left in an unconscious state. She was kept one night in the “Kothri” of Jagga and one night in the graveyard. She gained conscious only after three days when she met her mother and father. She received a lot of injuries in the incident. Her age at the relevant time was about 12 years and she is “Harizan” by caste. She further states that she was medically examined and her X-ray was also taken. Her cross-examination was postponed and was conducted by the defence on 3.7.2002, i.e. after six months. She, in her cross-examination, states that on that fateful night her brother was sleeping with her. She got married 3 years before (i.e. three years prior to the date when she is being examined on 3.7.2002). She could not state correctly how much younger would be her brother compared to her. Apart from two brother and sister no body else were sleeping in the “Chhappar” that fateful night. There was no door in the “Chhappar” where they were sleeping and it was completely dark. She initially did not realize that she was being taken away, when she realized, she tried to make a noise but she was threatened by the assailants that they will tear her stomach, if she shouts again. There was water in the canal and her hands and legs were tied together. She was then taken to the “Kothri”. The “Kothri” belongs to the Jagga where she was given liquor. There are other houses near that “Kothri”. They kept on forcing her to drink. She also vomited. Thereafter, her mouth was covered by a cloth piece. She further states that after this she was raped by about six persons, when her eyes were covered by a cloth. She was then dragged on the ground and as a result her clothes came out of her body. Her father came the next morning. She further states that in the hospital Jagga was saying that she is a good girl and who has done this to her! 14. Another witness PW3, who was examined, was Ram Bharose son of Garib Das who was the resident of the same village i.e. Bans Khera, Kashipur. This witness was examined on 13.9.2002. She further states that in the hospital Jagga was saying that she is a good girl and who has done this to her! 14. Another witness PW3, who was examined, was Ram Bharose son of Garib Das who was the resident of the same village i.e. Bans Khera, Kashipur. This witness was examined on 13.9.2002. In his cross-examination-in-chief he states that he knows the accused persons Javid, Jagga @ Jagtar Singh, Sher @ Sher Mohammad, Balram Singh and Rajpal Singh. This witness has turned hostile and he denied which he has stated to the police under Section 161 of Cr.P.C. 15. PW4 is Anil Kumar Tyagi, who is a formal witness to the chik FIR (exhibit Ka-2) and General Diary (exhibit Ka-3). 16. PW5 Dr. Yashpal Singh Rawat, who was posted at the relevant time at L. D. Bhatt, Hospital, Kashipur had examined the injured prosecutrix on 25.3.1996 at 8.50 AM. He states that at the relevant time the girl was about 15 years of age. He discovered two injuries on the body of the prosecutrix. The injuries could have come by a blunt object and come out 12 to 18 hours prior to the examination, which was done on her on 25.3.1996. 17. The first submission raised by senior counsel for the appellant Ms. Pushpa Joshi before this Court is that the whole story of the prosecution is false and concocted. According to the statement of PW1, he met the inspector in the morning of 25.3.1996 when he was taking his daughter from graveyard. Therefore, the police had actually seen the prosecutrix in that state in the morning of 25.3.1996, yet no FIR was lodged on 25.3.1996. It was only lodged on 26.3.1996. The second contention of the senior counsel for the appellant is that the injuries were registered in the Government Hospital in a register, which is meant to register only the injuries relating to accidents and not for injuries relating to medico legal cases. 18. These two contentions of the senior counsel for the appellant have no force for the reasons that by the time the complainant (Man Singh) had discovered his daughter in the graveyard in the morning of 25.3.1996 she was in unconscious state and she gained conscious later in the Hospital. Therefore, on 25.3.1996 there was no occasion of lodging an FIR. These two contentions of the senior counsel for the appellant have no force for the reasons that by the time the complainant (Man Singh) had discovered his daughter in the graveyard in the morning of 25.3.1996 she was in unconscious state and she gained conscious later in the Hospital. Therefore, on 25.3.1996 there was no occasion of lodging an FIR. The same reason is there for registering the injuries in the register meant for registering injuries relating to accident as till that time it was only a case of accidental injuries. It becomes medico legal case later when the girl regained conscious and narrated what had happened to her. The prosecutrix has stated in no uncertain terms that she was gang raped by these persons. 19. The argument of the appellant is that all this happened in the night when her eyes were covered and therefore she could not tell the names of the persons and hence it is a concocted story. She was first taken to a canal and thereafter in the “Kothri” of Jagga and thereafter to the graveyard. One night she stayed in the “Kothri” of Jagga and the other night at the graveyard where she was repeatedly raped and all through this time she was blindfold and her hands and legs were tied and she was also under intoxication as she was forced to drink liquor. In these circumstances, the defence would argue that she could not have remembered or even identified the persons who had gang raped her. It appears that this aspect did weigh in the mind of the trial court and for this reason the trial court has acquitted all other accused except the present accused/appellant Javid. It is only Javid who is presently before this Court as he has been convicted in the trial. Javid resides in the same village as prosecutrix. It was Javid who had accompanied with another person had kidnapped a minor girl (the prosecutrix) from her house and thereafter along with some other persons had raped her for two continuous days. The girl at the relevant time was a minor and if not 12 years of age was atlesat 15 years of age, and at any event less than sixteen years of age as has come in the medical report as well. It is thus a crime most heinous. The girl at the relevant time was a minor and if not 12 years of age was atlesat 15 years of age, and at any event less than sixteen years of age as has come in the medical report as well. It is thus a crime most heinous. Moreover no benefit can be given to Javid (appellant) as he has been completely identified by the prosecutrix. 20. The prosecutrix who was less than 16 years of age and belongs to a Scheduled Caste community was medically examined in a rather slipshod manner by the doctors and more particularly by the lady Doctor, who was deputed at the relevant time in the Government Hospital. It was her duty to examine her as per the procedure laid down in such cases of sexual offence. Modi’s Medical Jurisprudence & Toxicology states that - “the vaginal secretion from the posterior fornix should always be obtained by introducing a plain sterile cottonwool swab (or 1 ml pipette) and the material obtained on the swab must immediately be transferred to a microscopic slide and spread out in the form of a thin film and fixed. After staining, the slide should then be examined microscopically for the presence of human spermatozoa, which is a positive sign of rape, particularly in the case of children and grown-up virgins”. Although the medical examination done on the body of prosecutrix and the records show that the doctor made two slides of posterior fornix, there is no report on record to suggest as to what happened to it. It is amazing that the two doctors, who had examined the prosecutrix, could not give a definite opinion as to whether rape has been committed on this minor child or not. The only reason assigned by lady Dr. Lilli Khanna is that no definite opinion regarding rape can be given, as the prosecutrix is habitual to sexual intercourse! The lady doctor who had examined the prosecutrix and had given an opinion that she cannot say for certain whether rape has been committed merely for reasons that the prosecutrix is habitual to sexual intercourse. Assuming that the prosecutrix was habitual of sexual intercourse, it cannot be assumed that she has not been sexually assaulted and raped! 21. Apart from the medical examination, report and evidence in the form of PW1, the most material evidence in the present case is the statement of prosecutrix herself. Assuming that the prosecutrix was habitual of sexual intercourse, it cannot be assumed that she has not been sexually assaulted and raped! 21. Apart from the medical examination, report and evidence in the form of PW1, the most material evidence in the present case is the statement of prosecutrix herself. According to the prosecutrix, her age is 12 years, however, as per the doctors’ examination and the medical evidence, she is in any case around 15 years of age and definitely under 16 years of age. The prosecutrix has stated that she was kidnapped and raped, inter alia, by the present appellant. Though the remaining accused persons may have got benefit of doubt by the trial court, cannot be given to the present appellant. 22. It is a settled position of law that in case of sexual offence the statement of the prosecutrix is enough for convicting the accused under Section 376 IPC. Although the way the prosecution has proceeded in the present matter leaves much to be desired and therefore the prosecution must be deprecated, but the facts remain that there is no evidence before the court to disbelieve the statement of prosecutrix given in her examination-in-chief, who stood on her grounds even in the cross-examination and this in itself is enough for the conviction of the accused/appellant. It has been held by the Hon’ble Apex Court in the leading case in State of Maharashtra Vs. Chandraprakash Kewalchand Jain reported in 1990 SCC (Crl) 210 that the victim (in a rape case), should be given the same weight as it is attached to an injured witness and subject to the authenticity of the statement of prosecutrix, it is enough for a conviction. This position of law has been reiterated by the Hon’ble Apex Court in State of Punjab Vs. Gurmit Singh and others reported in (1996) 2 SCC 384 , wherein it has been stated that minor contradictions in the statement of the prosecutrix should not weigh in the minds of the court and cases involving “assault and rape” should be dealt with utmost sensitivity. Here again the same position has been reiterated that the statement of prosecturix is more reliable than that of an injured witness and she is not an accomplice to the crime but rather is a victim of the crime. Again in the case of Vijay @ Chinee Vs. Here again the same position has been reiterated that the statement of prosecturix is more reliable than that of an injured witness and she is not an accomplice to the crime but rather is a victim of the crime. Again in the case of Vijay @ Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC 191 , the above has been reiterated by the Hon’ble Apex Court. In more recent case i.e. State of Uttar Pradesh Vs. Chhotey Lal reported in (2011) 2 SCC 550 , the same position has been reiterated and it has been held that the that the testimony of a prosecutrix if found to be reliable is sufficient to convict the culprit and no corroboration of her statement is necessary. Therefore, we are of the considered view that the evidence against the present appellant was sufficient for the conviction of rape. 23. Senior counsel for the appellant has though argued on another point which is whether the appellant was also liable to be convicted under Section 3 (2) (v) of the SC/ST Act and considering the offence of rape which involves a punishment of ten years and since the rape has been committed on a girl belonging to a Scheduled Caste community by a non-scheduled caste person reading of Section 3 (2) (v) of the SC/ST Act would show a punishment of life imprisonment. The minimum punishment for an offence of rape under Section 376 IPC is seven years and it can also be for a term, which may extend to ten years or even in certain cases for life. The proviso to Section 376 IPC further provides that in case a Court imposes a sentence of imprisonment for a term of less than seven years it can do so for adequate and special reasons to be mentioned in the judgment. In this case, after convicting the accused/appellant for life imprisonment, the trial court has awarded a sentence of life imprisonment not purely under Section 376 but also for holding that it is a case under Section 3 (2) (v) of the SC/ST Act. In this case, after convicting the accused/appellant for life imprisonment, the trial court has awarded a sentence of life imprisonment not purely under Section 376 but also for holding that it is a case under Section 3 (2) (v) of the SC/ST Act. Under the aforesaid provision (Section 3 (2) (v) of the SC/ST Act) if a person, who is not a member of Scheduled Caste or a Scheduled Tribe, community commits an 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 Scheduled Caste or Scheduled Tribe or such property belongs to such member, shall be punished for imprisonment for life and with fine. This Court though finds that under the facts of the present case, and evidence produced by the prosecution though a case under Section 376 IPC and other Sections of which the accused/appellants were charged established beyond doubt, yet no offence under Section 3 (2) (v) of the SC/ST Act has been made out for the simple reason that the evidence produced by the prosecution does not reveal that such a crime was committed due to the fact that she is a member of a Scheduled Caste community. 24. The Hon’ble Apex Court in Ramdas and others Vs. State of Maharashtra reported in (2007) 2 SCC 170 has held that merely because a victim happens to be a girl of Scheduled Caste, it will not automatically attract the above provisions of SC/ST Act in order to convict the accused/appellant. It must be proved that the said offence was committed on the girl because she belonged to a Scheduled Caste community. We find that in order to convict and sentence under Section 3 (2) (v) of the SC/ST Act, there is no evidence on record. Our view is further strengthened by another decision of Hon’ble Apex Court in Dinesh @ Buddha Vs. State of Rajasthan reported in (2006) 3 SCC 771 . 25. Therefore, this Court holds that the appellant has been wrongly convicted for offence under Section 3 (2) (v) of the SC/ST Act. Our view is further strengthened by another decision of Hon’ble Apex Court in Dinesh @ Buddha Vs. State of Rajasthan reported in (2006) 3 SCC 771 . 25. Therefore, this Court holds that the appellant has been wrongly convicted for offence under Section 3 (2) (v) of the SC/ST Act. From the order of trial judge, we find that had there been no charge of offence under Section 3 (2) (v) of the SC/ST Act, the punishment which was to be awarded to the accused was ten years of rigorous imprisonment. We therefore hold that it would serve the ends of justice if the punishment under Section 376 IPC read with Section 3 (2) (v) of the SC/ST Act is converted/reduced from life to that of ten years of rigorous imprisonment. Consequently, we alter the findings on the above score and sentence the accused/appellant Javid as follows: Accused/appellant Javid is sentenced to ten years rigorous imprisonment under Section 376 IPC, and for remaining order we uphold and maintain the conviction and sentence of the learned trial court. 26. Appellant is on bail. His bail is cancelled. Let a copy of this judgment be sent to the trial court to make appellant Javid S/o Foldey @ Chhannu serve out the sentence as modified by this Court. Lower Court Record be sent back.