JUDGMENT 1. - Instant Criminal Appeal has been filed by the appellant Salim Khan S/o Habib Khan, resident of Pratapgarh under Section 374(2) of Cr.P.C. against the Judgment dated 24.8.2005 passed by Special Judge, SC/ST (Prevention of Atrocities Cases), Pratapgarh, Camp Chittorgarh in Sessions Case No. 58/2004 arising out from F.I.R. No. 120/2004 of P.S. Arnod, District-Chittorgarh whereby, the accused appellant has been convicted for offence under Sections 147, 325/149, 376 I.P.C. and 3(2)(v) SC/ST (Prevention of Attrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989') and passed following sentences against him Offence Punishment Section 147 I.P.C. Six months rigorous imprisonment Section 325 read with 149 I.P.C. 3 years rigorous imprisonment and fine of Rs. 500/- in default of payment of fine, to further undergo 15 days simple imprisonment Section 376 I.P.C. 7 years rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine to further undergo one month simple imprisonment Section 3(2)(v) SC/ST (Prevention of Attrocities) Act Life imprisonment and fine of Rs. 1,000/- and in default of payment of fine to further undergo one month simple imprisonment 2. As per facts of the case, the prosecutrix Rakma Meena (PW-2) gave statement in the District Hospital Pratapgarh during treatment on 7.5.2004 to the Sub-Inspector Nand Kishore PW-13 that she went alongwith her family members to Gothameshwar fair on 4.5.2004 for Darshan in the temple but when she was returning back, she got separated from family and alongwith one girl Kali of the village. She was waiting for the family members in the fair but in the fright about 3.00 A.M. when was going for urine, the accused appellant Salim phased her and committed rape. Thereafter, another accused person came there who she cannot identify, also committed rape upon her and some more persons tried to commit rape upon her. It is alleged by the prosectrix that the accused Appellant gave beating to her and due to beating she suffered fracture in her leg. Upon her voice, so may persons came on the spot and Sarpanch of Ratodia Ullage took her to hospital. In the morning on 6.5.2004 son of her elder father 3autam came in the hospital at Pratapgarh where she is under treatment. The prosecutrix further stated that accused appellant Salim committed intercourse against her will and his friends also committed rape with her to whom she cannot identify. 3. In the morning on 6.5.2004 son of her elder father 3autam came in the hospital at Pratapgarh where she is under treatment. The prosecutrix further stated that accused appellant Salim committed intercourse against her will and his friends also committed rape with her to whom she cannot identify. 3. Upon aforesaid complaint, F.I.R. was registered in the Police Station, Pratapgarh under Sections 376, 376/511, 323 I.P.C. and for offence under section 3(2)(v) of Act of 1989.On 7.5.2004 at about 8.30 P.M., the case was registered at Police Station Arnod for aforesaid offence and after investigation and medical examination of the prosecutrix, charge-sheet was filed against the accused appellant whereas, for other known persons, the investigation was kept pending under Section 173(8) of Cr.P.C. 4. The Investigating Officer filed charge-sheet under Section 376 I.P.C. and Section 3(2)(v) of Act of 1989 in the Court of Civil Judge (JD) cum Judicial Magistrate, Pratapgarh on 3.8.2004 from where the case was committed to the Court of Special Judge, SC/ST (Prevention of Attrocities Cases), Pratapgarh.The Trial Court after hearing the arguments upon framing charge framed charge under Sections 147, 376, 325 read with Section 149 I.P.C. and under Section 3(2)(v) of Act of 1989 against the accused appellant. 5. To prove the prosecution case, statement of 19 prosecution witnesses were recorded including the statement of PW-2 Rakma and PW-5 Kali so also PW-14 Dr. Kaushalya Boradiya and PW-17 Dr. Manmal Sankhla. The Trial Court after recording evidence of prosecution recorded statement of accused appellant under Section 313 Cr.P.C. in which the accused appellant stated that story of prosecution is totally false and fracture in the leg of Rakma was caused due to reason that she fell down from the bus and her family members claimed money for the purpose of treatment and upon denial of payment of money, they indulged him in a false case. No evidence in defence was produced by the appellant.Learned Trial Court after hearing final arguments convicted the accused appellant and passed sentence as above. 6. At the threshold, learned Counsel for the appellant is not challenging the finding of conviction for offence under Sections 147, 376 and 325/149 I.P.C. but challenging the finding given by the Trial Court with regard charge for offence under Section 3(2)(v) of Act of 1989. 6. At the threshold, learned Counsel for the appellant is not challenging the finding of conviction for offence under Sections 147, 376 and 325/149 I.P.C. but challenging the finding given by the Trial Court with regard charge for offence under Section 3(2)(v) of Act of 1989. As per learned Counsel for the appellant the Trial Court framed four issued to decide the case in which issue No. 2 was that whether the accused appellant committed rape with the prosecutrix on the ground that she belongs to Scheduled Tribe? For aforesaid issue, there is no evidence on record to prove the said charge because the finding on this issue is based upon presumption of the Trial Court that accused appellant was working on a bus in which prosecutrix was travelling from her village. Further a presumption was drawn by the Trial Court that fair in which the prosecutrix went i.e. Gothameshwar temple fair and said fair was only for the tribal people, therefore, obviously accused appellant was knowing that prosecutrix is belonging to Scheduled Tribe category meaning thereby as per argument of learned Counsel for the appellant, the prosecution has failed to prove its case with regard to charge under Section 3(2)(v) of Act of 1989. Admittedly, No trustworthy evidence is produced except the statement of prosecutrix Rakma in which it is stated by her that rape was committed by accused appellant as well as by 7-8 other persons who were not identified and arrested by the police. 7. Learned Counsel vehemently argued that appellant is not challenging the finding of conviction for the offence under Sections 376,147 and 325/149 I.P.C. but entitled for acquittal from the charge under Section 3(2)(v) of the Act of 1989 because the finding given by the Trial Court for conviction for said offence is based upon presumption and no evidence is produced by the prosecution to prove the said allegation beyond reasonable doubt, therefore, instant appeal may be partly allowed and conviction and sentence passed against the accused appellant for life imprisonment may be quashed. 8. 8. Per contra, learned Public Prosecutor submits that on the one hand, the appellant is not challenging the conviction and punishment for offence under Sections 376, 147 and 325/149 I.P.C. and on the other hand, he is raising voice against the conviction for offence under Section 3(2)(v) of the Act of 1989 which is not acceptable on the ground that before committing offence under Section 376 I.P.C., the appellant was knowing that prosecutrix Rakma belongs to Scheduled Tribe category, therefore, the Trial Court has rightly convicted the accused appellant for offence under Section 3(2)(v) of the Act of 1989 and therefore, no interference is called for in the judgment impugned. 9. After hearing learned Counsel for the parties, we have perused the complete finding of Trial Court with regard to charge under Section 3(2)(v) of the Act of 1989. The Trial Court framed an issue in this regard which reads as under:- " 2- D;k vfHk;qDr us ;g cykRdkj ihfM+rk dk vuqlwfpr tutkfr dk gksus ds vk/kkj ij fd;k\ " Upon aforesaid issue, the Trial Court gave following finding in the impugned Judgment dated 24.8.2005 to hold appellant guilty for offence under Section 3(2)(v) of the Act of 1989 which reads as under:- " 11- fcUnq la[;k 02% bl lEcU/k esa izk;% dksbZ izR;{k lk{; ugha gksrh gSA ekeys esa vk;s rF;ksa] ifjfLFkfr;ksa o lk{; ds izdk'k esa bl fcUnq dks fu/kkZj.k djuk gksrk gSA lk{; esa ;s vk;k gS fd vfHk;qDr dks cl ihfM+rk ds xkao rd pyrh Fkh vkSj vfHk;qDr mlesa vkrk&tkrk Fkk vkSj ihfM+rk mls tkurh FkhA xksres'oj esyk Hkh vkfnokfl;ksa dk gksrk gSA vr% ;g izekf.kr gS fd vfHk;qDr ?kVuk ds igys ls ;g tkurk Fkk fd ihfM+rk vuqlwfpr tutkfr dh gSA fQj Hkh mlus mlds lkFk cykRdkj fd;kA ,slh fLFkfr esa ;g mi&/kkj.k dh tkosxh fd mlus ;g vijk/k ihfM+rk ds lkFk mldh tkfr ds vk/kkj ij fd;kA ;fn nksuksa gh vFkkZr~ ihfM+rk o vfHk;qDr ,d nwljs ls vutku gksrs] fdlh vutku 'kgj ds gksrs rks fLFkfr fHkUu gks tkrhA vr% ;g fcUnq Hkh vfHk;kstu ds i{k esa ,oa vfHk;qDr ds fo:) fu.khZr fd;k tkrk gSA " 10. To adjudicate above finding, we have perused Section 3(2)(v) of the C/ST (Prevention of Atrocities) Act, 1989 which reads as under "(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 Schedule Caste or a Schedule Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine." We have considered the finding given in the impugned Judgment dated 24.8.2005 by the Trial Court for the offence related to offence under Section 3(2)(v) of the Act of 1989 in the light of evidence on 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, the court is required to presume that occurrence of rape took place when prosecutrix went to participate in the Gomatheshwar fair in which tribals are participating but this Court cannot loose sight of the fact that there is no restriction for any citizen to participate and to enjoy the fair in its true sense, therefore, the presumption drawn by the Trial Court for accepting the allegation that accused appellant has committed the offence of rape against the prosecutrix on the ground that she belongs to Scheduled Case or Scheduled Tribe is not acceptable. Further the only assertion is made by the Trial Court to convict the accused appellant for aforesaid offence is that accused appellant was knowing the identify of prosecutrix prior to the offence committed by him but upon this ground also, it cannot be presumed that allegation against the appellant falls under Section 3(2)(v) of the Act of 1989 because the finding for conviction of accused appellant for offence under Section 3(2)(v) of the Act of 1989 is based only upon presumption and there is no other direct evidence upon which it can be said that accused appellant has committed an offence of rape against the prosecutrix for the reason that she belongs to SC/ST category. 11. 11. Further, 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 or Scheduled Tribe category, therefore there is no basis for presumption drawn by the Trial Court so as to convict the accused appellant for offence under Section 3(2)(v) of the Act of 1989. 12. In Section 3(2)(v) of the Act of 1989, the expression "on the ground" has been made subject-matter of decision in number of cases decided under the Act of 1989. In the case of Masumsha Hasanasha Musalman v. State of Maharashtra, reported in AIR 2000 SC 1876 , following adjudication is made by the Hon'ble Supreme Court "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." 13. In the case of Ramdas & Ors. v. State of Maharashtra, reported in AIR 2007 SC 155 , the Hon'ble Supreme Court gave following adjudication in Para 10 of the judgment which reads as under "10. In the case of Ramdas & Ors. v. State of Maharashtra, reported in AIR 2007 SC 155 , the Hon'ble Supreme Court gave following adjudication in Para 10 of the judgment which reads as under "10. 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 High Court has also not noticed any evidence to support the charge under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the proesecutrix 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." 14. Our opinion is further supported by decision of Hon'ble Supreme Court in the case of Dinesh @ Buddha v. State of Rajasthan, reported in AIR 2006 SC 1267 wherein, the Hon'ble Supreme Court held as under "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 Schedules Tribes. In the instance 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 absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for live and fine. 16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f) I.P.C. does not per se become life sentence. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for live and fine. 16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f) I.P.C. does not per se become life sentence. Though learned Counsel for the Statement submitted that even in a case covered under Section 376(2)(f) I.P.C., imprisonment for life can be awarded, it is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant circumstances the imprisonment for life in a given case is permissible. Neither the Trial Court nor the High Court has indicated any such factor. Only be applying Section 3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the sentence is reduced to 10 years. The other question is legality of the compensation awarded. Since the State has not challenged the award of compensation, it is not open to it to question the legality of the award in the present appeal filed by the accused. Therefore, State's challenge to the legality and/or quantum of compensation awarded in without merit. The amount shall be paid to the victim if not already paid within a period of eight weeks." 15. In view of above, it is abundantly clear that the 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/tribes. In other words, it is the duty of the prosecution to prove its case beyond reasonable doubt by leading evidence but here-in-this case, the finding given by the Trial Court on presumption is not sustainable in the eye of law. 16. In view of above discussion, we are of the opinion that the accused appellant is entitled to be acquitted for offence under Section 3(2)(v) of the Act of 1989. 16. In view of above discussion, we are of the opinion that the accused appellant is entitled to be acquitted for offence under Section 3(2)(v) of the Act of 1989. Consequently, the Appeal is partly allowed and the conviction and sentence of appellant Salim Khan S/o Habib Khan passed by Special Judge, SC/ST (Prevention of Atrocities Cases), Pratapgarh, Camp Chittorgarh vide Judgment dated 24.8.2005 in Sessions Case No. 58/2004 for offence under Sections 147, 325/149, 376 I.P.C. is maintained and the conviction and sentence of accused appellant for offence under Section 3(2)(v) SC/ST (Prevention of Atrocities) Act, 1989 is hereby quashed and set aside. It is directed that if appellant has served the sentence for offence under Sections 147, 325/149, 376 I.P.C., then he may be released forthwith, if not required in any other case.Appeal partly allowed. *******