Judgment Rajiv Sharma, J. This appeal is instituted against the judgment/order, dated 12.06.2014, rendered by the learned Special Judge, Una, H.P. in SCST Case No. 3VII/13, whereby the appellants-accused (hereinafter referred to as 'accused' for the sake of convenience), who were charged with and tried for offences punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, Section 376 and 506 read with Section 34 of the Indian Penal Code and Section 3(1)(XII)of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, were convicted and sentenced to undergo rigorous imprisonment for 15 years each with a fine of Rs.10,000/each for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act No. 32 of 2012 and in default of payment of fine, to further undergo simple imprisonment for six months each. They were also sentenced to undergo rigorous imprisonment for one year and fine of Rs.2000/each for the offence punishable under Section 506 of the Indian Penal Code and in default of payment of fine, to undergo simple imprisonment for further one month each. They were further sentenced to undergo rigorous imprisonment for two years and a fine of Rs.5000/- each for the offence punishable under Section 3(1)(XII) of the SCST Act, 1989 and in default of payment of fine, to undergo simple imprisonment for two months each. All these sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that the prosecutrix belongs to village Sanghanai, Police Station, Gagret, District Una, H.P. She was 11 years old and studying in 4th class in Government Primary School at Sanghnai. She used to go to School on foot. She used to leave her house for School at about 7 a.m. and reach School at about 8 a.m. Accused Anil Kumar @ Girish Kumar was running a shop. He used to sell cold drinks, kurkare and biscuits etc. His shop was situated between the residence and School of the prosecutrix. He used to give biscuits, cold drinks etc. to the victim to allure her. He used to remove the clothes of the prosecutrix to make her hear songs and see obscene film clippings on his mobile phone. He also used to make her lie on the bench and thereafter used to commit penetrative sexual assault on her. He used to give biscuits, cold drinks etc. to the victim to allure her. He used to remove the clothes of the prosecutrix to make her hear songs and see obscene film clippings on his mobile phone. He also used to make her lie on the bench and thereafter used to commit penetrative sexual assault on her. He used to do all these acts after pulling down the shutter of his shop. Accused Sushil Kumar also used to come to the shop of accused Anil Kumar @ Girish and give eatables to the prosecutrix. He used to take her to a place under the bridge (pulli) and thereafter, used to have penetrative sexual intercourse with her by saying that he loves her. After doing sexual acts, they used to sent her back to her place. They also told the prosecutrix not to tell about all this and threatened her with dire consequences in case she told about it to anyone. On 31.05.2013, the prosecutrix was late from School. At that time, her aunt Pushpa Devi (PW3) was present in the house, who inquired from her that why she was late, upon which she told that she had come from the path coming from bridge side and then she went to her room and slept. Accused Sushil Kumar came to the house of victim on 02.06.2013 and again on 03.06.2013. When the accused left the house, the prosecutrix told Pushpa Devi (PW3) that the person who had come to their house, i.e., accused Sushil Kumar had been doing wrongful activities with her. Thereafter, PW3 went to School to inquire about it from the School teacher of the victim, who denied any such thing. She also narrated the incident to Anita Kumari (PW1). The matter was reported to the Head Teacher of the School. The FIR was registered on 10.06.2013 vide Ex. PW1/A. The prosecutrix was medically examined. Police visited the spot, prepared the site plan. The statement of the prosecutrix was also recorded under Section 164, Cr.P.C. on 12.06.2013. The accused were also got medically examined from doctor. The investigation was completed and the challan was put up in the Court after completing all the codal formalities. 3. The prosecution has examined 18 witnesses to support its case. The accused were also examined under Section 313 of the Cr. P.C. They pleaded innocence. They were convicted and sentenced, as stated hereinabove. The investigation was completed and the challan was put up in the Court after completing all the codal formalities. 3. The prosecution has examined 18 witnesses to support its case. The accused were also examined under Section 313 of the Cr. P.C. They pleaded innocence. They were convicted and sentenced, as stated hereinabove. Hence this appeal. 4. Mr. N.K. Thakur, learned Senior Advocate has vehemently argued that the prosecution has failed to prove the case against the accused persons. 5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment/order, dated 12.06.2014. 6. We have heard the learned counsel for the parties and gone through the judgment and records, carefully. 7. Anita Kumar (PW1) is the mother of the prosecutrix. She deposed that they belong to Chamar caste. The date of birth of her daughter Priyanka was 25.10.2002. She was student of 4th class in Government Primary School, Sanghnai. She came to know about the incident on 3rd/4th June, 2013 from her sister-in-law (Devrani) Pushpa Devi that the accused persons, namely, Anil Kumar @ Garish and Sushil Kumar @ Pappi had committed wrongful act with her daughter Priyanka. Thereafter, she inquired from her daughter. Her daughter told her that the accused persons had been committing wrongful act with her. Her daughter told her that the accused Anil Kumar @ Garish used to take her inside his shop and after pulling down the shutter of his shop, he used to commit sexual intercourse with her. Her daughter also told her that when the School was closed, accused Sushil Kumar @Pappi used to take her under the bridge at Sanghani and he used to commit penetrative sexual assault with her. She alongwith her devrani Pushpa Devi went to Government Primary School, Sanghani on 07.06.2013 and she told Madam Manju about the incident. Manju told them that the Head teacher was not present. They went to the School continuously for 23 days. She also disclosed the incident to her husband. The matter was reported to the police. FIR Ex. PW1/A was registered. The prosecutirx was medically examined. Clothes of the prosecutrix were also taken into possession. In her cross-examination, she denied the suggestion that there were shops near the School. According to her, the shops were at a walking distance of about 23 minutes from the School. She also denied that abadis were adjacent to the School. FIR Ex. PW1/A was registered. The prosecutirx was medically examined. Clothes of the prosecutrix were also taken into possession. In her cross-examination, she denied the suggestion that there were shops near the School. According to her, the shops were at a walking distance of about 23 minutes from the School. She also denied that abadis were adjacent to the School. She denied that due to enmity, they have planted this case against accused Anil Kumar @ Garish. 8. The prosecutrix (name withheld) was examined on oath as PW2. According to her, she was student of 4th class in Government Primary School at Saghnai. She used to walk to School through link road. The shop of accused Anil Kumar @ Garish was situated in between School and her residence. Accused Anil Kumar was keeping cold drinks, kurkure, biscuits etc. in his shop. Accused Anil Kumar removed her clothes and used to make her hear songs. The accused Anil Kumar also used to keep his mobile on her chest which had obscene film clippings. Accused Anil Kumar also used to make her lie on the bench. He used to commit wrongful act with her. She used to have pain. He used to give her biscuits, cold drinks and kurkure. He used to put down the shutter before doing wrongful act. Accused Sushil Kumar used to take her to a place under the bridge (pulli) and he broke the string of her salwar with a stone. Accused Sushil Kumar committed wrongful act with her which caused pain to her. Sushil Kumar used to state “I Love You”. Both the accused persons used to commit such wrongful act with her. Accused Sushil Kumar used to come to the shop of accused Anil Kumar @ Garish Kumar. Accused after committing crime, used to give her biscuits etc. Accused persons have told her not to narrate the incident to any person. She was sent for medical examination. In her cross-examination, she denied the suggestion that she was tutored by her aunt to make a false statement in the Court. She has further deposed in her cross-examination that on the date of occurence, the boy named Lala was made to sit by the accused on the culvert. She admitted that offender had asked said Lala to keep watch of the area and if somebody come, he should be informed. 9. She has further deposed in her cross-examination that on the date of occurence, the boy named Lala was made to sit by the accused on the culvert. She admitted that offender had asked said Lala to keep watch of the area and if somebody come, he should be informed. 9. Pushpa Devi (PW3) deposed that on 31st May, 2013, the prosecutrix was late from School. She inquired from her as to why she was late. She told that she had come from the path which was coming from bridge side. She went to her room and slept. On 02.06.2013, accused Sushil Kumar @ Pappi came to their house. He again came on 03.06.2013. When the accused left the place, the prosecutrix told her that the uncle who had been coming to their house, had been doing wrongful acts with her. On next day, she went to School and asked Manju Madam. She told her that Shally was telling lie. Shally told her in the School that she was having abdomen pain and due to this, she got her leave from the School. She also took her to dispensary. Prosecutrix told her by pointing towards shop of accused Anil Kumar that accused Anil Kumar after downing the shutter and removing her clothes, had been committing wrongful act with her inside the shop. When they reached near Pulli, prosecutrix told her that accused Sushil @ Pappi after removing her clothes had been committing wrongful act with her under the Pulli. In her cross-examination, she deposed that there was delay in lodging the FIR since all the family members were deliberating whether FIR should be lodged or not. 10. Ravinder (PW4) is the father of the prosecutrix. His wife told him about the incident. Tara Chand (PW5) is a formal witness. Manju Bala (PW6) deposed that in the month of June, 2013, aunt of Priyanka, namely, Pushpa came to her and she informed her that Priyanka had been sexually assaulted by the accused Anil Kumar @ Garish and Sushil Kumar @ Pappi. Smt. Ranjana Pathania (PW7) has proved the birth certificate of the prosecutrix Ex. PW7/A. Lady Constable Smt. Vandana (PW8) is a formal witness. Sh. Manoj Thakur (PW9) has proved the caste certificate of the prosecutrix vide Ex. PW9/A. Smt. Kanta Devi (PW10) has proved the extract of register Ex. PW10/A. The date of birth of the prosecutrix was entered as 25.10.2002. PW7/A. Lady Constable Smt. Vandana (PW8) is a formal witness. Sh. Manoj Thakur (PW9) has proved the caste certificate of the prosecutrix vide Ex. PW9/A. Smt. Kanta Devi (PW10) has proved the extract of register Ex. PW10/A. The date of birth of the prosecutrix was entered as 25.10.2002. Dr. Usha Daroch (PW11) has medically examined the prosecutrix. She issued MLC Ex. PW11/B. On receipt of report of RFSL Ex. PW11/C, she opined that as per clinical examination, there was sign of vaginal penetration. The sexual assault might have taken place about 1015 days prior to her examination. Vijay Kumar (PW12), Naveen Kumar (PW13) and Mohinder Soni (PW14) are formal witnesses. 11. Dr. Sudhi Kaushal (PW15) has issued MLC Ex. PW15/B. Dr. Vinay Kumar (PW16) has examined both the accused and issued MLCs. Ex. PW16/B and Ex. PW16/C. According to these MLCs., the accused were capable of performing sexual intercourse. ASI Vishesh Kumar (PW17) has got the prosecutrix medically examined. Sh. Madan Lal (PW18) deposed that the statement of the victim was recorded under Section 164, Cr. P.C. 12. Sh. Chaman Lal (DW1) has deposed that the abadi as well as cow sheds of Prakash, Habans, Atma Ram and Roshan Lal were situated near the culvert. People oftenly use the said link road. In his cross-examination, he admitted that the abadis were located after the hillock from the culvert. 13. Case of the prosecution, precisely is that the prosecutrix was student of 4th class. She was less than 12 years old, since her date of birth was 25.10.2002. Accused Anil Kumar @ Garish was running a shop. He used to alure the prosecutrix by offering her drinks, kurkure and biscuits etc. He used to commit sexual assault on her by pulling down the shutter of his shop. Accused Sushil Kumar @ Pappi also used to visit the shop of accused Anil Kumar. He used to take the prosecutrix below the bridge (pulli) and used to commit the sexual assault with her. The incident was narrated by the prosecutrix (PW2) to her aunt, namely, Pushpa Devi (PW3). Pushpa Devi (PW3) narrated the incident to Anita Kumari (PW1). They went to the School of the prosecutrix. They were told to lodge the FIR. Thereafter, an FIR was registered on 10.06.2013 vide Ex. PW1/A. The matter was investigated. The prosecutrix was medically examined. Statement of the prosecutrix was also recorded on oath. Pushpa Devi (PW3) narrated the incident to Anita Kumari (PW1). They went to the School of the prosecutrix. They were told to lodge the FIR. Thereafter, an FIR was registered on 10.06.2013 vide Ex. PW1/A. The matter was investigated. The prosecutrix was medically examined. Statement of the prosecutrix was also recorded on oath. She has categorically deposed that accused Anil Kumar @ Garish used to alure her and after pulling down the shutter of his shop, used to commit rape on her. He used to offer her cold drinks, kurkure and biscuits etc. Similarly, accused Sushil Kumar @ Pappi used to visit the shop of accused Anil Kumar @ Garish. He also used to take her below the bridge (pulli) and used to commit sexual assault on her. Accused Anil Kumar @ Garish also used to show her obscene film clippings. She was told not to narrate the incident to anyone. Statement of the prosecutrix was also recorded under Section 164, Cr. P.C. vide Ex. PW2/A. The incident, as noticed hereinabove, was narrated by the prosecutrix (PW2) to her aunt Pushpa Devi (PW3). Pushpa Devi narrated the incident to Anita Kumari (PW1). There is delay in registration of FIR, but the same has been explained. It has come in the statement of Pushpa Devi (PW3) that the matter was deliberated and only thereafter, the FIR was registered. The Court can take judicial notice of the fact that at times there is delay in lodging the FIR since prestige and honour of the family is involved. The statement of the prosecutrix is natural and inspire confidence. 14. Dr. Usha Daroch (PW11) has medically examined the prosecutrix on 10.06.2013. She issued the MLC Ex. PW11/B. Her final opinion after the receipt of RFSL Ex. PW11/C is that there were signs of vaginal penetration. The accused were capable of performing sexual intercourse as per M.L.Cs. Ex. PW16/B and Ex. PW16/C. 15. Mr. Naresh Thakur, learned Senior Advocate has vehemently argued that initially the mother of the prosecutrix had refused to get her daughter medically examined. However, the fact of the matter is that the family had visited the Police Station to register the FIR and thereafter, the prosecutrix was got medically examined from Dr. Usha Daroch (PW11). The date of birth of the prosecutrix has been duly proved by the prosecution. 16. Mr. However, the fact of the matter is that the family had visited the Police Station to register the FIR and thereafter, the prosecutrix was got medically examined from Dr. Usha Daroch (PW11). The date of birth of the prosecutrix has been duly proved by the prosecution. 16. Mr. Naresh Thakur, learned Senior Advocate has also argued that the members of family of the prosecutrix have been convicted for raping a Rajput girl, thus, his clients have been falsely implicated, who belongs to higher caste. There is no merit in his contention. No family would lodge a false case, that too, in a rape case to take revange. Moreover, there is no evidence even to this effect. The accused threatened the prosecutrix with dire consequences if the incident was narrated to anyone. It would fall within the ambit of criminal intimitation. Thus, the prosecution has proved the case against the accused under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and under Section 506 of the Indian Penal Code. 17. Now as far as the offence under Section 3(1)(XII) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, there is no evidence that the accused had raped the prosecutrix for the simple reason that she belonged to Scheduled Caste category. The prosecution has placed on record the caste certificate issued by Sh. Manoj Thakur, Tehsildar, Amb, District Una, H.P. vide Ex. PW9/A. There should be sufficient material on record at the time of framing of the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 18. Their Lordships of the Hon’ble Supreme Court in Masumsha Hasanasha Musalman Vs. State of Maharashtra (2000) 3 Supreme Court Cases 557 have held that 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. Their Lordships have held as under: “5. The trial Court accepted the evidence of Deubai (PW4) and Manoj (PW5). In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. Their Lordships have held as under: “5. The trial Court accepted the evidence of Deubai (PW4) and Manoj (PW5). Manoj corroborated the evidence tendered by Deubai to the extent of having seen the appellant having a Jambiya in his hand when Deubai (PW4) was following him and that he found something very suspicious so he followed both of them. That is how he witnessed the scuffle and the injuries caused by the appellant to the deceased. Deubai admitted in the course of her cross-examination that scuffle took place between the appellant and her husband and her husband fell on the ground, that for considerable time, the scuffle went on; that while on some occasions the appellant was on the ground, on some other occasions her husband was on the ground; that the appellant and the deceased were overpowering each other. PW5 also stated that he saw that in front of the hospital of Dr. Kalwaghe the deceased coming and the appellant was following him with dagger and gave blows of dagger on the person of the deceased. The trial Court found from these circumstances that the appellant had no intention to kill the deceased and that after giving one blow, other injuries had been caused due to scuffle. This was amply supported by the evidence of the Medical Officer that injuries Nos. 2 and 4 to 10 could be caused in the scuffle, or injuries other than injury No. 1 could be caused due to obstruction by the deceased. Therefore, it could not be inferred that the appellant intended to inflict more injuries than injury No. 1. If this aspect is borne in mind, it would be clear that the appellant had given only one blow with the Jambiya resulting in his death and, therefore, the trial Court found that it would not be proper to convict the appellant under Section 302, I.P.C. The argument relating to private defence was straightway rejected for there were no injuries on the person of the appellant and the attack had been made by the appellant himself. The trial Court discarded the evidence relating to discovery of the weapon and jacket for the reasons set forth in the order. The trial Court discarded the evidence relating to discovery of the weapon and jacket for the reasons set forth in the order. The trial Court also convicted the appellant for the offence arising under Section 3(2)(v) of the Act only on the basis that there was no controversy that the victim belonged to the scheduled caste and convicted him.” In the instant case, the ingredients of Section 3(2)(v) of the Act were lacking from the very beginning and the prosecution has not led any evidence to prove this charge. 19. Their Lordships of the Hon’ble Supreme Court have reiterated the same principles in Dinesh alias Buddha Vs. State of Rajasthan (2006)3 Supreme Court Cases 771 and have held that sine qua non for Section 3(2)(v) is that the offence in question must have been committed against a person on the ground that such person is a member of SC/ST. Their Lordships have 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 Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of 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 life and fine.” 20. Their Lordships of the Hon’ble Supreme Court Ramdas and others Vs. State of Maharashtra (2007) 2 Supreme Court Cases 170 have held that the mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Their Lordships have held as under: “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 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. 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 prsecutrix 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.” Thus, the prosecution has failed to prove the case against the accused under Section 3(1)(XII) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 21. Accordingly, the appeal is partly allowed. The conviction and sentence imposed upon the appellants under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and under Section 506 of the Indian Penal Code is upleld, however, their conviction and sentence under Section 3(1)(XII) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is set aside. No costs.