JUDGMENT : Ravindra Nath Kakkar, J. This appeal has been preferred against the judgment and order dated 17.9.2010 passed by the Special Judge, SC & ST Act, Kannauj, in S.T.No. 292 of 2008 arising out of Case Crime No.108 of 2003, State vs. Munish, convicting the appellant under Sections 376 I.P.C. and 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short 1989 Act'), and sentencing him under Section 376 IPC for 10 years rigorous imprisonment with fine of Rs.1000/-and in default of payment of fine 6 months rigorous imprisonment and under Section 3(2)(v) of 1989 Act life imprisonment. Both sentences were ordered to run concurrently. 2. The prosecution case, in brief, is that one Chhote Lal who along with his wife used to work at a brick kiln of Bahadurpur village, reported to the police that on 24.5.2008 they were at his tent (dwelling place) at brick kiln. Due to scorching heat the informant along with his four year old daughter Rita was lying on a brick stack. At about 10 O' Clock in the night, appellant Munish who too was engaged for withdrawal of bricks from the kiln, appeared there and said that a ghost had overcome him and requested to light a deepak (earthen lamp) in his name. On being told the informant went to light an earthen lamp and on coming back did not find his 4 year old daughter Rita there. On raising an alarm that his daughter had been taken away by Munish Botham, his wife with Dhaniram and Raghunath rushed to the spot and search was undertaken. They heard the screaming of the girl and in torch light Munish Botham was seen grappling the girl in the Nali of tube well belonging to one Devraj. The girl was weeping and on arriving at the scene, Munish fled. The blood was coming out from her private parts. The informant lodged a first information report which was registered by Constable Clerk Maya Ram at G.D. report no.21 at about 17.30 O' Clock on 28.5.2008. The victim was medically examined by Dr. Renu Singh on 28.5.2008 and medical examination report Exhibit Ka-4 was prepared. The case was investigated by Circle Officer Ram Swarup Singh who inspected the place of occurrence, prepared the site plan (Ex.Ka-7) and after collection of sufficient evidence, submitted charge sheet against the accused appellant. The victim was medically examined by Dr. Renu Singh on 28.5.2008 and medical examination report Exhibit Ka-4 was prepared. The case was investigated by Circle Officer Ram Swarup Singh who inspected the place of occurrence, prepared the site plan (Ex.Ka-7) and after collection of sufficient evidence, submitted charge sheet against the accused appellant. The court took cognizance of the offence and complying with the provisions of Section 207 Cr.P.C. the appellant was provided copies of documents, and since offences were cognizable by Sessions Court, committed the case to Sessions Judge for trial, The Sessions Court framed charge against the appellant under Section 376 I.P.C. read with Section 3 (2)(v) of 1989 Act to which the appellant pleaded not guilty and claimed to be tried. 3. To prove its case the prosecution examined PW-1 Chhote Lal, PW-2 Reena, PW-3 Dr. Renu Gupta, PW-4 Head Constable Maya Ram and PW-5 Ram Swarup Singh, Circle Officer (Investigating Officer). 4. After the prosecution evidence was closed, statements of accused appellant under Section 313 Cr.P.C. were recorded by the trial court. The appellant denied the alleged incident and stated that the appellant was falsely implicated in the alleged incident on account of enmity. 5. PW-1 Chhote Lal, who is the first informant, stated that the incident occurred about 9 months ago at a brick kiln of village Bahadurpur, where he along with his wife used to mould bricks. On the fateful day it was about 10 O' Clock in the night. The informant with his daughter Rita aged about 4 years was lying on a brick stack. At that time appellant Munish came there and said he had been overwhelmed by evil spirit (ghost) and asked him to light an earthen lamp of his name. The informant went to light the lamp and when he returned, he did not find his daughter Rita there. He raised an alarm upon which his wife along with Dhaniram and Raghunath came there and on search being made, he heard screams of the victim. They rushed to her and found that the appellant had grabbed the victim and seeing the informant and others, he fled away. The informant took his daughter and found that the blood was coming out from her private parts and soon noticed that the appellant had sexually assaulted his daughter. Thereupon, the FIR was lodged which he also proved as Ex. Ka-1. 6. The informant took his daughter and found that the blood was coming out from her private parts and soon noticed that the appellant had sexually assaulted his daughter. Thereupon, the FIR was lodged which he also proved as Ex. Ka-1. 6. PW-2 Reena is mother of he victim Rita. She stated in her evidence that about 10 months ago she along with his two year son was sleeping in the hut at brick kiln and her husband with daughter Rita was sleeping on the brick stack. At about 10.00 O' Clock in the night, her husband came in the hut and informed that Munish had been overwhelmed by ghost and so he had to light an earthen lamp for him. When her husband went back to the stack, her daughter was not there. They carried out search here and there and on hearing screams of the girl, they rushed to that direction and reached near a tube well where in the Nali Munish had grabbed the girl and sexually assaulted. However, he managed to flee from the spot seeing the informant and others. 7. PW-3 Dr. Renu Gupta conducted medical examination of the victim Rita and on examination of internal organs it was found that hymen was torn in the shape of 6 O' Clock and perennial tear also was in the same position. It was half cm. deep and extended upto anus with reddish corners. No fresh bleeding was there. Two slides of vaginal smear were prepared by the doctor and were sent for sperm examination. The doctor also proved the medical examination report (Ex. Ka-3). 8. PW-4 Head Constable Maya Ram had registered the first information report (Ex. Ka-6) in the G.D. and PW-5 Ram Swarup Singh, Circle Officer had conducted investigation of the case and prepared the site plan (Ex.Ka-7 and Ex.Ka-8) and after collecting sufficient evidence submitted charge sheet against the appellant. 9. We have heard Sri Ambrish Kumar, learned counsel for the appellant, Sri P.S. Yadav, learned A.G.A. for the State and perused the lower court record. 10. The main contention of the learned counsel for the appellant is with regard to the delay in lodging the F.I.R. His next submission is that the victim was aged about four years but neither her statement under Section 164 had been recorded nor the victim had been produced for cross-examination before the trial court. 10. The main contention of the learned counsel for the appellant is with regard to the delay in lodging the F.I.R. His next submission is that the victim was aged about four years but neither her statement under Section 164 had been recorded nor the victim had been produced for cross-examination before the trial court. It is next submitted that there is neither an eye witness nor independent witness of the alleged incident. The testimony of P.W.1 and P.W.2 are that of related witnesses who are father and mother of the victim. Lastly argued that there is laches and discrepancy in the investigation as statement under Section 164 Cr.P.C. of the victim has not been recorded. The source of light (torch) has not been taken nor produced and there is a contradiction on the point of recovery of the clothes of victim whether it is a 'salwar' or 'frock' and also there is a contradiction in the testimony regarding the colour of the clothes. Learned counsel for the appellant vehemently argued that the offence under Section 3(2)(v) of 1989 Act is not proved, hence prayed to allow the appeal and acquit the accused. 11. Per contra, learned A.G.A. has contended that the judgment of the trial court is just and well reasoned. The finding recorded by the court below of conviction and sentence is based on the ocular testimony corroborated with the medical testimony; there is also an explanation in delay in lodging the FIR. The benefit on the basis of laches and discrepancies in the investigation does not go to vanish the whole prosecution story and the explanation was also given of non-recording of statement under Section 164 Cr.P.C. considering the age of the victim of only 4 years and that the victim was not in a position to withstand the cross-examination and due to the lack of understanding she had not been produced as a prosecution witness. Under the fact and circumstances the testimony of the eye witnesses, namely, P.W.1 Chhote Lal father of the victim and P.W.2 Reena, the mother of the victim establishes the offence of rape against her daughter. So this argument of the learned counsel for the appellant has no merit and accordingly learned A.G.A. prayed for the dismissal of the appeal. 12. We have considered the submissions advanced by both the parties and perused the material available on record. So this argument of the learned counsel for the appellant has no merit and accordingly learned A.G.A. prayed for the dismissal of the appeal. 12. We have considered the submissions advanced by both the parties and perused the material available on record. So far as submission of the learned counsel with regard to the delay in lodging the FIR is concerned, perusal of the record shows that the incident is of 24.5.2008 at about 10 o'clock night and report was lodged on 25.5.2008 at 14.00 p.m. and the distance of the Police Station is 3 kms from the place of occurrence. In the written report (Ex.Ka-1), the complainant Chhote Lal has given an explanation that due to the fear of accused Munish he could not lodge the FIR in the night on the date of incident. 13. With regard to the delay in lodging the FIR, the Hon'ble Apex Court has propounded the principle for the appreciation of the aspect of delay if any caused in lodging of the FIR. Hon'ble Apex Court has laid down the following proposition in the case of Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC Page 379. The relevant paragraph no.12 is reproduced herein under :- “12. The FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.” 14. It is settled law that if delay in lodging the FIR cannot be explained substantively, then it would be fatal to the case of prosecution. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.” 14. It is settled law that if delay in lodging the FIR cannot be explained substantively, then it would be fatal to the case of prosecution. However, it is obligatory on the part of the court to take notice of delay and examine the same in the back drop of the case whether any acceptable explanation has been offered by the prosecution and whether the same deserves acceptance being substantive. In view of the proposition cited above, inference can safely be drawn that the delay should be explained and if not explained even then the court has to consider the aspect of delay in lodging the FIR in the light of totality of evidence and draw inference about the veracity of the prosecution version considering the fact and circumstances of the case which varies from case to case. Moerso, on the score of delay, the entire story of the prosecution cannot be discarded. In the case of Sri Narayan Shah and another Vs. State of Tripura, 2005 (Criminal) Page 410, the Hon'ble Apex Court has held that “mere delay in lodging the FIR is really of no consequence, if the reason is explained because in cases of rape generally the family remains reluctance to report the matter to the Police to save the shame and prestige of the family.” 15. As per the above legal proposition and as we have already stated that in the written report there was an explanation by the complainant, the father that the victim of rape happens to be four year infant and that due to the fear of accused Munish he could not lodge the report of the alleged incident. 16. As per the above legal proposition and as we have already stated that in the written report there was an explanation by the complainant, the father that the victim of rape happens to be four year infant and that due to the fear of accused Munish he could not lodge the report of the alleged incident. 16. With regard to the next submission of the learned counsel that the victim was not produced before the trial court by the prosecution as a witness and the statement under Section 164 Cr.P.C. of the victim was not recorded during investigation, we cannot subscribe any benefit on this score because the age of the victim at the time of commission of the crime was merely four years and as per the prosecution version on 24.5.2008 at about 10 O'clock in the night appellant accused Munish said to the father of the victim that a ghost had overcome him so light a deepak (earthen lamp) in his name and on being told the informant went to light the earthen lamp and when he returned his four year old daughter Reeta was not there. He and his wife rushed to the spot and they heard the screaming of the girl and in the torch light they saw that the accused Munish was grappling the victim in the Nali of the tube well belonging to one Devraj and the girl was weeping and the blood was oozing out from her private part. P.W.1 – father of the victim Chhote Lal and P.W. 2 Reena, mother of the victim, supported the prosecution version. Learned counsel for the appellant was not able to discredit their testimony on the point of time, place and occurrence and naming of the accused and the involvement and complicity of the accused in the commission of the alleged crime. On a careful scrutiny of the evidence available on record and the quality of statement given by P.W.1 and P.W.2 inspire confidence and it is found to be absolutely trustworthy unblemished and is of sterling quality. What would be more relevant is the consistency of the statement right from the starting point till the end, namely, at the time the witness makes the initial statement and ultimately testimony before the court. It is found to be natural and consistent with the case of the prosecution. What would be more relevant is the consistency of the statement right from the starting point till the end, namely, at the time the witness makes the initial statement and ultimately testimony before the court. It is found to be natural and consistent with the case of the prosecution. To be more precise the version of the above said witnesses on the score of prosecution version is found to remain intact. They have stated in their testimony that when they reached the spot after hearing the shrieks of the prosecutrix/victim they saw that the appellant accused Munish grappled the victim at the place of occurrence, i.e., Nali of tube well belonging to one Devraj, blood was oozing out from her private parts of the body. It is of a common prudence that the father and mother of the victim would not speak lie. Under the facts and circumstances as stated above, although it is true that P.W.1 and P.W.2 are father and mother of the victim but only on this ground their testimony cannot be discarded or disbelieved. The court simply has to examine the testimony with due care and caution. As we have already stated the microscopic analysis of their testimony is worthy of credit, therefore, non-production of the victim before the trial court or non recording of the statement under Section 164 Cr.P.C. has no relevance considering the age of the victim and the ocular testimony which has come before the trial court discussed above. 17. So far as the submission made by the learned counsel for the appellant with regard to the deficiency in the investigation such as “non production of the torch”, on this point it would be relevant to record that there are settled legal propositions that only on the basis of faulty or defective investigation testimony of the eye witnesses cannot be brushed aside. If a defective and wrong sketch map has been prepared by the Investigating Officer without inspecting the place of occurrence, the Hon'ble Apex Court in the case of Kalicharan Vs. State of U.P., 2015 (6) ALJ Page 147 held that “on the ground of defective investigation the prosecution case cannot be thrown out. If a defective and wrong sketch map has been prepared by the Investigating Officer without inspecting the place of occurrence, the Hon'ble Apex Court in the case of Kalicharan Vs. State of U.P., 2015 (6) ALJ Page 147 held that “on the ground of defective investigation the prosecution case cannot be thrown out. If there is discrepancy in the preparation of a defective site plan mentioning the wrong details, no benefit can be accorded to the accused where the prosecution witnesses, namely, P.W.1 and P.W.2 father and mother of the victim had clearly and cogently established the date, time and place of occurrence. Under such legal proposition we are of the view that the submissions raised by the learned counsel for the accused appellant has no substance. 18. With regard to the submission raised by the learned counsel for the appellant regarding the recovery of the clothes of the victim and produced during trial and the statements of P.W.1 and P.W.2 has variations, we have given our conscious thought and perused the records of the court below. There is a categorical statement of P.W.1 and P.W.2 that the accused Munish ran away with the underwear of the victim and a frock as stated by P.W.2 and P.W.1 was seized by the Investigating Officer. The articles produced before the court happens to be the salwar. The witnesses were cross-examined at length but nothing unnatural had come on the testimony. So far as the legal proposition is concerned, Hon'ble the Apex Court in the case of State of U.P. Vs. Naresh, (2011) 4 SCC Page 324 held as under :- “In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.” 19. On the basis of the above legal proposition the statement of P.W.1 and P.W.2 so far as the recovery of clothes are concerned, we find that whether salwar or frock hardly matters as it does not go to the root of the case or materially affect the core of prosecution case and as we have already stated that the evidence of P.W.1 and P.W.2 being the father and mother and they had given their eye version of the commission of crime, the presence, involvement and complicity and the commission of crime only against the appellant accused which inspire the confidence and credibility and trustworthiness of P.W.1 and P.W.2. Therefore, we are not inclined to give any benefit on the point of the submission raised by the appellant's counsel. 20. As per the aforesaid discussion so far as the conviction under Section 376 I.P.C. recorded by the court below is concerned, there is nothing on record to show that the injuries of the victim were forged or manufactured. The ocular testimony of P.W.1 and P.W.2, father and mother respectively as regard the commission of the offence of rape is fully corroborated by medical evidence. FIR also supports the ocular testimony of P.W.1 and P.W.2 as well as the medical evidence, the seizure memo of salwar as well as the position of the salwar itself also corroborate the testimony of ocular witnesses of the incident. FIR also supports the ocular testimony of P.W.1 and P.W.2 as well as the medical evidence, the seizure memo of salwar as well as the position of the salwar itself also corroborate the testimony of ocular witnesses of the incident. Running away from the place of occurrence of the accused, which is proved by the eye witnesses P.W.1 and P.W.2, finds support to the prosecution version and the victim was profusely bleeding from her private parts establishes the commission of the offence of rape. 21. Considering the entire aspects of the matter and looking to the circumstances of the case, we are of the view that the judgment and order of conviction and sentence passed by the trial court so far as under Section 376 I.P.C. is well discussed and the lower court has rightly observed that the prosecution has succeeded to prove the guilt of the accused-appellant under Section 376 I.P.C. beyond any reasonable doubt. Accordingly, the judgment and conviction so far as under Section 376 I.P.C. by the court below is concerned is hereby confirmed. 22. The last submission with regard to the commission of offence under Section 3(2)(v) of the 1989 Act, we are in full agreement with the contention raised by the learned counsel for the appellant. For ready reference the provisions of Section 3(2)(v) of the 1989 Act is reproduced herein under :- “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” 23. 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 1989 Act. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste community does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the 'Chamar' Community, there is no other evidence to support the charge under Section 3(2)(v) of the 1989 Act. The Trial Judge was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. Apart from the fact that the prosecutrix belongs to the 'Chamar' Community, there is no other evidence to support the charge under Section 3(2)(v) of the 1989 Act. The Trial Judge was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellant under section 3(2)(v) of the 1989 Act must, therefore, be set aside. So far as the legal proposition is concerned, in the case of State of M.P. & Anr. Vs. Ram Krishna Balothia & Anr, 1995 Criminal Law Journal 2076, Hon'ble Apex Court has observed as under : “The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Schedules Tribes in the eyes of society, and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code.” 24. The expression “on the ground” has been subject matter of decision in a number of cases decided under the 1989 Act. In the case of Masumsha Hasanasha Musalman v. State of Maharashtra, reported in AIR 2000 SC 1786 it was 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 the Section 3(2)(v) of the Act, is constituted.” In the case of Dinesh alias Buddha v. State of Rajasthan, (reported in AIR 2006 SC 1267 ) in paragraph no.15 it was held that “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. 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 absence of evidence to that effect, Section 3(2)(v) has no application.” In the case of Ramdas and Ors. v. State of Maharashtra, (reported in AIR 2007 SC 155) in paragraph no.10 it has been held that “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.” 25. The words “on the ground” shows that the prosecution is required to prove that the target of crime was selected 'on the ground' that he/she belonged to Scheduled Caste or Scheduled Tribe, or that crime was committed for the reason that such person belonged to such community tribe. In other words, it must be shown that if the victim would not have belonged to Scheduled Castes or Scheduled Tribes, the crime would not have been committed. The cause for the offence must contain an element of a caste/racial prejudice. If an accused committed rape on a woman/girl belonging to a Scheduled Caste only to satisfy his sexual lust, without any prejudice of caste to which the girl belonged, he would be guilty of offence under Section 376 I.P.C. but he would not be guilty of offence under Section 3(2)(v) of the 1989 Act, as he did not commit sexual intercourse with the girl on the ground that she was a Scheduled Caste girl. To attract the above mentioned provisions of Section 3(2)(v) of the 1989 Act mere knowledge that the victim belonged to a Scheduled Caste or Scheduled Tribe community or mere intention to commit an offence against a member of a Scheduled Caste or Scheduled Tribe is not sufficient but something more is needed, i.e., a graver kind of mens rea denoted by the phrase “on the ground” in the provision, is required. 26. 26. The Trial 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. 27. In the above circumstances we find that the conviction and sentence for offence under Section 3(2)(v) of the 1989 Act are not sustainable in the eye of law and is liable to be set aside. 28. In the result, the appeal is allowed in part while setting aside the conviction and sentence for the offence under Section 3(2)(v) of the 1989 Act. The conviction and sentence for offence under Section 376 I.P.C. is confirmed. The appellant is acquitted for the charge under Section 3(2)(v) of the 1989 Act. It is made clear that the accused appellant Munish shall now serve out the sentence for the offence under section 376 I.P.C. ———————