JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 11.08.2016, rendered by learned Sessions Judge, District Pauri Garhwal, in Special Sessions Trial No. 19 of 2015 (leading case) and Special Sessions Trial No. 34 of 2015, whereby the appellant was charged with and tried for the offences under Section 376, 366, 506 IPC & Section 3(1)(x)and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989. The appellant was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- under Section 376 IPC. The appellant was also convicted and sentenced to undergo seven years’ rigorous imprisonment under Section 366 IPC. He was further convicted and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- under Section 506 IPC. He was further convicted and sentenced to undergo five years’ rigorous imprisonment and to pay a fine of Rs.5,000/- under Section 3(1)(x) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989. In default of payment of fine, the appellant was ordered to serve out six months’ additional simple imprisonment in above noted offences respectively. All the sentences were directed to run concurrently. 2. The case of the prosecution, in a nutshell, is that PW1 (name withheld) moved a Tehrir report Exhibit Ka-1 to the S.P. Pauri against the appellant with the allegations that the house of the victim and appellant are situated face to face. The appellant Sunil Uniyal had a bad eye on her. The victim belongs to Scheduled Caste community. The appellant belongs to Upper Caste community. On 10.10.2013, she went to the market to buy some goods for marriage of her son. The appellant came there. He forced her to sit on the motorcycle. He drove the motorcycle to Shani Dev Temple. He forcibly put vermilion on her forehead. The appellant, thereafter, forcibly took her towards Jungle of Chauran-Sindi-Jaskot Motor Road by pointing revolver at her. He removed her clothes. He tied her hands and feet by rope. Thereafter, the appellant committed rape on her forcibly. He threatened her. The appellant also visited her house on 07.12.2013 and pelted stones on her house. The FIR was registered. The matter was investigated and the challan was put up against the appellant after completing all the codal formalities. 3. He tied her hands and feet by rope. Thereafter, the appellant committed rape on her forcibly. He threatened her. The appellant also visited her house on 07.12.2013 and pelted stones on her house. The FIR was registered. The matter was investigated and the challan was put up against the appellant after completing all the codal formalities. 3. The prosecution has examined as many as six witnesses in its support. 4. The statement of the appellant was recorded under Section 313 of Cr.P.C. He has denied the case of the prosecution. He has also examined four witnesses in his support. The appellant was convicted and sentenced, as noticed hereinabove. Hence, the present appeal. 5. Learned Advocates for the appellant have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. Learned counsel appearing on behalf of the State has supported the judgment and order dated 11.08.2016. 6. We have heard learned counsel for both the parties and perused the judgment and record very carefully. 7. PW1 prosecutrix (name withheld) has deposed that the appellant was a shop-keeper. He had a bad eye on her. On 10.10.2013, at about 02:00 PM, she had gone with her husband to market place. She was standing at Pauri bus stand. The appellant came there. He gave her lift. He forcibly made her to ride on the motorcycle. He stopped the motorcycle at Shani Dev temple. He forcibly put vermilion on her forehead. Thereafter, he took her towards Chauras-Sindi-Jaskot Motor Road. He removed her clothes. He tied her hand with the rope. She was raped. She raised alarm but nobody came to rescue her. Thereafter, the appellant removed the rope. He threatened her of dire consequences. The appellant confessed his crime. 8. PW2 Budhi Raj, husband of the prosecutrix. According to him, on 10.10.2013, the marriage of his son was to be solemnized. He and his wife had gone for shopping. He came back. PW1 prosecutrix stayed back to buy sweets. The marriage of his son was solemnized on 12/13.10.2013. On 29.10.2013, the wife disclosed to him, the manner, in which the incident has happened. The appellant offered money to his family. 9. PW3 S.I. Jeeto Kamboj is the witness of recovery of Salwar. 10. PW4 Constable Najreen is the formal witness. He has proved the chick FIR. 11. PW5 C.O. Renu Lohani is the second Investigating Officer. On 29.10.2013, the wife disclosed to him, the manner, in which the incident has happened. The appellant offered money to his family. 9. PW3 S.I. Jeeto Kamboj is the witness of recovery of Salwar. 10. PW4 Constable Najreen is the formal witness. He has proved the chick FIR. 11. PW5 C.O. Renu Lohani is the second Investigating Officer. She has deposed that on 22.09.2014, she was posted as C.O. Pauri. The salwar was taken into possession on 04.10.2014. In her cross-examination, she has deposed that earlier Aruna Bharti was the C.O. A-1, the place of incident, was thickly populated area. However, nobody came forward to become witness. In Shani Dev Temple, no witness was found. The rope was also not recovered. No witness was found towards Nethana side. She has also admitted that nobody had told her during investigation that the appellant used to tease PW1 prosecutrix. He had not criminal history. The telephone, on which, the threatening calls were received was not handed over to her. 12. PW6 Constable Yogendra Singh is the formal witness. 13. DW1 Rajani Devi has deposed that the prosecutrix was quarrelsome lady. She has seen the prosecutrix sitting in the shop of the appellant. 14. DW2 Hari Lal Shah has deposed that he has not received any complaint on 08.12.2013. He did not know any Maheshwari Devi. 15. DW3 Madhav Giri has deposed that he was staying in Shani Dev temple for the last seven years. No marriage was solemnized in his presence. He has not heard any cries. 16. DW4 Usha Uniyal is the wife of the appellant. According to her, the salwar was taken from her possession. She has put it in washing machine. 17. The statement of PW1 prosecutrix does not inspire confidence. It is not believable that she could be forcibly taken on motorcycle by the appellant from the busy bus stand, thereafter, to Shani Dev temple and thereafter, Chauras-Sindi-Jaskot motor road. She could raise the alarm at Pauri bus stand and when she was taken to Shani Dev temple. According to the spot map, the distance between A1 i.e. place of incident to Shani Dev temple was more than 01 Km. There was a women police station between A1 to Shani Dev temple. The distance between Shani Dev temple to Badiyargarh Motor Road was 6½ Km. It was a busy road. She has not raised any alarm. According to the spot map, the distance between A1 i.e. place of incident to Shani Dev temple was more than 01 Km. There was a women police station between A1 to Shani Dev temple. The distance between Shani Dev temple to Badiyargarh Motor Road was 6½ Km. It was a busy road. She has not raised any alarm. PW1 prosecutrix has deposed that she was forcibly taken by the appellant by pointing revolver at her. The revolver was not taken into possession. According to her, her hands were tied with rope. The rope was not recovered. The case of the prosecution is that she was threatened by the appellant on telephone. The telephone was never handed to the police, on which, she received threatening calls. 18. The alleged incident has happened on 10.10.2013. The victim should have discussed the incident to her husband immediately. According to PW2 Budhi Raj, the incident was reported to him on 23.10.2013. There is inordinate delay in lodging the FIR, which has not been explained by the prosecution at all. 19. PW5 C.O. Smt. Renu Lohani has also deposed that nobody came forward to witness at the bus stand i.e.A-1, at Shani Dev Temple and that too also at Nethana. In case, the persons have not come forward, she should have taken action against them under the provisions of Cr.P.C. The statement recorded under Section 164 of Cr.P.C. is not substantive evidence. 20. The appellant has also been charged under Sections 3(1)(x) and Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is no evidence led by the prosecution that the rape was committed upon the prosecutrix only for the reason that she was scheduled caste. There should be sufficient material on record at the time of framing of the charge under Sections 3(1)(x) and Section 3(1)(xii) of the Act to this effect. 21. Their Lordships of the Hon’ble Supreme Court in “Masumsha Hasanasha Musalman Vs. There should be sufficient material on record at the time of framing of the charge under Sections 3(1)(x) and Section 3(1)(xii) of the Act to this effect. 21. 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 Sections 3(1)(x) and 3(1)(xii) 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 (PW-5). Manoj corroborated the evidence tendered by Deubai to the extent of having seen the appellant having a Jambiya in his hand when Deubai (PW-4) 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. PW-5 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. 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 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.” 22. In the instant case, the ingredients of Sections 3(1)(x) and 3(1)(xii) of the Act were lacking from the very beginning and the prosecution has not led any evidence to prove this charge. 23. Their Lordships of the Hon’ble Supreme Court have reiterated the same principles in “Dinesh alias Buddha Vs. State of Rajastha” (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. 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.” 24. 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. 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 prosecutrix 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. 25. The prosecution story is not at all believable. The prosecution has failed to prove its case against the appellant beyond reasonable doubt. 26. Accordingly, this criminal aand the judgment and order dated 11.08.2016, rendered by learned Sessions Judge, District Pauri Garhwal, in S.S.T No. 19 of 2015 (leading case) and S.S.T. No. 34 of 2015 is set-aside. The appellant is acquitted of the charges framed against him. The appellant is in jail. Let he be released forthwith, if not required in connection with any other matter. 27. Let a copy of this judgment along with LCR be sent back to the trial court.