JUDGMENT B.A.Patil, J. - The appellant was charged and prosecuted for having committed rape on the victim who belongs to Scheduled Caste and Scheduled Tribes. The learned Special Judge for Prohibition of Sexual Harassment to Child, 2012 (hereinafter referred to as 'the POCSO Act', for short) and Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC/ST Act', for short) and also III Addl. District and Sessions Judge, Belagavi by judgment dated 10.08.2016 in S.C.No.84/2015 convicted the accused. The accused is requesting interference of this Court to set aside the same. 2. We have heard the learned counsel Sri.Santosh B. Rahut for the appellant/accused and the learned Addl. SPP Sri. V. M. Banakar. 3. The case of the prosecution in brief is that, the victim was belonging to Scheduled Tribe and was aged about 9 years. On 22.12.2014 at about 3.00 pm, knowing fully well that the victim belongs to Scheduled Tribe community and was a minor, the accused took her to a sugarcane field in R.S. No.3/1 by promising her to give one rupee and thereafter he touched her parts of the body and has also caused scratch injuries over her neck and thereafter he had sexually assaulted her. By hearing the cry, the grand mother went to the field and there she noticed that the victim has been sexually assaulted. The accused by seeing the grand mother of the victim ran away from that place and thereafter they brought the victim to the house and the same was informed to her mother and after hearing the same she filed the complaint. On the basis of the complaint a case has been registered in Crime No.257/2014. Thereafter, after investigation charge sheet has been filed. The Special Court took cognizance and secured the presence of the accused and after hearing charge was framed. Accused pleaded not guilty. He claims to be tried and as such trial was fixed. 4. To prove its case, the prosecution got examined 12 witnesses and got marked 15 documents and 12 material objects. The learned Sessions Judge recorded the statement of the accused by putting incriminating material as against him. He denied the same. After hearing both sides, the trial Court came to the conclusion that the materials produced by the prosecution are sufficient to prove the guilt of the accused and convicted the accused. The learned Sessions Judge recorded the statement of the accused by putting incriminating material as against him. He denied the same. After hearing both sides, the trial Court came to the conclusion that the materials produced by the prosecution are sufficient to prove the guilt of the accused and convicted the accused. Challenging the legality and correctness of the same, the accused is before this Court. 5. The main grounds urged by the learned counsel for the appellant/accused are that, the judgment of conviction and sentence is contrary to law, evidence and probabilities of the case. It is his further submission that there is no sufficient material to come to the conclusion that the accused knowing fully well that the victim belongs to Scheduled Tribe had committed sexual act on her. It is his further submission that the evidence of the victim clearly goes to show that she was studying in the school. When the alleged incident is said to have taken place, it was a working day and the victim had also deposed that except lunch hours i.e., at 2.00 O' clock, for rest of the day she will be there in the school. Under these circumstances, the presence of the victim at the sugarcane field and the accused committing rape on her is over ruled. It is his further submission that the independent witnesses who have been examined for having seen the accused along with the victim in the field have not supported the case of the prosecution. Under these circumstances, the evidence of other witnesses is not going to give any strength to the case of the prosecution. It is his further submission that PW2 is also a witness who has seen the accused committing the rape on the victim. But in her cross-examination, she has admitted the fact that, on gagging the mouth, the victim would not be in a position to make hue and cry. If that being the circumstance, then the question of PW2 hearing the screaming voice of the victim and thereafter she being proceeding to the field does not arise at all. That itself goes to show that a concocted and created story has been made by the prosecution to fix the accused in the case. If that being the circumstance, then the question of PW2 hearing the screaming voice of the victim and thereafter she being proceeding to the field does not arise at all. That itself goes to show that a concocted and created story has been made by the prosecution to fix the accused in the case. It is his further submission that PW2 - grand mother was residing at a distance of 2 kms away from the place of incident and for what reason she has come over there has also not been properly explained by the prosecution. In the absence of any such material, the evidence of PW2 is also not trustworthy and reliable. It is his further submission that the trial Court without looking into the provisions of law and facts of the case, has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence. 6. Per contra, learned Addl. SPP vehemently argued and submitted that PW2 is the eyewitness to the alleged incident and she has supported the case of the prosecution. Apart from that, the victim has also supported the case of the prosecution and nothing has been elicited so as to discard her evidence. The evidence of PW3 - victim is also corroborated by the evidence of PW10 - doctor and the certificate got marked at Ex.P10. All these documents clearly goes to show that the hymen of the victim has been ruptured and she has also specifically stated that the accused bitten and scratched her neck with nail and thereafter he has sexually assaulted her. Without there being any material to discard the evidence of the victim, it can be safely held that the prosecution has proved the guilt of the accused beyond all reasonable doubt. It is his further submission that, even though the eyewitnesses have not supported the case of the prosecution, the Court can rely upon the evidence of the victim alone as the evidence of the victim is just like the injured witness. In that light the evidence is sufficient to bring home the guilt of the accused. The trial Court after considering all these aspects has come to a right conclusion and has rightly convicted the accused. There are no good grounds made out to set aside the judgment. In that light the evidence is sufficient to bring home the guilt of the accused. The trial Court after considering all these aspects has come to a right conclusion and has rightly convicted the accused. There are no good grounds made out to set aside the judgment. On these grounds he prayed to dismiss the appeal. 7. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial court records. 8. To prove the case of the prosecution the prosecution has got examined 12 witnesses. PW1 is the panch witness to spot mahazer - Ex.P1. PW2 is the grand mother of the victim. In her evidence, she has deposed that she belongs to harijan community and about one year back at 3.00 pm, she had been to the sugarcane field and she heard the screaming voice in the field of one Kulkarni and when she went and saw, the accused was sexually assaulting the victim and the victim was lying and a towel had been put into her mouth. She deposed that the accused ran away from the place on seeing her. During the course of cross: examination of this witness she admitted the fact that the land of the said witness is at a far distance from the land of Kulkarni and it was at a distance of 2 kms. If she goes to her land she has to travel 2 kms to come to the land of Kulkarni. She has also further admitted the suggestion that, if the cloth had been put into the mouth, the victim would not be in a position to make hue and cry and other suggestions have been denied. 9. Pw5 is the mother of the victim. She has also deposed that about one year back at 3.00 pm, when she was in the house, the victim came and told that the accused had sexually assaulted her and at that time the victim was aged about 9 years. She has filed a complaint as per Ex.P6. Though several suggestions have been made to this witness, nothing has been elicited so as to discard the evidence of this witness. PW3 is the victim. She has filed a complaint as per Ex.P6. Though several suggestions have been made to this witness, nothing has been elicited so as to discard the evidence of this witness. PW3 is the victim. She has deposed that when she was coming from school to go to her house at about 12.00 noon, the accused scratched her face and bite to her cheeks and thereafter he told that he will sexually assault her and told that she should not tell to anybody and he also abused and threatened her. This witness has been partly treated as hostile and when the learned Public Prosecutor cross-examined her, she has admitted that on 22.12.2014 the accused by pleading that he will give chocolate took her to the sugarcane filed and after lifting her dress and removing her innerwear, he sexually assaulted her and the same has been stated before the police. It is further admitted that, thereafter her grand mother came there and rescued her and she has explained the same to her grand mother. She has further admitted that the police have taken her to the hospital and she has also given the statement as per Ex.P3 before the learned JMFC, Belagavi. She has also further admitted that the accused has put his fingers into her private part. During the course of crossexamination she has admitted the fact that the school timings is from 10.00 am to 5.00 pm and the lunch hours will be at 2.00 O'clock and except that school will be there all the time. When she has been crossexamined, she reiterated that the accused had bitten her cheeks and scratched her neck. Apart from that, nothing has been elicited so as to discard the evidence of this witness. 10. Pw4 is the mahazer witness to Ex.P4, whereunder the clothes of the victim has been seized as per MOs. 1 to 5 and clothes of the accused were seized as per MOs. 6 to 12. PW6 is the panch witness to the said mahazer. These witnesses have not supported the case of the prosecution and they have been treated as hostile. PW12 is the eyewitness who has seen the accused taking the victim in the sugarcane crop and PW8 is the owner of the said sugarcane field. These two witnesses have also not supported the case of the prosecution and they have been treated as hostile. PW12 is the eyewitness who has seen the accused taking the victim in the sugarcane crop and PW8 is the owner of the said sugarcane field. These two witnesses have also not supported the case of the prosecution and they have been treated as hostile. PW9 is the student. Though this witness was called before the Court, as she was a minor, when he has been questioned by the Court the Court was not satisfied that he is able to give creditworthy evidence and in that regard he has been dropped. 11. Pw10 is the doctor who has examined the victim. In his evidence he has deposed that, with the history of sexual assault the victim was brought on 22.12.2014 and he found two scratch injuries on her neck and he also found that the hymen was partially torn fresh weed seen and that there was bleeding and as per the dentist and radiologist, the age of the victim was in between 6 to 9 years and he has also collected the swab and clothes of the victim and he has issued the wound certificate as per Ex.P10. He has also given his opinion as per Ex.P11 stating that there is an evidence of recent penetration. During the course of crossexamination of this witness no denial has been made with regard to the sexual assault and other act. His evidence has been withstood. PW11 is the PSI who registered the case on the basis of the complaint and issued the FIR as per Ex.P14. PW12 is the Investigating Officer who investigated the case and filed the charge sheet as against the accused. 12. The first and foremost contention of the appellant/accused is that, though there is no evidence to convict the accused for the offence punishable under the SC/ST Act, the trial Court has erroneously convicted the accused. On perusal of the evidence of PW2, she has deposed that they belongs to harijan community. In order to bring home the guilt of the accused under the SC/ST Act, the prosecution has to establish that the accused was knowing that the victim was the member of the Scheduled Caste or Scheduled Tribe and the prosecution has to clearly establish the fact that the accused was not the member of the same caste. In order to bring home the guilt of the accused under the SC/ST Act, the prosecution has to establish that the accused was knowing that the victim was the member of the Scheduled Caste or Scheduled Tribe and the prosecution has to clearly establish the fact that the accused was not the member of the same caste. If the prosecution has failed to prove the fact that the accused was having knowledge that the victim is the member of the Scheduled Tribe, then the Court cannot convict the accused for the alleged offence. Even though the caste certificate has been produced at Ex.P9, but none of the witnesses have either deposed that the accused was having knowledge with regard to the caste of the victim and in that light he has sexually assaulted the victim. When there is no such legal evidence before the Court, then the trial Court ought not to have convicted the accused under Section 3(1)(xi) and 2(v) of the SC/ST Act. In that light, we are of the considered opinion that the trial Court without application of mind has convicted the accused for the offence under the SC/ST Act and the accused/appellant has made out a case so as to set aside the judgment of conviction and order of sentence under Section 3(1)(xi) and 2(v) of the SC/ST Act. 13. The next contention of the appellant/accused is that, there is no sufficient evidence to convict the accused for the alleged crime under the POSCO Act as well as under Section 376 of the IPC. We have carefully and cautiously gone through the evidence of PWs.2, 3, 5, 7 and 8. Though PW7 is an eyewitness to the alleged incident, he has not supported the case of prosecution and his evidence is not going to help the prosecution in any manner. PW2 is also an eyewitness, but in her examination-in-chief she has deposed that, while passing through sugarcane field she heard the hue and cry and when she entered there, she noticed that the accused was sexually assaulting the victim and by seeing her he ran away. But in cross-examination she has deposed that, if the mouth of the victim is gagged with cloth, it would not be possible to make hue and cry. But in cross-examination she has deposed that, if the mouth of the victim is gagged with cloth, it would not be possible to make hue and cry. When she had gone to the field after hearing the hue and cry and if a cloth had been put into her mouth, she could not be in a position to make hue and cry and in that light, the evidence of PW2 does not repose any confidence of the Court to accept the same. But on perusal of the evidence of the victim , she has clearly deposed before the Court that the accused scratched to her face and bite to her cheeks and threatened her and thereafter he warned her not to make any noise and not to inform the same to anybody, but thereafter he did not do anything. This witness has been partly treated as hostile. When the learned Public Prosecutor has crossexamined her. In the cross-examination she has admitted the fact that on 22.12.2014, the accused by telling her that he will give chocolate took her to the sugarcane field and by lifting her dress and removing the innerwear, he has sexually assaulted her and the same has been stated before the police. She has also further admitted the fact that her grand mother also came there and she had disclosed the said fact to her grand mother and her statement has also been recorded as per Ex.P3 before the JMFC, Belagavi. Though during the course of cross-examination this witness has admitted the fact that the school will be from 10 am to 5 pm, and there will be lunch break only at 2.00 O'clock, but the alleged incident has not been denied by her and even when it was suggested that she was deposing that as per the say of PW3, CW8 and CW9, she has denied the same. 14. It is well established proposition of law that the evidence of the child witness requires corroboration. But in case if the deposition given by the child witness inspires the confidence of the Court and if there are no embellishment or improvement, then the Court may rely upon the evidence of such witness and convict the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Ramesh and Another, (2011) 4 SCC 786 . This proposition of law has been laid down by the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs. Ramesh and Another, (2011) 4 SCC 786 . Para 14 of the said judgment reads as under: "14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 15. Keeping in view the ratio laid down in the decision quoted supra, on perusal of the evidence of PW3, in the first instance she has not supported the case of the prosecution, but when she has been crossexamined by the prosecution, she has fully supported the fact that the accused by luring to give chocolate took her into the sugarcane field and after unwrapping her dress, he sexually assaulted her. This evidence is also corroborated with the evidence of PW10, the doctor who has immediately examined the victim. He has also deposed that the hymen is partially torn fresh weed seen and bleeding was present. He has also given his opinion as per Ex.P11. In that he has opined that there is evidence of recent penetration and there is abrasion present over the neck. When the victim has been immediately taken to the hospital on the same day, i.e., on 22.12.2014 at about 11.50 pm and all the injuries and other aspects have been noticed, this documentary evidence corroborates with the evidence of the victim PW3 and even he has given his opinion that the age of the victim is in between 6 and 9. 16. Taking into consideration all these corroborative evidence produced by the prosecution, it can be concluded that the accused has committed aggravated sexual assault on the minor girl by taking her to the sugarcane field. 16. Taking into consideration all these corroborative evidence produced by the prosecution, it can be concluded that the accused has committed aggravated sexual assault on the minor girl by taking her to the sugarcane field. There is nothing to discard the evidence of the prosecution in this behalf. It is also well settled proposition of law that the evidence of the victim is similar to that of the evidence of the injured witness in an assault. The evidence of the injured witness is trustworthy and credible and the presence of the accused at the place of incident is also not disputed and the victim has suffered with the injuries on her neck and she has been sexually assaulted. 17. As per Section 29 of the POCSO Act, the Special Court is required to presume that the accused has committed an offence under Section 3(5)(vii) and (ix) of the SC/ST Act and it is for the accused to rebut the said presumption. In the present case, the offence alleged against the accused is under Sections 5, 7 and 9 of the POSCO Act punishable under Sections 6, 8 and 10 of the POSCO Act. When the prosecution is successful n proving commission of the offence by the accused in all probability, the presumption as required under Section 29 of the Act is required to be drawn. Further as per Section 30 of the Act, the culpable mental state of the accused is also required to be presumed for committing the offence. But in the present case, the accused has not rebutted these presumptions nor he had taken any specific defence. Therefore, we are of the opinion that the accused failed to rebut the presumption under Sections 29 and 30 of the POCSO Act. 18. Under these circumstances, we are of the considered opinion that the accused has committed sexual assault on PW3 and there is sufficient evidence to bring home the guilt of the accused beyond all reasonable doubt. 19. We have carefully and cautiously gone through the judgment of the trial Court. Though the trial Court has not applied its mind while convicting the accused for the offence under the SC/ST Act, but while convicting the accused under the POCSO Act and also under Section 376 of IPC, it has come to a right conclusion and has rightly convicted and sentenced the accused. Though the trial Court has not applied its mind while convicting the accused for the offence under the SC/ST Act, but while convicting the accused under the POCSO Act and also under Section 376 of IPC, it has come to a right conclusion and has rightly convicted and sentenced the accused. In that light, the judgment of the trial Court is liable to be confirmed. 20. In view of the discussion held by us above, the appeal is allowed in part. The judgment of conviction and order of sentence passed by the learned III Addl. District and Sessions Judge in S.C.No.84/2015 dated 10.08.2016 insofar as the offence punishable under Sections 3(1)(xi) and 3(2)(v) of the SC/ST Act is concerned is set aside and accused/appellant is acquitted of the said offence. But insofar as the offence under Section 376 of IPC and also under Sections 6, 8 and 10 of the POCSO Act is concerned, the same is confirmed. The appeal is disposed of in terms of the above judgment.