JUDGMENT : 1. Since these two appeals arise out of a common judgment and order dated 24th July, 2010 passed by the Special Judge/Additional Sessions Judge/Fast Track Court No.1, Saharanpur in Special Sessions Trial No.23 of 2006 (State Vs. Amjad) and Special Sessions Trial No. 23A of 2006 (State vs. Dalbeer), arising out of Crime No. 126 of 2005, under Sections 363, 366, 376 (2) (g) I.P.C. and Sections 3 (1) (xii) and 3 (2) (V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short “S.C./S.T. Act”), Police Station-Nangal, District Saharanpur, whereby both the accused-appellants have been convicted and sentenced them to undergo (i) four years rigorous imprisonment for the offence punishable under Section 363 I.P.C. with a fine of Rs. 3,000/- each, in default thereof, they have to further undergo six months additional imprisonment; (ii) seven years rigorous imprisonment for the offence punishable under Section 366 I.P.C. with fine of Rs. 6,000/- each, in default thereof, they have to further undergo one year additional imprisonment; (iii) 10 years rigorous imprisonment for the offence punishable under Section 376 (2) (g) I.P.C. with fine of Rs. 10,000/- each, in default thereof, they have to further undergo one year additional imprisonment; (iv) life imprisonment for the offence punishable under Sections 3 (1) v) S.C./S.T. Act with fine of Rs. 5,000/- each, in default thereof, they have to further undergo one year additional imprisonment; and (v) two years simple imprisonment for the offence punishable under Sections 3 (1) (xii) S.C./S.T. Act with fine of Rs. 2,000/- each, in default thereof, they have to further undergo three months additional imprisonment, with an observation that all the sentences are to run concurrently, both the appeal are being decided by this common Judgment. 2. We have heard Mr. Virendra Singh Parmar and Mr. Hariom Singh, learned counsel for the accused-appellants and Mrs. Archana Singh, learned A.G.A. for the State and have carefully perused the materials available on record. 3. 2. We have heard Mr. Virendra Singh Parmar and Mr. Hariom Singh, learned counsel for the accused-appellants and Mrs. Archana Singh, learned A.G.A. for the State and have carefully perused the materials available on record. 3. On the basis of a written report given by the brother of the victim namely Mathuram (P.W.-2) stating that he belongs to schedule caste and his sister (victim) aged about 15 years had gone to attend natures call at about 7:00 p.m., on 23.08.2005 but has not returned and on inquiry P.W.-3 and one Vedu, son of Banarasi have informed him (P.W.-2) that the accused persons were following her and they are not available in their house and apparently have enticed the victim, who is a minor, first information report came to be lodged on 27.08.2005 at 4:10 P.M. The victim has been recovered on the same day i.e. 27.08.2006 vide recovery memo (Exh. K-1). As per the recovery memo the police party apprehended the accused-appellant Dalveer from the sugarcane field in the village itself and the victim was also found with him. The recovery has been made at 5:30 P.M. on the date of lodging of the FIR. After recovery of the victim, she was medically examined by the Doctor on the same day. The medical examination report of the victim is marked as Exhibit-Ka-8, wherein no injury has been noticed. It would be worthwhile to reproduce relevant portion of the medical examination report of the victim, which reads as follows: “Sexual character well developed. No mark of injury. Vagina admits two fingers easily. Hymen old healed torn.” 4. After medical examination of the victim, her statement has been recorded by the Investigating Officer under Section 161 Cr.P.C. alongwith other witnesses. After conclusion of the statutory investigation under Chapter XII Cr.P.C., charge-sheet came to be submitted against the accused-appellants under Sections 363, 366, 376 I.P.C. and Section 3 (1) (12) S.C./S.T. Act. The Magistrate concerned took cognizance of the charge-sheet and as the offence was triable by the court of Sessions, committed the case to it, where it was registered as Special Sessions Trial No.23 of 2006 (State Vs. Amjad) and Special Sessions Trial No. 23A of 2006 (State vs. Dalbeer). 5. The Magistrate concerned took cognizance of the charge-sheet and as the offence was triable by the court of Sessions, committed the case to it, where it was registered as Special Sessions Trial No.23 of 2006 (State Vs. Amjad) and Special Sessions Trial No. 23A of 2006 (State vs. Dalbeer). 5. On 1st April, 2006, the concerned Court framed following four charges against the accused-appellants: “That you on 23-8-2005 at about 7 p.m. from the jungle of village Khajoorwala P.S. Nagal, district Saharanpur kidnapped Km. Rakhi, a minor girl aged about 14 years from the lawful guardianship of her parents and you thereby committed an offence punishable under Se. 363 I.P.C. and within my cognizance; Secondly: That you on the aforesaid date time and place kidnapped Km. Rakhi with intent to commit rape upon her and thereby committed an offence punishable under Section 366 of the I.P.C. and within my cognizance; Thirdly: That you in between 23-8-2005 at about 7 p.m. and 27-8-2005 at about 5.30 p.m. in the sugarcane field of Balbir in the jungle of village Khajoorwala within P.S. Nagal, district Saharanpur, committed gang rape on Km. Rakhi and thereby committed offence punishable under Section 376 (6) of the I.P.C. and within my cognizance; Fourthly: That you on the aforesaid date, time and place knowingly that Km. Rakhi belong to a Scheduled Caste lady committed rape on her and thereby committed an offence punishable under Sec. 3 (1) (xii) of the S.C./.S.T. (P.A.) Act and within my cognizance.” The charges were read out to the accused-appellants, who denied the accusation and demanded trial. 6. The prosecution in order to establish the charges levelled against the accused-appellant relied upon documentary evidence, which were duly proved and consequently marked as Exhibits. The same are catalogued herein below: (i) the written report given by Mathuram (P.W.-2) brother of the victim dated 26th August, 2005 has been marked as Exhibit-Ka-3; (ii) the first information report registered on 27th August, 2005 at 19 hours being Crime No. 97 of 2005 has been marked as Exhibit-Ka-5; (iii) the recovery memo of Km. Rakhi (victim) dated 27th August, 2005 has been marked as Exhibit-Ka-1; (iv) the recovery memo of clothes of Km. Rakhi (victim) dated 27th August, 2005 has been marked as Exhibit-Ka-1; (iv) the recovery memo of clothes of Km. Rakhi (victim) dated 27th August, 2005 has been marked as Exhibit-Ka-2; (v) medical examination report of the victim dated 27th August, 2005 has been marked as Exhibit-Ka-8 (vi) supplementary report of medical examination of the victim dated 5th September, 2005 has been marked as Exhibit-Ka-9; (vii) injury report of the victim dated 31st August, 2005 has been marked as Exhibit-Ka-12; (viii) site plan prepared by the investigating officer dated 30th August, 2005 qua the place from where Km. Rakhi has been recovered has been marked as Exhibit-Ka-10; and (viii) site plan prepared by the investigating officer dated 27th August, 2005 qua the place of accused Dalbeer, where Km. Rakhi has been kept after her kidnapping, has been marked as Exhibit-Ka-13. 7. The prosecution has also adduced oral testimony of following witnesses:- “i). P.W.-1, namely, Km. Rakhi, victim; ii).P.W.-2, namely, Mathuram (informant), brother of the victim; iii) P.W.-3, namely, Netrapal, resident of village of victim; iv) P.W.-4, namely, Dr. Ranjana Chaudhary, who prepared the pathology report of the victim; v). P.W.-5, namely, Sub-Inspector Veerpal Singh, who proved chik first information report; vi). P.W.-6, namely, Dr. S. Garg under whose supervision X-ray of victim has been conducted; vii). P.W.-7, namely, Constable Chaman Singh, who proved the recovery memo qua Km. Rakhi dated 27th May, 2005; viii). P.W.-8, namely, Dr. Madhu Saxena, who medically examine the victim and prepared her medical examination report; ix). P.W.-9, namely, Mahak Singh Deputy Superintendent of Police, who submitted the charge-sheet; x). P.W.-10, namely, Dr. M.R. Singh, who examined the external injury of the victim; xi) P.W.-11, namely, Constable Harveer Singh, who proved the carbon copy of site plan dated 27th August, 2005, which has been marked as Exhibit-Ka-14. 8. It is also noticed that Jameela Bano, In-charge/Teacher, Primary School, Khajoor Wala, P.S. Nagan, District Saharanpur and Sameena, house wife, resident of village Khajoorwala, Police Station-Nangan, District-Saharanpur have been summoned under Section 311 Cr.P.C. and they have been examined as Court Witnesses i.e. C.W.-1 and C.W.-2 respectively. 9. The victim/P.W.-1 in her statement has stated that she belongs to scheduled caste and knew the two accused, who are residents of the same village. 9. The victim/P.W.-1 in her statement has stated that she belongs to scheduled caste and knew the two accused, who are residents of the same village. She has stated that at about 07:00 p.m. (evening) she had an altercation with his brother, who asked her to go and therefore, she started going towards her sister’s house and on the way, she came across the two accused, who took her to the sugarcane field and committed offence of rape against her wishes. The accused Amjad was armed with Katta (country-made pistol), while the other accused Dalbeer had a knife. At the time of the said offence, the victim was said to be around 16 years of age and after committing rape, these accused persons kept her in confinement for almost five days, whereafter Police raided the spot and arrested the accused persons and the victim was rescued/freed. In the cross-examination, P.W.-1/victim has remained firm about commissioning of offence of rape on her. The victim has also stated that offence was committed upon her by the accused persons as she belongs to scheduled caste. 10. The two doctors, namely, Dr. Madhu Saxena (P.W.-8) and Dr. M.R. Singh (P.W.-10), who have medically examined the victim as well as Mahak Singh, Deputy Superintendent of Police (P.W.-9), who has investigated the matter along with Sub-Inspector K.P. Singh and submitted the charge-sheet, have also supported the prosecution version. 11. The incriminating material collected during the course of trial against the accused-appellants were confronted to them under section 313 Cr.P.C. wherein the allegations made by the prosecution against them were denied. It was stated that the Muslims in the village had not allowed the Harijans to take out procession from their locality and the accused Amjad and his family had opposed Raj Pal, Village Pradhan as such Rajpal, the Village Pradhan being close to the informant’s family, has got him falsely implicated. In addition to aforesaid stand of accused Amjad, the other accused Dalbeer has stated that he has been falsely implicated on account of village party Bandi. 12. On the strength of the above evidence, the trial court has found the offence of rape and also the offence under the provisions of S.C./S.T. Act, to be committed by the accused-appellants and has convicted both the accused appellants and sentenced them. 13. 12. On the strength of the above evidence, the trial court has found the offence of rape and also the offence under the provisions of S.C./S.T. Act, to be committed by the accused-appellants and has convicted both the accused appellants and sentenced them. 13. Being aggrieved with the impugned judgment and order of conviction and sentence, the accused-appellants have preferred the present criminal appeals. 14. Mr. Virendra Singh Parmar and Mr. Hariom Singh, learned counsel appearing for the accused-appellants submits that the accused-appellants have been falsely implicated and the charge of rape is not established inasmuch as there is no injury on private parts of the victim (P.W.-1) and her hymen was found old, healed and torn and vagina admits two fingers. Submission is that in such circumstances, as the medical opinion does not support the commissioning of rape, the conviction and sentence is bad in law. It is also contended that except the statement of the victim that the offence was committed because she belongs to scheduled caste, there is no other material or evidence which may suggest that the offence was committed on account of the caste identity of the victim or on the ground that she belongs to scheduled caste. It is lastly urged by the learned counsel for the appellants that the arguments were concluded in trial and the judgment was reserved by the court below, whereafter charges were added under Section 3 (2) (v) of S.C./S.T. Act and the accused-appellants have not been confronted on the added charge under Section 313 Cr.P.C. On the cumulative strength of the aforesaid, learned counsels appearing for the appellants submit that the impugned judgment and order of conviction ought not be sustained and the appeal be allowed. 15. Per contra, Mrs. Archana Singh, learned A.G.A. for the State, supporting the judgment and order of conviction, submits that the oral deposition of the victim is not contradicted by her medical examination report and other prosecution witnesses have supported the prosecution case, as also the victim has been recovered from the custody of accused-appellant Dalbeer. As such the offence alleged has rightly been found proved against the accused appellants. Last submission is that in such circumstances, the impugned judgment and order of conviction does not suffer from any illegally and infirmity so as to warrant any interference by this Court. As such the offence alleged has rightly been found proved against the accused appellants. Last submission is that in such circumstances, the impugned judgment and order of conviction does not suffer from any illegally and infirmity so as to warrant any interference by this Court. As such both the appeals filed by the accused-appellants are liable to be dismissed. 16. We have considered the submissions made by the learned counsel for the parties and have carefully examined the original records of the case as well as the impugned judgment and order of conviction challenged before us. 17. It is in the context of above submissions and materials placed on record before the Court that this Court is required to consider as to whether the prosecution has established the guilt of accused-appellants on the basis of evidence on record beyond reasonable doubt? 18. The prosecution version clearly states that the victim is minor and she was enticed away by the accused-appellants when she left to attend the natures’ call at about 07:00 p.m. in the evening. P.W.-1/victim in her statement however has stated that she had a fight with her brother and she was going towards her sister’s house. On the way when the victim met the accused-appellants, they took her to the sugarcane field and committed offence of rape upon her. The statement of the victim is categorical in that regard. Although the victim has been cross-examined at great length but her testimony relating to the commissioning of rape upon her remains firm. No material contradiction in her statement has been shown, which may discredit her statement. It is otherwise shown that the victim was recovered from the sugarcane field and the recovery memo has duly been proved and exhibited. The victim has been recovered from the accused-Dalbeer. Although in the medical examination report of the victim, there is no specific injury found on her private parts yet that would not be to the advantage of the accused-appellants in view of the categorical statement of the victim implicating the accused-appellants which is found credible and reliable as also the recovery of the victim from the accused-appellant Dalbeer. The finding of guilt on the charge of rape is thus confirmed. 19. The finding of guilt on the charge of rape is thus confirmed. 19. The learned counsel for the accused-appellants submitted that the charge under the provisions of S.C./S.T. Act originally levelled against the accused-appellants was under Section 3 (1) (xii) S.C./S.T. Act under the charge framing order dated 1st April, 2006. The court below proceeded with the trial and evidence was led to prove the charge. The accused-appellants were also confronted with the evidence on the charge under Section 3 (1) (xii) S.C./S.T. Act. 20. It is after conclusion of hearing in trial that the court below has added the charge for the offence punishable under Section 3 (2) (v) S.C./S.T. Act vide its order dated 23rd July, 2010 in addition to charges for the offence punishable under Sections 363, 366 376 (2) (g) I.P.C. and Sections 3 (1) (xii) S.C./S.T. Act. For ready reference, the additional reads as under: ^^;g fd fnuakd 23-08-2005 dks 7-00 'kke ls 27-08-2005 dks le; 5-30 cts ds chp] LFkku taxy xzke [kwjtokyk esa cyohj ds xUus ds [ksr esa varZxr Fkkuk ukaxy] ftyk lgkjuiqj esa vki yksxks us oknh eqdnek ekBwjke dh cgu dqŒjk[kh ds lkFk] tks fd vuqlwfpr tkfr dh lnL; gS] tks fd 15 o"kZ dh gS] mldh lEefr ds fcuk cykRlax fad;k] tks fd Hkk-n-l- varxZr nl o"kZ ;k mlls vf/kd ds dkjkokl ls n.Muh; vijk/k gSA bl izdkj vkius ,slk dk;Z fd;k] tks vuqlwfpr tkfr@vuqlwfpr tutkfr ¼vR;kpkj fuokj.k½ vf/kfu;e dh /kkjk 3¼2½¼5½ ds varxZr n.Muh; vijk/k gS rFkk bl U;k;ky; ds izlaKku esa gSA ,rn}kjk eS vkidks funsZf'kr djrk gwa fd mDr vkjksi ds fy;s vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ 21. So far as the addition of charge is concerned, we find from the record that the prosecution made categorical statement that it does not intent to adduce any further evidence. The defence also took a similar stand and has categorically stated that it does not intent to produce any witness or move an application for recall of the witnesses, which have already been produced by the prosecution. There is apparently no illegality in the process adopted by the court below, so far as the addition of charge is concerned. 22. The defence also took a similar stand and has categorically stated that it does not intent to produce any witness or move an application for recall of the witnesses, which have already been produced by the prosecution. There is apparently no illegality in the process adopted by the court below, so far as the addition of charge is concerned. 22. However, we find that once the charge for the offence punishable under Section 3 (2) (v) S.C./S.T. Act was added in addition to the charges for the offence punishable 363, 366 376 (2) (g) I.P.C. and Sections 3 (1) (xii) S.C./S.T. Act, the incriminating material in respect of added charge ought to have been confronted to the accused-appellants before they could be convicted of offence in that regard. 23. So far as the offence under Section 3 (2) (v) S.C./S.T. Act is concerned, it is observed that in the first information report there is no allegation that the victim has been subjected to offence of rape on account of her caste identity. Even in the statement under Section 161 Cr.P.C. no such evidence was collected by the prosecution. At the time of framing of charge also the prosecution did not plead that any offence was committed by the accused-appellants under Section 3 (2) (v) S.C./S.T. Act. It is for the first time in Court that the victim alleged that rape was committed upon her knowing her to be of Scheduled Caste. 24. In the statement of the prosecution witnesses, there is no allegation that the offence of rape was committed upon the victim on the ground that she belongs to scheduled caste or on account of her caste identity. Solitary statement made in the examination-in-chief has not been corroborated with any other independent material, which may demonstrate that the offence under Section 3 (2) (v) S.C./S.T. Act was also committed upon the victim. The victim in her statement has not supported the prosecution case that she was forcibly grabbed and taken to the sugarcane field. 25. The allegation in the first information report is that while the victim had gone to attend nature’s call, she was dragged by the accused-appellant inside the sugarcane field and raped. The victim in her statement has not supported the prosecution case that she was forcibly grabbed and taken to the sugarcane field. 25. The allegation in the first information report is that while the victim had gone to attend nature’s call, she was dragged by the accused-appellant inside the sugarcane field and raped. This version was substantiated by the victim in her statement recorded under Section 164 Cr.P.C. However, in the cross-examination the victim has admitted that she left for the village Vilkhana after a fight with his brother, where her sister was married and in dark when she was waiting for the transport vehicle, both the accused appellants met her. The victim has stated that the accused-appellant sympathized with her and persuaded her to live with them. She agreed to go with them on their persuasion. The extract of her statement is reproduced hereinbelow: ^^eS njksxk th dks ;g c;ku fn;k Fkk fd nksuks us esjs lkFk gennZ dh ckrs lq: dj nh dgus yxs fd ge rsjs lkFk gS rw gekjs lkFk jgkA bu nksuks us cgkyk Qqlyk dj eq>s vius lkFk ys tkus dks rS;kj dj fy;kA^^ 26. She has clearly denied having told the Investigating Officer that she was forcibly dragged by the accused-appellants to the sugarcane field. In the medical examination also, no mark of external or internal injury has been found on the victim. The hymen of the victim was found old, healed and torn. Vagina admits two figures easily. 27. It transpires that till conclusion of trial, the prosecution did not allege that any offence under Section 3 (2) v) S.C./S.T. Act has been committed by the accused-appellant upon the victim. Even at the time of initial charge being framed by the court concerned, there was no accusation with regard to the commissioning of offence under Section 3 (2) (v) S.C./S.T. Act. No objection was taken by the prosecution to framing of charge. It is only upon the conclusion of the trial and just before delivery of judgment that the charge under Section 3 (2) (v) S.C./S.T. Act has been added against the accused-appellants in respect of which no fresh evidence has been brought on record. The last sentence of the examination-in-chief of the victim, without any corroboration or material, in such circumstances would not justify the implication of the accused-appellants under Section 3 (2) (v) S.C./S.T. Act. The last sentence of the examination-in-chief of the victim, without any corroboration or material, in such circumstances would not justify the implication of the accused-appellants under Section 3 (2) (v) S.C./S.T. Act. The conviction and sentence under Section 3 (2) (v) S.C./S.T. Act is set aside. 28. We have also perused the statement of the accused-appellants under Section 313 Cr.P.C. in which the accused-appellants have not been specifically confronted with the incriminating material to support the charge under Section 3 (2) (v) S.C./S.T. Act. The only suggestion is that the victim belongs to scheduled caste and that a case has been registered against the accused-appellants under Section 3 (1) (xii) S.C./S.T. Act. No incriminating material constituting the charge under Section 3 (2) (v) S.C./S.T. Act, have been confronted to the accused-appellants. 29. In view of the factual scenario that that the incriminating material in respect of charge under Section 3 (2) (v) S.C./S.T. Act have not been confronted, as such the conviction and sentence of the accused appellants under Section 3 (2) (v) S.C./S.T. Act cannot be legally sustained and is set aside. 30. So far as the conviction and sentence awarded by the court below under the impugned judgment for the offence under Section 376 (2) (g) I.P.C. is concerned, we find that the accused-appellants have been sentenced to 10 years rigorous imprisonment with fine of Rs. 10,000/-. The conviction and sentence awarded under Sections 363, 366, 376 (2) (g) I.P.C. is sustained. 31. Consequently, both the appeals succeed and are allowed in part and the conviction and sentenced of the accused-appellants to life imprisonment with fine of Rs. 5,000/-under Section 3 (1) (5) S.C./S.T. Act is set aside. 32. In the event, the accused appellants have already served the sentences awarded to them for the offence under Sections 363, 366, 376 (2) (g) I.P.C. and Section 3 (1) (xii) S.C./S.T. Act, they are entitled to be released henceforth upon compliance of Section 437-A Cr.P.C., unless they are wanted in any other case forthwith. 33. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Saharanpur henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.