JUDGMENT : [Vinod Chandran, J.] 1. A person in the position of a guardian, ravished a minor girl of 9 years of age, when her biological mother was absent from the house, is the allegation of the prosecution. The prosecution examined 15 witnesses, produced 6 material objects and marked 19 documents. The accused was found guilty of the offences charged; under S.376(2)(f), rigorous imprisonment of 7 years was imposed with a fine of Rs.3 lakhs, a further imprisonment of 7 years with a fine of Rs.1 lakh under S.376(2)(i), imprisonment for life with a fine of Rs.1 lakh under Section 3(2)(v) of the Scheduled Caste/Scheduled Tribes Prevention of Atrocities Act, with no separate sentence under S.5(m) & (n) read with S.6 of the Protection of Children from Sexual Offences Act [for brevity, 'SC/ST Atrocities Act'] in view of S.42 of that Act. The accused was also imposed with default sentences in the event of failure to pay fine. 2. Smt.Sai Pooja, learned Counsel appearing for the appellant, would contend that the entire prosecution case is unbelievable and in that circumstance the sole testimony of the victim requires corroboration. There is no evidence as to who took her from the convent in which she was a resident. The minor child also was not recovered from the custody of the accused. The testimony of the witnesses do not tally and the Investigating Officer [I.O] has a case, contrary to that projected by the prosecution witnesses. The FIS by the 9 year old clearly indicates tutoring and the statements having been elicited by a process of intelligent questioning with active prompting by those who were present. The entire prosecution story is unbelievable and the accused has to be given the benefit of doubt. As far as the conviction under the SC/ST Atrocities Act, the provision as it existed then required the offence to be committed, on the ground that the victim is a member of an SC or ST community; whereas after the amendment of 2016 mere knowledge that the victim belongs to an SC community would be sufficient for attracting the offence. The learned Counsel relies on Patan Jamal Vali v. State of Andhra Paradesh [ AIR 2021 SC 2190 ]. It is pointed out that the accused was not named in the Medical Certificate issued by the Doctor, who examined the victim; wherein the history was stated. The learned Counsel relies on Patan Jamal Vali v. State of Andhra Paradesh [ AIR 2021 SC 2190 ]. It is pointed out that the accused was not named in the Medical Certificate issued by the Doctor, who examined the victim; wherein the history was stated. It is also argued that Ext.P17 is not the extract of the admission register, nor can it be said to be a valid secondary evidence admissible in trial. 3. Smt.S.Ambikadevi, learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children], points out that a minor girl of 9 years of age was ravished by the person who was in the status of her father. The sexual act committed on her is clearly stated by the victim and she alleges that the accused committed it. There is nothing to indicate any animosity between the victim and the accused, so as to make such an allegation. Even the testimony regarding assault by the accused on the mother of the victim is not so serious as to incite a child to make the wild accusation, of a sexual act of the abject depravity, as complained of here. The evidence of the child victim read with Ext.P17 Certificate clearly demonstrates the age of the victim as below 18 years. The Certificate produced regarding age though does not attest it to be the School of first admission, the child victim categorically stated that she studied in the said School from the 1st Standard to the 4th Standard. Reliance is placed on Jarnail Singh v. State of Haryana [2013 (3) KLT Suppl.14 (SC)]. The testimony of the child victim can be accepted and so is it corroborated by the other witnesses. The child was taken out from a convent, where she was residing and studying, when her mother was absent from the house and ravished by the accused. The victim, her mother and the other siblings were residing with the accused who had the status of a guardian. In fact the child victim herself deposed that her mother wanted the children to address the accused, as father. The learned Special Government Pleader while asserting that the conviction was proper; the guilt of the accused being evident from the evidence led, pointed out that the sentence imposed is less than the minimum prescribed by the Penal Code. 4. In fact the child victim herself deposed that her mother wanted the children to address the accused, as father. The learned Special Government Pleader while asserting that the conviction was proper; the guilt of the accused being evident from the evidence led, pointed out that the sentence imposed is less than the minimum prescribed by the Penal Code. 4. The FIS was by the victim, who was studying in the 4th Standard at Mount Carmel L.P School, Jellippara. Her house was at Padavayal, and since it was difficult to commute daily, she was residing at the convent. Her father had abandoned herself, her mother and two elder brothers. Her mother was a coolie and both the brothers were studying in different Schools. When she was in the 2nd Standard, during her vacations, she came home and found the accused staying in their family residence. On querying, her mother replied that he had come there in search of work and that he was residing with them. She and her siblings called him uncle and he used to help her mother around the house. When she was in School, her mother came along with that uncle to visit her. Later, when she was home during the vacations, she witnessed the mother being assaulted by the uncle. Herself and her brothers were also assaulted physically when they attempted to intervene. When the uncle created a ruckus in their house, accusing them of not communicating with him, the mother asked the children to call him father. When the present academic year commenced, it was the accused who bought her the necessary articles for School. 5. On 18.07.2015 at around 10 O'Clock her father came to the convent and when she enquired about her mother, she was informed that her mother had gone to see the grandmother. Her father took her from the convent on the pretext that they would summon the mother from her maternal home. However the maternal home of the mother was locked when they reached there and so they returned home to Padavayal. When she enquired about the mother's absence, her father told her that she had left home after a quarrel saying that she is going to her maternal house. In the night her father prepared a sweet dish for her and they watched TV at around 8 O'Clock. When she enquired about the mother's absence, her father told her that she had left home after a quarrel saying that she is going to her maternal house. In the night her father prepared a sweet dish for her and they watched TV at around 8 O'Clock. Later, while they laid down in the mat spread on the floor, she complained of cough and throat pain. Her father then applied vicks to her forehead and throat. Later, he applied it all over her body and removed her clothes. He applied it on her genitals and fingered it. He also kept his mouth on her genitals and when she tried to remove his head, he forced himself on her and inserted his tongue into his genitals. When she complained of pain he got up and went out to have a smoke. But soon after he came back and repeated the same thing and she fell asleep to wake up only at 8 O'Clock next day morning. 6. The victim deposed as PW1, about the sexual acts more or less in tandem with the FIS and also identified the accused in the dock. In her testimony before Court she also explained the subsequent circumstances on the next day. According to her, on the next day,she accompanied the accused to the Society to supply milk and later at night, her elder brother's friend one Kumaresan came to the house, in search of her. On seeing Kumaresan, the accused is said to have sat in the Society for some time. Later the child sat inside a stationery jeep when there was a ruckus at the society. Next day morning the accused took her in a bike to another house. The accused phoned her mother and gave the location of the house in which the child was kept, and also asked the mother to come alone. After that the accused left after asking her to stay back in that house. Then, both the accused and her mother came in a police jeep, her mother talked to the householder and both of them proceeded to the Police Station. The Sisters of the convent also came to the Police Station and she was taken back to the hostel. At the hostel, she took a bath and had food. Later she told one 'Betty Sister' about what the accused did to her. The Sisters of the convent also came to the Police Station and she was taken back to the hostel. At the hostel, she took a bath and had food. Later she told one 'Betty Sister' about what the accused did to her. Then the Police came and she gave Ext.P1 FIS and later made a statement to the Magistrate at Mannarkad. She also marked her dress as MO1 to MO4. 7. PW2 is the mother and PW3 the correspondent of the convent in which the victim was a resident. PW11, the IO and PW13, a worker of the convent. PW4 is the Medical Officer, who examined the accused for potency and affirmed it. PW5 is the Assistant Secretary of the Grama Panchayat, who produced the Ownership Certificate of the house of the mother of the victim, which is the scene of occurrence. PW6, the Special Village Officer, produced the scene plan, PW7, Tahsildar, Manarkkad, certified the victim as belonging to a Scheduled Tribe [Ext.P4]. PW8 is the Deputy Tahsildar who issued Ext.P6 Certificate which indicates the accused to be a Muslim. PW9 is the Woman Civil Police Officer, who took Ext.P1, FIS as per the directions of the Circle Inspector. PW10, is the SI who registered Ext.P1(a) FIR. PW12 attested the scene mahazar and PW14 the seizure of the dress of the accused as per Ext.P12. PW15 is the Headmistress of the School, who marked Ext.P17 Birth Certificate showing the date of birth of the victim-child as 20.10.2015. 8. Before we go into the question of the date of birth and conviction under SC/ST Atrocities Act, we have to necessary look at the evidence regarding the incident. As we noticed, PW1 says that after the molestation she was subjected to, on the next day also the accused had attempted to hide her from the public. A named person, the friend of her elder brother is said to have come to her house on the next day night, since she was found missing. He was not examined before Court. She also has a story that she, presumably along with her father, spent the night in a stationery jeep near the society; since there was some noisy trouble at the society. There is no evidence as to the trouble at the society. He was not examined before Court. She also has a story that she, presumably along with her father, spent the night in a stationery jeep near the society; since there was some noisy trouble at the society. There is no evidence as to the trouble at the society. Again her specific case is that on the next day the accused took her to another house, the residence of his friend and phoned her mother from that house. The accused then, leaving her in that house went away and returned with her mother in a police jeep and she was taken to the Police Station. Obviously the girl was missing for two days, even according to herself and she was retrieved from a house by the Police, the accused and her mother. She also deposes specifically that her mother spoke to the householder, but none were examined to show how the child came to be in that unspecified house. 9. Here we have to look at the evidence of PW3, the Correspondent of the convent. In the chief- examination she identified the accused and spoke of the child having been taken from the orphanage/convent on 18.07.2015, on the pretext that her mother wanted to see her. When she was not returned in the evening of Sunday, she called PW2, the mother of the victim and the accused attended the call. He assured PW3 that the child will be returned on the next day. When again on Monday morning, a call was made at 10 O'Clock, the accused promised that the child will be brought within half an hour. At 10.30 since the child was not brought back, she reported to the Agali Police Station. In the evening at around 6.30, she got a call from the Police that the child is traced out and that she is now at the Police Station. She went to the Police Station and took the child to the convent. The child had not bathed for 3 days and hence after a bath, she was given food. After that PW23 asked her as to what happened and from what the child told her, she understood that the mother was not at home and the accused had touched her on the genitals. Immediately it was reported to the Police and FIS was recorded in her presence. 10. After that PW23 asked her as to what happened and from what the child told her, she understood that the mother was not at home and the accused had touched her on the genitals. Immediately it was reported to the Police and FIS was recorded in her presence. 10. Interestingly, what PW1 stated was that she confided the atrocity committed on her to Sister Betty and not PW3. Sister Betty was not examined before Court. Further, in cross-examination, PW3 admitted that she did not see the accused taking away PW1, on 18.07.2015. On the said day two helpers, Saritha and Selvi, according to PW3, were looking after the children. She also deposed that she was informed by the helpers that at around 3 p.m PW1 was taken from the hostel by her father; while PW1 said that she was taken away by the accused at 10 a.m. In cross-examination, PW3 also said that the accused was not registered in the hostel as a guardian of PW1. 11. PW2, the mother, has yet another version about how the child was traced out and recovered. She spoke of the accused having stayed along with her for 10 11 months, whereas the specific statement made by PW1 was that the accused was staying with her family right from the time she was studying in the 2nd Standard. According to PW2, it was the Sisters who informed PW2 that PW1 was taken from the convent by the accused. PW3 has no such case. Further, as to the recovery of the child, PW2s version was that while she was coming in a Police jeep, the accused was accosted and taken to a friends house from where the girl was recovered. In cross examination, she admitted that on the previous day, she was assaulted by the accused and hospitalized and was discharged after nine days. She also stated that there was a case regarding that, in which, the accused was acquitted. Here we notice that, if PW2 was discharged after nine days, there was no way that she could have been with the police when the child was recovered on the 21st of July 2015. She also stated that there was a case regarding that, in which, the accused was acquitted. Here we notice that, if PW2 was discharged after nine days, there was no way that she could have been with the police when the child was recovered on the 21st of July 2015. Here we also have to notice that very pertinently the prosecution does not have any definite case as to the whereabouts of the two elder siblings of the child victim when the above incident happened; especially when the maternal grandmother's house was said to be locked and there being no alternative accommodation for PW2 and her family. 12. More pertinently, the IO does not speak of a missing child complaint having been made by the convent; which is the specific case of PW3, the Correspondent of the convent. According to the I.O, PW11, the accused was arrested on 23.07.2015 and not accosted on 20.07.2015, as PW2, the mother would depose. The I.O does not have a case of any man missing complaint having been made to them by the Convent or the mother, PW2, nor that the recovery of the child having been effected by them. PW9, the constable who recorded the FIS and PW10, the Sub Inspector who registered the FIR, also does not have such a case. 13. In the overall circumstances, it is very pertinent that Ext.P16 certificate of the Doctor who examined the child victim after the FIS was recorded does not, in the history stated, specify the name of the accused. Significant is also the fact that PW13 is Selvi, who attested the mahazar recovering the dress of the victim from the convent. Selvi is one of the helpers referred to by PW3 who had been entrusted with the custody and care of the children on the crucial day; when the accused is said to have taken PW1 from the convent. But the prosecution however did not ask any question with respect to such removal of PW1 from the convent, to Selvi. 14. From the evidence led at the trial it is not established that the accused took PW1 from the convent in the morning or afternoon of 18.07.2015. Even according to PW1, she was in her house at Padavayal on the night of 18.07.2015, where she ordinarily resides with her mother and two elder brothers. 14. From the evidence led at the trial it is not established that the accused took PW1 from the convent in the morning or afternoon of 18.07.2015. Even according to PW1, she was in her house at Padavayal on the night of 18.07.2015, where she ordinarily resides with her mother and two elder brothers. Her mother, PW2, was hospitalized, but the whereabouts of the siblings is not established. The presence of PW1 along with the accused in the house, atleast on the next day was seen by a friend of her elder brother, who was not examined in court. The version of the accused that she slept in a stationery jeep on the night of 19th is not believable. Again her presence in the house from which she is said to have been recovered is not earmarked and specified or any householder examined as to how PW1 came to be there. There is no man missing complaint registered despite the alleged absence of the child from the convent. PW3's testimony regarding the efforts made to trace the child does not tally with that of PW2. The manner in which the missing child was recovered as spoken of by PW2 is not seen affirmed by the police. The arrest of the accused is also not in the manner spoken of by PW2, the mother of the victim. Considering the overall circumstances, we are of the opinion that the accused has to be conceded the benefit of reasonable doubt. For completeness it has to be stated that the provisions of the SC/ST Atrocities Act is not attracted in the instant case as has been held by the Hon'ble Supreme Court in Patan Jamal Vali(supra). We allow the appeal and acquit the accused conceding him the benefit of doubt. The accused shall be released forth with, if he is not wanted in any other case.