JUDGMENT : 1. Heard Sri Amrish Kashyap, learned counsel for the accused-appellant and learned A.G.A. for the State. 2. This appeal challenges the judgment and order dated 04.12.2007 passed by Special Judge (SC/ST Act), Kanpur Nagar in Special Sessions Trial No.670 of 2007 (State vs. Shahid) wherein the learned Special Judge has convicted & sentenced accused-appellant, Shahid, under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') for life imprisonment and fine of Rs.10,000, further convicting under Section 363 of IPC for imprisonment 5 years rigorous imprisonment & fine of Rs.5000/- and read with Section 3 (2) (v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act) and sentenced him to imprisonment for life with fine of Rs.10,000/- and, in case of default in payment of fine, further to under go one year's simple imprisonment. 3. Brief facts as culled out from the record are that Vijay Kumar, the father of prosecutrix, made a complaint to Police Station Cantt Kanpur Nagar stating that on 03.12.2006, at about 4.00 p.m., when the prosecutrix was playing outside the house, the accused-appellant, Shahid, caught her from behind, Shahid allured him into his house and started committing rape on her. On raising alarm by the prosecutrix, the informant along with his neighbours reached at the place of incident where they saw that accused was committing rape on her, accused ran away from there. It was alleged that the prosecutrix sustained injuries and the informant brought her to the Police Station. 4. After lodging of the F.I.R, the investigation was moved into motion. The prosecutrix was got medically examined. The Investigating Officer, after taking statements of witnesses, submitted charge-sheet against the accused-appellant under Section 376 of IPC and under Section 3 (2) (v) of SC/ST Act. 5. The accused was committed to the Court of Sessions as the case was triable by the Court of Session. The learned Sessions Judge framed charges on the accused. The accused pleaded not guilty and wanted to be tried. 6. So as to bring home the charge, the prosecution has examined 12 witnesses who are as under : 1. Vijay Kumar @ Vijjan PW1 2. Niketa @ Annu PW2 3. Dr. Avnish Kumar PW3 4. Ajayveer Singh PW4 5. Jyotsna Kumari PW5 6. Ranveer Singh PW6 7. Akhlal Ahmad Khan PW7 8. Ajay Kumar Trivedi PW8 9. 6. So as to bring home the charge, the prosecution has examined 12 witnesses who are as under : 1. Vijay Kumar @ Vijjan PW1 2. Niketa @ Annu PW2 3. Dr. Avnish Kumar PW3 4. Ajayveer Singh PW4 5. Jyotsna Kumari PW5 6. Ranveer Singh PW6 7. Akhlal Ahmad Khan PW7 8. Ajay Kumar Trivedi PW8 9. R.P. Gupta PW9 10. Vikas Ram PW10 11. A.M. Khan PW11 12. S.B. Mishra PW12 7. In support of ocular version following documents were filed : 1. F.I.R. Ex.Ka.3 2. Written Report Ex.Ka.1 3. Recovery memo of underwear Ex. Ka. 9 4. X-ray Report Ex. Ka.10 5. Discharge - slip Ex. Ka. 2 6. Injury report Ex. Ka.5 7. Supplementary report Ex. Ka.6 8. Medico Legal examination report Ex. Ka.12 9. Charge sheet Ex. Ka.7 10. Report of Forensic Science Lab. Ex. Ka. 11 11. Site Plan With Index Ex. Ka.8 8. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Special Judge convicted the appellant as mentioned aforesaid. 9. As far as commission of offence under Section 3 (2) (v) of SC/ST Act is concerned, it is submitted by learned counsel that the F.I.R. nowhere states that the injured belongs to a particular community. No documentary evidence so as to prove that the injured belongs to Scheduled Caste or Scheduled Tribe was produced either before Investigating Officer or Sessions Court. No independent witness has been examined by the prosecution. It is stated by prosecutrix that she did not know the accused. P.W.1 had stated that he did not know the accused and in his cross examination he had denied the commission of offence and, therefore, no case is made out for commission of offence under Section 3 (2) (v) of SC/ST Act and finding of the learned Special Judge requires to be upturned. 10. As far as commission of offence under Section 376 of IPC is concerned, it is submitted by learned counsel for the appellant that the accused has been falsely implicated in the present case. The medical evidence does not support the prosecution version as no internal/external injury was found on person of the prosecutrix though the F.I.R. and medical examination were prompt. The medical evidence does not support the prosecution version as no internal/external injury was found on person of the prosecutrix though the F.I.R. and medical examination were prompt. It is further submitted that even P.W.1, in his cross examination has denied the commission of rape and the finding of the Special Judge is based on surmises and conjectures and requires to be upturn. In support of his argument, learned counsel for the appellant has relied on the decision of this Court in Criminal Appeal No. 204 of 2021 (Vishnu vs. State of U.P.) decided on 28.1.2021 & in Criminal Appeal No.4083 of 2017 (Pintu Gupta vs. State of U.P.) decided on 28.7.2022 and has contended that no ingredients of Section (3) (2) (v) of SC/ST Act & Section 376 of IPC is made out and, therefore, the conviction is required to be set aside. 11. Per contra, learned A.G.A. for the State has submitted that the conviction of the accused is just and proper as ingredients of offence under Section 3 (2) (v) of SC/ST Act and Section 376 are very much proved. It is further submitted by learned A.G.A. that P.W.2, prosecutrix, has stated that before committing the unlawful act, the accused had asked her name, caste and her husband's name and, therefore, finding of the learned Special Judge is just and proper. 12. Before we venture upon to discuss the evidence and the arguments advanced by the learned counsel for the parties, it would be pertinent to discuss Section 375 of IPC which read as under : "3. Punishments for offences of atrocities.-- (1).....................xx...............xx....... (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-- (i).....................xxx.......... (ii)....................xx........... (iii)...............xxx........... (iv)..............xxx............... (v) commits any offence under the Indian Penal Code (45 of 1860) 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." [375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:-- (First) -- Against her will. (Secondly) --Without her consent. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:-- (First) -- Against her will. (Secondly) --Without her consent. (Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Fourthly) --With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married. (Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly) -- With or without her consent, when she is under sixteen years of age. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Exception) --Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] 13. The aforesaid provisions of law would now be seen in view of the ocular version as well as the documentary evidence of the prosecution witnesses. P.W.1, in his cross examination, categorically mentions that he has not seen the appellant committing any kind of sexual intercourse with the prosecutrix. P.W.3, whose oral testimony has been considered, also categorically states that he cannot conclusively opine that whether there was commission of sexual intercourse against the will or against the consent of the prosecutrix. 14. The evidence on record highlights the theory of commission of rape on the ground that the prosecutrix belong to a particular community. Neither the F.I.R. nor the oral testimony have remotely suggested the same. So as to attract the provisions of Section 375 read with Section 376 of IPC and Section 3 (2) (v) of SC/ST Act, ingredients of the said offence has to be proved. 15. The judgment shows that the learned Sessions Judge has convicted the accused-appellant though there was no evidence for commission of offence under Section 3 (2) (v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 15. The judgment shows that the learned Sessions Judge has convicted the accused-appellant though there was no evidence for commission of offence under Section 3 (2) (v) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is not worth believing that a person who wants to commit sexual offence would enquire from the prosecutrix her name and her caste and then commit the unlawful act. P.W. 1 who is the father of the prosecutrix has stated, he had also stated that he did not know the accused-appellant. The judgment relied by the prosecution before the Court below namely Ved Prakash vs. State of Haryana, JIC 1996 SC 18 cannot apply to the facts of this case. 16. The learned Session Judge has considered the fact that spermatozoa may or may not be found. The important aspects are (a) the prosecution is a 4 years old child, (b) she has narrated the incident, (c) Medical report and the oral testimony of PW-5 which would not permit us to upturn the judgment of learned Sessions Judge 17. The evidence of the prosecutrix is four years old child cannot be doubted and is a full-proof of the fact that the accused laid her into the home, the manner in which the incident occurred has been properly explained by the prosecutrix and, therefore, the medical evidence of Doctor testifies to this effect that there is possibility of such act being committed. In view of the matter, we are convinced that the appellant has been rightly convicted under Section 376. 18. As far as findings on Section 376 are concerned, there is no finding. As far as commission of offence under Section 3 (2) (v) of SC/ST Act is concerned, only on the ground that the prosecutrix and her family members belong to a particular community, can it be said that the offence has been committed? The answer is, No. We are also fortified in our view by the decision of the Apex Court in Patan Jamal Vali vs. State of Andhra Pradesh, 2021 SCC OnLine SC 343, wherein the Apex Court has held as under : "58. The answer is, No. We are also fortified in our view by the decision of the Apex Court in Patan Jamal Vali vs. State of Andhra Pradesh, 2021 SCC OnLine SC 343, wherein the Apex Court has held as under : "58. The issue as to whether the offence was committed against a person on the ground that such person is a member of a SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence - whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single axis model. 59. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words "on the ground of" under Section 3(2) (v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. The words "on the ground of" under Section 3(2) (v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows: "8. Presumption as to offences. - In a prosecution for an offence under this Chapter, if it is proved that (a) the accused rendered [any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]" 60 The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of SC & ST Act while registering cases of gendered violence against women from SC & ST communities53. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an inter-sectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these. 61 However, since Section 3(2) (v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside." 19. The decisions cited by learned counsel for the appellant in Visnu (Supra) and in Pintu Gupta (Supra) will also apply to the facts of this case. This is a similar case to Vishnu (Supra) where the man was languishing in jail for non commission of offence for which he was punished. 20. In Mohd. Giasuddin Vs. State of A.P., [ AIR 1977 SC 1926 ], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court : "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." 21. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [ (2004) 7 SCC 257 ] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 22. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs. State of U.P. [ (2010) 12 SCC 532 ], Guru Basavraj vs. State of Karnatak, [ (2012) 8 SCC 734 ], Sumer Singh vs. Surajbhan Singh, [ (2014) 7 SCC 323 ], State of Punjab vs. Bawa Singh, [ (2015) 3 SCC 441 ], and Raj Bala vs. State of Haryana, [ (2016) 1 SCC 463 ] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 23. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 24. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. 25. We, therefore, hold that it is proved that offence under Sections 376 is made out. The accused-appellant is acquitted from the charges leveled against him under Section 3 (2)(v) of the SC/ST Act. We direct the jail authority concerned to set the accused-appellant free, if not warranted in any other offence. 26. Record and proceedings be sent back to the Trial Court forthwith. 27. This Court is thankful to both the learned advocate for ably assisting the Court and getting this matter decided. 28. We direct the jail authority concerned to set the accused-appellant free, if not warranted in any other offence. 26. Record and proceedings be sent back to the Trial Court forthwith. 27. This Court is thankful to both the learned advocate for ably assisting the Court and getting this matter decided. 28. This court refuse the sentence to that already undergone in the Jail under Section 376 of the IPC. Accused is acquitted charged under Section 3(2)(v) of the SC/ST Act. 29. We, by this omnibus direction, direct Registrar (Listing) to impress upon the Registry concerned to follow the decision of this Court in Vishnu (Supra) which are yet not being followed as even after 2021, the matters are not being listed. Even this matter has been listed only after the counsel for the appellant has filed listing application as the accused is in jail for more than 14 years. His case has not been considered for remission by the jail authorities though 14 years of incarceration is over and there are directions of the Apex Court and this Court. Even if there is no direction of the Courts, under Section 433 of Cr.P.C. the authorities concerned are under an obligation to consider the case of the accused for remission.