JUDGMENT : 1. This appeal has been preferred by the appellant/accused under Section 374 (2) of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment of conviction and order of sentence dated 17.02.2005 passed by the learned Special Judge (SC & ST Act), Bastar Place-Jagdalpur in Sessions Trial No.300/2004, whereby, the learned trial Court has convicted the appellant for the offence punishable under Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as the “Act, 1989”) and sentenced him to undergo rigorous imprisonment for 6 months and to pay fine of Rs.2,000/-, in default of payment of fine, has to undergo rigorous imprisonment for additional 2 months. 2. Briefly stated the facts of the case are that in the intervening night of 26th and 27th of September, 2004, the appellant allegedly caught hold of the prosecutrix, who belongs to Scheduled Tribes Community, with an intention to outrage her modesty. On the basis of the report lodged by the prosecutrix with the Police Station SC & ST, Jagdalpur, an offence punishable under Section 3 (1)(xi) of the Act, 1989 was registered and after recording the statements of the prosecution witnesses, a final report was submitted before the Chief Judicial Magistrate, Jagdalpur on 05.10.2004, who in turn, committed the matter for its trial before the learned Special Judge (SC & ST Act) Bastar. 3. The trial Court has framed the charge against the appellant with regard to the offence as mentioned herein above and in order to bring home the guilt of the appellant, the prosecution has examined as many as 5 witnesses while one was examined by the appellant/accused in his defence. 4. The trial Court after considering the evidence led by the prosecution arrived at a conclusion that the appellant is the author of the alleged crime, occurred in the intervening night of 26th and 27th of September, 2004 and, accordingly, he has been convicted for the offence punishable under Section 3 (1) (xi) of the Act, 1989 and sentenced him as mentioned herein-above. 5. Being aggrieved, the appellant has preferred this appeal. 6. Smt. Goverdhan, learned counsel appearing for the appellant, submits that the finding of the trial Court holding the appellant to be the author of the alleged crime is apparently contrary to law. 5. Being aggrieved, the appellant has preferred this appeal. 6. Smt. Goverdhan, learned counsel appearing for the appellant, submits that the finding of the trial Court holding the appellant to be the author of the alleged crime is apparently contrary to law. While inviting attention to the statements of the prosecutrix, her father and the statement of one Beduram, viz-a-viz, their case dairy statements, it is submitted that there are lot of discrepancies in their statements, however, without taking note of the same, the trial Court has erred in holding that the alleged offence was committed by the appellant. Further of her contention is that the trial Court even without recording a finding that the alleged offence has been committed by the appellant with an intention to outrage the modesty of the prosecutrix that she belongs to the Scheduled Tribe community, has erred in convicting the appellant as such. In support, she placed her reliance upon the decision rendered by the Supreme Court in the matter of Masumsha Hasanasha Musalman vs. State of Maharashtra, reported in 2000 (3) SCC 557 . 7. On the other hand, Shri Mishra, learned counsel appearing for the State/Respondent has supported the impugned judgment of conviction and order of sentence as passed by the trial Court. 8. I have heard learned counsel appearing for the parties and perused the entire record carefully. 9. According to the prosecutrix (PW-1), the appellant, who was accompanied with 7 persons, came and pressed her mouth and dragged her 15 feet away from her house, when she returned at 3.00 am on 27.09.2004, after seeing the festival organized on the eve of Ganesh Pooja. She states further that while dragging her, he was saying ^^bd ckj eq>s lksus ns^^ and her father came out, when she shouted and, while seeing him, the appellant fled away. Mangru (PW-2), who was the father of the prosecutrix, has stated in his evidence that the appellant was dragging his daughter on the said faithful day and, states further that a meeting was convened by him with regard to the alleged incident, where the mother of the appellant refused to settle the dispute, therefore, he lodged the alleged report along with his wife and daughter (prosecutrix). Beduram (PW-3), who was present in the alleged meeting stated that the appellant has confessed his alleged act in the meeting. 10. Beduram (PW-3), who was present in the alleged meeting stated that the appellant has confessed his alleged act in the meeting. 10. It is, however, to be seen that although, the prosecutrix has stated in her examination in chief that the appellant has pressed her mouth and dragged her for 15 feet, but the said fact was neither revealed from her case dairy statement, marked as Ex.D-1, nor has stated anywhere that the appellant has confessed the occurrence of the alleged incident in the meeting, as was stated by said Beduram (PW-3). Even, the father of the prosecutrix, namely, Mungru (PW-2) has not stated anywhere in his evidence that in the alleged meeting, the appellant has confessed the same. Besides, the version of the prosecutrix that ^^bd ckj eq>s lksus ns^^ was not found to be placed in the report (Ex.P-2) lodged by her, nor 7 persons were with the appellant as per her case diary statement (Ex.D-1), though stated before the Court. It, therefore, appears that a lot of discrepancies are there in their testimonies. The prosecution has, thus, failed to produce any cogent and reliable evidence with regard to the occurrence of the alleged incident. 11. Moreover, none of the prosecution witnesses have stated that the appellant has committed the alleged offence with an intention to outrage the modesty of the prosecutrix that she belongs to the Scheduled Tribe Community. In absence thereof, it is difficult to attribute the appellant for the commission of the alleged offence under Section 3 (1) (xi) of the Act, 1989. 12. The said provision is relevant for the purpose, which reads as under:- "3. Punishments for offences of atrocities- (1) Whoever, not being a member of a Scheduled caste or a Scheduled Tribe- (i) to (x)………………………………... (xi). assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty," 13. A bare perusal of the aforesaid provision would show that the offence of outraging the modesty should be committed with an intention that the victim belonged to a Scheduled Caste or the Scheduled Tribe community. assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty," 13. A bare perusal of the aforesaid provision would show that the offence of outraging the modesty should be committed with an intention that the victim belonged to a Scheduled Caste or the Scheduled Tribe community. However, the said fact, as observed herein above, was not found to be reflected from any of the prosecution witnesses that the alleged act was committed by the appellant with the intention to outrage the modesty of the prosecutrix, who belonged to the Scheduled Tribe category. 14. The aforesaid observation is fortified by the principles laid down by the Supreme Court in the matter of Masumsha Hasanasha Musalman (supra), wherein, it has been held at paragraph 9, which is relevant for the purpose, reads as under:- “9. Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code 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. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) 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. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.” 15. In that view of the matter, we think, both the trial court and the High Court missed the essence of this aspect. In these circumstances, the conviction under the aforesaid provision by the trial court as well as by the High Court ought to be set aside.” 15. Although, in the aforesaid judgment, case was involved with regard to the offence punishable under Section 3(2) (v) of the Act, 1989, but the language of the said provision is pari materia to that of Section 3(1) (xi) of the Act, as the same also provides that the offence must be committed upon a person belonging to Scheduled Castes or Schedule Tribes with an intention that it was being done on the ground of caste. 16. Applying the aforesaid principles to the case in hand where, as observed herein above, none of the witnesses have stated that the alleged act of the appellant was made with the intention to outrage the modesty of the prosecutrix that she belonged to the Scheduled Tribe Community, I am, therefore, of the opinion that the finding of the trial Court convicting the appellant for the offence punishable under Section 3 (1) (xi) of the Act, 1989 cannot be held to be sustainable in the eye of law. 17. Consequently, the appeal is allowed and impugned judgment of conviction and order of sentence dated 17.02.2005 passed by the learned Special Judge (SC & ST Act), Jagdalpur in Sessions Trial No.300/2004 is hereby set aside. Since the appellant is on bail, his bail bond shall remain in force for a period of 6 months as required under Section 437-A of the Code of Criminal Procedure, 1973.