K. Lakshman, J.

1. Heard Mrs. G. Jaya Reddy, learned counsel for the appellant - accused and Mr. Syed. Yasar Mamoon, learned Additional Public Prosecutor appearing on behalf of the respondent extensively.

2. This appeal is filed challenging the judgment dated 09.06.2017 in S.S.C. No.41 of 2014 passed by learned Special Judge for SC/ST (POA) Cases-cum-VII Additional District Judge, Warangal (hereinafter referred to ‘trial Court’).

3. Vide the aforesaid judgment, learned trial Court convicted the appellant - accused for the charges under Section - 376 (2) (f) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘Act, 1989’) and sentenced him to undergo rigorous imprisonment for a period of TEN (10) YEARS and to pay fine of Rs.1,000 (Rupees One Thousand Only) and in default to undergo simple imprisonment for a period of one (01) month for the charge under Section - 376 (2) (f) read with 511 of IPC. He was sentenced to undergo rigorous life imprisonment and to pay fine of Rs.1,000 (Rupees One Thousand Only) and in default to undergo simple imprisonment for a period of one (01) month for the charge under Section - 3 (2) (v) of the Act, 1989. He was also sentenced to undergo rigorous imprisonment for a period of FIVE (05) years and to pay fine of Rs.1000 (Rupees One Thousand Only) and in default to undergo simple imprisonment for a period of one (01) month for the charge under Section - 3 (1) (xii) of the Act, 1989. However, learned trial Court acquitted the accused for the charge under Section - 376 (2) (f) of IPC.

4. The case of the prosecution is as follows:

               i) PW.2 - Siddaboina Samatha (victim girl) is the daughter of PW.1 and LW.2. She was 12 years old as on the date of incident. She belongs to the Scheduled Tribes (Koya) Community, while accused herein belongs to Backward (Padmashali) Community. Both are residents of same village i.e., Ayodhyapuram Village of Gudur Mandal.

               ii) The victim girl is of tender age and mentally immature. She was studying 1st class and used to visit the house of the accused for various reasons along with some other children.

               iii) The accused had an evil eye over the victim girl and waiting for an opportunity to fulfill his lust with her. Accordingly, on 03.12.2012, the accused took the victim girl into his house by inducing her with an offer of chocolate, removed her clothes and slept upon her and committed rape.

               iv) PW.3 saw the accused taking the victim girl into his house and informed the same to the parents of victim girl. They enquired the victim girl and came to know the act of the accused. The said incident had brought to the notice of their caste elder (LW.5). They also went to the house of the accused to enquire, but on seeing them, the accused fled away.

               v) Therefore, PW.1 gave report with PW.9, the Head Constable of Gudur Police Station, who in turn registered a case in Crime No.209 of 2013 and issued express FIR. He also referred the victim girl to the Government Hospital for examination. Thereafter, PW.10 took up investigation. During the course of investigation, she visited the scene of offence, examined the relevant witnesses and recorded their statements. On receipt of medical examination report and FSL report, she filed charge sheet against the accused for the aforesaid offences.

5. Since the offences are triable by the Court of Sessions, learned Magistrate committed the same to the learned trial Court which in turn had taken on file as S.S.C. No.41 of 2014 and proceeded with trial.

6. The trial Court framed charges for the offences under Section - 376 (2) (f) of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989 against the accused.

7. During trial, PWs.1 to 10 were examined and Exs.P1 to P13 were marked. No evidence, both oral and documentary, was let in by the accused.

8. After completion of evidence on behalf of the prosecution, the accused was examined under Section - 313 of Cr.P.C. Thereafter, upon hearing both sides, learned trial Court recorded conviction against the appellant herein for the aforesaid charges in the manner stated above.

9. Challenging the said conviction and sentence of imprisonment, the appellant herein preferred the present appeal.

10. Learned counsel for the appellant - accused contended as follows:

               i. There are material contradictions in the evidence of PW.1, PW.3 and PW.4 and also Ex.P1 - report given by PW.1 with police.

               ii. There was delay in lodging Ex.P1 report with police.

               iii. The victim girl is mentally retarded.

               iv. The medical evidence proves that there was no offence committed by the accused, more particularly rape.

               v. The Investigating Officer did not follow the procedure laid down under law while conducting investigation in rape cases.

               vi. Without considering all the said aspects, the learned trial Court erred in convicting the accused.

               vii. Learned trial Court erred in convicting the accused for the charge under Section - 376 (2) (f) read with 511 of IPC, while acquitting for the offence under Section - 376 (2) (f) of IPC.

               viii. Even imposition of life imprisonment for the offence under Section - 3 (2) (v) of the Act, 1989 is against the Sentencing Policy.

               With the aforesaid submissions, learned counsel sought to set aside the conviction and sentence imposed on the appellant.

11. On the other hand, learned Additional Public Prosecutor would submit as under:

               i) There is direct evidence through PW.3 to prove the guilt of the accused.

               ii) The delay in giving report to the police does not tilt the case of prosecution.

               iii) There is ample evidence to prove the offences against the accused.

               iv) The contradictions/omissions, if any, in the depositions of prosecution witnesses are minor in nature and would not tilt the case of prosecution.

               v) Having considered all the aforesaid aspects, the trial Court convicted the appellant and, therefore, there is no error in it.

               With the aforesaid submissions, learned Additional Public Prosecutor sought to dismiss the appeal.

12. In the view of above rival submissions, the point that falls for consideration by this Court is:

               Whether the conviction and sentence of imprisonment recorded by the trial Court for the charges under Section - 376 (2) (f) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989 against the appellant herein - accused are sustainable, both on facts and in law?

13. Perusal of record would reveal that PW.1, father of the victim girl, lodged Ex.P1 - report with police on 05.12.2012 stating that he belongs to Koya (ST) Community. His daughter was 10 years old and is mentally retarded. The accused belongs to his village. A week ago, the accused committed rape upon his daughter for one week. He came to know about the same on 03.12.2012 morning. On 04.12.2012, he went to the house of the accused to enquire him, but the accused fled away. Therefore, he requested the police to take action against the accused.

14. In his deposition, PW.1 stated that the offence taken place about four (04) years ago. His neighbor - Ramamma informed him that the accused committed rape upon his daughter repeatedly for three (03) days). They enquired with the victim girl as to what happened and she revealed that the accused took her to his house on the pretext of giving flowers and biscuits and committed rape upon her. When he was about to question the accused, he fled away from the village. They went to the police and lodged a complaint (Ex.P1) with the police. On reading the contents of Ex.P1 - report only, he has signed.

               i) It is relevant to note that the accused is represented by a legal aid counsel, but unfortunately he did not cross-examine PW.1. There was no representation on 11.01.2016, the date on which PW.1 examination-in-chief was recorded.

15. PW.2 is the victim girl. She was 12 years as on the date of recording her deposition in Court i.e., 20.03.2017. She informed the trial Court that her mother brought her for the purpose of giving evidence and also to speak the fact. She has deposed that she knows PW.3 and he is her neighbor. She also knows LW.5 - Sammaiah and the accused. She belongs to Koya Community and the accused belongs to Padmashali Community. The offence took place about three (03) years ago. The accused by offering chocolates, took her to his house, removed her cloths, slept upon her and committed rape thrice in three days. She informed the same to her parents, who filed the case against the accused. She was referred to the Hospital for examination. The police examined her.

               i) However, during cross-examination, she has admitted that before she was taken to the house of accused, she was playing with children near his house. She did not remember the names of the children with whom she was playing on that day. The accused made her to lay and offered to give chocolate. She did not suffer pain when the accused committed rape. She used to attend her personal works and informed the incident to her mother after four (04) days. She has further admitted that the accused abused her father in their caste name, but she did not see the accused quarreling with her father.

               ii) It is apt to note that the trial Court observed the demeanor of the witness and recorded as follows:

               “Witness is not that much of worldlywise. The witness some times smiles even when serious questions are posed by public prosecutor and defence counsel.

16. PW.3, neighbor of PWs.1 and 2, deposed that the offence took place on 02.12.2012. At about 11.00 A.M., while he was proceeding to his house after attending agricultural works at his lands, the accused was taking PW.2 - victim girl into his house. He peeped into his house and saw the accused committing rape upon PW.2 by removing her clothes. On seeing him, the accused fled away. Then, he covered PW.2 (wrongly typed as PW.1) with her clothes and took her to her house. PW.2 informed him that the accused was committing the offence of rape upon her since three (03) days. The parents of PW.2 were not available at their house as they attended coolie works. Then, he left PW.2 at her house and he came back and went to his in- laws house. He returned to his village on the following day at 8.00 or 9.00 A.M. and then informed the incident to PW.1 and LW.2, mother of the victim girl. When LW.5 (his father) tried to call the accused, he absconded. Then, PW.1 and LW.2 gave report with the police.

               i) However, during cross-examination, he has admitted that he, the accused and PW.1 belonged to the same village. There are houses in between the house of PW.1 and the accused house. There may be possibility to see PW.2 by the inhabitants of the locality while she was going to the house of the accused. He saw the accused taking PW.2 into his house on the day when he took her and dropped at her house. He did not state before the police that when he took PW.2 to her house, her parents were not in the house as they were attending the coolie works. After the accused took PW.2 into his house, the doors were kept ajar. He did not try to catch the accused while he was running away.

17. PW.4 is the panch witness for scene of offence. However, during cross-examination, he has admitted that he did not inquire with the neighbors to the scene of offence as to what happened.

18. PW.5 is the Tahsildar, who issued Ex.P3 - Caste Certificate of PW.1, PW.2 and the accused.

19. PW.6 is the doctor, who treated PW.2 - victim girl. He deposed that on 06.12.2012, he received requisition from Gudur Police Station, to examine the victim girl. Accordingly, he examined her after taking due consent from the mother of victim girl and in the presence of Duty Staff Nurse. The victim was brought by the police constable and accompanied by her mother. The victim had not attained puberty. She was not under the influence of drug or alcohol. Breast not developed. Pubic hair was absent. Hymen admits only tip of probe suggesting hymen is intact. There is small congestion (redness) at the introitus. He has collected swabs and slides with cotton probe, sent for analysis to Forensic Science Laboratory (FSL), Hyderabad. By reserving final opinion, he has issued Ex.P5 - Medical Examination Certificate on 06.12.2012 of PW.2. He received FSL report, and as per Ex.P6 report dated 25.04.2013, semen and spermatozoa were not found on items sent. On the basis of Ex.P6 - FSL report, he issued Ex.P7 - final opinion, opining that there is no medical evidence of presence of semen i.e., recent sexual intercourse except for congestion at introitus. He further deposed that there may be possibility of causing redness/congestion due to pressure given by penis.

               i) However, during cross-examination, he has admitted that as per his examination, there is no penetration into vagina. No other external injuries were found on PW.2. The congestion may be possible due to other reasons, like bad hygiene, infection, scratch, insect bite etc.

20. PW.7 is the doctor, who conducted potency test over the accused.

21. PW.8 is the doctor, who issued Ex.P9 - age determination certificate, determining the age of PW.2 - victim girl about 12-13 years.

22. PW.9 is the Head Constable at Kazipet Police Station. He deposed that he received report dated 05.12.2012 at about 9.00 P.M. from PW.1 and registered Ex.P10 - FIR. He referred PW.2 - victim girl to the Government CKM Maternity Hospital, Warangal, for examination and sent an escort along with her mother. He has handed over C.D. file to the SDPO, Narsampet.

               i) During cross-examination, he has admitted that he has not recorded the statement of PW.2 and he has not ascertained the reason for delay.

23. PW.10 is the Investigating Officer. In her chief- examination, she has deposed that she is working as SDPO, Narsampet from 21.11.2012 to 30.11.2013. On 05.12.2012, she has taken up the CD file from PW.9 and she verified the same. On 06.12.2012, she has received Ex.P11 - orders for conducting investigation from the Superintendent of police, Warangal and she took up investigation. She immediately visited the scene of offence i.e., the house of the accused at Ayodhyapuram Village, Gudur Mandal. She examined PW.1, PW.2, PW.3, LW.3 and LW.5 and recorded their statements under Section - 161 of Cr.P.C. Later, in the presence of PW.4, PW.7 and LW.6, she has prepared the rough sketch of scene of offence and recorded the crime details form as in Ex.P2.

               i) PW.10 further deposed that she searched for the accused and found that he was absconding. She instructed the Circle Inspector, Gudur Police Station to apprehend the accused and produce before her and accordingly the accused was arrested on 15.12.2012 at about 11.00 hours. She has also obtained Ex.P8 - potency certificate and she received medical report from PW.6 on 26.12.2012 and sent letter of advice to the Director, FSL for analysis. Ex.P13 is the requisition. On 13.08.2013, she received copy of FSL report. On 11.09.2013, she sent PW.2 for examination and PW.8 examined PW.2. Thus, according to her, on completion of investigation, she has laid charge sheet against the accused on 11.10.2013 for the offences under Sections - 376 (2) (f) and Sections - 3 (1) (xii) and 2 (v) of the Act, 1989.

               ii) During cross-examination, she has admitted that the specific descriptive particulars of the house where the offence took place were not given. She has not examined the other girls in the company of the victim girl. The report was given on the next day of the date of offence. No reasons were ascribed for the said delay. After due verification of all the documents, she filed charge sheet and on being satisfied with the medical reports. She has not seized the garments of the victim.

24. On consideration of the said evidence, vide impugned judgment, the trial Court having acquitted the accused for the charge under Section - 376 (2) (f) of IPC, convicted him for the offences under Section - 376 (2) (f) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989 and imposed ten (10) years. life imprisonment and five (05) years, respectively.

25. As discussed above, in Ex.P1 - report, dated 05.12.2012, PW.1 specifically stated that PW.2 - victim girl was 10 years old. She was mentally retarded. On 03.12.2012 morning he came to know that the accused committed rape upon his daughter since last one week. In chief-examination he has stated that his neighbor - Ramamma informed him that the accused committed rape upon PW.2 repeatedly for three (03) days). Even then, the prosecution did not examine the said Ramamma. Thus, there is serious contradiction in the version of PW.1.

26. It is also apt to note that in Ex.P1 - report, PW.1 has stated that the accused committed rape upon PW.2 for one week, whereas in his chief-examination, he has deposed that the accused committed rape upon PW.2 repeatedly for three (03) days and that he came to know about the same through his neighbour - Ramamma. Even PW.2 deposed that the accused committed rape thrice in three days and the same was informed to her parents, whereas PW.3 deposed that while he saw the accused committing rape upon PW.2 by removing her clothes. On seeing him, the accused fled away. Then he covered PW.2 with her clothes and took her to her house. PW.2 informed him that the accused was committing the offence of rape upon her since three days. On close perusal of evidence of PW.2 and PW.3, PW.3 deposed that PW.2 informed her about the accused committing rape upon her, whereas PW.2 did not depose about informing the accused committing rape upon her to PW.3 and on the other hand she deposed that she informed the same to her parents. On the said aspect, there is serious contradiction in the depositions of PW.2 and PW.3.

27. It is also apt to note that on coming to know about the said alleged rape upon his daughter on 03.12.2012 in the morning, instead of lodging report with the police, PW.1 - father of the victim girl, went to the house of the accused on 04.12.2012 for the purpose of inquiry, and according to him, the accused fled away.

28. PW.3 in his evidence deposed that the offence took place on 02.12.2012. At about 11.00 A.M., while he was proceeding to his house after attending agricultural works at his lands, the accused was taking PW.2 - victim girl into his house. He peeped into his house and saw the accused committing rape upon PW.2 by removing her clothes. On seeing him, the accused fled away. Then he covered PW.2 with her clothes and took her to her house. PW.2 informed him that the accused was committing the offence of rape upon her since three (03) days.

29. Committing rape is a serious offence. Instead of reporting the same to the parents of the victim or neighbours or relatives or police, PW.3 went to his in-laws house and returned to his village on the following day at 8.00 or 9.00 A.M. and then informed the incident to PW.1 and LW.2, mother of the victim girl. However, during cross- examination, he has categorically admitted that the accused took the victim girl into his house doors of his house were kept ajar. He did not try to catch the accused while he was running away. Thus, the evidence of PW.3 is highly improbable and does not inspire confidence. Therefore, there are contradictions in the depositions of PWs.1 to 3 and Ex.P1 with regard to the alleged rape upon PW.2.

30. It is also apt to note that PW.6 - the doctor, who examined PW.2 - victim girl, specifically deposed that hymen admits only tip of probe suggesting hymen is intact. There is small congestion (redness) at the introitus. As per Ex.P6 - FSL report, semen and spermatozoa were not found on items sent. On the basis of Ex.P6 - FSL report, he issued Ex.P7 - final opinion, opining that there is no medical evidence of presence of semen i.e., recent sexual intercourse except for congestion at introitus. He further deposed that there may be possibility of causing redness/congestion due to pressure given by penis. During cross-examination, he has categorically admitted that as per his examination, there is no penetration into vagina, no other external injuries were found on the person of PW.2. The congestion may be possible due to other reasons, like bad hygiene, infection, scratch, insect bite etc.

31. On consideration of the said evidence, more particularly the evidence of PW.6 and Exs.P6 and 7, the trial Court acquitted the accused for the charge under Section - 376 (2) (f) of IPC. Having acquitted the accused for the said charge, the trial Court convicted the appellant - accused for the charges under Section - 376 (2) (f) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989.

32. In the light of the above, it is apt to note that Section - 376 of IPC deals with ‘punishment for rape’. Section - 376 (2) (f) is relevant and the same extracted as sunder:

               “376. Punishment for rape.—(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

               (2) Whoever,—

               (a) xxxxx

               (b) xxxxx

               (c) xxxxx

               (d) xxxxx

               (e) xxxxx; or

               (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

               xxxxxx”

33. Therefore, the prosecution has to establish that the accused being a person in a position of trust or authority towards the victim girl committed rape upon her. Even as per prosecution, the accused is neighbor of the victim girl. She was only ten (10) years at the time of alleged offence. Except stating that the accused took the victim girl to his house offering flowers and chocolates, they have not established that the accused was in a position of trust or authority towards the victim girl (PW.2).

34. Section - 511 of IPC deals with ‘punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment’. The same is relevant and extracted as under:

               “511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.—Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.”

35. As discussed above, the trial Court while acquitting the accused for the charge under Section - 376 (2) (f) of IPC, convicted him for the charges under Section - 376 (2) (f) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989.

36. As discussed above, there are serious contradictions with regard to the alleged offence by the accused. As per Ex.P1 - report, the accused committed the offence upon the victim for one week, whereas, as per the deposition of PW.1 and PW.2, the accused committed offence upon PW.2 repeatedly for three (03) days. As per the deposition of PW.6, the doctor, who examined the victim girl, pubic hair was absent, hymen admits only tip of probe suggesting hymen is intact. There is small congestion (redness) at the introitus. Therefore, basing on Ex.P6 - FSL report, PW.6 found that there was no medical evidence of presence of semen i.e., recent sexual intercourse except for congestion at introitus. Even according to him, there may be possibility of causing redness/congestion due to pressure given by penis. During cross-examination, he has admitted that there is no penetration into vagina, and no other external injuries were found on the person of PW.2. The congestion may be possible due to other reason, like bad hygiene, infection, scratch and insect bite etc.

37. There is delay in lodging Ex.P1 - report. As per Ex.P1 - report, PW.1 came to know about the alleged incident on 03.12.2012 morning, he has lodged the report on 05.12.2012 at 9.00 P.M. PW.9, who registered Ex.P10-FIR did not ascertain the reason for the delay. He has admitted the said fact in his cross-examination. PW.10 - Investigating Officer also admitted, and no reasons were mentioned in Ex.P11 for the said delay. The only explanation offered by PW.1 is that he went to the accused on the next day i.e., 04.12.2012 to enquire, but the accused fled away. The said explanation is unsatisfactory and not plausible. It is also apt to note that according to PW.3, he informed the parents of PW.2 the next day, he has not mentioned the time at which he informed the parents of PW.2 with regard to the alleged incident.

38. It is also apt to note that in Ex.P1 - report itself, PW.1 categorically stated that PW.2 - victim girl is mentally retarded. Even the trial Court on observation of the demeanor of the witness, recorded as follows:

               “Witness is not that much of worldlywise. The witness some times smiles even when serious questions are posed by public prosecutor and defence counsel.”

39. It is also apt to note that though according to PW.2, the accused committed rape upon her thrice in three days, but she did not inform the said fact to her parents. During cross-examination, she has categorically admitted that she did not suffer pain while the appellant committing rape upon her. Therefore, the evidence of PW.2 is not reliable and does not inspire confidence of this Court.

40. In State of Rajasthan v. Chatra (2025 INSC 360) the Hon’ble Supreme Court while considering all the precedents, laid down some principles regarding testimonies given by child witness, and the same are as follows:

               “14. The principles that can be adduced from an overview of the aforesaid decisions, are:

               a. No hard and fast rule can be laid down qua testing the competency of a child witness to testify at trial.

               b. Whether or not a given child witness will testify is a matter of the Trial Judge being satisfied as to the ability and competence of said witness. To determine the same the Judge is to look to the manner of the witness, intelligence, or lack thereof, as may be apparent; an understanding of the distinction between truth and falsehood etc.

               c. The non-administration of oath to a child witness will not render their testimony doubtful or unusable.

               d. The trial Judge must be alive to the possibility of the child witness being swayed, influenced and tutored, for in their innocence, such matters are of ease for those who may wish to influence the outcome of the trial, in one direction or another.

               e. Seeking corroboration, therefore, of the testimony of a child witness, is well-placed practical wisdom.

               f. There is no bar to cross-examination of a child witness. If said witness has withstood the cross examination, the prosecution would be entirely within their rights to seek conviction even solely relying thereon.”

41. As discussed above, the evidence of PW.3 is also not reliable and does not inspire the confidence of this Court. There is also delay in conducting investigation and arresting the accused. The accused was arrested on 15.12.2012.

42. It is relevant to note that the Investigating Officer did not seize the clothes of the victim girl. She has admitted the same during cross-examination. It is also apt to note that the alleged offence took place on 02.12.2012, the investigation was entrusted to PW.10 on 06.12.2012, she recorded the statement of PW.2, who was sent to PW.6 for examination.

43. In Ex.P6 - FSL report, it is specifically mentioned that the cloth parcel contained item Nos.1 to 3. Item No.1 consists of two glass slides with dried smear; item No.2 consists of two cotton swabs and item No.3 consists of a cotton swab. As per Ex.P6, on examination of item Nos.1, 2 and 3, it is opined that semen and spermatozoa were not found on them. In Ex.P5 - medical examination certificate, PW.6 has specifically mentioned that there was congestion/redness. The same is possible for any other reason as stated by him. In Ex.P7, there is specific mention that there is no medical evidence stating presence of semen i.e., recent sexual intercourse except for congestion at introitus. Without considering the said aspects, learned trial Court convicted the accused for the charge under Section - 376 (2) (f) read with 511 of IPC holding that as per the available evidence on record, the accused attempted to commit rape upon PW.2. The said finding of the trial Court is contrary to the evidence on record, more particularly deposition of PW.2. PW.2 and PW.3 in one voice deposed that the accused committed rape upon PW.2, which is admittedly incorrect and contrary to the deposition of PW.6, the doctor, who examined the victim girl and medical reports - Exs.P5 to 7.

44. It is also apt to note that PW.2, the victim girl, was 10 years old at the time of incident, categorically deposed that she did not suffer pain when the accused committed rape. The trial Court did not consider the said aspect while convicting the accused for the aforesaid charge.

45. As discussed above, PW.1 deposed that he came to know about the commission of offence through his neighbor - Ramamma. Even then, the prosecution did not examine her. In Ex.P1 - report and in his deposition, PW.1 did not mention that PW.3 informed him about the commission of offence by the accused. It is also apt to note that the police did not examine LW.2, the mother of the victim girl. There is no explanation for the same by the prosecution.

46. Therefore, the trial Court erred in convicting the accused for the charge under Section - 376 (2) (f) read with 511 of IPC.

47. It is also apt to note that the trial Court convicted the accused for the charges under Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989. Section - 3 of the Act, 1989 deals with ‘punishments for offences atrocities’. The same are relevant and are extracted hereunder:

               “3. Punishment for offences atrocities.—(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

               (i) to (xi) xxxxx

               (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed.

               (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—

               (i) xxxxx

               (ii) xxxxx

               (iii) xxxxx

               (iv) xxxxx

               (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.”

48. It is apt to note that to convict the accused for the charge under Section - 3 (1) (xii) of the Act, 1989, the prosecution has to establish that the accused being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed. As discussed above, prosecution failed to prove the same by adducing any evidence.

49. To punish the accused for the charge under Section - 3 (2) (v) of the Act, 1989, the prosecution has to establish that the accused committed any offence under IPC and the same was committed only on the ground that the victim was a member of a Scheduled Caste or a Scheduled Tribe. The trial Court did not record any reason stating that the accused committed the alleged offence on the ground that the victim was Member of the Scheduled Caste. There is no evidence to the said effect and none of the witnesses spoke with regard to the same. Without recording any reason, learned trial Court cannot convict the accused for the charges under the provisions of the Act, 1989. The said principle was also laid down by the Apex Court in Khuman Singh v. State of Madhya Pradesh (AIR 2019 SC 4030). The trial while imposing life imprisonment upon the accused, failed to record any reason that the accused committed the offence only on the ground that the victim was a Member of the Scheduled Caste. There is no evidence to the said effect. Even then, the trial Court imposed maximum sentence of life imprisonment upon the accused for the charge under Section 3 (2) (v) of the Act, 1989. Therefore, the same is liable to be set aside.

50. As discussed above, there are serious lapses in the entire investigation. PW.2 - victim girl was examined by PW.6, the doctor, who is a male. Potency test was conducted by a female Assistant Professor of Kakatiya Medical College, Warangal. Neither PW.9 nor PW.10 enquired with regard to the delay in lodging Ex.P1 - report by PW.1. There are contradictions with regard to receipt of information of alleged offence by the accused in the version of PW.1. There is delay in examination of prosecution witnesses and also arrest of the accused. Even as per evidence of PW.3, the accused fled away on 02.12.2012, but according to PW.1, the accused fled away on 04.12.2012. It is apt to note that LW.5 is father of PW.3. Admittedly, the prosecution did not examine him. According to PW.3, he died two (02) years back. Even then, PW.10 - Investigating Officer apprehended the accused only on 15.12.2012 through Circle Inspector of Police, Gudur Police Station.

51. It is settled principle that however serious, grave or heinous the offence may be, prosecution has to prove the guilt of the accused beyond reasonable doubt by producing cogent and relevant evidence. If two views are possible, the view which is beneficial to the accused has to be considered.

52. The accused was not in a position to engage a lawyer before the trial Court and, therefore, a legal aid counsel was appointed by the trial Court. Even in the present appeal also, legal aid counsel has appeared on his behalf. The legal aid counsel did not cross- examine PW.1, an important witness. It is apt to note that legal aid is not a charity; it is a constitutional right guarantee under Article - 39A of the Constitution of India.

53. The accused is in jail from 09.06.2017. He was also in jail from 15.12.2012 to 07.05.2013 and from 16.12.2016 till 09.06.2017.

54. In the light of the aforesaid discussion, the impugned judgment does not stand the test of legal scrutiny. Without considering the aspects stated above, the trial Court convicted the accused. Therefore, the impugned judgment is liable to be set aside.

55. The present Criminal Appeal is accordingly allowed setting aside the conviction recorded against the appellant - accused and imposition of sentences including life imprisonment for the charges under Section - 376 (2) (f) read with 511 of IPC and Sections - 3 (1) (xii) and 3 (2) (v) of the Act, 1989, by learned Special Judge for SC/ST (POA) Cases-cum-VII Additional District Judge, Warangal, vide the judgment dated 09.06.2017 in S.S.C. No.41 of 2014. The appellant - accused is acquitted of the aforesaid charges. Bail bonds, if any, furnished by him stand cancelled. Fine amount, if any, paid by the accused is also ordered to be returned to him after expiry of appeal time.

As a sequel thereto, miscellaneous applications, if any, pending in this appeal shall stand closed.