Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant, under Section 374(2) of CrPC, is directed against the judgment of conviction and order of sentence dated 5.3.2016 passed by the Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Raipur in Special Sessions Case No.21/2015, by which the appellant herein has been convicted and sentenced in the following manner:-

2. Case of the prosecution, in short, is that the appellant had abducted minor victim (PW-9) on 12.3.2012 and committed sexual intercourse with her till 12.5.2015/ 13.5.2015 and thereafter on 17.5.2015 he deserted her and subsequently on 20.5.2015, FIR was registered vide Exhibit P-13 against the appellant for the aforesaid offences. Spot Map was prepared vide Exhibit P-20. The victim was medically examined vide Exhibit P-11 by Dr. Neeta Bhatnagar (PW-7) and her vaginal slide and her petticoat were seized vide Exhibits P-8 & P-16 respectively. Appellant was also medically examined vide Exhibit P-9 and his underwear was seized vide Exhibit P-4. Dakhil-Kharij Register seized in respect of the victim is Exhibit P-2C and her Social Status Certificate is Exhibit P-7. Statements of the witnesses were recorded under Section 161 of CrPC and the statement of victim (PW-9) was also recorded under Section 164 of CrPC. The seized articles were sent for chemical examination to the F.S.L. Raipur, however, in the F.S.L. report, no seminal stains and human sperms were found on the petticoat (A) and vaginal slide (B) seized from the victim as well as on the underwear (C) seized from the appellant.

3. After completion of the investigation, the appellant was charge-sheeted for the offences punishable under Sections 363, 366, 376 of the Indian Penal Code (for short, 'IPC'), under Sections 3(1)(xii) & 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'SC/ST Act') and under Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') before the concerned jurisdictional Criminal Court from where the case was committed to the Sessions Court, Raipur and after committal, the matter was received by the Court of Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, Raipur for trial and its disposal in accordance with law, in which the appellant abjured his guilt, took a plea of false implication and entreated for trial.

4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 12 witnesses and exhibited 27 documents. In defence, neither any witness has been examined nor any document has been exhibited. Statement of the appellant was recorded under Section 313 of CrPC in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication.

5. After conclusion of the trial, the Trial Court, by impugned judgment dated 5.3.2016, on appreciation of the oral and documentary evidence available on record, convicted and sentenced the appellant in the manner as mentioned in the opening paragraph of this judgment, against which the present appeal has been filed by the appellant calling in question the legality, validity and correctness of the impugned judgment.

6. Mr. Vijay Kumar Sahu, learned counsel appearing for the appellant, would submit that the Trial Court is absolutely unjustified in convicting the appellant for the offences punishable under Section 3(1)(xii) and 3(2)(v) of the SC/ST Act, as there is no evidence that the appellant is said to have committed the alleged offence knowing fully well the caste identity of the victim. He would further submit that the alleged offence is said to have been committed prior to coming into force of the unamended provision of Section 6 of the POCSO Act which was amended w.e.f. 16.8.2019 and since in the instant case the last date of commission of the offence is 13.5.2015, the unamended provision of Section 6 of the POCSO Act will come into play wherein the minimum punishment for offence punishable under Section 6 of the POCSO Act was R.I. for 10 years. He would therefore submit that applying the unamended provision of Section 6 of the POCSO Act and in the light of the decision of the Supreme Court rendered in the matter of State of Uttar Pradesh v. Sonu Kushwaha (2023) 7 SCC 475, [LQ/SC/2023/717 ;] the sentence of Life Imprisonment imposed upon the appellant may be reduced to R.I. for 10 years and the appeal may be allowed accordingly.

7. Per contra, Mr. Ashish Tiwari, learned State Counsel, would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. He would further submit that in view of the statements of the prosecution witnesses, especially the statement of victim (PW-9) coupled with other evidence available on record including the medical evidence, the Trial Court has rightly convicted the appellant for the aforesaid offences and the appeal therefore deserves to be dismissed.

8. We have heard learned counsels for parties, considered their rival submissions made herein-above and have also gone through the records with utmost circumspection.

9. As per the statement of victim (PW-9), the appellant had abducted her from her house on 12.3.2012 and kept her with him in Pune (Maharashtra) for a period of three years till 12.5.2015 and during the said period, sexual intercourse was committed with her by the appellant knowing fully well the fact that she was a minor girl and that the last time he had committed sexual intercourse with her on 13.5.2015 in his house at Village Dhivra and thereafter he deserted her on 17.5.2015, which led to the filing of the FIR on 20.5.2015.

10. Initially, the POCSO Act was not in force when the appellant had abducted the victim on 12.3.2012. The POCSO Act has come into force on 14.11.2012. The date of birth of the victim (PW-9), as per Dakhil-Kharij Register (Exhibit P-2C) proved by the Head Master Kewaldas Banjare (PW-1), is 18.7.1997, and the last date when the appellant is said to have committed sexual intercourse with the victim is 13.5.2015 and the FIR regarding the incident was lodged on 20.5.2015. Thus, it is evidently clear that she was still minor on the date when the FIR was lodged i.e., on 20.5.2015. Therefore, considering the statement of victim (PW-9) as well as her mother Teejan Bai (PW-8), as the victim was minor on the date of lodging of the FIR, the finding of conviction of the appellant under Sections 363, 366, 376 of IPC as well as under Sections 4 & 6 of the POCSO Act recorded by the Trial Court is correct finding of fact and is strictly in accordance with law.

11. Now the question would be whether the Trial Court is justified in awarding the sentence of Imprisonment for Life to the appellant for having committed offence under Sections 4 & 6 of the POCSO Act or the same is on higher side and can be reduced, as contended by learned counsel for the appellant by placing reliance on the recent decision of the Supreme Court in the matter of Sonu Kushwaha (supra).

12. In the matter of Sonu Kushwaha (supra), their Lordships of the Supreme Court finding the accused therein to be guilty of having committed aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act, proceeded to convict him for the said offence and upon further finding that the minimum punishment prescribed for the offence punishable under Section 6 of the POCSO Act at the time when the offence was committed, i.e., prior to 16.8.2009, was R.I. for 10 years, accordingly awarded him the sentence of R.I. for 10 years with fine of Rs.5,000/- and held in Paras 11, 12 & 13 as under:

“11. Section 6, as applicable before its substitution on 16-08-2019, read thus:

"6. Punishment for aggravated penetrative sexual assault. Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment 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."

On the date of the commission of the offence, rigorous imprisonment for ten years was the minimum sentence prescribed for the offence of aggravated penetrative sexual assault. From 16th August 2019, the minimum sentence has been enhanced to twenty years. However, the amended provision will not apply to this case as the incident has taken place prior to 16th August 2019.

12. Surprisingly, the High Court has observed that Section 5 was not applicable, and the offence committed by the respondent falls under the category of a lesser offence of penetrative sexual assault, which is punishable under Section 4 of the POCSO Act. Thus, the High Court committed an obvious error by holding that the act committed by the respondent was not an aggravated penetrative sexual assault. In fact, the Special Court was right in punishing the respondent under Section 6 and sentencing him to undergo rigorous imprisonment for ten years with a fine of Rs.5,000/-.

13. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology "shall not be less than.", the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act.

14. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim-child will be life-long. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court.

15. Accordingly, the appeal is allowed. The impugned judgment and order dated 18th November 2021 passed by the High Court of Judicature at Allahabad in Criminal Appeal No.5415 of 2018 is quashed and set aside and the judgment and order dated 24th August 2018 passed by the learned 8th Additional Sessions Judge, Special Judge POCSO Act, Jhansi in Special Session Trial No.134 of 2016 is restored. Accordingly, Criminal Appeal No.5415 of 2018 filed before the High Court stands dismissed. The respondent shall undergo rigorous imprisonment for ten years for the offence punishable under Section 6 of the POCSO Act and shall pay a fine of Rs.5,000/-.”

13. In that view of the matter and considering the principles of law laid down by their Lordships of the Supreme Court in the matter of Sonu Kushwaha (supra), while affirming the conviction of the appellant for offence under Sections 4 & 6 of the POCSO Act, we award him sentence for a period of 10 years’ rigorous imprisonment by reducing it from Imprisonment for Life, as the last date for commission of offence in the instant case is 13.5.2015 and the unamended provision of the POCSO Act has come into play w.e.f. 16.8.2019 whereby the punishment for the said offence was enhanced.

14. Now, as regards the contention raised on behalf of the appellant as to whether the conviction of the appellant under Sections 3(1)(xii) and 3(2)(v) of the SC/ST Act is justified or not, the said Sections 3(1)(xii) and 3(2)(v) of the SC/ST Act prior to its amendment w.e.f. 26.1.2016 by the Scheduled Castes and Scheduled Tribes Act (Prevention of Atrocities) Act, 2015, stood as under:-

“3. Punishment for offences of atrocities-

(1) xxx xxx xxx.

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

(i) to (iv) xxx xxx xxx.

(v) 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;”

15. In the matter of Asharfi v. State of Uttar Pradesh (2018) 1 SCC 742, [LQ/SC/2017/1805] their Lordships of the Supreme Court, while dealing with Section 3(2)(v) of the SC/ST Act prior to its amendment on 26.1.2016 , held thus in para 6, 7 & 8:-

“6. In respect of the offence under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, the appellant had been sentenced to life imprisonment. The gravamen of Section 3(2) (v) of SC/ST Prevention of Atrocities Act is that any offence, envisaged under Indian Penal Code punishable with imprisonment for a term of ten years or more, against a person belonging Scheduled Caste/ Scheduled Tribe, should have been committed on the ground that "such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member". Prior to the Amendment Act 1 of 2016, the words used in Section 3(2)(v) of the SC/ST Prevention of Atrocities Act are"......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe".

7. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment, the words ".......on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe" have been substituted with the words "........knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". Therefore, if subsequent to 26.01.2016 (i.e. the day on which the amendment came into effect), an offence under Indian Penal Code which is punishable with imprisonment for a term of ten years or more, is committed upon a victim who belongs to SC/ST community and the accused person has knowledge that such victim belongs to SC/ST community, then the charge of Section 3(2)(v) of SC/ST Prevention of Atrocities Act is attracted. Thus, after the amendment, mere knowledge of the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act.

8. In the present case, unamended Section 3(2)(v) of the SC/ST Prevention of Atrocities Act is applicable as the occurrence was on the night of 8/9.12.1995. From the unamended provisions of Section 3(2)(v) of the SC/ST Prevention of Atrocities Act, it is clear that the statute laid stress on the intention of the accused in committing such offence in order to belittle the person as he/she belongs to Scheduled Caste or Scheduled Tribe community.”

16. The Supreme Court in the matter of Patan Jaman Vali v. State of Andhra Pradesh AIR 2021 SC 2190, noticing Section 3(2)(v) of the SC/ST Act (unamended) considered the issue of proving the offence under Section 3(2)(v) of the said Act against a person on the ground that such person is a member of scheduled caste or ccheduled tribe or such property belongs to such member and held that it is to be established by the prosecution on the basis of evidence adduced at the trial and held as under:-

“58. ….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 inter-sectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of the 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...

60. xxx xxx xxx.

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.”

17. Reverting back to the facts of the present case, the material available on record does not show that the appellant has committed rape on the minor victim on the ground that she belonged to Scheduled Caste community. Section 3(2)(v) of the SC/ST Act (unamended) can be pressed into service only if it is proved that the offence of rape has been committed on the ground that the victim is a member of Scheduled Caste community. In the absence of evidence proving the intention of the appellant that he has committed the offence mainly because the victim belonged to Scheduled Caste Community, the conviction of the appellant under Section 3(2)(v) of the SC/ST of the cannot be sustained. The prosecution has not led separate evidence to show that the appellant has committed the offence on the basis of caste identity of the victim (PW-9).

18. The prosecution could have brought legal evidence on record to show that the appellant was having knowledge that the victim belongs to Scheduled Caste community, in view of the judgment of the Supreme Court rendered in the matter of Patan Jaman Vali (supra) wherein it has been held that 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) of the SC/ST Act as it stood at the time when the offence in the present case was committed. In that view of the matter, the conviction of the appellant for the offence under Section 3(2)(v) of the SC/ST Act is liable to be set-aside and is hereby set-aside.

19. The appellant has also been convicted under Section 3(1)(xii) of the SC/ST Act (unamended) prior to its amendment w.e.f. 26.1.2016, which stood as under :

“Section 3(1)(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;”

20. A careful perusal of the aforesaid provision would show that as per Section 3(1)(xii) of the SC/ST Act, it must be proved that the accused was in a position to dominate the will of a woman belonging to a Scheduled Caste or Scheduled Tribe community and uses that position to exploit her sexually to which she would not have otherwise agreed. The position to dominate means commanding and controlling position. The expression “sexual exploitation” includes sexual intercourse without consent. See Madanlal v. State of C.G (2007) 1 CGLJ 435. [LQ/ChatHC/2006/376]

21. The ingredients of the offence under Section 3(1)(xii) of the SC/ST Act are that –

"(1) the offender must be a person who is not a member of Scheduled Caste or Scheduled Tribe.

(2) he be in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe.

(3) the said position was used to exploit the woman sexually to which, she would not have otherwise agreed.

The “Position to Dominate” means “Commanding and controlling position”. The position of the accused coupled with the use of such position to exploit the victim women sexually are important criteria apart from the Caste/Tribe factor of the victim/accused."

22. In light of the ingredients of Section 3(1)(xii) of the SC/ST Act, it is quite vivid that the Special Judge has only recorded a finding that the offence of rape has been committed by the appellant upon the victim under Section 376 of IPC and thereafter, held that the offence under Section 3(1)(xii) of the SC/ST has been committed because the victim was a member of the Scheduled Caste community.

23. In our considered opinion, merely because the girl/victim was a member of Scheduled Caste Community, it cannot be assumed that the appellant was able to dominate her will to exploit her sexually. Even otherwise, the charges framed against the appellant are very vague and the prosecution has not led any evidence to show that the appellant was in commanding and controlling position and in absence of any separate evidence in this regard, the conviction under Section 3(1)(xii) of the SC/ST Act deserves to be and is hereby set-aside.

24. Consequently, we maintain the conviction of the appellant under Sections 363, 366, 376 of IPC as well as under Sections 4 & 6 of the POCSO Act and set aside his conviction under Sections 3(1)(xii) and 3(2) (v) of the SC/ST Act. However, we sentence him for a period of 10 years' rigorous imprisonment by reducing it from Imprisonment for Life, under Sections 376 of IPC and Sections 4 & 6 of the POCSO Act. The fine amounts and its default clauses shall remain affirmed and all the sentences shall run concurrently.

25. This criminal appeal is partly allowed to the extent indicated hereinabove.

26. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned Trial Court and the Superintendent of Jail, for necessary information and action.