THE HIGH COURT OF ORISSA AT CUTTACK CRA No.288 of 1997 (In the matter of an application under Section 374(2) read with Section 382 of the Criminal Procedure Code, 1973) Bikash Behera ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellants : Mr. D.P. Dhal, Senior Advocate For the Respondent : Mr. Sobhan Panigrahi, ASC CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 05.05.2026 :: Date of Judgment: 22.05.2026 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant is directed against the judgment and order dated 29.11.1997 passed by the learned Sessions Judge-cum-Special Judge, Sonepur, Balangir in Sessions Case No.29 of 1996, whereby the appellant was convicted for the offences punishable under Section 376 of the Indian Penal Code and Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.3,000/-, in default to undergo rigorous imprisonment for one year for the offence under Section 376 IPC. The appellant was further sentenced to undergo rigorous imprisonment for three years on each count for the offences under the SC & ST (POA) Act. All the sentences were directed to run concurrently. 2. Heard Mr. D.P. Dhal, learned Senior Counsel appearing for the appellant and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for the State. 3. The prosecution case, in brief, is that the victim (P.W.5), belonging to Scheduled Tribe community, was working as a maid servant in the house of the appellant’s father at a village within Binka Police Station in the district of Sonepur. It is alleged that on 11.01.1995, taking advantage of absence of the family members from the house, the appellant forcibly committed sexual intercourse with the victim inside a room of the house. It is further alleged that after the occurrence the appellant threatened the victim with dire consequences and assured her that he would marry her. Thereafter, according to the prosecution, the appellant continued to maintain physical relationship with the victim on several occasions and as a result thereof the victim became pregnant. When the pregnancy came to the notice of her family members, villagers intervened and a village meeting was convened, but as the appellant denied his involvement, the father of the victim lodged the written report before the Officer-in-Charge, Binka Police Station, on the basis of which Binka P.S. Case No.42 of 1995 was registered and investigation commenced. 4. During investigation, the victim was medically examined by P.W.7, Dr. K. Ramchandra Rao. Radiological examination for determination of age was conducted by P.W.2. The appellant was medically examined by P.W.8. Pathological examination relating to the child born to the victim was conducted by P.W.9. Upon completion of investigation, charge-sheet was submitted against the appellant. Page 4 of 28 5. To substantiate the charges, the prosecution examined eleven witnesses. P.W.5 is the victim. P.Ws.3 and 4 are the parents of the victim. P.W.6 is the scribe of the FIR. P.W.2 is the Radiologist who conducted ossification test. P.W.7 is the doctor who medically examined the victim. P.W.8 is the doctor who examined the appellant. P.W.9 is the Pathologist. P.W.10 proved the horoscope of the victim. P.W.11 is the Investigating Officer. 6. The defence plea is one of complete denial and false implication owing to village rivalry and prior disputes relating to encroachment of village club land and use of water from the village well. One witness was examined on behalf of the defence and certain documents were exhibited. 7. The learned trial court, upon detailed appreciation of the oral, documentary and medical evidence on record, came to hold that the prosecution had successfully established the charges against the accused beyond all reasonable doubt. The trial court found that the victim girl (P.W.5) belonged to a Scheduled Tribe community and was a minor at the time of occurrence. Relying upon the consistent evidence of her parents (P.Ws.3 and 4), the radiological opinion of P.W.2 estimating her age to be between 14 to 15 years, and the horoscope (Ext.10) showing her date of birth as 17.06.1982. The court observed that the testimony of the prosecutrix was natural, cogent and trustworthy and did not suffer from any material infirmity despite lengthy cross-examination. The trial court further held that the victim, being an illiterate minor tribal girl employed as a maid servant in the accused’s house, was vulnerable to exploitation and that the accused had taken advantage of his dominant position as the son of her employer. The court accepted the prosecution version that the accused forcibly committed sexual intercourse with the victim for the first time in the TV room of his house after threatening her with a knife and thereafter repeatedly subjected her to sexual intercourse on the false promise of marriage, resulting in her pregnancy. The evidence of P.Ws.3, 4 and 6 regarding disclosure of the occurrence, village intervention and subsequent lodging of the FIR was found to be consistent and corroborative of the prosecutrix’s evidence. The learned trial court also held that even assuming any willingness on the part of the victim, the same was immaterial in law since she was below sixteen years of age at the relevant time. Accordingly, the learned Sessions Judge-cum-Special Judge, Sonepur convicted the accused thereunder. Relevant part of the impugned judgment is reproduced hereunder for convenience of ready reference:- “18. In view of the above, it is established beyond reasonable doubt that accused Bikash repeatedly committed rape on the victim girl, who is a member of Scheduled Tribe, when she was under 16 years of age and working as maid servant in his house, It is also established beyond reasonable doubt that on the first occasion accused Bikash, committed forcible sexual intercourse with her and, held out false promise to marry her as well as threatened her not to disclose the occurrence to anyone. It has, thus, been well substantiated by the prosecution that being in a position to dominate the will of the prosecutrix because of his status as an educated person and her master's son, accused Bikash used that position to exploit the prosecutrix sexually to which she would not have otherwise agreed. 19. In the result, accused Bikash Behera is found guilty of offences under section 376 of the I. P. C as well as offences under sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 and is convicted thereunder.” 8. Aggrieved by the aforesaid Judgment of conviction and Order of sentence, the appellant has preferred the present appeal. This Court, deeming it appropriate to ascertain the health and well-being of the victim, called for a report in that regard and received the same, which is reproduced hereinbelow: “With reference to the letter and subject cited above, I have the honour to submit that, I made enquiry at village Jabda under Binika P.S. of Subarnapur Dist. and it came to light that, Udiya Bhue (45) D/o Bhutulu Bhue of Jabda, P.S. Binika, Dist: Subarnapur is maintaining her livelihood by working as a cook in Jabda Govt. Primary School, Jabda with a remuneration of Rs.3000/- (Three thousand) per month. Her son Prakash Behera has been working IDFC First Bank, Sambalpur and performs his duty in Dunguripali and Binika area. He gets a salary of Rs. 18000/- (Eighteen thousand) per month. Udiya Bhue and her son have separate mess but lives in the house of parents of Udiya Bhue at village Jabda, P.S: Binika, Dist: Saburnapur.” It is evident from the said report that the victim and her child are living properly and sustaining themselves through some form of employment. Keeping the same in view, this Court now proceeds to decide the present appeal. Page 8 of 28 9. Mr. Dhal, learned senior counsel for the appellant, submitted that the prosecution case suffers from serious improbabilities and unexplained delay in lodging of the FIR. It was contended that although the alleged first occurrence took place in January, 1995, the FIR was lodged after nearly six months, only after the victim’s pregnancy became visible. According to the appellant, the conduct of the prosecutrix in remaining silent for such a prolonged period, continuing to maintain relationship with the accused and not immediately disclosing the incident either to her parents or villagers clearly probabilises a consensual relationship rather than forcible sexual intercourse. It was further argued that there existed prior village disputes between the family of the prosecutrix and the accused relating to encroachment of village club land and use of water from the village well, thereby giving rise to motive for false implication. 10. Mr. Dhal further argued that the evidence of the prosecutrix did not inspire confidence and that there was no independent evidence directly corroborating the allegation of forcible sexual encounter. The learned counsel submitted that the prosecution had failed to establish that the accused had any intention from the inception to deceive the prosecutrix on the promise of marriage. In support of such submissions, he placed reliance upon the decisions of the Hon’ble Supreme Court in Vijayan v. State of Kerala, reported in (2009) 3 SCC (Cri) 589, Kaini Rajan v. State of Kerala, reported in (2013) 3 SCC (Cri) 858, Prakash Chand v. State of Himachal Pradesh, reported in (2019) 5 SCC 628, Maheshwar Tigga v. State of Jharkhand, reported in 2020 10 SCC 108, Rajnish Singh @ Soni v. State of Uttar Pradesh and Anr. reported in (2025) 4 SCC 197 and Prashant v. State of NCT of Delhi reported in (2025) 5 SCC 764, wherein the Hon’ble Apex Court observed that prolonged consensual relationship coupled with delayed reporting may render the prosecution case doubtful and unsafe for conviction solely on the testimony of the prosecutrix. 11. Mr. Dhal, learned counsel for the appellant also submitted that the prosecution had failed to produce conclusive scientific evidence connecting the accused with the child born to the prosecutrix. It was argued that the pathological evidence merely indicated blood grouping and no genetic or DNA examination was conducted to establish paternity. The defence further contended that the plea of false implication arising out of village rivalry stands proved through the evidence of D.W.1 and documents marked Exts.A, B and C relating to disputes with villagers. It was therefore prayed that the conviction recorded by the learned trial court be set aside and the appellant be acquitted of all charges. 12. Per contra, Mr. Panigrahi, learned Addl. Standing Counsel appearing for the State supported the judgment of conviction and sentence and submitted that the testimony of the prosecutrix was wholly reliable, natural and trustworthy. It was argued that the prosecutrix, an illiterate minor tribal girl working as a maid servant in the accused’s house, had consistently stated that the accused forcibly committed sexual intercourse with her after threatening her with a knife and subsequently continued to sexually exploit her on the promise of marriage. The State further submitted that the victim’s evidence was corroborated by the evidence of her parents (P.Ws.3 and 4), independent witness P.W.6, medical evidence and surrounding circumstances, including the pregnancy of the victim. 13. Mr. Panigrahi, learned ASC further contended that the prosecutrix was below sixteen years of age at the time of occurrence and therefore her consent, even if assumed, was legally immaterial. He placed reliance upon the evidence of P.W.2, the Radiologist, who opined the age of the victim to be between 14 to 15 years on ossification test, as well as the horoscope Ext.10 showing her date of birth as 17.06.1982. In support of the evidentiary value of the ossification test conducted on multiple joints, reliance was placed upon Ram Deo Chauhan @ Raj Nath v. State of Assam, reported in (2001) 5 SCC 714. He also relied upon State of Himachal Pradesh v. Shreekant Shekari reported in (2004) 8 SCC 153 to contend that the plea of consent was never specifically taken during trial and the defence throughout remained one of complete denial and false implication. Page 12 of 28 14. Learned Addl. Standing Counsel lastly submitted that the delay in lodging the FIR had been satisfactorily explained, inasmuch as the matter was first taken before village elders after the victim’s pregnancy was detected and only after the accused and his family denied responsibility, the FIR was lodged. He argued that considering the social background, poverty, illiteracy and vulnerability of the prosecutrix, such delay was neither unnatural nor fatal to the prosecution case. Accordingly, it was submitted that the prosecution had proved the charges beyond all reasonable doubt and the appeal being devoid of merit, was liable to be dismissed. 15. I have carefully considered the submissions advanced by the learned counsel for the appellant as well as the learned counsel for the State, and perused the entire lower court records, including the depositions of the prosecution witnesses, the medical evidence, and analyzed the reasoning assigned by the learned trial Court while appreciating the evidence brought on record by the prosecution against the appellant. Page 13 of 28 Following two pivotal issues have been flagged by this Court to determine as to whether the appellant is guilty of the charges u/s.376 I.P.C or not. i. Whether the victim had attained the age of consent as provided u/s.376(3) I.P.C at the time of commission of offence u/s.376 I.P.C. ii. Whether the accused had obtained “the consent” from the prosecutrix by playing fraud, coercion or threat of any kind. 16. The first issue that falls for consideration is with regard to the age of the victim at the relevant point of time. Since the prosecution has attempted to establish that the prosecutrix was a minor, the evidence of the medical experts assumes considerable importance. In order to determine the same, this Court deems it proper to carefully examine the evidence of the doctors, namely P.Ws.2 and 7, who have spoken regarding the age of the victim on the basis of ossification and Radiological tests conducted upon her. Page 14 of 28 P.W.2, who was working as Radiologist in the District Headquarters Hospital, Balangir, has stated in his evidence as follows: “On 17.5.95 I was Radiologist Dist. Hq. hospital Balangir. On that day on Police requisition I conducted the X-ray examination of Udia Bhoi daughter of Dhutulu Bhoi of the following parts. Pelvis A.P. view, right wrist joint and hand, right elbow joint, right knee joint, right ankle joint and right stemo clavicular Joint. On ossification test I estimated the age of the victim girl to be between 14 to 15 years. Ext. 2 is my report. Ext. 2/1 is my -signature. The X ray Plates Nos. 644, 645,646 and 647 dt. 17.7.95. I received the requisition for determining the age of the victim girl. Cross examination: 2. The age can vary on either side by two years. In case of rich diet the growth of different parts of the body is earlier.” From the aforesaid evidence, it appears that P.W.2 assessed the age of the prosecutrix to be between 14 to 15 years on the basis of ossification/Radiological test. However, what is of greater significance is the categorical admission made by the said witness during cross- examination that the age determined through ossification test can vary on either side by two years. The evidence of P.W.7 also deserves careful consideration in this regard. The said witness has deposed as follows: "Approximate age of the victim girl, as determined on the ossification test, was above 16 years and below 18 years" Thus, the medical opinion furnished by P.W.7 materially differs from the opinion expressed by P.W.2. While P.W.2 opined that the age of the victim was between 14 to 15 years plus or minus 2 years, whereas, P.W.7 assessed her age to be above 16 years and below 18 years. Therefore, the evidence on record itself discloses two possible views regarding the age of the prosecutrix. In such circumstances, the prosecution cannot be said to have established beyond all reasonable doubt that the prosecutrix was below the age of consent at the relevant point of time. The medical evidence, instead of conclusively proving minority, creates uncertainty and leaves room for two possible views. It is a cardinal principle of criminal jurisprudence that where two views are possible from the evidence on record, the view favourable to the accused must be adopted. The benefit arising out of such doubt must necessarily enure to the benefit of the accused. Page 16 of 28 17. Upon careful examination of the evidence on record, this Court finds that, so far as the issue relating to the age of the prosecutrix is concerned, the prosecution has sought to establish her minority primarily through the evidence of P.Ws.2, 3 and 4 as well as the horoscope marked as Ext.10. The Radiologist, P.W.2, assessed the age of the prosecutrix on the basis of ossification test to be between 14 to 15 years. However, in his cross-examination, he has categorically admitted that “The age can vary on either side by two years” and further stated that in case of rich diet, bodily growth may occur earlier. P.W.7 has also opined that the approximate age of the victim girl, as determined through ossification test, was “above 16 years and below 18 years.” Thus, from the very medical evidence relied upon by the prosecution, two possible views emerge regarding the age of the prosecutrix, one of which clearly indicates that she could have been above 16 years of age at the relevant point of time and thereby within the age of consent. The evidence relating to age, therefore, does not inspire such certainty as would conclusively establish the prosecutrix to be a minor beyond all reasonable doubt. Additionally, it is well settled that ossification test is not an exact science and cannot be treated as conclusive proof of age. In Bishnudas Behera v. State of Orissa, reported in 1996 SCC OnLine Ori 272, it was observed that determination of age by ossification test is neither absolute nor exact and that variation in age can extend up to three years on either side. Referring to Modi’s Medical Jurisprudence and earlier precedents, the Court held that ossification report cannot by itself be regarded as a clinching factor for determination of age. In the said judgment, it was further observed that where two possible views regarding age are available, the benefit must necessarily go in favour of the accused. Extract of the above judgment is herein for ready reference:- “9. Testing by the aforesaid touch stone, the school admission register cannot be regarded as the sole clinching factor for determination of the age. The next which requires analysis is the ossification report. Mr. Das has given immense emphasis on the aforesaid aspect. Ossification test is one of the tests to find out the age. It is well known that the determination of age by ossification test is neither absolute nor exact. This Court in the case of Sribatcha Khamari v. State of Orissa reported in 77 (1994) C.L.T. 711 while dealing with the concept of ossification test has held that variation of age in the ossification test can be upto 3 years in either way. It is pertinent to state here that this view was taken after referring to the admission made by the Doctor who had conducted the ossification test, and also after referring to Modi's Medical Jurisprudence. Mr. Patnaik has relied on a decision of Bombay High Court in the case of Balasaheb v. The State of Maharashtra reported in 1994 Cri L.J. 3044 wherein the said court after referring to Modi's Medical Jurisprudence and Toxicology (21st Edition) expressed thus:— “It is observed that the error in the case of age based on ossification test may be 3 years.” 10. I have indicated earlier p.w. 8 who had conducted the ossification test has stated that the victim girl was between 15 to 17 years and p.w. 12 who had also conducted the said test has opined that the age of the girl would be mote than 14 years and less than 16 years. No doubt there can be an error between the periphery of 3 years. I am inclined to believe that p.w. 4 was more than 18 years as the benefit of advantage has to go in favour of the accused in the present case inasmuch as p.w. 11, the mother has indicated when p.w. 4 was born. Even if some margin is granted to her because of her rustic background, it cannot be stated that she had no idea when pw. 4 was born. Even if a year or two is excluded, as indicated in the evidence of p.w. 11, she would be more than 18. In view of this oral evidence. I am of the considered view that the benefit of advantage has to be given to the accused and p.w. 4 should be regarded as a major at the time of occurrence.” In the present case, except for the ossification report and the horoscope, no contemporaneous documentary evidence such as birth certificate, school admission register or public record has been produced by the prosecution. The horoscope Ext.10 was admittedly prepared privately by the father of P.W.10 and does not carry the same evidentiary value as a statutory or public document. In such circumstances, once the ossification test itself permits a margin of error of two to three years on either side, the possibility of the prosecutrix being above the statutory age of consent at the relevant point of time cannot be ruled out. In a criminal trial where the liberty of an accused is at stake, any benefit from uncertainty must favour the accused. It would be apt to rely on the judgment of the Honourable Supreme Court in Pradeep Kumar v. State of Chhattisgarh, reported in (2023) 5 SCC 350, where it was held thus:- “27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. [Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] ].” 18. Coming to the second issue, namely whether the alleged consent was obtained by fraud, coercion, threat or misconception of fact, the evidence on record does not inspire confidence to conclusively establish absence of voluntary participation on the part of the prosecutrix. It’s noteworthy to mention that at the time of the incident the appellant was only 20 years of age and the prosecutrix also of same age group. It appears that they were in an adolescence relationship. At this point it would be apt to reproduce the evidence of the prosecutrix (P.W.5) for the convenience of ready reference: “2. During the period of occurrence I was working as a maid servant in the house of the accused. I was engaged to work in the house of the accused since about 1 year prior to the occurrence. In course of such employment I was residing in the accused's house. The occurrence took place more than a year back in the month of Pausa on a Wednesday. 3. At the time of occurrences accused Bikash was alone present in the house and his family members were not there. The accused dragged me to his T. V. room and forcibly laid me on the PALANKA, he lifted the Sari which I was wearing and committed forcible sexual intercourse with me. 4. After committing rape the accused told me that he would take me as his wife and threatened me that he would stab me with knife if I disclose the occurrence to any one, Out of fear I did not disclose regarding the occurrence to my parents or anyone else. Thereafter also the accused committed rape on me on several occasions me as a result of which I became pregnant. When I told regarding the pregnancy to the accused, he gave me some medicines to terminate the pregnancy. I did not take the medicine and threw it away. 5. When I was already conceiving for 5 months my mother could detect the pregnancy, On knowing the same she enquired regarding the person who is responsible for the same on which I disclosed regarding the entire occurrence to her and disclosed the name of the accused.” The prosecutrix in the Cross-examination has also states that she used to have vocal pleasantries of intimate nature, prior to commission of offence, she in her evidence has stated thus: “10. Prior to the occurrence i.e. the first rape in the month of Pausa, the accused and myself used to exchange vocal pleasantries of intimate nature. Such pleasantries, included tilting of eye by me to him and tilting of eye by him to me….. XXXX XXXX XXXX 13. The accused showed me knife on every occasion when he committed rape on me. 14. I used to visit my house at the intervals of 8/10 days.” Though the prosecutrix alleged that the accused initially threatened her with a knife and promised to marry her, it is admitted that the relationship allegedly continued over several months. She used to visit her parental home at intervals of 8 to 10 days, yet did not disclose the occurrence to anyone till pregnancy was detected after nearly five months, no complaint was lodged either before the police, village elders or even before her parents immediately after the alleged occurrence. In cross-examination, she admitted prior exchange of intimate pleasantries with the accused. However, admittedly the house of the accused was situated in the midst of the village and there is no evidence from any independent villager that any alarm or commotion was ever heard. No neighbour or co-villager has stated regarding hearing cries for help from the prosecutrix despite the alleged repeated incidents occurring over a prolonged period. On the other hand, she has admitted in her evidence that even after the first sexual encounter, they continued the relationship, which had gone sour of late once the accused refused to stand by his promise to marry her. This prolonged silence and continued association between the parties create a serious dent in the prosecution version of repeated forcible intercourse against the will of the prosecutrix. The conduct of the prosecutrix, as emerging from the evidence, appears inconsistent with the normal conduct expected in a case of repeated forcible sexual encounter, especially when opportunities existed for disclosure to her parents during her visits home. Furthermore, the victim’s parents failed to establish her exact age or birthdate in their testimony. Their statements merely repeated the narrative provided by their daughter, offering no independent corroboration. 19. Furthermore, no contemporaneous medical evidence of injury or resistance is available on record because of the delayed FIR. No DNA or genetic examination was conducted to establish paternity of the child born to the prosecutrix, thereby depriving the prosecution case of crucial corroborative scientific evidence. 20. The Hon’ble Supreme Court in Vijayan v. State of Kerala, reported in (2009) 3 SCC (Cri) 589, observed that where the prosecutrix waits for several months before lodging FIR and continues physical relationship with the accused, conviction solely on her testimony becomes unsafe, particularly in absence of supporting medical or scientific evidence. It was held thus:- “5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant- accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from custody if not required in any other case.” Similar view was reiterated in Kaini Rajan v. State of Kerala, reported in (2013) 3 SCC (Cri) 858, wherein the Hon’ble Apex Court held that prolonged silence, delayed reporting and surrounding circumstances probabilising consensual intimacy render it hazardous to sustain conviction for rape. The principles laid down therein were subsequently noticed and reaffirmed in Prakash Chand v. State of Himachal Pradesh, reported in (2019) 5 SCC 628, while considering cases involving prolonged physical relationship and delayed allegations. 21. Nevertheless, so far as the conviction under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, this Court is unable to concur with the findings recorded by the learned trial court. Mere proof that the prosecutrix belonged to a Scheduled Tribe community and that the accused did not belong to such community is not by itself sufficient to attract the penal provisions of the SC & ST (POA) Act. It was determined in the case of Masumsha Hasanasha Musalman vs State of Maharashtra, reported in 2000 (3) SCC 557, relevant part of which is extracted herein:- “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.” From the evidence on record, it appears that the relationship between the parties arose out of acquaintance and proximity occasioned by the victim’s engagement in the appellant’s household. In absence of any material demonstrating caste-based intention or exploitation rooted in the victim’s social identity, the essential ingredients of Sections 3(1)(xi) and 3(1)(xii) of the SC & ST (POA) Act cannot be said to have been proved beyond reasonable doubt. 22. The prolonged silence of the prosecutrix, continued association between the parties, absence of prompt complaint, lack of medical evidence showing injuries suggestive of forcible intercourse, and non- conduct of DNA examination cumulatively create serious doubt regarding the prosecution story of repeated forcible rape. The factual matrix rather probabilises a consensual relationship which subsequently deteriorated. 23. Accordingly, this Court is of the considered opinion that the prosecution has failed to establish the charges against the appellant beyond reasonable doubt, either that the prosecutrix was below the statutory age of consent or that the alleged consent was vitiated by coercion, threat, fraud or misconception of fact. The appellant is therefore entitled to benefit of doubt. Consequently, the judgment of conviction and order of sentence passed by the learned trial court are set aside. The appellant is acquitted of the charges under Section 376 IPC as well as Sections 3(1)(xi) and 3(1)(xii) of the SC & ST (Prevention of Atrocities) Act, 1989. 24. Accordingly, the Criminal Appeal is allowed. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 22nd of May, 2026/Ashok MOHAPATRA