No conviction for an offence under SC& ST Atrocities Act, if prosecution has failed to prove that offence has happened due to victims caste identity

1. Leave granted.

2. The present appeal challenges the judgment and order of the

Division Bench of the High Court of Madhya Pradesh at Jabalpur in

Criminal Appeal No. 2324 of 2006. By the said judgment, the High

Court confirmed the conviction and sentence imposed on the

appellant by the Special Judge, (SC/ST Prevention of Atrocities) Act,

Katni, Madhya Pradesh in Special Sessions Case No. 140 of 2004

and Special Sessions Case No. 136 of 2005. The appellant thus

stands convicted for offences punishable under Sections 366, 376(2)

(g) and 342 of the Indian Penal Code, 1860 (for short ‘IPC’) and

Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short ‘1989 Act’). For the

offence punishable under Section 366 IPC, the appellant has been

sentenced to 5 years rigorous imprisonment with a fine of Rs. 2000/-

and, in default of fine, to undergo a sentence of 6 months rigorous

imprisonment. For the offences punishable under 376(2)(g) IPC and

Section 3(2)(v) of the 1989 Act, the appellant has been sentenced to

rigorous imprisonment for life with a fine of Rs. 2000/- and, in

default of fine, to undergo rigorous imprisonment for 1 year. For the

offence under Section 342 IPC, the appellant has been sentenced to

undergo 6 months’ rigorous imprisonment with a fine of Rs. 200/-

and, in default of fine, to undergo rigorous imprisonment for 2

months. Aggrieved, the appellant is before us.

3. The appellant was Accused No. 1 and one Jalandhar Kol was

Accused No. 2. Accused No. 2 was sentenced for the same offences

as that of the appellant except that there was no conviction and

sentence on Accused No. 2 under the 1989 Act. The other difference

was that insofar as Section 376(2)(g) was concerned, Accused No. 2

2

was sentenced to 10 years rigorous imprisonment with a fine of Rs.

2000/- and, in default of fine, to undergo rigorous imprisonment for 1

year. The Accused No. 2 is not before us.

PROSECUTION CASE: –

4. The prosecution case originated with a missing report No.

11/2004 lodged on 24.06.2004 at 18:30 hrs. at Police Station,

Kymore, District Katni, Madhya Pradesh. The complainant – ‘S’

(PW-2) informed the Police that on the previous night at 10:00 PM,

his daughter-the prosecutrix (hereinafter referred to as ‘R’) went to

see the barat at the house of one Fagun Chaudhary along with ‘SA’

(DW-1). The complainant averred that ‘R’ did not return home.

Description was given and it was also mentioned that ‘R’ was

wearing a green colored Sari and Blouse. Investigation was taken up

on the missing report after registration.

5. As per the recovery memo Exhibit P-1, on 28.06.2004 at 11:30

hours, ‘R’ was recovered from the house of ‘LB’ (DW-2) mentioned

as wife of the appellant (though it has subsequently come on record

as part of the evidence of prosecutrix that the appellant Raju and LB

were only having a relationship). The recovery memo was witnessed

by an independent witness PW-3, ‘TP’ and other Panch witnesses

and was signed by PW-11 Sub-Inspector – J. L. Mishra. The recovery

memo stated that: –

“In the presence of us, aforesaid Panchas R (prosecutrix), Village

Jhiriya who was earlier in Raju’s house was brought by LB to her

house who was recovered by the Kymore Police from LB’s

house.”

‘LB’ also signed the recovery memo.

6. PW-11 J. L. Mishra on recovery of the prosecutrix ‘R’,

recorded the statement of ‘R’ as per her narration and registered Case

Crime No. 113 of 2004 under Sections 376, 363, 366, 342, 506/34

IPC and Section 3(1-12) of the 1989 Act. Exhibit P-20 is the FIR

and was registered on 28.06.2004 at 16:00 hours. In her statement,

which resulted in the FIR, ‘R’ stated that accused Jalandhar abducted

‘R’ by threatening her and raped her by threatening to kill her and

appellant Raju helped Jalandhar in committing the offence and kept

Jalandhar in his room in Haristone Kachhgawan. By Exhibit P-2, the

prosecutrix ‘R’ consented to her medical examination by stating that

accused Jalandhar committed wrongful act with her. Consent to the

same effect was also given by PW-2 ‘S’, the father of ‘R’.

7. PW-13 S.K. Pandey has deposed that he was posted as DSP,

AJAK, PS Katni, and that case diary pertaining to Case Crime No.

113 of 2004 was received for investigation on 30.06.2004. PW-13

further deposed that prosecutrix along with her father appeared

before AJAK Katni and gave Exhibit P-3 on 30.06.2004. In Exhibit

P-3, it was mentioned by the father of the prosecutrix that his

daughter ‘R’ went to see the barat of the daughter of Fagun; that

while returning from the barat, she has been kidnapped; that the

appellant Raju of Village Jhiriya and his servant Jalandhar Kol of

village Barchheka were stalking her; that on not finding ‘R’, PW-2

kept track by giving information to Kymore Police Station; that PW2 came to know that the appellant Raju and Jalandhar have together

kidnapped ‘R’ and kept her confined at various places; that coming to

know that police had been informed, Jalandhar fled the place; the

prosecutrix ‘R’ was freed; that the appellant Jalandhar and Raju are

goons and prosecutrix ‘R’ was scared of them; that ‘R’ was scared

when she stated that Raju and Jalandhar forcibly kidnapped ‘R’ and

confined her in the house of the field and committed rape on her; that

by threatening her, they confined the prosecutrix in various places

under their custody; that because of fear, this could not be stated

earlier and hence the application is given today; that Raju and

associates are giving threats and hence an investigation was prayed

for.

8. During the investigation, on 22.07.2004, ‘R’ gave Exhibit P-6

to SHO about threats being given by Jalandhar and Raju due to

lodging of the report with Police. It is also stated that on 20.07.2004

appellant Raju abused them and even kicked the door of the house.

Legal action was prayed for.

9. Raju was arrested on 23.07.2004 and Jalandhar was arrested on

22.05.2005. Charge-sheet has been filed on 31.07.2004 stating that

Raju and Jalandhar are accused, and it was stated that a

supplementary challan would be filed against Jalandhar separately.

Chargesheet was filed for offences punishable under 376(2), 366,

363, 342, 34 and 506 IPC read with Section 3 (1-12), 3 (2) (v) of the

1989 Act. Charges were framed by the Trial Court in Sessions Case

No. 140 of 2004 against the accused on 25.05.2005 for offences

punishable under Sections 366, 376(2)(g) & 342 IPC and 3(2)(v) of

the 1989 Act.

10. At the Trial, the prosecution examined thirteen witnesses and

produced several exhibits and the defence examined two witnesses.

On appreciation of the evidence, the Trial Court recorded conviction

for the appellant and accused Jalandhar and sentenced them. The

details have already been set out in Para one above. The High Court

confirmed the same. The Accused No.1 is in appeal before us.

11. We have heard Shri Susheel Tomar, learned Counsel for the

appellant and Shri Sarthak Raizada, learned Counsel for the State

and have perused the records. We have also called for the Trial Court

records from the High Court and obtained translation of the Hindi

documents. We have carefully examined the Trial Court records also.

ANALYSIS AND REASONS: –

12. Learned Counsels have reiterated the respective contentions put

forth before the Courts below. We have dealt with the arguments as

part of the discussion and hence are not separately setting out the

contentions herein.

13. Though at the trial Court and at the High Court stage, a dispute

with regard to the age of the prosecutrix was raised, it was found at

the trial that the prosecution has failed to prove beyond doubt that

the age of the prosecutrix was less than 18 years as on the date of the

incident. This finding was confirmed by the High Court. We see no

ground to interfere with the said finding.

14. The case revolves around the testimony of the prosecutrix ‘R’

who was examined as PW-1. She has categorically deposed that, at

around 1:00 AM, when she and her friend ‘SA’ were returning from

the wedding ceremony, they halted to attend calls of nature.

Thereafter, when they were proceeding towards their house, the

accused persons caught hold of them from behind. According to the

prosecutrix, while the appellant Raju caught her, Jalandhar was

accompanying him. PW-1 states that at the same time her friend ran

away. She further states that while one caught hold of her the other

gagged her mouth and were threatening to kill her if she raised a hue

and cry. She deposed that the accused had a two-wheeler and they

forcefully made her sit on the two-wheeler and took her to the house

of the appellant which was in the middle of the fields. She deposed

that both the appellants locked her in the room and committed

wrongful act with her. She deposed that she was wearing a green

colored Sari and further stated that Jalandhar committed wrongful act

by inserting his penis into her vagina. Raju also committed wrongful

act by putting his penis into her vagina. Thereafter, the accused took

her to Dair Salaiya on a Motorcycle. The appellant took her to his

house where ‘LB’, with whom he had a relationship, was there and

locked her and after two days her father got her released from there.

She further clearly deposed that she had told her parents, brother and

sister-in-law about the incident and that appellant Raju stayed with

‘LB’ and Jalandhar after taking keys from ‘LB’ took her to another

house.

15. PW-1 further deposed that Jalandhar drank alcohol and made

her also to drink alcohol. Thereafter, she clearly deposed that

Jalandhar committed rape on her. Further, she categorically deposed

that appellant Raju also reached the other house in Dair Salaiya and

committed wrongful act with her. She stated that Dair Salaiya was a

dense colony where she stayed for two days; that she used to have

meals at the residence of ‘LB’, that she had taken bath and washed

her clothes and that she did not tell ‘LB’ about the wrongful act

committed by the accused. The prosecutrix denied the suggestion

that her father wanted Jalandhar to leave the services under Raju and

that Raju didn’t remove Jalandhar and, as such, her father filed a

false case against Raju. She denied the suggestion that she was in a

physical relationship with Jalandhar for four years. She admitted that

she was first married in village Pauri. She denied that she went to

the house in the field at her free will. PW-1 denied the suggestion

that Raju did not commit any forceful act on her.

16. PW-1 stated that during the time she was gagged and lifted,

Jalandhar caught hold of her and Raju (appellant) went to take the

Motor Bike and both took her in the Motorcycle. She further deposed

that the accused lifted up her Petticoat and tore her undergarment.

She deposed that appellant-Raju raped first and Jalandhar raped

thereafter. She also stated that Raju was drunk, and Jalandhar was

not. She stated that there was darkness in the room and that they

were unable to see each other and that Jalandhar laid the mat and

accused one after the other did wrongful act.

17. We have carefully considered the evidence of PW-1. We are

convinced that notwithstanding the minor contradictions, her

evidence inspires confidence and that she has clearly spoken about

the accused abducting her and also committing rape on her. She has

also clearly spoken about the wrongful confinement. Nothing has

been elicited in the cross-examination to dilute her testimony. The

charges under Section 366, 376(2)(g) and 342 IPC are clearly made

out. It is now fairly well settled that the prosecutrix is not an

accomplice and that if the evidence of the prosecutrix inspires

confidence it can be acted upon without corroboration.

18. Not only does the evidence of ‘R’ sound natural, it also inspires

confidence and we have no manner of doubt whatsoever that on the

facts of this case, any need for corroboration can be safely dispensed

with. As has been rightly observed, a woman or a girl subjected to

sexual assault is not an accomplice but a victim of another person’s

lust and it will be improper and undesirable to test her evidence with

suspicion. All that the law mandates is that the Court should be alive

to and conscious of the fact that it is dealing with the evidence of a

person who is interested in the outcome of charge levelled by her and

if after keeping that aspect in mind if the Court is thereafter satisfied

that the evidence is trustworthy, there is nothing that can stop the

Court from acting on the sole testimony of the prosecutrix. [See

State of Rajasthan v. N.K. the Accused, (2000) 5 SCC 30,

Rameshwar v. State of Rajasthan, 1951 SCC 1213, State of

Maharashtra Vs. Chandraprakash Kewal Chand Jain, (1990) 1

SCC 550, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384]

19. The variation in the narration in the FIR Exhibit P-20 dated

28.06.2004 and the complaint Exhibit P-3 dated 30.06.2004 and the

minor contractions in the evidence do not detract from the clinching

testimony of the prosecutrix (PW-1) clearly implicating the appellant

and the co-accused. The fact that in the F.I.R. (Exhibit P-20) only

rape by accused Jalandhar was clearly mentioned and the role of the

appellant was only to help and the further fact that the consent letter

given by the prosecutrix and her father only mentioned about rape by

Jalandhar also does not enure to the benefit of the appellant. We say

so for the following reasons: –

(a) Firstly,- In this case, the aspect of abduction under Section 366

IPC is clearly spoken about and on that there is no contradiction.

(b) Secondly, – PW-2, the father of the prosecutrix, lodged the

missing report promptly on the morning of 24.06.2004 and on

28.06.2004 the prosecutrix was recovered from the house of ‘LB’

after she was brought from the house of Raju-appellant. This is

spoken to by PW-1, PW-2, PW-3 ‘TP’ and PW-11, J.L. Mishra.

(c) Thirdly, – Even if PW3 ‘TP’ was treated as hostile, on the

aspect of recovery, his evidence is clearly believable as he states that

Police recovered the girl in his presence from ‘LB’s house and that

the recovery memo Exhibit P-1 was signed by him and that recovery

memo was prepared in his presence. It is well-settled that the

evidence of the prosecution witness cannot be rejected in toto merely

because the prosecution chose to treat him as hostile and crossexamined him. It has been held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. It has been held that where the evidence of such a witness is consistent with the case of the prosecution, it can be relied upon. [See Selvamani vs. State Rep. by

the Inspector of Police, 2024 SCC OnLine SC 837 and Neeraj

Dutta vs. State (Government of NCT of Delhi) (2023) 4 SCC 731

(para 87). Hence, there is clear evidence on the aspect of recovery

from the confinement made by the accused of the prosecutrix.

(d) Fourthly, in her evidence, the prosecutrix clearly, clinchingly

and unwaveringly deposed about the commission of rape by both the

appellant and the co-accused Jalandhar.

(e) Fifthly, it is important to note that the charge against the

appellant is under Section 376 (2)(g), which reads as under:-

“376. Punishment for rape.-

(2) Whoever,-

(g) commits gang rape, shall be punished with rigorous

imprisonment for a term which shall not be less than ten

years but which may be for life and shall also be liable to

fine:

Provided that the Court may, for adequate and special

reasons to be mentioned in the judgment, impose a

sentence of imprisonment of either description for a

term of less than ten years.

Explanation 1.-Where a woman is raped by one or more in a

group of persons acting in furtherance of their common

intention, each of the persons shall be deemed to have

committed gang rape within the meaning of this subsection.”

20. It is important to note that in Explanation 1 to 376(2)(g) in the

Criminal Law (Amendment) Bill, 1980 (which eventually became

Criminal Law (Amendment) Act, 1983), it was proposed that gang

rape be defined as rape committed by three or more persons acting in

furtherance of their common intention. The Joint Committee of

Parliament recommended that in cases of gangrape “even if one

commits rape all the other persons involved should be held

responsible and be equally punished” and recommended that

gangrape should be defined as “rape committed by one or more in a

group of persons”. [See the Report of the Joint Committee presented

on 02.11.1982 on the Criminal Law (Amendment) Bill, 1980.] This

recommendation was accepted and the Criminal Law (Amendment)

Act, 1983 was enacted with the explanation in the present form as

extracted hereinabove.

21. This aspect has also come up for judicial consideration before

this Court in Pramod Mahto and Others vs. State of Bihar, (1989)

Supp (2) SCC 672 wherein this Court held that the Explanation has

been introduced with a view to effectively dealt with the growing

menace of gang rape and in such circumstances, it was not necessary

that the prosecution should adduce clinching proof of complete act of

rape by each one of the accused on the victim or on each one of the

victims where there are more than one.

22. Further, in Ashok Kumar vs. State of Haryana, (2003) 2 SCC

143, it was held as under:-

“8. Charge against the appellant is under Section 376(2)(g) IPC.

In order to establish an offence under Section 376(2)(g) IPC,

read with Explanation I thereto, the prosecution must adduce

evidence to indicate that more than one accused had acted in

concert and in such an event, if rape had been committed by

even one, all the accused will be guilty irrespective of the fact

that she had been raped by one or more of them and it is not

necessary for the prosecution to adduce evidence of a

completed act of rape by each one of the accused. In other

words, this provision embodies a principle of joint liability and

the essence of that liability is the existence of common intention;

that common intention presupposes prior concert which may be

determined from the conduct of offenders revealed during the

course of action and it could arise and be formed suddenly, but,

there must be meeting of minds. It is not enough to have the

same intention independently of each of the offenders. In such

cases, there must be criminal sharing marking out a certain

measure of jointness in the commission of offence.”

(Emphasis supplied)

23. In view of this, it is very clear that in a case of gang rape under

Section 376(2)(g), an act by one is enough to render all in the gang

for punishment as long as they have acted in furtherance of the

common intention. Further, common intention is implicit in the

charge of Section 376(2)(g) itself and all that is needed is evidence to

show the existence of common intention.

24. In this case, as is clear from the sequence of events, the

abduction of the victim, her wrongful confinement, her testimony

about being subjected to sexual assault clearly points to the fact that

the ingredients of Section 376(2)(g) are squarely attracted and the

appellant herein along with Jalandhar Kol acted in concert and with a

common intention to sexually assault the prosecutrix ‘R’. Even

though the prosecutrix had clearly deposed in the evidence that the

appellant also subjected her to sexual assault, we have delved into

this aspect only because of the argument of the learned counsel for

the appellant that in the FIR and in the consent form, the role of the

appellant as a participant in the sexual assault of rape is not

specifically mentioned.

(f) Lastly, – The argument that the prosecutrix was in a relationship

with the co-accused Jalandhar Kol and the implication that there was

consent has only to be stated to be rejected. Section 114A of the

Evidence Act, as it stood in 2004, reads as under:-

“114A. Presumption as to absence of consent in certain

prosecutions for rape.- In a prosecution for rape under clause

(a) or clause (b) or clause (c) or clause (d) or clause (e) or clause

(g) of sub-section (2) of Section 376 of the Indian Penal Code

(45 of 1860), where sexual intercourse by the accused is proved

and the question is whether it was without the consent of the

woman alleged to have been raped and she states in her evidence

before the Court that she did not consent, the Court shall

presume that she did not consent.”

25. This section came up for consideration before this Court in

State of Rajasthan vs. Roshan Khan and Others, (2014) 2 SCC 476

and Mohd. Iqbal and Another vs. State of Jharkhand, (2013) 14

SCC 481. This Court held that in view of Section 114A of the

Evidence Act, there is a presumption as to absence of consent in case

of gang rape and it will be presumed that the prosecutrix did not give

consent as long as the prosecutrix states in evidence before the Court

that she did not consent. It has further been held that the

presumption is based on the reasoning that nobody can be consenting

to several persons simultaneously. In this case, apart from feebly

suggesting that the prosecutrix has been having physical relations

with the co-accused Jalandhar Kol for the last four years and that she

went to the house of Jalandhar Kol out of her free will, there is

nothing concrete adduced to rebut the presumption. A reading of the

evidence of the prosecutrix makes it amply clear that she was

subjected to forcible sexual intercourse against her consent. She has

also specifically denied the suggestion that she went with Jalandhar

on her free will.

26. We are not inclined to believe ‘SA’ (DW-1) who has deposed in

favour of the defence that the prosecutrix ‘R’ had told her that while

returning from the wedding, she had to go somewhere and then she

had gone with Jalandhar Kol and further that Raju was not present.

In her cross-examination itself, she clarified that she did not know

what Jalandhar did with the prosecutrix after taking her away nor did

she know where they went. DW-1 admitted that her father works for

the appellant. She further deposed that she never told anyone where

the prosecutrix went or with whom. It should also be pointed out

that PW-2, father of the prosecutrix who lodged the missing report

had mentioned in the report that DW-1 told him that she did not

know where the prosecutrix went. Further, PW-1 ‘R’ herself had

deposed that when she was being abducted DW-1 had run away. For

all these reasons, we are not prepared to attach any importance to the

evidence of DW-1.

27. Equally, the evidence of ‘LB’ (DW-2) who claims that the

prosecutrix rented the house at Rs.200/- per month and paid Rs.200/-

as advance is also not sounding true or natural. Her evidence is also

contrary to the contents of the recovery memo Exh. P-1 inasmuch as

DW-2 denies that she brought the girl from the house of Raju at the

time of her recovery. There is also evidence to show that she is

acquainted with the appellant and we are inclined to believe that the

defence witnesses have been put up only to present a false narrative.

The witness also had not produced any receipt given for the amount

of Rs.200/- or any rental arrangement or agreement.

28. Nothing much turns on the evidence of the Doctor, (PW-10)

who performed the medical examination on the prosecutrix. Her

evidence that no definite opinion could be given, and that no other

injury other than the one on the lip of ‘R’ was present, does not mean

that sexual assault was not committed on the prosecutrix ‘R’. It is

also well-settled that where the ocular evidence is clear, it will

prevail over the medical evidence. [See Central Bureau of

Investigation and Another vs. Mohd. Parvez Abdul Kayuum and

Others, (2019) 12 SCC 1 (para 65)]

29. However, we need to comment on one aspect of the matter.

The prosecutrix had been subjected to the two-finger test, though the

medical examination is of 29.06.2004 and long before the judgments

of this Court in Lillu alias Rajesh and Another vs. State of

Haryana, (2013) 14 SCC 643 and State of Jharkhand vs.

Shailendra Kumar Rai alias Pandav Rai, (2022) 14 SCC 299. We

are only re-emphasizing this aspect so that this obnoxious, inhuman

and degrading practice is not repeated on victims of sexual assault.

30. In Shailendra Kumar (supra), this Court, after relying on Lillu

(supra), held as under:-

65. Whether a woman is “habituated to sexual intercourse” or

“habitual to sexual intercourse” is irrelevant for the purposes of

determining whether the ingredients of Section 375IPC are

present in a particular case. The so-called test is based on the

incorrect assumption that a sexually active woman cannot be

raped. Nothing could be further from the truth — a woman’s

sexual history is wholly immaterial while adjudicating whether

the accused raped her. Further, the probative value of a

woman’s testimony does not depend upon her sexual history. It

is patriarchal and sexist to suggest that a woman cannot be

believed when she states that she was raped, merely for the

reason that she is sexually active.

66. The legislature explicitly recognised this fact when it

enacted the Criminal Law (Amendment) Act, 2013 which inter

alia amended the Evidence Act to insert Section 53-A. In terms

of Section 53-A of the Evidence Act, evidence of a victim’s

character or of her previous sexual experience with any person

shall not be relevant to the issue of consent or the quality of

consent, in prosecutions of sexual offences.

31. This Court further exhorted the Union and State Governments

to do the following:

“69.1. Ensure that the guidelines formulated by the Ministry of

Health and Family Welfare are circulated to all government and

private hospitals.

69.2. Conduct workshops for health providers to communicate

the appropriate procedure to be adopted while examining

survivors of sexual assault and rape.

69.3. Review the curriculum in medical schools with a view to

ensuring that the “two-finger test” or per vaginum examination

is not prescribed as one of the procedures to be adopted while

examining survivors of sexual assault and rape.”

It was further directed in para 71 that any person who conducts the

“two-finger test” or per vaginum examination (while examining a

person alleged to have been subjected to a sexual assault) in

contravention of the directions of this Court shall be guilty of

misconduct.

32. Even though the two-finger test in this case was carried out on

29.06.2004, long before the awareness about its inhumane nature was created, we are only reiterating this aspect so that in future these

practices do not recur.

CHARGES UNDER SC/ST ACT – 1989 ACT – NOT MADE OUT.

33. Before we conclude, there is one aspect which the courts below

have completely overlooked and which should enure to the benefit of

the appellant. The appellant has been convicted under Section 3(2)

(v) of the1989 Act. Section 3(2)(v) of the 1989 Act, at the relevant

time, reads as under:-

“3. (2) Whoever, not being a member of a Scheduled Caste or

Scheduled Tribe—

***

(v) commits any offence under the Indian Penal Code, 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;”

23

34. A careful perusal of the section reveals that when any person

not being a member of the Scheduled Caste or Scheduled Tribe

commits any offence under IPC, punishable with imprisonment with

ten years or more against a person or property on the ground that

such person is a member of a Scheduled Caste or Scheduled Tribe or

such property belongs to such member, shall be punishable with

imprisonment for life and with fine.

35. As far as the ingredients of Section 3(2)(v) are concerned, the

words “on the ground that such person is a member of a Scheduled

Caste or a Scheduled Tribe” has come up for consideration before

this Court on a few occasions. In Dinesh alias Buddha vs. State of

Rajasthan, (2006) 3 SC 771, this Court held as follows:-

“15. Sine qua non for application of Section 3(2)(v) is that an

offence must have been committed against a person on the

ground that such person is a member of the Scheduled Castes

or the Scheduled Tribes. In the instant case no evidence has

been led to establish this requirement. It is not the case of the

prosecution that the rape was committed on the victim since

she was a member of a Scheduled Caste. In the absence of

evidence to that effect, Section 3(2)(v) has no application. Had

Section 3(2)(v) of the Atrocities Act been applicable then by

operation of law, the sentence would have been imprisonment

for life and fine.”

24

36. The holding was that the sine qua non for application of

Section 3(2)(v) was that the offence must have been committed

against a person on the ground that such person is a member of the

Scheduled Caste/Scheduled Tribe.

37. To the same effect was the holding in Asharfi vs. State of Uttar

Pradesh, (2018) 1 SCC 742 wherein in para 8 and 9, it was held as

under:-

“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 8-12-1995/9-12-1995. 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.

9. The evidence and materials on record do not show that the

appellant had committed rape on the victim on the ground that

she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST

Prevention of Atrocities Act can be pressed into service only if

it is proved that the rape has been committed on the ground that

PW 3 Phoola Devi belonged to Scheduled Caste community. In

the absence of evidence proving intention of the appellant in

committing the offence upon …………. only because she

belongs to Scheduled Caste community, the conviction of the

appellant under Section 3(2)(v) of the SC/ST Prevention of

Atrocities Act cannot be sustained.”

38. Similar was the holding in Khuman Singh vs. State of

Madhya Pradesh, (2020) 18 SCC 763.

25

39. However, we find that the section was subjected to a closer

analysis in Patan Jamal Vali vs. State of Andhra Pradesh, (2021) 16

SCC 225. Speaking for the Court, Justice D.Y. Chandrachud (as the

learned Chief Justice then was), after adverting to the three earlier

judgments, rightly held that the statute did not utilize the phrase

“only on the ground”. It was held in Patan Jamal Vali (supra) that

reading the expression “only” would be to add a restriction which

was not found in the statute. It was held that undoubtedly the statute

used the word “on the ground” but the juxtaposition of “the” before

“ground” does not invariably mean that the offence ought to have

been committed only on that ground. The Court held that to read the

provision in that manner would dilute a statutory provision meant to

safeguard the Scheduled Castes and Scheduled Tribes against acts of

violence which pose a threat to their dignity. It was further held that,

as the Section stood in its unamended form, knowledge by itself that

the victim belonged to Scheduled Caste or Scheduled Tribe cannot be

said to be the basis of the commission of the offence. We

respectfully concur with the holding in Patan Jamal Vali (supra).

40. The Court went on to hold in Patan Jamal Vali (supra) as

26

under:

“59. … … As we have emphasised before in the judgment, an

intersectional lens enables us to view oppression as a sum of

disadvantage resulting from multiple marginalised identities.

To deny the protection of Section 3(2)(v) on the premise that

the crime was not committed against an SC & ST person solely

on the ground of their caste identity is to deny how social

inequalities function in a cumulative fashion. It is to render the

experiences of the most marginalised invisible. It is to grant

impunity to perpetrators who on account of their privileged

social status feel entitled to commit atrocities against socially

and economically vulnerable communities. This is not to say

that there is no requirement to establish a causal link between

the harm suffered and the ground, but it is to recognise that

how a person was treated or impacted was a result of

interaction of multiple grounds or identities. A true reading of

Section 3(2)(v) would entail that conviction under this

provision can be sustained as long as caste identity is one of

the grounds for the occurrence of the offence. In the view

which we ultimately take, a reference of these decisions to a

larger Bench in this case is unnecessary. We keep that open and

the debate alive for a later date and case.”

(Emphasis supplied)

41. Earlier, in the same judgment, dealing with the situation where

oppression operated at an intersectional fashion, this Court held in

“54. The key words are “on the ground that such person is a

member of an SC or ST”. The expression “on the ground”

means “for the reason” or “on the basis of”. The above

provision (as it stood at the material time prior to its

amendment, which will be noticed later) is an example of a

statute recognising only a single axis model of oppression. As

we have discussed above, such single axis models require a

person to prove a discrete experience of oppression suffered on

account of a given social characteristic. However, when

oppression operates in an intersectional fashion, it becomes

difficult to identify, in a disjunctive fashion, which ground

was the basis of oppression because often multiple grounds

operate in tandem. Larrisa Behrendt, an aboriginal legal

scholar from Australia, has poignantly stated the difficulty

experienced by women facing sexual assault, who are

marginalised on different counts, to identify the source of their

oppression:

“When an Aboriginal woman is the victim of a sexual

assault, how, as a black woman, does she know whether it is

because she is hated as a woman and is perceived as inferior

or if she is hated because she is Aboriginal, considered

inferior and promiscuous by nature?” [ Larissa Behrendt,

“Aboriginal Women and the White Lies of the Feminist

Movement : Implications for Aboriginal Women in Rights

Discourse”, 1 Australian Feminist Law Journal 1 (1993), p.

35.]”

(Emphasis supplied)

42. Section 3(2)(v) has since been amended (amended on

26.01.2016) and in the amended form it reads as under:-

“3. (2) Whoever, not being a member of a Scheduled Caste or

Scheduled Tribe—

***

(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 knowing 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;”

43. The Court notices in Patan Jamal Vali (supra) that the

amendment has decreased the threshold of proving that the crime

was committed on the basis of the caste identify to a threshold where

mere knowledge is sufficient to threshold a conviction. The Court

also noticed that presumption in Section 8 which provided that if the

accused was acquainted with the victim or his family, the court shall

presume that the accused was aware of the caste or tribal identity of

the victim unless proved otherwise.

44. Reverting to the facts of this case, we find that there was no

evidence to bring the case within the threshold of Patan Jamal Vali

(supra). There is no evidence whatsoever to establish the fact that

the victims caste identity was one of the grounds for the occurrence

of the offence. In the absence of any evidence attracting the offence

of Section 3(2)(v), we are constrained to record an acquittal for the

appellant from the charge of Section 3(2)(v) of the 1989 Act.

CONCLUSION:

45. For the reasons stated above, while maintaining the conviction

of the appellant under Sections 366, 342 and 376(2)(g) of the IPC,

we set aside the conviction of the appellant under Section 3(2)(v) of

the 1989 Act. Coming to the sentence, we are not inclined to disturb

the sentence of five years imposed on the appellant for the offence

punishable under Section 366 IPC as well as the fine and default

sentence imposed on him by the trial Court and affirmed by the High

Court. We are also not inclined to disturb the sentence imposed

under Section 342 IPC by the trial Court and confirmed by the High

Court. However, to bring the sentence on par with that imposed on

Jalandhar Kol (A-2) for the offence under Section 376 (2)(g), we

modify the sentence of life imprisonment imposed on the appellant to

that of rigorous imprisonment for 10 years and fine of Rs.2,000/-

with default sentence of rigorous imprisonment of one year in case of

non-payment of fine. All sentences to run concurrently. The accused,

who is in custody shall serve out the remaining sentence, as directed.

46. The appeal is partly allowed in the above terms.

…………………………….J.

 [SANJAY KAROL]

.…………………………….J.

 [K. V. VISWANATHAN]

New Delhi;

1 st May, 2025.