REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1182 OF 2015

ASHARFI                         …Appellant

Versus

STATE OF UTTAR PRADESH                     ....Respondent

J U D G M E N T

R. BANUMATHI, J.

1. This appeal  arises out  of  the judgment  of  the Allahabad High

Court in Criminal Appeal No. 8270 of 2007 dated 29.01.2013 in and by

which  the  High  Court  affirmed  the  conviction  and  sentence  of  the

appellant awarded by the trial court.  The trial court  vide its judgment

dated  30.11.2007  convicted  the  appellant  for  the  offences  under

Sections  450,  376(2)(g),  323  IPC and under  Section  3(2)(v)  of  the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)

Act,  1989  [for  short  'the  SC/ST Prevention  of  Atrocities  Act].   For

conviction under Section 376(2)(g) IPC, the appellant was sentenced

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to undergo rigorous imprisonment for ten years with fine of Rs. 8,000/-

with  default  clause  and  for  conviction  under  Section  3(2)(v)  of  the

SC/ST Prevention of  Atrocities  Act,  the appellant  was sentenced to

undergo life imprisonment with fine of Rs. 10,000/- with default clause.

The appellant was also imposed sentence of imprisonment for other

offences under Indian Penal Code.

2. Case  of  the  prosecution  is  that  on  the  intervening  night  of

8/9.12.1995, appellant Asharfi and one Udai Bhan are alleged to have

forcibly opened the door and entered inside the house of PW-3-Phoola

Devi  and PW-4-Brij  Lal  and said to have committed rape on PW-3

Phoola Devi.  PW-4-Brij Lal was kept away on the point of pistol. On

raising  alarm,  neighbours  (PW-1-Rassu  and  PW-2-Baghraj)  came

there and on seeing them, the accused persons ran away threatening

the witnesses.  Based on the complaint lodged by the complainant Brij

Lal, FIR was registered in Case Crime No.76 of 1996 under Sections

376/452/323/506 IPC and under Section 3(1) 12 SC/ST Act against

appellant  and  one  Udai  Bhan.   After  completion  of  investigation,

chargesheet was filed against the appellant and the said Udai Bhan for

the abovesaid offences.  As noted above, the appellant and Udai Bhan

were convicted for various offences by the trial court.  In the appeal

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preferred  by  the  appellant  before  the  High  Court,  the  High  Court

affirmed the conviction of the appellant and the said Udai Bhan.

3. We  have  heard  the  learned  amicus  curiae appearing  for  the

appellant.   None appeared on behalf  of  the respondent.   We have

carefully perused the impugned judgment and materials on record.

4. So  far  as  the  conviction  under  Section  376(2)(g)  IPC  is

concerned, based upon the evidence of PW-3-Phoola Devi and PW-4

Brij  Lal  and  the  medical  evidence,  both  the  courts  below recorded

concurrent findings that the charge of rape has been proved.  We are

not inclined to interfere with the same and also the sentence of ten

years of imprisonment imposed upon him.  We also find no perversity

with  respect  to  the  conviction  and  sentence  of  the  appellant  with

respect to other offences under Indian Penal Code.

5. 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  to  Scheduled  Caste/Scheduled  Tribe,

should have been committed on the ground that  "such person is a

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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".   

6. 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

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community suffices to bring home the charge under Section 3(2)(v) of

the SC/ST Prevention of Atrocities Act.

7. 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.

8. 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  PW-3-Phoola  Devi  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.

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9. In the result, the conviction of the appellant under Section 3(2)(v)

of  the  Scheduled  Castes  and  the  Scheduled  Tribes  (Prevention  of

Atrocities) Act, 1989 and the sentence of life imprisonment imposed

upon him are set aside and the appeal is partly allowed.    

10. So far as the conviction of the appellant under Section 376(2)(g)

IPC and other offences and sentence of imprisonment imposed upon

him are confirmed.  As the appellant had already undergone more than

ten years, the appellant is ordered to be released forthwith unless he is

required in any other case.   

…….…………...………J.       [RANJAN GOGOI]

…………….……………J.        [R. BANUMATHI]

New Delhi; December  8, 2017  

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