1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 452 of 2021
(Arising out of SLP(Crl) No 1795 of 2021)
Patan Jamal Vali .... Appellant
Versus
The State of Andhra Pradesh ....Respondent
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
This judgment has been divided into the following sections to facilitate analysis:
A Factual Background
B Proceedings before this Court
C Analysis
C.1 Intersectionality: The Different Hues of Identity
C.2 Disability and Gender: Twin Tales of Societal Oppression
C.3 The ‘Caste’ that is Difficult to Cast Away: Protection of Members of
Scheduled Castes and Scheduled Tribes
C.4 Section 3(2)(v) of SC & ST Act
C.5 Punishment under Section 376 of the IPC
D Conclusion and Summary of Findings
PART A
2
A Factual Background
1 Leave granted.
2 This appeal arises from a judgment of a Division Bench of the High Court of
Andhra Pradesh dated 3 August 2019. The High Court has affirmed the conviction
of the appellant for offences punishable under Section 3(2)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act 19891 and Section
376(1) of the Indian Penal Code.
3 The appellant has been sentenced to suffer imprisonment for life for each
of the above offences, the substantive sentences being directed to run
concurrently. In addition, the appellant has been sentenced to pay a fine of Rs.
1,000 for each of the offences and in default to suffer imprisonment of six months.
4 The appellant was residing in Gajulapalli village and was engaged in
carrying out manual work for two years prior to the incident. PW2 who is blind
since birth used to live with her mother (PW1) and brother (PW3). PW3 and LW5
are the sons of PW1. They were also engaged in manual work together with the
appellant, at the same place. The appellant, according to the prosecution, lived in
the same village and regularly visited the house of PW1 due to his acquaintance
with her sons.
1 “SC & ST Act”
PART A
3
5 At about 9 am on 31 March 2011, PW1 was attending to her household
chores at a public tap which was within a distance of fifty feet and her sons were
cutting fire wood in the vicinity. The appellant is alleged to have enquired about
her sons when PW1 replied that her spouse and sons were chopping fire wood
and asked him to wait for a while. After half an hour, on hearing the voice of her
daughter (PW2) in distress, she rushed to the house and found that the door was
locked from inside. Upon raising an alarm her husband and sons rushed to the
house. The appellant opened the door and tried to escape but was apprehended
at the spot. Upon entering the house, PW1 observed that PW2 was lying on the
ground in a nude condition and was bleeding from her genitals. The clothes of
PW2 were torn and stained with blood. Upon enquiry, PW2 is alleged to have
stated that the appellant came to the house and enquired about her brothers; he
locked the door and fell on her, gagged and raped her.
6 The case of the prosecution is that at 10 am, the Sub-Inspector of Police
(PW9), Mahanandi Police Station, who received a call from PW4, a cousin of
PW1, rushed to the scene of the occurrence. By that time, the Circle Inspector of
Police, Nandyal Rural Police Station had also arrived and the villagers handed
over the appellant to him. PW1 furnished a written report to the police which was
registered as Crime No 28/2011. PW11 sent the victim to the Government
Hospital where she was examined by PW10, the Civil Surgeon at the District
Hospital. The medical examination revealed that PW2 was blind. The medical
report of the examination of PW2 has been extracted in the judgment of the
Sessions Judge and the High Court and reads as follows:
PART A
4
“(1) Contusion of 1 x 1 cm on left cheek, red in colour, (2)
Pubic Hair develop, breast develop (3) Axillary Hair
developed. On examination of vagina is lacerated at 4-00 O'
clock position, bleeding present. 3 swabs and slides taken
from Hymeneal Orifice Vaginal canal and near cervix, vaginal
wall sutured with 10 Chromicatgut, hair and nail clippings
taken and she i1ssued the wound certificate under Ex.P.6
and gave her final opinion under Ex.P.8 after receiving the
report from A.P.F.S.L. and she opined that the evidence is
suggestive of penetration of male genital parts.”
7 Charges were framed against the appellant under Section 376(1) of the
Penal Code and Section 3(2)(v) of the SC & ST Act. To substantiate its case, the
prosecution examined eleven witnesses, PWs 1 to 11 in addition to which, it relied
on exhibits P1 to P12 and MOs 1 to 8. On the closure of the evidence, the
appellant was examined under Section 313 of the Code of Criminal Procedure,
1973. By a judgment dated 19 February 2013 the Special Judge for the Trial of
Cases under the SC - ST (POA) Act - Cum - VIth Additional District and Sessions
Judge convicted the appellant for offences under Section 3(2)(v) of the SC & ST
Act and Section 376(1) of the Penal Code. Based primarily on the testimonies of
PW1, PW2 and PW3 the learned Sessions Judge held that:
(i) The appellant had access to PW2 since he was acquainted with her
brothers and was regularly visiting the house where she lived with her
family;
(ii) The evidence of PW1 and PW2 was corroborated by PW3, the brother of
PW2;
(iii) The narration of the incident by PW1 was duly corroborated by an
independent witness and neighbour, PW5;
PART A
5
(iv) The oral testimony of the witnesses established that the appellant was
apprehended at the scene of occurrence and when PW1 who was
accompanied by PW3 and PW4 opened the door of the house, the
appellant was apprehended while attempting to escape and PW2 was found
bleeding from her injuries lying in a nude condition on the ground;
(v) PW2 who was blind by birth had identified the appellant by his voice which
was familiar to her since the appellant was regularly visiting the house;
(vi) PWs 1,3,4,5 apprehended the appellant handed him over to PW11 and the
appellant was taken to Mahanandi Police Station;
(vii) PW5 is the neighbour whose house was opposite to that of PW1 and was a
natural witness. PW4 though related to PW1 had also corroborated the
testimony of PW1;
(viii) The clothes of PW2 had been duly seized;
(ix) The narration of the incident by PW2 was trustworthy and was duly
corroborated by PW1 and PW3; and
(x) The oral testimony was consistent with the medical evidence and the
deposition of PW10, the doctor at the government hospital who deposed in
that regard.
The Sessions Judge, in coming to the conclusion that an offence under Section
3(2)(v) was established observed thus:
“39. Coming to the facts of the present case P.W.11 in the
cross examination stated that P.W.1 and P.W.2 did not state
before him that since P.W.2 belongs to scheduled caste,
accused committed the offence. The learned defence counsel
argued that in view of the evidence of P.W.11, the prosecution
failed to prove that the accused committed the offence on the
PART A
6
ground that the victim belongs to scheduled caste. I do not find
any merit in the above argument for the reason that Ex. P.1
discloses that the victim belongs to Madiga of Scheduled
Caste. P.W.1 the mother of the victim girl is an illiterate village
rustic woman simply because she has not mentioned in the
report or in the statement to the police that accused did
commit the offence on the ground that the victim belong to
scheduled caste is no way fatal to the case of the prosecution
to establish the guilt of the accused for the offence under
section 3 (2) (v) of SC/ST (POA) Act.
40. It is needless to say that if the victim belongs to upper
caste than the caste of the accused, particularly in village
atmosphere, I am of the considered view that he would not
have done the act and dared to pounce upon her, and commit
the offence of rape at her own house at about 9.30 am in
morning when her mother was working near the house at
public tap and her house is situated in the residential locality.
This court is of the view that as the victim girl is helpless, blind
and belongs to scheduled caste, so that the accused
developed evil eye on her and taken advantage of her
loneliness committed the heinous crime of rape against her.
Hence I am not convinced with the argument of the learned
defence counsel and this court held that the accused
committed the act of rape on the victim un-married girl of 19
years at the time of the incident and blind by birth and he did
commit the act on the ground that she belongs to scheduled
caste and on the impression that she cannot do anything
against him. Hence, the prosecution has established the guilt
of the accused for the offence under section 3 (2) (v) of SC/ST
(POA) Act.”
On the aspect of sentence, the Sessions Judge observed:
“When questioned about the quantum of sentence in respect
of the. offence under section 376 (1) IPC, the accused
pleaded to take lenient view stating that he is a poor person
and eking out his livelihood by doing coolie work.
In view of the facts and circumstances of the case that it is a
heinous crime of rape committed against a blind un-married
girl of 19 years of age, I am not inclined to exercise my
discretion to give lesser punishment to the accused as it is
not a fit case to take a lenient view.
The accused is sentenced to undergo life imprisonment and
to pay a fine of Rs.1,000/- i/d SI for 6 months for the offence
punishable under section 376 (1) of IPC and also sentenced
to undergo life imprisonment and to pay a fine of Rs.1,000 /-
PART B
7
i/d SI for 6 months for the offence under section 3 (2) (v) of
SC/ ST (POA) Act. Sentences shall run concurrently for the
whole life. M.0.1 to M.0.8 shall be destroyed after the expiry
of appeal time.”
8 The High Court by its judgment dated 3 August 2019 affirmed the
conviction and sentence imposed by the Sessions Court. The High Court has held
that the testimonies of PW1, the mother of PW2; and of PW2 were consistent and
duly corroborated by PW3, the brother of PW2 and by PW4 and PW5. The High
Court adverted to the medical evidence and, in particular, the deposition of PW10.
The prosecution was held to have established its case beyond reasonable doubt.
9 Before the High Court, it was urged that the ingredients of the offence
under Section 3(2)(v) were not established as the offence was not committed “on
the ground” that PW2 belongs to a Scheduled Caste. The High Court declined to
accede to the submission, observing:
“Section 3(2)(v) of the Act provides that the offence gets
attracted if it is committed against a person knowing that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such members. Even
otherwise still the offence under Section 376(1) I.P.C. is made
out.”
B Proceedings before this Court
10 On 19 February 2021, this Court at the preliminary hearing of the Special
Leave Petition adverted to the submissions of the learned Counsel appearing on
behalf of the appellant and passed the following order:
“2 Mr Harinder Mohan Singh, learned counsel appearing
on behalf of the petitioner, has adverted to the findings
contained in paragraph 39 of the judgment of the Sessions
Court dated 19 February 2013 (Annexure P-12). Learned
counsel submits that in view of the expression “on the ground
PART C
8
that such person is a member of a Scheduled Caste or a
Scheduled Tribe” in Section 3(2)(v) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act 1989,
which has been interpreted in the decisions of this Court, an
offence under this provision has not been established. Hence,
the imposition of a sentence of life imprisonment in respect of
an offence under Section 376 of the Indian Penal Code 1860
was not in accordance with law.
3 Issue notice, confined to the aforesaid submission,
returnable in six weeks.
4 Liberty to serve the Standing Counsel for the State of
Andhra Pradesh, in addition.”
11 Notice has been issued by this Court confined to the above submission.
However, before we proceed to analyse the submission, we are unequivocally of
the view that the offence under Section 376(1) has been proved beyond
reasonable doubt. The testimonies of PW1, the mother of PW2 and of PW 2, who
was sexually assaulted, are clear and consistent. The oral account has been
corroborated by the evidence of PW3, PW4 and PW5. The medical evidence,
more particularly, the deposition of PW10 clearly establishes that PW2 was
sexually assaulted. The appellant was apprehended at the spot in close proximity
of the commission of the offence. The offence under Section 376 has been
established beyond reasonable doubt. This Court shall now proceed to deal with
the question of the conviction and sentence under the SC & ST Act.
C Analysis
C.1 Intersectionality: The Different Hues of Identity
12 The experience of rape induces trauma and horror for any woman
regardless of her social position in the society. But the experiences of assault are
PART C
9
different in the case of a woman who belongs to a Scheduled Caste community
and has a disability because the assault is a result of the interlocking of different
relationships of power at play. When the identity of a woman intersects with, inter
alia, her caste, class, religion, disability and sexual orientation, she may face
violence and discrimination due to two or more grounds. Transwomen may face
violence on account of their heterodox gender identity. In such a situation, it
becomes imperative to use an intersectional lens to evaluate how multiple
sources of oppression operate cumulatively to produce a specific experience of
subordination for a blind Scheduled Caste woman.
13 A movement for recognition of discrimination and violence emanating from
the effects of the interaction of multiple grounds was pioneered by African
American women in United States. Kimberly Crenshaw has been credited for
coining the term intersectionality. In her seminal work on the subject, she
describes the principle with the help of the following hypothetical:
“Discrimination, like traffic through an intersection, may flow in
one direction, and it may flow in another. If an accident
happens in an intersection, it can be caused by cars traveling
from any number of directions and, sometimes, from all of
them. Similarly, if a Black woman is harmed because she is in
the intersection, her injury could result from sex discrimination
or race discrimination.” 2
In her article, Crenshaw argues that sex discrimination and race discrimination
statutes, as well as the judicial opinions in the United States that she studied are
2 K. Crenshaw, Demarginalizing The Intersection Of Race And Sex: A Black Feminist Critique Of AntiDiscrimination Doctrine, Feminist Theory, And Anti-Racist Policies, University of Chicago Legal Forum, Vol. 4
(1989) 149 (“Crenshaw, Demarginalizing Intersection of Race and Sex”).
PART C
10
narrowly tailored and address the claims of the most privileged within the
targeted group. She states:
“With Black women as the starting point, it becomes more
apparent how dominant conceptions of discrimination
condition us to think about subordination as disadvantage
occurring along a single categorical axis. I want to suggest
further that this single-axis framework erases Black women in
the conceptualization, identification and remediation of race
and sex discrimination by limiting inquiry to the experiences of
otherwise-privileged members of the group. In other words,
in race discrimination cases, discrimination tends to be
viewed in terms of sex- or class-privileged Blacks; in sex
discrimination cases, the focus is on race- and classprivileged women.””
3 (emphasis added)
She further highlights the intersectional nature of gender violence, where she
states that: “[t]he singular focus on rape as a manifestation of male power over
female sexuality tends to eclipse the use of rape as a weapon of racial terror.”
14 Intersectionality can be defined as a form of “oppression [that] arises out of
the combination of various oppressions which, together, produce something
unique and distinct from any one form of discrimination standing alone...”.4 While
the model of intersectionality was initially developed to highlight the experiences
of African-American women, there is a growing recognition that an intersectional
lens is useful for addressing the specific set of lived experiences of those
individuals who have faced violence and discrimination on multiple grounds. A
single axis approach to violence and discrimination renders invisible such minority
3 Id at p. 146. 4 Mary Eaton, Homosexual Unmodified: Speculations on Law‟s Discourse, Race, and Construction of Sexual
Identity, in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICS OF THE LAW, Didi Herman and Carl Stychin eds.
(Philadelphia: Temple University Press 1995), p. 46.
PART C
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experiences within a broader group since it formulates identity as “totemic” and
“homogenous”.5
Laws tend to focus on a singular identity due to the apparent
clarity a monistic identity provides in legal analysis where an individual claiming
differential treatment or violence can argue that “but for” that identity, they would
have been treated in the same way as a comparator. Therefore, their treatment is
irrational and unjustified.6 However, such essentialization of experiences of
identity groups creates a problem where intersectional discrimination or violence
has occurred. This is because the evidence of discrete discrimination or violence
on a specific ground may be absent or difficult to prove.7 Nitya Iyer has argued
that law based on single axis models forces claimants to ignore their own lived
reality and “caricaturize themselves so that they fit into prefabricated, rigid
categories”.8 Their claim will fail if they are not able to simplify their story to accord
with the dominant understanding of how discrimination or violence on the basis of
a given characteristic occurs.9
15 It is important to note that an analysis of intersectionality does not mean
that we see caste, religion, class, disability and sexual orientation as merely “add
ons” to the oppression that women may face. This is based on the assumption
that gender oppression is oppressive in the same way for all women, only more
so for women suffering marginalization on other grounds. However, an
5 Ben Smith, Intersectional Discrimination and Substantive Equality: A Comparative and Theoretical Perspective,
The Equal Rights Review, Vol. 16 (2016) 74 (“Smith, Intersectional Discrimination”). 6 Ibid, 83. 7 Ibid, 81. 8 Nitya Iyer, Categorical Denials: Equality Rights and the Shaping of Social Identity, Queen’s Law Journal, Vol. 19
(1993–1994) 179. 9 Ibid.
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intersectional analysis requires us to consider the distinct experience of a sub-set
of women who exist at an intersection of varied identities. This is not to say that
these women do not share any commonalities with other women who may be
more privileged, but to equate the two experiences would be to play down the
effects of specific socio-economic vulnerabilities certain women suffer. At its
worse it would be to appropriate their pain to claim a universal subjectivity.
16 There is a fear that intersectionality would open a Pandora’s box of
“endless new discrete identity categories for every possible permutation of
identity”10. We can avoid this trap by eschewing an identity-based conception of
intersectionality in favour of a systems-based conception. Specifically, as
Gauthier De Beco argues, instead of focusing on identity-categories, the
intersectionality enquiry should focus on “co-constituted structures of
disadvantage that are associated with two or more identity-categories at the same
time”.11 By exhibiting attentiveness to the ‘matrix of domination’12 created by the
intersecting patterns at play, the Court can more effectively conduct an
intersectionality analysis. A legal analysis focused on delineating specific
dimensions of oppression running along a single axis whether it be caste,
disability or gender fails to take into account the overarching matrix of domination
that operates to marginalise an individual. The workings of such a structure have
10 Smith, Intersectional Discrimination, supra n. 5, p. 84. 11 Gauthier de Boco, Harnessing the Full Potential of Intersectionality Theory in Human Rights Law: Lessons
from Disabled Children’s Right to Education in INTERSECTIONALITY AND HUMAN RIGHTS LAW (Shreya Atrey & Peter
Dunne, Hart Publishing 2020). 12 PH Collins, The Difference That Power Makes: Intersectionality and Participatory Democracy, 8(1) Revista de
Investigaciones Feministas (2017), p. 22, noting: “Intersectionality’s emphasis on intersecting systems of
oppression suggests that different forms of domination each have their own power grid, a distinctive “matrix” of
intersecting power dynamics.”
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been aptly stated by a woman with visual impairment (due to Albinism) in the
following words:
“I can never experience gender discrimination other than as a
person with a disability; I can never experience disability
discrimination other than as a woman. I cannot disaggregate
myself nor can anyone who might be discriminating against
me. I do not fit into discrete boxes of grounds of
discrimination.
Even when only one ground of discrimination seems to be
relevant, it affects me as a whole person”13
17 Intersectionality merely urges us to have “an open-textured legal approach
that would examine underlying structures of inequality”14. This requires us to
analyse law in its social and economic context allowing us to formulate questions
of equality as that of “power and powerlessness” instead of difference and
sameness.15 The latter being a conceptual limitation of single axis analysis, it may
allow certain intersectional claims to fall through the cracks since such claims are
not unidirectional in nature.
18 Intersectional analysis requires an exposition of reality that corresponds
more accurately with how social inequalities are experienced. Such
contextualized judicial reasoning is not an anathema to judicial inquiry. It will be
useful to note the comments of Justice L’Heureaux-Dubé and Justice McLachlin
in the Canadian Supreme Court’s judgment in R. v. S (RD)16 that, “[j]udicial inquiry
into the factual, social and psychological context within which litigation arises is
13 D. Pothier, Connecting Grounds of Discrimination to Real People’s Real Experiences, 13(1) Canadian Journal
of Women and the Law (2001), p. 39, 51. 14 Smith, Intersectional Discrimination, supra n. 5, p. 84. 15 Ibid. 16 (1997) 3 S.C.R. 484 at 506-507.
PART C
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not unusual. Rather, a conscious, contextual inquiry has become an accepted
step towards judicial impartiality...this process of enlargement is not only
consistent with impartiality; it may also be seen as its essential pre-condition.”
19 Single axis models of oppression are a consequence of how historically
movements aiming for legal protection of marginalized populations developed.
Most political liberation struggles have been focused on a sole characteristic like
anti-caste movements, movements by persons with disabilities, feminism and
queer liberation. Many such movements have not been able to adequately
address the intra-group diversity leading to a situation where the needs of the
relatively privileged within the group have received more than a fair share of
spotlight. When these liberation struggles were adopted in law, the law also
developed into mutually exclusive terrains of different statutes addressing
different marginalities failing to take into account the intersectional nature of
oppression.
20 In India, the fundamental guarantees under the Constitution provide for
such a holistic analysis of discrimination faced by individuals. One of us (Justice
DY Chandrachud), in Navtej Johar v. Union of India17 applied the intersectional
lens to Article 15(1) of the Constitution. In doing so, Justice DY Chandrachud
observed that:
“36. This formalistic interpretation of Article 15 would render
the constitutional guarantee against discrimination
17 (2018) 10 SCC 1.
PART C
15
meaningless. For it would allow the State to claim that the
discrimination was based on sex and another ground (‘Sex
plus’) and hence outside the ambit of Article 15. Latent in the
argument of the discrimination, are stereotypical notions of
the differences between men and women which are then
used to justify the discrimination. This narrow view of
Article 15 strips the prohibition on discrimination of its
essential content. This fails to take into account the
intersectional nature of sex discrimination, which cannot
be said to operate in isolation of other identities,
especially from the socio-political and economic context.
For example, a rule that people over six feet would not be
employed in the army would be able to stand an attack
on its disproportionate impact on women if it was
maintained that the discrimination is on the basis of sex
and height. Such a formalistic view of the prohibition in
Article 15, rejects the true operation of discrimination,
which intersects varied identities and characteristics.”
(emphasis supplied)
21 Noting how the discrimination caused by intersecting identities amplifies the
violence against certain communities (gendered/religious/otherwise), the Justice
J.S Verma Committee appointed in the aftermath of the Nirbhaya incident to
suggest reforms in Indian criminal law, observed that:
“34. We believe that while certain measures may have been
taken over a period of time but they have been too far and too
few and they certainly have not attempted to restructure and
transform society and its institutions. If there has to be a
society which is based on equality of gender, we must ensure
that not only does a woman not suffer on account of gender
but also not suffer on account of caste or religion in addition.
Thus a woman may suffer a double disadvantage – a)
because she is a woman, and b) because she belongs to a
caste/tribe/community/religion which is disadvantaged, she
stands at a dangerous intersection if poor.”18
18 Justice JS Verma (Retd.), Justice Leila Seth (Retd.) & Gopal Subramanium, Report of the Committee on
Amendments to Criminal Law, 23 January 2013, p. 38 (“JS Verma Committee Report”).
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22 While intersectionality has made considerable strides in the field of human
rights law and anti-discrimination law, it has also emerged as a potent tool to
understand gender-based violence. In 1991, Crenshaw applied the concept of
intersectionality to study violence against women of colour. She showed how
race, gender, poverty, immigrant status and being from a linguistic minority
interacted to place these women in violent relationships.19
23 To deal with cases of violence against women from intersectional
backgrounds, Shreya Atrey proposes the model of intersectional integrity. She
notes:
“Intersectional gender violence is about: (i) rejecting violations
of bodily and mental integrity when perpetrated based on
people’s multiple and intersecting identities (intersectionality);
and (ii) recognizing that violence should be understood as a
whole taking into account unique and shared patterns of
violations yielded by intersections of gender, race, caste,
religion, disability, age, sexual orientation etc(integrity).”20
24 She points out that a failure to consider violence perpetrated based on
multiple identities results in an inaccurate portrayal of the violence at issue which
may impact the ability to obtain relief. On the other hand, a comprehensive
appraisal of the intersectional nature of the violence can translate into an
appropriate legal response. 21
19 K Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,
43 Stanford Law Review 1241 (1991), 1246-50. 20 Shreya Atrey, Lifting as We Climb: Recognising Intersectional Gender Violence in Law, 5 Oñati Socio-legal
Series 1512 (2015), 1519-20. 21 Id at 1531.
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25 The above analysis stresses on the need for the Court to address and
unpack the qualitative impact of the various identities an individual might have on
the violence, discrimination or disadvantage being faced by them in the society.
C.2 Disability and Gender: Twin Tales of Societal Oppression
26 For many disabled women and girls in India, the threat of violence is an alltoo-familiar fixture of their lives, contracting their constitutionally guaranteed
freedom to move freely and curtailing their ability to lead full and active lives. This
threat of violence can translate into a nagging feeling of powerlessness and lack
of control, making the realization of the promises held by Parts III and IV of our
Constitution a remote possibility for women with disabilities.
27 In saying so, we do not mean to subscribe to the stereotype that persons
with disabilities are weak and helpless, incapable of charting the course of their
lives or to deprive them of the agency and bodily autonomy that we all possess
and are entitled to exercise. Such a negative presumption of disability translating
into incapacity would be inconsistent with the forward-thinking conceptualization
of disabled lives embodied in our law and, increasingly, albeit slowly, in our social
consciousness. As Saptarshi Mandal notes, in critiquing the fashion in which the
Punjab and Haryana High Court dealt with the testimony of a mentally disabled
and partially paralyzed prosecutrix22, stamping a prosecutrix with the badge of
22 Samitri and Ors. v. State of Haryana, 2010 SCC OnLine P&H 2245.
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complete helplessness, merely on the basis of disability, is an inapposite course
of action. He notes:
“the entire rationale behind the conviction of the accused
turned on sympathy for the helpless prosecutrix and her
inability to physically resist the aggressor. Even if one agrees
with the judge that there cannot be a single standard of
burden of proof for the disabled and the able-bodied, a
differentiated scale of burden of proof must be based on the
concept of vulnerability, not victimhood.”23
28 Instead, our aim is to highlight the increased vulnerability and reliance on
others that is occasioned by having a disability which makes women with
disabilities more susceptible to being at the receiving end of sexual violence. As
the facts of this case make painfully clear, women with disabilities, who inhabit a
world designed for the able-bodied, are often perceived as “soft targets” and
“easy victims” for the commission of sexual violence. It is for this reason that our
legal response to such violence, in the instant case as well as at a systemic level,
must exhibit attentiveness to this salient fact.
29 As the analysis by the Sessions Judge and High Court makes clear, a
critical feature of this case is the fact that PW2 is blind since birth. It would be
overly simplistic and reductionist to reduce her personality to her disability alone.
Equally, however, the Court has to exhibit sensitivity to the heightened risk of
violence and abuse that she was rendered susceptible to, by reason of her
disability. We would like to utilize the facts of this case as a launching point to
explore a disturbing trend that this case brings into sharp focus and is
23 Saptarshi Mandal, The Burden of Intelligibility: Disabled Women’s Testimony In Rape Trials, Indian Journal of
Gender Studies, 20 No. 1 (2013): 1-29, p. 20 (“Mandal, Disabled Women Testimony in Rape Trials”).
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19
symptomatic of – that of sexual violence against women and girls with disabilities
and to set in motion a thought process for how the structural realities resulting in
this state of affairs can be effectively addressed. In this part of the judgment, we
will first highlight the unique reasons that make these women more vulnerable to
being at the receiving end of sexual violence, with the help of some illustrations.
Thereafter, we will outline some challenges that are faced by such women in
accessing the criminal justice system generally and the judicial system in
particular. We will then outline some measures that can be taken to lower the
barriers faced by them. We will finally conclude by outlining the judicial approach
which should be adopted for assessing their testimony.
Unique vulnerability of women and girls with disabilities
30 An April 2018 report by Human Rights Watch, titled ‘Invisible Victims of
Sexual Violence: Access to Justice for Women and Girls with Disabilities in
India’24 offers a thoroughgoing assessment of the problem of sexual violence
against women with disabilities. The report documents the stories of 17 survivors
of sexual violence – 8 girls and 9 women – who live with a spectrum of physical,
sensory, intellectual and psychosocial disabilities.25
24 Human Rights Watch, “Invisible Victims of Sexual Violence: Access to Justice for Women and Girls with
Disabilities in India”, available at https://www.hrw.org/report/2018/04/03/invisible-victims-sexual-violence/accessjustice-women-and-girls-disabilities, 3 April 2018 (“HRW Report”). 25 HRW Report, supra n. 24, p. 12.
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31 As the report points out, women and girls with different disabilities face a
high risk of sexual violence:
“Those with physical disabilities may find it more difficult to
escape from violent situations due to limited mobility. Those
who are deaf or hard of hearing may not be able to call for
help or easily communicate abuse, or may be more
vulnerable to attacks simply due to the lack of ability to hear
their surroundings. Women and girls with disabilities,
particularly intellectual or psychosocial disabilities, may not
know that non -consensual sexual acts are a crime and
should be reported because of the lack of accessible
information. As a result, they often do not get the support they
need at every stage of the justice process: reporting the
abuse to police, getting appropriate medical care, and
navigating the court system.”26
32 In India, no disaggregated data is maintained on the extent of violence
against women and girls with disabilities. This poses a formidable obstacle to
understanding the problem better and designing suitable solutions. As Rashida
Manjoo, the United Nations Special Rapporteur on violence against women,
noted, this lack of data “renders the violence committed against women with
disabilities invisible.”27
33 The HRW report points to two studies that quantify the scale of this
problem. A 2004 survey in Orissa conducted in 12 districts with 729 respondents
found that nearly all of the women and girls with disabilities surveyed were beaten
at home, and 25 percent of women with intellectual disabilities had been raped.28
26 Id at p. 4. 27 UN Human Rights Council, “Report of the Special Rapporteur on violence against women, its causes and
consequences, Rashida Manjoo,” A/HRC/26/38/Add.1. available at
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session26/Documents/A-HRC-26-38-Add1_en.doc, 1
April 2014, para 72. 28 S. Mohapatra and M. Mohanty, “Abuse and Activity Limitation: A Study on Domestic Violence Against Disabled
Women in Odisha,” available at
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In the same vein, a 2011 study found that 21 percent of the 314 women with
disabilities surveyed had faced emotional, physical or sexual violence from
someone other than their intimate partner.29
34 The HRW Report brings to light several harrowing examples of
circumstances in which a survivor’s disability was exploited by those perpetrating
sexual violence. To illustrate, the report describes the story of a woman with low
vision from Bhubaneshwar, Odisha who alleged that she was raped in June,
2013. The report notes:
“The police did not help …get legal aid. The staff of the
[residential shelter home] helped her to find a lawyer, but the
lawyer they found was not free of cost. It has been tough for
her to continue with the lawyer. This has affected the
progress of the case.”30
Interaction of disabled survivors of sexual violence with the criminal justice
system and the judiciary
35 In the wake of the Nirbhaya rape incident that shocked the conscience of
the nation, Indian criminal law underwent a series of changes. The Justice J.S.
Verma Committee, set up to suggest amendments to the law, attached special
emphasis to creating an enabling environment to enable women with disabilities
to report cases of sexual violence and to obtain suitable redress. As the
Committee noted:
http://swabhiman.org/userfiles/file/Abuse%20and%20Activity%20Limitation%20Study.pdf, 2004 referred in HRW
Report, supra n. 24, at footnote 19. 29 CREA, “Count Me In! Violence Against Disabled, Lesbian, and Sex-working Women in Bangladesh, India, and
Nepal”,
http://www.creaworld.org/sites/default/files/The%20Count%20Me%20In%21%20Research%20Report.pdf, 2011
referred in HRW Report, supra n. 24, at footnote 20. 30 HRW Report, supra n. 24, p. 8.
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“6. A special procedure for protecting persons with disabilities
from rape, and requisite procedures for access to justice for
such persons is also an urgent need. Amendments to the
Code of Criminal Procedure, which are necessary, have been
suggested.”31
36 The Committee’s suggestions translated into changes in the Indian Penal
Code and the Criminal Procedure Code. Some key changes were as follows:
(i) When the victim of the offences specified in the provision is either
permanently or temporarily mentally or physically disabled, the FIR shall be
recorded by a police officer, at the residence of the person seeking to
report such offence or at a convenient place of such person's choice, in the
presence of a special educator or an interpreter, as the case may be.32
Such information may also be video-graphed.33
(ii) The same accommodations, as outlined above, have also been made as
regards the recording of confessions and statements.34 Further, as regards
those who are physically and mentally disabled, such a statement shall be
considered a statement in lieu of examination-in-chief, obviating the need
for it to be recorded at the time of trial.
(iii) The amendments also sought to put in place a framework to enable victims
with disabilities to participate in a test identification parade. In such cases,
a judicial magistrate will oversee the procedure to ensure the witness is
31 JS Verma Committee Report, supra n. 18 . 32 CrPC, Section 154(1) proviso 2, (a). 33 CrPC, Section 154(1) proviso 2, (b). 34 CrPC, Section 164 (5A) (a), provisos 1 and 2.
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supported in identifying the accused with a means they find comfortable.35
This process must be video-graphed.36
37 Further, guidance issued by the Union Ministry of Health and Family
Welfare notes the challenges faced by survivors with disabilities in reporting
cases given the barriers to communication, their dependency on caretakers, their
complaints not being taken seriously and the lack of an appropriate environment
which encourages them to express their grievances and complaints.
37 In addition,
unfamiliar and stressful court environments pose a heightened challenge, during
protracted cases, for such women. Lack of information about their entitlements
under the law, as well as the right to seek legal representation, compels them to
be mute and helpless spectators.38
38 Certain concerns have also been highlighted by the Committee on the
Rights of Persons with Disabilities in its concluding observations on the initial
report on India. These include lack of measures to identify, prevent and combat
all forms of violence against persons with disabilities; lack of disaggregated
statistical data in National Crime Records Bureau on cases of gender-based
violence against women and girls with disabilities, including violence inflicted by
intimate partners; limited availability of accessible shelters for women with
35 CrPC, Section 54A, proviso 1. 36 CrPC, Section 54A, proviso 2. 37 Ministry of Health and Family Welfare, Guidelines and Protocols: Medico-legal care for survivors/victims of
sexual violence, 16 May 2019, available at https://main.mohfw.gov.in/sites/default/files/953522324.pdf, p. 14. 38 HRW Report, supra n. 24, p. 7.
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disabilities who are victims of violence; and lack of effective remedies for persons
with disabilities facing violence, including rehabilitation and compensation.39
39 While changes in the law on the books mark a significant step forward,
much work still needs to be done in order to ensure that their fruits are realized by
those for whose benefit they were brought. In this regard, we set out below some
guidelines to make our criminal justice system more disabled-friendly.
(i) The National Judicial Academy and state judicial academies are requested
to sensitize trial and appellate judges to deal with cases involving survivors
of sexual abuse. This training should acquaint judges with the special
provisions, concerning such survivors, such as those outlined above. It
should also cover guidance on the legal weight to be attached to the
testimony of such witnesses/survivors, consistent with our holding above.
Public prosecutors and standing counsel should also undergo similar
training in this regard. The Bar Council of India can consider introducing
courses in the LL.B program that cover these topics and the intersectional
nature of violence more generally;
(ii) Trained special educators and interpreters must be appointed to ensure
the effective realization of the reasonable accommodations embodied in
the Criminal Law Amendment Act, 2013. All police stations should maintain
a database of such educators, interpreters and legal aid providers, in order
to facilitate easy access and coordination;
39 Committee on the Rights of Persons with Disabilities, “Concluding Observations on the Initial Report Of India”,
GE.19-18639(E) available at https://digitallibrary.un.org/record/3848327?ln=en, 29 October 2019, para 34.
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(iii) The National Crimes Record Bureau should seriously consider the
possibility of maintaining disaggregated data on gender-based violence.
Disability must be one of the variables on the basis of which such data
must be maintained so that the scale of the problem can be mapped out
and tailored remedial action can be taken;
(iv) Police officers should be provided sensitization, on a regular basis, to deal
with cases of sexual violence against women with disabilities, in an
appropriate way. The training should cover the full life cycle of a case
involving a disabled survivor, from enabling them to register complaints,
obtain necessary accommodations, medical attention and suitable legal
representation. This training should emphasize the importance of
interacting directly with the disabled person concerned, as opposed to their
care-taker or helper, in recognition of their agency; and
(v) Awareness-raising campaigns must be conducted, in accessible formats,
to inform women and girls with disabilities, about their rights when they are
at the receiving end of any form of sexual abuse.
40 We hasten to add that these suggestions are not a reflection of the manner
in which the investigation, enquiry and trial were conducted in the instant case.
They simply represent our considered view on the systemic reforms needed to
ensure that cases such as the instant one are dealt with in the most appropriate
way.
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Testimony of disabled prosecutrix:
41 Another feature of the case that we would like to dwell on relates to the
testimony of the prosecutrix, PW2. In his judgment, the Sessions Judge noted as
follows:
“21. Identification of the accused by the victim girl:- It is
needless to say that identifying the accused basing on the
voice is weak type of evidence. Coming to the present facts
and circumstances of the case, P.W.2 is blind by birth as the
access of the accused to victim proved by the prosecution
she can easily identify the accused by hearing his voice.
Moreover, P.W.I, P.W.3, P.W.4 and P.W.5 and some others
caught hold the accused when he opened the door of the
house of P.W.I, on the date of the incident and the evidence
of the police officials also corroborates with the witnesses
who caught hold of the accused and handed over him to
P.W.II and on the instructions of P.W. II, the accused was
taken to Mahanandi Police Station. It was suggested to P.W.2
that her statement that she identified the accused with his
voice is false. In view of the categorical evidence of P.W.I,
P.W.3, P.W.4, so also the admission made by the accused in
313 Cr.P.C examination that he used to visit the house of
P.W.l to call the brothers of the victim for doing coolie work,
the above suggestion has no legs to stand. The above
evidence would amply prove that the victim has successfully
identified the accused and her evidence cannot be doubted
simply because she is a blind girl.”
42 In the High Court, the defense sought to cast doubt on the testimony of the
prosecutrix by arguing that she would have been unable to identify the accused
due to her disability. While the above plea was not pressed by the appellant in
this Court, we would like to take this opportunity to affirm the conclusion of the
Sessions Judge and to clarify the position of law on this point.
43 There have been instances where the testimony of a disabled prosecutrix
has not been considered seriously and treated at an equal footing as that of their
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able-bodied counterparts. One such instance is the judgment of this Court in
Mange v. State of Haryana40, where the testimony of a thirteen year-old girl who
was deaf and mute was not recorded and the conviction was confirmed on the
account of an eye witness and supported by medical evidence. This Court in
affirming the conviction noted that the non-examination of the prosecutrix was not
a major infirmity in the prosecution’s case “apart from being a child witness, she
was also deaf and dumb and no useful purpose would have been served by
examining her.” We are of the considered view that presumptions of such nature
which construe disability as an incapacity to participate in the legal process reflect
not only an inadequate understanding of how disability operates but may also
result in a miscarriage of justice through a devaluation of crucial testimonies given
by persons with disabilities. The legal personhood of persons with disabilities
cannot be premised on societal stereotypes of their supposed “inferiority”, which
is an affront to their dignity and a negation of the principle of equality.
44 A survey and analysis of High Court judgments by Saptarshi Mandal
indicates that the testimony of the disabled witnesses is devalued by not
recording the testimony of the prosecutrix at all; or recording it without adherence
to correct legal procedure, thereby rendering it ineffectual; dismissal of the
testimony for its lack of intelligibility or for not being supported by the condition of
her body.41
40 (1979) 4 SCC 349. 41 Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.
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45 This kind of a judicial attitude stems from and perpetuates the underlying
bias and stereotypes against persons with disabilities. We are of the view that the
testimony of a prosecutrix with a disability, or of a disabled witness for that matter,
cannot be considered weak or inferior, only because such an individual interacts
with the world in a different manner, vis-a-vis their able-bodied counterparts. As
long as the testimony of such a witness otherwise meets the criteria for inspiring
judicial confidence, it is entitled to full legal weight. It goes without saying that the
court appreciating such testimony needs to be attentive to the fact that the
witness’ disability can have the consequence of the testimony being rendered in a
different form, relative to that of an able-bodied witness. In the case at hand, for
instance, PW2’s blindness meant that she had no visual contact with the world.
Her primary mode of identifying those around her, therefore, is by the sound of
their voice. And so PW2’s testimony is entitled to equal weight as that of a
prosecutrix who would have been able to visually identify the appellant.
C.3 The ‘Caste’ that is Difficult to Cast Away: Protection of Members of
Scheduled Castes and Scheduled Tribes
46 Social movements in India for securing justice to those who have suffered
centuries of caste-based discrimination paved way for the enactment of the SC &
ST Act in 1989 to prevent commission of atrocities against members of the
Scheduled Caste and Scheduled Tribe42 communities. The Act also falls within
42 “SC & ST”
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the purview of Article 17 of the Constitution, which prohibits untouchability. The
Statement of Objects and Reasons of the Act states the following:
“1. Despite various measures to improve the socio-economic
conditions of the Scheduled Castes and the Scheduled
Tribes, they remain vulnerable. They are denied number of
civil rights. They are subjected to various offences, indignities,
humiliations and harassment. They have, in several brutal
incidents, been deprived of their life and property. Serious
crimes are committed against them for various historical,
social and economic reasons.
2. Because of the awareness created amongst the Scheduled
Castes and the Scheduled Tribes through spread of
education, etc., they are trying to assert their rights and this is
not being taken very kindly by the others. When they assert
their rights and resist practices of un-touchability against them
or demand statutory minimum wages or refuse to do any
bonded and forced labour, the vested interests try to cow
them down and terrorise them. When the Scheduled Castes
and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants
for the dominant and the mighty. Occupation and
cultivation of even the government allotted land by the
Scheduled Castes and the Scheduled Tribes is resented and'
more often these people become victims of attacks by the
vested interests of late, there has been an increase in the
disturbing trend of commission of certain atrocities like
making the Scheduled Castes persons eat inedible
substances like human excreta and attacks on and mass
killings of helpless Scheduled Castes and Scheduled Tribes
and rape of women belonging to the Scheduled Castes
and the Scheduled Tribes. Under the circumstances, the
existing laws like the protection of Civil Rights Act, 1955 and
the normal provisions of the Indian Penal Code have been
found to be inadequate to check these crimes. A special
legislation to check and deter crimes against them committed
by non-Scheduled Castes and non-Scheduled Tribes has,
therefore, become necessary.
3. The term 'atrocity' has not been defined so far. It is
considered necessary that not only the term 'atrocity' should
be defined but stringent measures should be introduced to
provide for higher punishments for committing such atrocities.
It is also proposed to enjoining, on the States and the Union
territories to take specific preventive and punitive measures to
protect the Scheduled Castes and the Scheduled Tribes from
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being victimised and where atrocities are committed, to
provide adequate relief and assistance to rehabilitate them.”
(emphasis added)
47 While the Statement of Objects and Reasons of the Act specifically
mentions commission of rapes against SC & ST women as a form of atrocity
committed against the SC & ST communities, it does not specifically articulate the
distinct disadvantage women of these communities face on account of casteism,
patriarchy and poverty at the same time. Shreya Atrey notes that while the anticaste movements began in early 1900s and saw active participation of SC & ST
women, their oppression was imagined only on the basis of caste rather than
patriarchy43. On the other hand, the mainstream feminist movement also failed to
take into consideration the specific forms of oppression that SC & ST women face
not only at the hands of upper caste men but also upper caste women. To
reframe the words of the Combahee River Collective Statement, a classic text in
US anti-racist feminism - the SC & ST women struggled together with SC & ST
men against casteism, while they also struggled with men about sexism.44 Adrija
Dey in her work has specifically highlighted that class, caste, geography and
religion play a pivotal role in how gender violence is perceived and how
punishments are meted out in the criminal justice system.45 How pervasive sexual
violence is against women from SC & ST community is emphatically stated by V.
Geetha in extract her book titled ‘Undoing Impunity’:
43 SHREYA ATREY, INTERSECTIONAL DISCRIMINATION, Oxford University Press) 2019, p. 69. 44 Combahee River Collective, The Combahee River Collective Statement, in HOME GIRLS: A BLACK FEMINIST
ANTHOLOGY, Barbara Smith ed., (New York: Kitchen Table/Women of Color Press, 1983; reprint, New Brunswick,
N.J.: Rutgers University Press 2000) 267. The original quote read, “We struggle together with Black men against
racism, while we also struggle with Black men about sexism.” 45 A. Dey. ‘Others’ Within the ‘Others’: An Intersectional Analysis of Gender Violence in India, Gender Issues 36,
357–373 (2019).
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“As for sexual violence, Dalit women activists understood it to
be part of a continuum of violence that Dalit women
experienced: in a life-world where food, water, clean living
spaces are routinely denied to Dalit women, where their
labour was exploited, and no protection available in their
places of work, where to be in bondage to a landlord or petty
trader was commonplace, and at all times they are viewed as
sexually available, and humiliated in their bodily being, sexual
violence emerged as not an exceptional act of violence, but
the most concentrated expression of a fundamental animus
against Dalits”46
48 The above discussion highlights the social and economic context in which
sexual violence against women from SC & ST communities occurs. This
contextualized legal analysis has to be adopted by the Court which is sensitive to
the nature of evidence that is likely to be produced in a case where various
marginalities intersect. In the present case, a distinct individualized experience for
PW2 is created on account of her gender, caste and disability due to her
association with wider groups that face a societal disadvantage.
C.4 Section 3(2)(v) of SC & ST Act
49 Section 3(2)(v) of the SC and ST Act as it stood at the material time read
as follows:
“ 3. 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 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;”
46 V. Geetha, UNDOING IMPUNITY: SPEECH AFTER SEXUAL VIOLENCE, (Zubaan, 2016), Chapter 11.
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50 Under Section 3(2)(v), an enhanced punishment of imprisonment for life
with fine is provided where
(i) The offence is committed by a person who is not a member of a
Scheduled Caste or Scheduled Tribe;
(ii) The offence arises under the Penal Code and is against a person or
property and is punishable with imprisonment for a term of ten years or
more; and
(iii) The offence is committed “on the ground that such person is a member
of a Scheduled Caste or Scheduled Tribe” or such property belongs to
such a person.
The key words are “on the ground that such person is a member of a 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 recognizing 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:
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“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?”47
51 Being cognizant of the limitation of Section3(2)(v) – as it stood earlier - in
dealing with matters of intersectionality, we are however bound to apply the
standard that has been laid down in the law. The expression “on the ground” was
considered in a two-judge Bench judgment of this Court in Dinesh Alias Buddha
v. State of Rajasthan48, where the Court speaking through Justice Arijit Pasayat
held:
“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 Scheduled Castes
and Scheduled Tribes. In the instant case no evidence has
been led to establish this requirement. It is not case of the
prosecution that the rape was committed on the victim
since she was a member of Scheduled Caste.”
52 The Court held that in the absence of evidence to that effect, the offence
under Section 3(2)(v) would not stand established. This principle was
subsequently followed in a two judge Bench judgment of this Court in Ramdas
and Others v. State of Maharashtra49 where it was held that merely because a
woman belongs to the SC & ST community, the provisions of the SC & ST Act
would not be attracted in a case of sexual assault. This Court observed that there
47 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. 48 (2006) 3 SCC 771. 49 (2007) 2 SCC 170.
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was no evidence to prove the commission of offence under Section 3(2)(v) of the
SC & ST Act.
53 The contours of the terms “on the ground of” have been explicated by this
Court in the following cases. In Ashrafi v. State of Uttar Pradesh50, a two judge
Bench of this Court held that conviction under Section 3(2)(v) of the SC & ST Act
cannot be sustained because the prosecution could not prove that the rape was
committed only on the ground that the woman belonged to the SC & ST
community. This Court speaking through Justice R Banumathi held:
“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
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.” (emphasis added)
54 In another judgment of this Court in Khuman Singh v. State of MP51,
Justice R Banumathi speaking for this Court held :
“As held by the Supreme Court, the offence must be such so
as to attract the offence under Section 3(2)(v) of the Act. The
offence must have been committed against the person on the
ground that such person is a member of Scheduled Caste
and Scheduled Tribe. In the present case, the fact that the
deceased was belonging to “Khangar”-Scheduled Caste is
not disputed. There is no evidence to show that the
offence was committed only on the ground that the
50 (2018) 1 SCC 742 (“Ashrafi”). 51 Criminal Appeal 1283 of 2019 decided on 27 August 2019 (“Khuman Singh”).
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victim was a member of the Scheduled Caste and
therefore, the conviction of the appellant-accused under
Section 3(2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act is not sustainable.”
``
(emphasis supplied)
55 In the above two extracts, this Court has interpreted Section 3(2)(v) to
mean that the offence should have been committed “only on the ground that the
victim was a member of the Scheduled Caste.” The correctness of this exposition.
Is debatable. The statutory provision does not utilize the expression “only on the
ground”. Reading the expression “only” would be to add a restriction which is not
found in the statute. The statute undoubtedly uses the words “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. To read the provision
in that manner will dilute a statutory provision which is meant to safeguard the
Scheduled Castes and Scheduled Tribes against acts of violence which pose a
threat to their dignity. As we have emphasized before in the judgment, an
intersectional lens enables us to view oppression as a sum of disadvantage
resulting from multiple marginalized 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 marginalized 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,
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but it is to recognize 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.
56 If the evidence in this case was sufficient to establish the commission of the
offence on the ground that PW2 was a member of a Scheduled Caste, a fresh
look at the judgments in Ashrafi (supra) and Khuman Singh (supra) would have
been warranted. However, a close look at the evidence would demonstrate that
the prosecution has not led evidence to prove the ingredients of section 3(2)(v).
Unfortunately, there has been a serious gap in the evidence on that count. In the
present case, PW11 who was the Investigating Officer deposed:
“PW 1 and PW2 did not state before me that since she
belongs to Schedule Caste the accused committed the
offence. Part 1 C.D does not disclose in specific that the
accused was handed over to the Circle. 'Inspector of police.
Witness adds by the time he reached the scene of offence the
Sub Inspector and Circle inspector of police were present and
the witnesses present there handed over to the accused to
them in turn he instructed them to take the accused to
Mahanandi Police Station. It is not true to suggest that my
statement that the accused was handed over to Sub
Inspector of police or Circle Inspector of police is false as
accused was not present at the scene of offence.”
57 The Sessions Judge noticed the deposition of PW11. However, the
Sessions Judge noted that Exhibit P-1 disclosed that PW 2 belongs to a
Scheduled Caste. The Sessions Judge also observed in paragraph 39 of the
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37
judgment that PW1, who is the mother of PW2 is an “illiterate village rustic
woman” and merely because she did not mention in the report or statement to the
police that the accused committed the offence on the ground that PW2 belonged
to the Scheduled Caste is not fatal to the case of the prosecution under Section
3(2)(v) of the SC & ST Act. The Sessions Judge has also made observations in
that regard in paragraph 40 of the judgment which has been extracted earlier
where he stated that the accused would not have dared to commit the crime if
PW2 belonged to an upper caste community particularly in a village atmosphere.
In appeal, the submission that the ingredients of the offence under Section 3(2)(v)
were not established was specifically urged before the High Court. The
submission was dismissed with the observation that “even otherwise still the
offence under Section 376(1) of the Penal Code is made out”. Both the Sessions
Judge as well as the High Court have failed to notice the crucial ingredient of
Section 3(2)(v) (as it stood at the material time prior to its substitution by Act 1 of
2016)52.
52 Section 3(2)(v) of the SC & ST Act, prior to its amendment, read:
“(2) Whoever, not being a member of a Scheduled Caste or a 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 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”
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, w.e.f 26
January 2016, amended Section 3(2)(v) and currently states:
“(2) Whoever, not being a member of a Scheduled Caste or a 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
Scheduled Tribe or such property belongs to such member] shall be punishable with imprisonment for life and
with fine”.
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58 The issue as to whether the offence was committed against a person on
the ground that such person is a member of a SC or ST or such property belongs
to such member is to be established by the prosecution on the basis of the
evidence at the trial. 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 intersectional nature of
oppression PW2 faces, it becomes difficult to establish what led to the
commission of 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
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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. Section 8 which deals with presumptions as to offences was also
amended to include clause (c) to provide 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. The amended
Section 8 reads as follows:
“8. Presumption as to offences. - In a prosecution for an
offence under this Chapter, if it is proved that
(a) the accused rendered [any financial assistance in relation
to the offences committed by a person accused of], or
reasonably suspected of, committing, an offence under this
Chapter, the Special Court shall presume, unless the contrary
is proved, that such person had abetted the offence;
(b) a group of persons committed an offence under this
Chapter and if it is proved that the offence committed was a
sequel to any existing dispute regarding land or any other
matter, it shall be presumed that the offence was committed
in furtherance of the common intention or in prosecution of
the common object.
[(c) the accused was having personal knowledge of the victim
or his family, the Court shall presume that the accused was
aware of the caste or tribal identity of the victim, unless the
contrary is proved.]”
60 The Parliament Standing Committee Report on Atrocities Against Women
and Children has observed that, “high acquittal rate motivates and boosts the
confidence of dominant and powerful communities for continued perpetration” and
recommends inclusion of provisions of SC & ST Act while registering cases of
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40
gendered violence against women from SC & ST communities53. However, as we
have noted, one of the ways in which offences against SC & ST women fall
through the cracks is due to the evidentiary burden that becomes almost
impossible to meet in cases of intersectional oppression. This is especially the
case when courts tend to read the requirement of “on the ground” under Section
3(2)(v) as “only on the ground of”. The current regime under the SC & ST Act,
post the amendment, has facilitated the conduct of an intersectional analysis
under the Act by replacing the causation requirement under Section 3(2)(v) of the
Act with a knowledge requirement making the regime sensitive to the kind of
evidence that is likely to be generated in cases such as these.
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.
53 Parliament Standing Committee Report on Atrocities Against Women and Children, 15 March 2021, 107
available at
https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/143/230_2021_3_14.pdf.
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C.5 Punishment under Section 376 of the IPC
62 Mr Harinder Mohan Singh, learned Counsel has submitted that as a sequel
to the setting aside of the conviction under Section 3(2)(v), the imposition of a
sentence of imprisonment for life for the offence under section 376 needs to be
modified. In this context, learned Counsel relied upon the provisions of Section
376(1).
63 Now Section 376(1), as it stood at the material time prior to its substitution
by Act 13 of 2013, was substituted by the Criminal Law (Amendment) Act 1983
(Act 43 of 1983) with effect from 25 December 1983. Section 376(1) as
substituted by the amendment read as follows :
“376. Punishment to rape: (1) Whoever, except in the cases
provided for by sub-section (2), commits rape shall be
punished with imprisonment of either description for a term
which shall not be less than seven years but which may be for
life or for a term which may extend to ten years and shall also
be liable to fine unless the woman raped is his own wife and
is not under twelve years of age, in which case, he shall be
punished with imprisonment of either description for a term
which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a sentence
of imprisonment for a term of less than seven years.”
Essentially, the submission which has been urged on behalf of the appellant is
that under Section 376(1) as it then stood, Parliament had made provisions for:
(i) A minimum sentence of seven years;
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(ii) The imposition of a sentence of imprisonment for a term of less than
seven years for adequate and special reasons to be recorded by the
Court;
(iii) A term of imprisonment extending to ten years; and
(iv) A term of imprisonment for life.
In the context of (iii) and (iv) above, the words used in Section 376(1) were “but
which may be for life or for a term which may extend to ten years”.
64 On behalf of the appellant it has been urged that in the present case the
Sessions Judge proceeded to impose a term of imprisonment for life on the basis
that an offence under Section 3(2)(v) was established. If it is held that the offence
under Section 3(2)(v) has not been established, the Sessions Judge, it was
urged, erred in taking the view that the court was not inclined to exercise its
discretion “to give lesser punishment to the accused”. In other words, it was
submitted that the Sessions Judge proceeded on the basis that a sentence of
imprisonment for life was the norm and there was a discretion to award a lesser
punishment, which is erroneous.
65 In evaluating the submission, it is necessary to note that the Sessions
Judge came to the conclusion that the appellant was guilty of an offence under
Section 3(2)(v) of the SC and ST Act and, independent of that, also of an offence
punishable under Section 376(1) of the Penal Code. In considering the sentence
to be imposed in respect of the two distinct offences, the Sessions Judge held
that:
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(i) A sentence of imprisonment for life should be imposed for the offence
under Section 376(1); and
(ii) A sentence of imprisonment for life would have to be imposed for the
offence under Section 3(2)(v) of the SC and ST Act.
66 For the reasons which we have indicated earlier we have come to the
conclusion that the ingredients of the offence under Section 3(2)(v) of the SC and
ST Act were not established. The issue which survives for consideration is as to
whether the punishment of imprisonment for life in respect of the offence under
Section 376(1) should have been imposed.
67 On a plain reading of Section 376(1), as it stood after its insertion with
effect from 25 December 1983 by Act 43 of 1983, it is evident that a sentence of
imprisonment for life is one of the sentences contemplated by the provision. The
Criminal Law Amendment Act 1983 was introduced with the aim of bringing
widespread amendments to the laws of rape in the country, making it difficult for
the offenders to escape conviction. The stated object and purpose of the Act was:
“There have been pressing demands inside and outside
Parliament for the amendment of the law relating to rape so
that it becomes more difficult for the offenders to escape
conviction and severe penalties are imposed on those
convicted. […]
2. […] The changes proposed in the Bill have been
formulated principally on the basis of the following
considerations:-
[…]
(3) minimum punishments for rape should be prescribed;”
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Pursuant to the above-mentioned objective, Section 376(1) provided that except
for cases covered by sub-Section (2), a person committing rape shall be punished
with imprisonment of either description for a term which shall not be less than
seven years. However, the proviso stipulated that the court may for ‘adequate and
special reasons’ to be mentioned in the judgment impose a sentence of
imprisonment for a term of less than seven years. The minimum sentence of
seven years could, in other words, be reduced to a lesser term only for adequate
and special reasons to be recorded in the judgment. This Court has time and
again noted that adequate and special reasons depend on the facts and
circumstances of each case. These special and adequate reasons are an
exception to the rule and must be used sparingly and interpreted strictly as held
by this Court in State of Madhya Pradesh v. Bala54. Section 376(1) however also
stipulated that the term of imprisonment “may be for life or for a term of ten
years”.
68 Subsequently, in 2013, post the Nirbhaya case, the Criminal Law
Amendment Act 2013 was brought into force which amended Section 376(1). The
Parliament sought to take a tougher stand on crime against women and limited
the discretion of the judiciary regarding imposition of sentences for offences
involving rape by providing a minimum punishment of seven years and a
maximum punishment of life imprisonment, without any exceptions for reduction
of sentence. In 2018, Section 376 has been further amended by the Criminal Law
54 (2005) 8 SCC 1.
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45
Amendment Act 2018 (Act 22 of 2018) by which the minimum punishment has
been enhanced to ten years, with the maximum punishment remaining the same.
69 Having detailed the amendments in Section 376 by the Parliament, we are
cognizant that we must apply the law as it was at the time of occurrence of the
crime. The range of punishment within which we must exercise our judicial
discretion is the imposition of a minimum punishment of 7 years (or less on
existence of adequate and special reasons), or 10 years or imprisonment for life.
In determining the appropriate sentence, this Court has consistently laid down
that we must of necessity be guided by all the relevant facts and circumstances
including
(i) The nature and gravity of the crime;
(ii) The circumstances surrounding the commission of the sexual assault;
(iii) The position of the person on whom the sexual assault is committed;
(iv) The role of the accused in relation to the person violated; and
(v) The possibility of the rehabilitation of the offender.
The above factors are relevant for the determination of the quantum of
punishment as held in Ravji v. State of Rajasthan55, State of Karnataka v.
Krishnappa56, and State of Punjab v. Prem Sagar57 among others.
55 (1996) 2 SCC 175. 56 (2000) 4 SCC 75. 57 (2008) 7 SCC 550.
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46
70 In addition to these factors, we must also be alive to the intersectional
identity of PW2 and the underlying societal factors within which the offence was
committed. PW2 is a woman who is blind since birth and is a member of a
Scheduled Caste. These intersectional identities placed her in a uniquely
disadvantageous position. The Chhattisgarh Pradesh High Court in Tekan v.
State of Madhya Pradesh (Now Chhattisgarh)58 dealt with the conviction of a
person accused of raping a blind woman on multiple occasions, on the promise of
marriage. The High Court was acutely aware of the misuse of the woman’s
disability by the accused and sentenced him to 7 years of rigorous imprisonment.
The conviction and sentence were later upheld by this Court59. This Court also
dealt with the question of compensation to be paid to the prosecutrix and the
physical disadvantage accruing to her on account of her disability. In doing so,
Justice M Y Eqbal, speaking for the two-judge bench, noted:
“15. Coming to the present case in hand, victim being
physically disadvantaged, she was already in a socially
disadvantaged position which was exploited maliciously
by the accused for his own ill intentions to commit fraud
upon her and rape her in the garb of promised marriage
which has put the victim in a doubly disadvantaged
situation and after the waiting of many years it has
worsened. It would not be possible for the victim to approach
the National Commission for Women and follow up for relief
and rehabilitation. Accordingly, the victim, who has already
suffered a lot since the day of the crime till now, needs a
special rehabilitation scheme.” (emphasis supplied)
71 Similarly, we are also aware of the disadvantage faced by women (and
persons generally) belonging to the Scheduled Castes and Scheduled Tribes. As
58 2014 Cri LJ 1409. Physical disability has been considered as an aggravating factor in sentencing by other High
Courts as well. See, for e.g., Rabindrayan Das v. State, 1992 Cri LJ 269, Orissa High Court. 59 (2016) 4 SCC 461.
PART C
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explained above, it is difficult and, in our opinion, artificial to delineate the many
different identities of an individual which overlap to place them in a disadvantaged
position of power and create the circumstances for heinous offences such as rape
to occur. At this point, it would be relevant to note that a series of decisions of this
Court rendered by three-judge benches60 and two-judge benches61, have stated
that “socio-economic status, religion, race, caste or creed of the accused or the
victim are irrelevant considerations in sentencing policy”. However, it is necessary
to understand the context in which this finding was made. In all of these cases,
the Court was dealing with the plea of mitigation of sentence awarded by the High
Courts or the lower courts on the ground of existence of ‘adequate and special
reasons’ on account of the accused being a member of the scheduled caste/tribe;
belonging to a rural background; or being illiterate. It is on this count that the
Court rejected such a plea given the heinous nature of the crime of rape and the
gravity of the criminal act. In our opinion, these judgments do not bar us from
taking a holistic view of the various intersectional identities which form a vital part
of the facts and circumstances of the act and speak to the nature of the crime.
72 In the present case, several circumstances bearing on the sentence must
be borne in mind. First, PW2, who was subjected to a sexual assault was blind
since birth. Second, the appellant was known to the brothers of PW2, including
PW3. The appellant used to visit the house in which PW2 resided with her
60 State of Karnataka v. Krishnappa (2000) 4 SCC 75; State of Madhya Pradesh v. Basodi (2009) 12 SCC
318. 61 State of Karnataka v. Raju (2007) 11 SCC 490; State of Rajasthan v. Vinod Kumar, (2012) 6 SCC 770;
State of Madhya Pradesh v. Santosh Kumar (2006) 6 SCC 1.
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parents and brothers. Bereft of eye-sight, PW2 was able to identify the appellant
by his voice with which she was familiar. Third, shortly before entering the home
of PW2, the appellant enquired of PW1 where her sons were, when he was told
that they were not at home. PW1 proceeded with her chores at a public water tap.
Taking advantage of the absence of the members of the family from the family
home, the appellant entered the house and subjected PW2 to a sexual assault.
PW1 has deposed that when she entered the house together with PW3, PW4 and
PW5 she found PW2 in a nude condition on the ground bleeding from the injuries
sustained on her genitals. The nature and circumstances in which the offence has
been committed would leave no manner of doubt that the appellant had taken
advantage of the position of the PW2 who was blind since birth. He entered the
house, familiar as he was with members of the family, in their absence and
subjected PW2 to a sexual assault. PW2 belongs to a Scheduled Caste. The
prosecution has not led evidence to prove that the offence, as we have noticed,
was committed on the ground that she belongs to a Scheduled caste within the
meaning of section 3(2)(v) of the SC and ST Act. This is a distinct issue. But the
fact that PW2 belonged to a Scheduled Caste is not a factor which is extraneous
to the sentencing process for an offence under Section 376. It is in that context,
that we must read the observations of the Sessions Judge with a robust common
sense perception of ground realities. The appellant was 27 years old, a mature
individual who was working as a coolie together with the brothers of PW2 for a
couple of years. The nature and gravity of the offence in the present case is
serious in itself and it is compounded by the position of PW2 who was a visually
disabled woman. A heinous offence has been committed on a woman belonging
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49
to Scheduled Caste. The imposition of a sentence of imprisonment for life cannot
be faulted.
D Conclusion and Summary of Findings
73 For the above reasons we have come to the conclusion that the conviction
under Section 376(1) and the sentence imposed by the Sessions Judge must be
affirmed. In the circumstances we order as follows:
(i) The conviction of the appellant for an offence under Section 3(2)(v) of the
SC and ST Act and the sentence imposed in respect of the offence is set
aside and the appeal allowed to that extent; and
(ii) The conviction of the appellant for an offence punishable under Section
376(1) of the Penal Code and the sentence of imprisonment for life is
upheld. The fine of Rs 1,000/- and default imprisonment of six months
imposed by the Sessions Judge and affirmed by the High Court shall also
stand confirmed.
74 The appeal is disposed of in the above terms.
75 Pending application(s), if any, stand disposed of.
…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[M R Shah]
New Delhi;
April 27, 2021
