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
Page No. 1 of 6
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
Page No. 2 of 6
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 Scheduled Caste/Scheduled Tribe, should
have been committed on the ground that "such person is a member of
Page No. 3 of 6
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
Page No. 4 of 6
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.
Page No. 5 of 6
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
Page No. 6 of 6
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
Page No. 1 of 6
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
Page No. 2 of 6
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 Scheduled Caste/Scheduled Tribe, should
have been committed on the ground that "such person is a member of
Page No. 3 of 6
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
Page No. 4 of 6
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.
Page No. 5 of 6
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
Page No. 6 of 6
