Asharfi vs The State Of Uttar Pradesh

ASHARFI …Appellant

Versus

STATE OF UTTAR PRADESH ....Respondent

JUDGMENT

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