ASHARFIversusSTATE OF UTTAR PRADESH

                          [2017] 12S.C.R. 128



A                                ASHARFI
                                      V,

                       STATE OF UTTAR PRADESH
                     (Criminal Appeal No. 1182 of 2015)
B                           DECEMBER 08, 2017
            [RANJAN GOGOi AND R. BA:\'~'UMATHI, JJ.]
          Penal Code, 1860:
          s.376(2)(g), 450 and 323 - Conviction under - By courts
C   below - Relying on evidence of prosecutrix, another witness and
    medical evidence - Accused sentenced to 10 years RI with fine -
    On appeal, held: There is no perversity with respect to conviction
    and sentence - Conviction affirmed.
        Scheduled Castes and Scheduled Tribes (Prevention of
D Atrocities) Act, 1989:
          s.3(2)(v) (as prior to Amendment Act 1 of 2016) - Conviction
    under.:.. By courts below - On appeal, held: Unamended s. 3(2)(v)
    can be pressed into service only if it is proved that the offence under
    the provisions of !PC (punishable with imprisonment for a ll'rl// of
E   ten years or more) has been committed on the ground that the: 1·ic1i111
    belonged to Scheduled Caste community - In the presmt case, in
    the absence of evidence proving such intention of the accused,
    conviction uls. 3(2)(v) cannot be sustained - Penal Code, 1860 -
    s.376(2)(g).
F         Partly allowing the appeal, the Court
          HELD : 1. So far as the conviction under Section 376(2)(g)
    IPC is concerned, based upon the evidence of PW-3-the
    prosecutrix and PW-4 and the medical evidence, both the courts
    below recorded concurrent findings that the charge of rape has
0   been proved. The Court is not inclined to interfere with the
    same and also the sentence of ten years of imprisonment imposed
    upon him. There is also no perversity with respect to the
    conviction and sentence of the appellant with respect to other
    offences under Penal Code. [Para 4] [131-F]

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                                   128
          ASHARFI      v, STATE OF UTTAR PRADESH                         129



      2.1 In respect of the offence under Section 3(2){v) of the         A
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
fur a term of ten years or more, against a person belonging to
                                                                         B
Scheduled Caste/Scheduled Tribe, should have been committed
on the ground that "such person is a member of a Scheduled Caste
or a Scheduled Tribe or such property belongs to such member".
Prior tu the Amendment Act 1 of 2016, the words used in Section
3(2)(v) of the SC/ST Prevention of Atrocities Act are " ...... 011 the
ground that such person is a member of a Scheduled Caste or a            C
Scheduled Tribe". [Para 5] [131-G-H; 132-A-B]
      2.2 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 " ....... 011 the ground
that such person is a member of a Scheduled Caste or a Scheduled         D
Tribe" have been substituted with the words " ........knowing that
such person is a member of a Scheduled Casie or Scheduled Tribe".
Therefore, if subsequent to 26.01.2016 (i.e. the day on which the
amendment came into effect), an offence under IPC 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               E
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 community,                F
suffices to bring home the charge under Section 3(2)(v) of the
SC/ST Prevention of Atrocities Act. [Para 6] [132-C-E]
      2.3 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           a
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.
[Para 7) [132-E-F]
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130            SUPREME COURT REPORTS                        [2017] 12 S.C.R.


A             2.4 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
B     that PW-3 belonged to Scheduled Caste community. In the
      absence of evidence proving intention of the appellant in
      committing the offence upon PW-3 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. [Para 8] [132-G-H; 133-A]
c           2.5 Therefore, 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. [Para 9] [133-B]
D           3. 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. [Para 10] [133-C]
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1182 of2015.
 E
            From the Judgment and Order dated 29.01.2013 of the High Court
      of Judicature at Allahabad in Criminal Appeal No. 8270 of 2007.
            Vikrant Singh Bais (AC) Adv for the Appellant.
            The Judgment of the Court was delivered by
 F
             R. BANUMATHI, J. I. This appeal arises out of the judgmen.
      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
G     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 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 SCI
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           ASHARFI      v, STATE OF UTTAR PRADESH                            131
                        [R. BANUMATHI, J.]

ST Prevention of Atrocities Act, the appellant was sentenced to undergo      A
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           B
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           C
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      D
offences by the trial court. In the appeal 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 behalfofthe respondent. We have carefully        E
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          F
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       G
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 often years or more, against a
person belonging to Scheduled Caste/Scheduled Tribe, should have been
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132            SUPREME COURT REPORTS                          [2017] 12 S.C.R.


A     committed on the ground that "such person is a member of a Scheduled
      Caste or a Scheduled Tribe or such property belongs to such
      member". Prior to the Amendment Act l 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".
B
             6. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act has
      now been amended by virtue of Amendment Act l of2016. 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
c     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 often years or more, is committed upon a
      victim who belongs to SC/ST community and the accused person has
D     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 community
      suffices to bring home the charge under Section 3(2)(v) of the SC/ST
      Prevention of Atrocities Act.
E
             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
F     order to belittle the person as he/she belongs to S,·hedulcd 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
G     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
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            ASHARFI       v, STATE OF UTTAR PRADESH                                133
                          [R. BANUMATHI, J.]

the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities          A
Act cannot be sustained.
      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.                           B
       I 0. 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.                                                        C


Kalpana K. Tripathy                                       Appeal partly allowed.