Holding

Section 3(2)(v) of the Atrocities Act does not apply due to lack of evidence of caste motive, so the life sentence is reduced to the statutory minimum of ten years under IPC 376(2)(f), and the compensation stands.

Summary

An eight‑year‑old girl belonging to a Scheduled Caste was allegedly raped by Dinesh @ Buddha on the night of 5 February 1998. The trial court convicted him under IPC Section 376(2)(f) (rape of a child under 12) and under Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, sentencing him to life imprisonment and a fine, with the State ordered to pay compensation to the victim. On appeal, the accused contended that the evidence was unreliable, that the Atrocities provision was inapplicable, and that life imprisonment was excessive. The Supreme Court held that no evidence showed the offence was committed because the victim was a Scheduled Caste, so Section 3(2)(v) could not be invoked; consequently the life term, which rested solely on that provision, was untenable. In the absence of the Atrocities provision, the minimum sentence under IPC 376(2)(f) is ten years, which the Court imposed, and it upheld the compensation award. The appeal was dismissed with the sentence reduced to ten years imprisonment.

Issues considered

Whether Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 applies to the alleged rape.
Whether a life sentence is warranted under IPC Section 376(2)(f) when the Atrocities provision is not applicable.
Whether the compensation awarded to the victim is maintainable.

Legislation cited

Indian Penal Code, 1860s. 228-A, s. 376(2), s. 376(2)(f)
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 2, s. 3(2)(v)

Subjects

rapechild sexual assaultScheduled CasteAtrocities Actsentencinglife imprisonmentIPC 376Section 3(2)(v)Section 228-AcompensationArticle 21

Judgment

DINESH @ BUDDHA A
v.
STATE OF RAJASTHAN

FEBRUARY 28, 2006

[ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] B

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989-Section 3(2)(v)-Applicabildy of-Rape of eight year old Scheduled
Caste (SC) girl-No evidence that rape was committed on the victim since she
was a member of the SC-Held, s. 3(2)(v) of the Atrocities Act not inapplicable- C
Hence, life imprisonment earlier awarded by Courts below by applying s.3(2)(v)
of the Atrocities Act reduced to JO years imprisonment-Crime against
Women-Penal Code, 1860-Section 376(2)(j).

Penal Code, 1860:
D
Section 228-Enactment of-Object-To prevent social victimization or
ostracism of the victim of sexual offence-Hence, it would be appropriate that
in the judgments, be it of Supreme Court, High Court or lower ·court, the
name of the victim is not indicated.

Section 376-Rape-ls a crime against basic human rights-It is also E
violative of the victim's Right to Life contained in Article 21 of the
Constitution-Courts therefore expected to deal with cases of sexual crime
against women with utmost sensitivity-Constitution of India, 1950-Article
21.
F
Section 376(2) and proviso-Rape of minor-Normal sentence where
•t -. rape is committed on a child below 12 years of age is not less than I 0 years'
RI-But in exceptional cases 'for special and adequate reasons" to be
mentioned in the judgment, Court may impose lesser sentence-Whether there
exist any "special and adequate r,•asons" would depend upon peculiar facts
and circumstances of each case-No hard and fast rule can be laid down in G
that regard-Interpretation of Statutes-Proviso.

" ~ According to the prosecution, an 8 year old Scheduled Caste girl
was sexually assaulted by accused-appellant when the victim was coming

793 H
794 SUPREME COURT REPORTS [2006] 2 S.C.R.

A back to her house at mid-night after attending a marriage reception.
Trial Court found the Appellant guilty under Section 376(2) IPC and
under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and directed him to undergo
imprisonment for life and to pay a fine of Rs.1000/-. The State was ..
B directed to pay a compensation of Rs.50,000/- to the victim.
In appeal to this Court, it was submitted that the evidence is not a
credible and cogent; that there are many inconsistencies in the evidence,
more particularly, of the victim; that this is not a case where life
imprisonment could have been awarded and that in any event, there is no
•
C material to bring in application of Section 3(2)(v) of the Atrocities Act.

Dismissing the appeal, the Court

HELD: I. Sexual violence apart from being a dehumanizing act is
an unlawful intrusion on the right of privacy and sanctity of a female.
Rape is not only a crime agaimit the person of a woman, it is a crime
D against the entire society. It destroys the entire psychology of a woman
and pushes her into deep emotional crisis. It is a crime against basic
human rights, and is also violative of the victim's most cherished of the
Fundamental Rights, namely, tht! Right to Life contained in Article 21 of
the Constitution of India, 1950. The Courts are, therefore, expected to
E deal with cases of sexual crime aigainst women with utmost sensitivity.
(798-C-E]

Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, AIR (1996)
SC 922, referred to.

2. Section 228-A of IPC makes disclosure of identity of victim of
F certain offences punishable. Printing or publishing name of any matter
which may make known the id1!ntity of any person against whom an
offence under Sections 376, 376-A, 376-8, 376-C or 376-D is alleged or
found to have been committed can be punished. True it is, the restriction,
does not relate to printing or puhlication of judgment by High Court or
G Supreme Court. But keeping in view the social object of preventing social
victimization or ostracism of th1! victim of a sexual offence for which
Section 228-A has been enacted, it would be appropriate that in the
judgments, be it of this Court, High Court or lower Court, the name of ......
the victim should not be indicated. (798-F-H]

H State of Karnataka v. Puttaraja. (2003) 8 Supreme 364 1 referred to.
DINESH @BUDDHA v.STATE OF RAJASTHAN 795
3.1. The measure of punishment in a case of rape cannot depend A
upon the social status of the victim or the accused. It must depend upon
the conduct of the accused, the state and age of the sexually assaulted
female and the gravity of the criminal act. Crimes of violence upon
women need to be severely dealt with. The socio-economic status, religion,
race, caste or creed of the accused or the victim are irrelevant
considerations in sentencing policy. Protection of society and deterring B
the criminal is the avowed object of law and that is required to be achieved
by imposing an appropriate sentence. The sentencing Courts are expected
to consider all relevant facts and circumstances bearing on the question
)
of sentence and proceed to impose a sentence commensurate with the
gravity of the offence. (800-F-H] C
3.2. Courts must hear the loud cry for justice by the society in cases
of the heinous crime of rape on innocent helpless girls of tender years, as
in this case, and respond by imposition of proper sentence. Public
abhorrence of the crime needs reflection through imposition of appropriate
sentence by the Court. There are no extenuating or mitigating D
circumstances available on the record which may justify imposition of
any sentence less than the prescribed minimum on the Appellant. To
show mercy in the case of such a heinous crime would be a travesty of
justice and the plea for leniency is wholly misplaced. (800-H; 801-A(

Rameshwar v. The State of Rajasthan, AIR (1952) SC 54, referred to. E
4.1. The present case is covered by Section 376(2)(t) IPC i.e. when
rape is committed on a woman when she is under 12 years of age. (800-A)

4.2. The legislative mandate to impose a sentence, for the offence of
rape on a girl under 12 years of age, for a term which shall not be less F
than 10 years, but which may extend to life and also to fine reflects the
intent of stringency in sentence. The proviso to Section 376(2) IPC, of
course, lays down that the Court may, for adequate and special reasons
to be mentioned in the judgment, impose sentence of imprisonment of
either description for a term of less than 10 years. Thus, the normal G
sentence in a case where rape is committed on a child below 12 years of
age, is not less than 10 years' RI, though in exceptional cases "for special
and adequate reasons" sentence of less than 10 years' RI can also be·
awarded. It is a fundamental rule of construction that a proviso must be
considered with relation to the principal matter to which it stands as a
proviso particularly in such like penal provisions. The Courts are obliged H
796 SUPREME COURT REPORTS [2006] 2 S.C.R.

A to respect the legislative mandate in the matter of awarding of sentence
in all such cases. Recourse to the proviso can be had only for "special
and adequate reasons" and not in a casual manner. Whether there exist
any "special and adequate reasons" would depend upon a variety of
factors and the peculiar facts and circumstances of each case. No hard
B and fast rule can be laid down int that behalf of universal application.
(801-B-E(

5.1. The Preamble to the Atrocities Act provides that it has been
enacted to prevent the commission of offences of atrocities against the
members of the Scheduled Castes and Scheduled Tribes. The expression
C 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence
punishable under Section 3. (801-F)

5.2. Sine qua non for application of Section 3(2)(v) of the Atrocities
Act 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
D requirement. It is not case of the prosecution that the rape was committed
on the victim since she was a member of Scheduled Caste. In the absence
of evidence to that effect, Section .3(2)(v) has no application. Had Section
3(2)(v) of the Atrocities Act been applicable then by operation of law, the
sentence would have been imprisonment for life and fine. (802-B, q
E 5.3. In view of the finding that Section 3(2)(v) of the Atrocities Act
is not applicable, the sentence provided in Section 376(2)(f) IPC does not
per se become life sentence. Though it was submitted for the State that
even in a case covered under Section 376(2)(f) IPC, imprisonment for life
can be awarded, it is to be noted that minimum sentence of 10 years has
F been statutorily provided and considering the attendant circumstances
the imprisonment for life in a given case is permissible. Neither the Trial
Court nor the High Court has indicated any such factor. Only by applying ·~
Section 3(2)(v) of the Atrocities Act the life sentence was awarded.
Therefore, the sentence is reduced to IO years. (802-D, E)

G 5.4. The other question is legality of the compensation awarded.
Since the State has not challenged the award of compensation, it is not
open to it to question the legality of the award in the present appeal filed
by the accused. (802-F) -r- ..

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 263
H of 2006.
OINESH@ BUDDHA v.STATE OF RA.IASTHAN [PASA YAT, J.] 797
From the Judgment and Order dated 4.1.2005 of the Rajasthan High A
--1 Court in D.B. Criminal Jail Appeal No. 529 of 1999.

Nalin Kumar Jain for the Appellant.

Aruneshwar Gupta, AAG and Naveen Kumar Singh for the Respondents.
B
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Leave granted.

)'
An eight years old girl was sexually ravished by the appellant is what
was alleged and for that the appellant faced trial. The victim suffered ignominy
on 5.2.1998. The appellant has been found guilty of offence punishable under
c
Section 376(2) of the Indian Penal Code, 1860 (in short the 'IPC') read with
Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 (in short the 'Atrocities Act'). The appellant was
directed to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and
the State was directed to pay a compensation of Rs.50,000/- to the victim. D
Background facts are essentially as follows:

On 5.2.1998 the victim had gone to witness a marriage procession in
the night. When she was coming back to her house in the night at about 12
O' clock the accused sexually assaulted her. She was threatened that if she E
disclosed about the incident to anybody, she would be killed. Suffering from
the acute pain the victim told her sister, mother and grandmother about the
incident. The matter was reported to the police. The accused person was
arrested; medical tests were conducted both in respect of the accused and the
victim, and after completion of investigation charge sheet was filed. The
F
Trial Court found the accused guilty of the offences charged under Section
-'{ 376(2) IPC and Section 3(2)(v) of the Atrocities Act and sentenced him.
The appeal before the Rajasthan High Court, Jaipur Bench, did not bring any
relief to the accused.

In support of the appeal, learned counsel for the appellant submitted G
that the evidence is not credible and cogent. There are many inconsistencies
in the evidence, more particularly, of the victim (PW-8). This is not a casl!
.. ..... where life imprisonment could have been awarded. In any event there is no
material to bring in application of Section 3(2)(v) of the Atrocities Act. It is
further submitted that the appellant belongs to the lowest economic strata of
society who could not even afford to engage a lawyer at any stage. Even H
t
798 SUPREME COURT REPORTS [2006) 2 S.C.R.

A during trial and before the High Court, lawyers were engaged at State's cost.
The young age of the accused should also be taken into consideration.

In response, learned counsel for the State submitted that though Section
3(2)(v) of the Atrocities Act may not be applicable, but imposition of life
sentence is also permissible in a case covered under Section 376(2)(f) IPC.
B It is also submitted that the compensation of Rs.50,000/- directed to be paid
by the State, should be set aside.

Sexual violence apart from being a dehumanizing act is an unlawful
intrusion on the right of privacy and sanctity of a female. It is a serious blow
to her supreme honour and offends her self-esteem and dignity it degrades
C and humiliates the victim and where the victim is a helpless innocent child
or a minor, it leaves behind a traumatic experience. A rapist not only causes
physical injuries but more indelibly leaves a scar on the most cherished
possession of a woman i.e. her dignity, honour, reputation and not the least
her chastity. Rape is not only a crime against the person of a woman, it is
D a crime against the entire society. It destroys, as noted by this Court in Shri
Bodhisattwa Gautam v. Miss Subhra Chakraborty AIR (1996) SC 922, the
entire psychology of a woman and pushes her into deep emotional crisis. It
is a crime against basic human rights, and is also violative of the victim's
most cherished of the Fundamental Rights, namely, the Right to Life contained
in Article 21 of the Constitution of India, 1950 (in short the 'Constitution')
E The Courts are, therefore, expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt with sternly and
severely. A socially sensitized judge, in our opinion, is a better statutory
armour in cases of crime against women than long clauses of penal provisions,
containing complex exceptions and provisos.
F We do not propose to mention name of the victim. Section 228-A of
IPC makes disclosure of identity of victim of certain offences punishable.
Printing or publishing name of any matter which may make known the identity
of any person against whom an offenc1e under Sections 376, 376-A, 376-B,
376-C or 376-D is alleged or found to have been committed can be punished.
G True it is, the restriction, does not relate to printing or publication of judgment
by High Court or Supreme Court. But keeping in view the social object of
preventing social victimization or ostracism of the victim of a sexual offence
for which Section 228-A has been enacted, it would be appropriate that in the ......
judgments, be it of this Court, High Court or lower Court, the name of the
H victim should not be indicated. We have chosen to describe her as 'victim'
'·

DINESH@ BUDDHA v.STATE OF RAJASTHAN [PASAYAT, J.] 799

in the judgment. (See State of Karnataka v. Puttaraja, (2003) 8 Supreme A
364).

The offence of rape occurs in Chapter XVI of !PC. It is an offence
affecting the human body. In that Chapter, there is a separate heading for
"Sexual offences", which encompass Sections 375, 376, 376A, 376B, 376C
and 3760 I.P.C. "Rape" is defined in Section 375 I.P.C. Sections 375 and B
376 I.P.C. have been substantially changed by Criminal Law (Amendment)
Act, 1983, and several new sections were introduced by the new Act, i.e .
.,.. 376A, 376B, 376C and 3760. The fast sweeping changes introduced reflect
the legislative intent to curb with iron hand, the offence of rape which affects
the dignity of a woman. The offence of rape in its simplest term is 'the C
ravishment of a woman, without her consent, by force, fear or fraud', or as
'the carnal know ledge of a woman by force against her will'. 'Rape or Raptus'
is when a man hath carnal knowledge of a woman by force and against her
will (Co. Litt. 123 b); or, as expressed more fully, 'rape is the carnal knowledge
of any woman, above the age of particular years, against her will; or of a
woman child, under that age, with or against her will'. (Hale P.C. 628) The D
essential words in an indictment for rape are rapuit and carnaliter cognovit;
but carnaliter cognovit, nor any other circumlocution without the word rapuit,
are not sufficient in a legal sense to express rape: (I Hen. 6, la, 9 Edw. 4,
26 a (Hale P.C.628). In the crime of rape, 'carnal knowledge' means the
penetration to any the slightest degree of the male organ of generation E
(Stephens Criminal Law, 9th Ed., p.262). In "Encyclopedia of Crime and
Justice" (Volume 4, page 1356), it is stated " ...... even slight penetration is
sufficient and emission is unnecessary". In Halsburys' Statutes of England
and Wales (Fourth Edition) Volume 12, it is stated that even the slightest
degree of penetration is sufficient to prove sexual intercourse. It is violation,
with violence, of the private person of a woman, an outrage by all means. By F
the very nature of the offence it is an obnoxious act of the highest order.

The physical scar may heal up, but the mental scar will always remain.
When a woman is ravished, what is inflicted is not merely physical injury but
the deep sense of some deathless shame. An accused cannot cling to a fossil
formula and insist on corroborative evidence, even if taken as a whole, the G
case spoken to by the victim strikes a judicial mind as probable. Judicial
response to human rights cannot be qlunted by legal jugglery.

It is to be noted that in sub-section(2) of Section 376 I.P.C. more
stringent punishment can be awarded taking into account the special features H
800 SUPREME COURT REPORTS [2006] 2 S.C.R.

A indicated in the said sub-section. The present case is covered by Section
376(2)(f) !PC i.e. when rape is committed on a woman when she is under 12
years of age. Admittedly, in the case at hand the victim was 8 years of age
at the time of commission of offence.

In the Indian Setting refusal to act on the testimony of the victim of
B sexual assault in the absence of corroboration as a rule, is adding insult to
injury. A girl or a woman in the tradition bound non-permissive society of
India would be extremely reluctant even to admit that any incident which is
likely to reflect on her chastity had c:ver occurred. She would be conscious
of the danger of being ostracized by the society and when in the face of these
C factors the crime is brought to light, there is inbuilt assurance that the charge
is genuine rather than fabricated. Just as a witness who has sustained an
injury, which is not shown or believed to be self-inflicted, is the best witness
in the sense that he is least likely to exculpate the real offender, the evidence
of a victim of sex offence is entitled to great weight, absence of corroboration
notwithstanding. A woman or a girl who is raped is not an accomplice.
D Corroboration is not th.: sine qua non for conviction in a rape case. _The
observations of Vivian Buse, J. in Rameshwar v. The State of Rajasthan, AIR
(1952) SC 54) were:

'The rule, which according to the cases has hardened into one of
law, is not that corroboration is essential before there can be a
E conviction but that the necessity of corroboration, as a matter of
prudence, except where the circ:umstances make it safe to dispense
with it, must be present to the mind of the judge ... ".

The measure of punishment in a case of rape cannot depend upon the
F social status of the victim or the accused. It must depend upon the conduct
of the accused, the state and age of the sexually assaulted female and the 'Y
gravity of the criminal act. Crimes of violence upon women need to be
severely dealt with. The socio-economic status, religion, race, caste or creed
of the accused or the victim are irrelevant considerations in sentencing policy.
Protection of society and deterring the criminal is the avowed object of law
G and that is required to be achieved by imposing an appropriate sentence. The
sentencing Courts are expected to consider all relevant facts and circumstances
bearing on the question of sentence and proceed to impose a sentence
commensurate with the gravity of the offence. Courts must hear the loud cry
for justice by the society in cases of the heinous crime of rape on innocent
helplt:ss girls of tender years, as in this case, and respond by imposition of
H
DINESH @BUDDHA v.STATE OF RAJASTHAN [PASAYAT, J.] 801

proper sentence. Public abhorrence of the crime needs reflection through A.
imposition of appropriate sentence by the Court. There are no extenuating or
mitigating circumstances available on the record which may justify imposition
of any sentence less than the prescribed minimum on the appellant. To show
mercy in the case of such a heinous crime would be a travesty of justice and
the plea for leniency is wholly misplaced.
B
The legislative mandate to impose a sentence, for the offence of rape
on a girl under 12 years of age, for a term which shall not be less than 10
• years, but which may extend to life and also to fine reflects the intent of
stringency in sentence. The proviso to Section 376(2) lPC, of course, lays
down that the court may, for adequate and special reasons to be mentioned C
in the judgment, impose sentence of imprisonment of either description for
a term of less than I0 years. Thus, the normal sentence in a case where rape
is committed on a child below 12 years of age, is not less than 10 years' RI,
though in exceptional cases "for special and adequate reasons" sentence of
less than I0 years' RI can also be awarded. It is a fundamental rule of
construction that a proviso must be considered with relation to the principal D
matter to which it stands as a proviso particularly in such like penal provisions.
The courts are obliged to respect the legislative mandate in the matter of
awarding of sentence in all such cases. Recourse to the proviso can be had
only for "special and adequate reasons" and not in a casual manner. Whether
there exist any "special and adequate reasons" would depend upon a variety E
of factors and the peculiar facts and circumstances of each case. No hard and
fast rule can be laid down in that behalf of universal application.

At this juncture it is necessary to take note of Section 3 of the Atrocities
Act. As the Preamble to the Act provides 'the Act has been enacted to
prevent the commission of offences of atrocities against the members of the F
._, Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined
in Section 2 of the Atrocities Act to mean an offence punishable under
Section 3. The said provision so far relevant reads as follows:

"3(2)(v): Punishments for offences of atrocities
G
(2) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe, -
xxx xxx xxx
(v) commits any offence under the Indian Penal Code punishable
with imprisonment for a term of ten years or more against a H
802 SUPREME COURT REPORTS [2006) 2 S.C.R.

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;
xxx xxx xxx"
B 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
C of Scheduled Caste. In the absence of evidence to that effect, Section 3(2Xv)
has no application. Had Section 3(2)(v) of the Atrocities Act been applicable
then by operation of law, the sentence would have been imprisonment for life
and fine.

In view of the finding that Section 3(2)(v) of the Atrocities Act is not
D applicable, the sentence provided in Section 376(2)(f) IPC does not per se
become life sentence. Though learned counsel for the State submitted that
even in a case covered under Section 376(2)(f) !PC, imprisonment for life
can be awarded, it is to be noted that minimum sentence of 10 years has been.
statutorily provided and considering the attendant circumstances the
E imprisonment for life in a given case is permissible. Neither the Trial Court
nor the High Court has indicated any such factor. Only 6y applying Section
3(2)(v) of the Atrocities Act the life sentence was awarded. Therefore, the
sentence is reduced to I0 years. The other question is legality of the
compensation awarded. Since the State has not challenged the award of
compensation, it is not open to it to question the legality of the award in the
F present appeal filed by the accused. Therefore, State's challenge to the legality
and/or quantum of compensation awarded is without merit. The amount shall
be paid to the victim if not already paid within a period of eight weeks.

With the modification of sentence as abovementioned, the appeal is
dismissed.
G
Appeal dismissed.
B.B.B.
,.., ...