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Patan Jamal Vali vs The State Of Andhra Pradesh on 27 April, 2021

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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

JUDGMENT

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
Signature Not Verified

Digitally signed by
Chetan Kumar
Date: 2021.04.27

C.5 Punishment under Section 376 of the IPC
19:35:56 IST
Reason:

D Conclusion and Summary of Findings
1
PART A

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”

2
PART A

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:

3
PART A

“(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;

4
PART A

(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

5
PART A

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 /-

6

PART B

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
7
PART C

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
8
PART C

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 Anti-

Discrimination Doctrine, Feminist Theory, And Anti-Racist Policies, University of Chicago Legal Forum, Vol. 4
(1989) 149 (“Crenshaw, Demarginalizing Intersection of Race and Sex”).

9
PART C

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 class-

privileged 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.

10
PART C

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.

11
PART C

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.”

12
PART C

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.

13
PART C

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.

14

PART C

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”).

15
PART C

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.

16
PART C

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 all-

too-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 PH 2245.

17
PART C

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”).

18
PART C

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/access-
justice-women-and-girls-disabilities, 3 April 2018 (“HRW Report”).
25
HRW Report, supra n. 24, p. 12.

19
PART C

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

20
PART C

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.

21
PART C

“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.

22
PART C

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.

23
PART C

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?lnen, 29 October 2019, para 34.

24
PART C

(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.

25
PART C

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

26
PART C

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.

27
PART C

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”

28
PART C

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 self-
respect 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

29
PART C

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 anti-

caste 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).

30
PART C

“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.

31
PART C

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:

32
PART C

“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.

33
PART C

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”).

34

PART C

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,
35
PART C

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

36
PART C

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”.

37
PART C

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

38
PART C

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

39
PART C

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.

                                                 40
PART C

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;

41
PART C

(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:

42

PART C

(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;”

43
PART C

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.

44
PART C

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.

45
PART C

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.

46
PART C

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.

47
PART C

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

48
PART D

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

49

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