# PATAN JAMAL VALI v. THE STATE OF ANDHRA PRADESH

- **Citation:** [2021] 3 S.C.R. 470
- **Court:** Supreme Court of India
- **Decided:** 2021-04-27
- **Case number:** Criminal Appeal No. 452 of 2021
- **Bench:** Dr Dhananjaya Y Chandrachud, M R Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patan-jamal-vali-v-the-state-of-andhra-pradesh-35008
- **Pages:** 54

## Headnote

Penal Code, 1860:
s. 376 - Offence of rape - Prosecution case that appellant
committed rape of a blind Scheduled Caste woman in her own house
- Appellant known to the victim and her family - Mother and her
sons found the victim in nude condition, bleeding from her genitals
- Appellant apprehended when trying to escape - Conviction of
the appellant for offence punishable u/s. 3(2)(v) of the SC and ST
Act and s. 376(1) by courts below - Imposition of life imprisonment
for each of the offences, which were to run concurrently - On appeal,
held: Nature and circumstances in which the offence has been
committed shows that the appellant took advantage of the victim
being blind - Testimonies of the victim and her mother clear and
consistent, and corroborated by the evidence of brother, aunt of
the victim and the neighbor - Medical evidence and the deposition
of doctor clearly established that the victim was sexually assaulted
- Appellant was apprehended at the spot in close proximity of the
commission of the offence - Thus, the commission of offence
u/s.376(1) by the appellant proved beyond reasonable doubt - No
evidence led to prove that the offence was committed on the ground
that she belongs to a Scheduled caste within the meaning of s.3(2)(v)
of the SC and ST Act- However, the fact that the victim belonged to
a Scheduled Caste is an important factor to the sentencing process
for an offence u/s.376 - Appellant was a mature individual known
to victim's family and committed heinous offence on a Scheduled
Caste woman - Thus, the conviction of the appellant for an offence
punishable u/s. 376(1) and the sentence of life imprisonment upheld
- However, conviction for an offence u/s.3(2)(v) and the sentence
imposed is set aside- Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act 1989 - s.3(2)(v).
[2021] 3 S.C.R. 470
470
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s. 376(1) - Punishment under - Amendments to s. 376(1) -
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 Criminal Law Amendment
Act, 2013, minimum punishment of seven years and a maximum
punishment of life imprisonment provided, without any exceptions
for reduction of sentence - Thereafter, by the Criminal Law
Amendment Act 2018, further amendment to s. 376, by which the
minimum punishment enhanced to ten years, with the maximum
punishment remaining the same.
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act 1989:
s.3(2)(v)(as it stood then) - Interpretation of - Held:
Interpretation of s. 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", is debatable -Statute 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 - Reading the expression "only" would be to
add a restriction which is not found in the statute, it would dilute
the statute-To deny the protection of s.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 grant impunity to
perpetrators-It cannot be said that there is no requirement to
establish a causal link between the harm suffered and the ground,
but it is to recognize that how a person was treated or impacted was
a result of interaction of multiple grounds or identities - True reading
of s.3(2)(v) would entail that conviction can be sustained as long
as caste identity is one of the grounds for the occurrence of the
offence.
s. 3(2)(v) - Prosecution case that appellant committed rape
of a blind schedule caste girl - Incident occurred in 2011 -
Conviction of the appellant for offence punishable u/s. 3(2)(v) and
s. 376(1) IPC by courts below - On appeal, held: Both the Sessions
J

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SUPREME COURT REPORTS
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PATAN JAMAL VALI
v.
THE STATE OF ANDHRA PRADESH
(Criminal Appeal No 452 of 2021)
APRIL 27, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
M R SHAH, JJ.]
Penal Code, 1860:
s. 376 - Offence of rape - Prosecution case that appellant
committed rape of a blind Scheduled Caste woman in her own house
- Appellant known to the victim and her family - Mother and her
sons found the victim in nude condition, bleeding from her genitals
- Appellant apprehended when trying to escape - Conviction of
the appellant for offence punishable u/s. 3(2)(v) of the SC and ST
Act and s. 376(1) by courts below - Imposition of life imprisonment
for each of the offences, which were to run concurrently - On appeal,
held: Nature and circumstances in which the offence has been
committed shows that the appellant took advantage of the victim
being blind - Testimonies of the victim and her mother clear and
consistent, and corroborated by the evidence of brother, aunt of
the victim and the neighbor - Medical evidence and the deposition
of doctor clearly established that the victim was sexually assaulted
- Appellant was apprehended at the spot in close proximity of the
commission of the offence - Thus, the commission of offence
u/s.376(1) by the appellant proved beyond reasonable doubt - No
evidence led to prove that the offence was committed on the ground
that she belongs to a Scheduled caste within the meaning of s.3(2)(v)
of the SC and ST Act- However, the fact that the victim belonged to
a Scheduled Caste is an important factor to the sentencing process
for an offence u/s.376 - Appellant was a mature individual known
to victim's family and committed heinous offence on a Scheduled
Caste woman - Thus, the conviction of the appellant for an offence
punishable u/s. 376(1) and the sentence of life imprisonment upheld
- However, conviction for an offence u/s.3(2)(v) and the sentence
imposed is set aside- Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act 1989 - s.3(2)(v).
[2021] 3 S.C.R. 470
470
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s. 376(1) - Punishment under - Amendments to s. 376(1) -
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 Criminal Law Amendment
Act, 2013, minimum punishment of seven years and a maximum
punishment of life imprisonment provided, without any exceptions
for reduction of sentence - Thereafter, by the Criminal Law
Amendment Act 2018, further amendment to s. 376, by which the
minimum punishment enhanced to ten years, with the maximum
punishment remaining the same.
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act 1989:
s.3(2)(v)(as it stood then) - Interpretation of - Held:
Interpretation of s. 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", is debatable -Statute 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 - Reading the expression "only" would be to
add a restriction which is not found in the statute, it would dilute
the statute-To deny the protection of s.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 grant impunity to
perpetrators-It cannot be said that there is no requirement to
establish a causal link between the harm suffered and the ground,
but it is to recognize that how a person was treated or impacted was
a result of interaction of multiple grounds or identities - True reading
of s.3(2)(v) would entail that conviction can be sustained as long
as caste identity is one of the grounds for the occurrence of the
offence.
s. 3(2)(v) - Prosecution case that appellant committed rape
of a blind schedule caste girl - Incident occurred in 2011 -
Conviction of the appellant for offence punishable u/s. 3(2)(v) and
s. 376(1) IPC by courts below - On appeal, held: Both the Sessions
Judge as well as the High Court failed to notice the crucial ingredient
of s. 3(2)(v)(as it stood then) - No separate evidence led by the
prosecution to show that the accused committed the offence on the
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basis of the caste identity of the victim - Prosecution's case would
not fail merely because the mother of the victim 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,
while it would be reasonable to presume that the accused knew the
caste of victim since village communities are tightly knit and the
accused was also an acquaintance of victim's family, the knowledge
by itself cannot be said to be the basis of the commission of offence,
having regard to the language of s.3(2)(v) as it stood at the time
when the offence was committed - Due to the intersectional nature
of oppression the victim faces, it becomes difficult to establish what
led to the commission of offence, whether it was her caste, gender
or disability - Furthermore, evidence does not establish that the
offence was committed on the ground that such person is SC or ST
-Thus, conviction u/s.3(2)(v) is set aside.
s. 3(2)(v)- Amendment of, by the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 -
Effect of - Held: Words "on the ground of" u/s.3(2)(v) substituted
with "knowing that such person is a member of a Scheduled Caste
or Scheduled Tribe"-s. 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- Current regime under
the Act, post the amendment, facilitates an intersectional analysis
under the Act by replacing the causation requirement u/s.3(2)(v)
with a knowledge requirement making the regime sensitive to the
kind of evidence that is likely to be generated in such cases.
Evidence:Testimony of disabled prosecutrix - Devaluation of
- Held: Testimony of the disabled prosecutrix/witnesses is devalued
by not recording their testimony 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 - This
perpetuates the underlying bias and stereotypes against persons
with disabilities which is an affront to their dignity and a negation
of the principle of equality - Presumptions to construe disability as
an incapacity to participate in the legal process reflect not only an
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inadequate understanding of how disability operates but may also
result in a miscarriage of justice - Testimony of a disabled cannot
be considered weak or inferior, only because such an individual
interacts with the world in a different manner, vis-a-vis their ablebodied counterparts - If the testimony of such a witness inspires
judicial confidence, it is entitled to full legal weight - On facts,
victim's blindness meant that she had no visual contact with the
world - Her primary mode of identifying those around her, thus, is
by the sound of their voice, so the victim's testimony is entitled to
equal weight as that of a prosecutrix who would have been able to
visually identify the accused.
Sentence/sentencing:
Quantum of sentence for offence u/s.376 IPC - Determination
of - Facts and circumstances to be considered - Held: Nature and
gravity of the crime, circumstances surrounding the commission of
the sexual assault, position of the prosecutrix, role of the accused
in relation to the person violated, and possibility of rehabilitation
of the offender to be considered - Intersectional identity and the
underlying societal factors within which the offence was committed,
also to be considered.
Offence of rape - Woman belonging to SC/ST - Sentencing
policy - Relevant considerations - Held: It is difficult and, 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 occurSocio-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 such
finding was made - Holistic view is to be taken 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.
Crime against women:
Intersectionality-Intersectional nature of violence - Analysis
of - Held: Intersectionality can be defined as an "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 - When the identity of a woman
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intersects with, inter alia, her caste, class, religion, disability and
sexual orientation, she may face violence and discrimination due
to two or more grounds - Intersectional lens is to be used to evaluate
how multiple sources of oppression operate cumulatively to produce
a specific experience of subordination for a blind Scheduled Caste
woman - Ananalysis of intersectionality does not mean that caste,
religion, class, disability and sexual orientation is seen as mere "add
ons" to the oppression that women may face-Intersectional analysis
requires an exposition of reality that corresponds more accurately
with how social inequalities are experienced - In India, the
fundamental guarantees under the Constitution provide for such a
holistic analysis of discrimination faced by individuals -
Intersectionality has also emerged as a potent tool to understand
gender-based violence - Failureto 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 -
Onthe other hand, a comprehensive appraisal of the intersectional
nature of the violence can translate into an appropriate legal
response - There is a need for the Court to address the same.
Disability and Gender-Societal Oppression - Women with
disabilities more susceptible to being at the receiving end of sexual
violence -They are often perceived as "soft targets" and "easy
victims" for the commission of sexual violence -There is unique
vulnerability of women and girls with disabilities - Attention must
be exhibited to this salient fact - Court to exhibit sensitivity to the
heightened risk of violence and abuse that she was rendered
susceptible to, by reason of her disability.
Sexual offences against women with disabilities - Reporting
of cases of sexual violence and to obtain suitable redress -
Suggestionof amendments to Penal Code and Code of Criminal
Procedure by Justice J.S. Verma Committee-Issuance of guidelines
by this Court to make the criminal system more disabled-friendly
Disposing of the appeal, the Court
HELD: 1. The commission of offence under Section 376(1)
IPC by the appellant has been proved beyond reasonable doubt.
The testimonies of PW1,the mother of PW2-victim and of PW 2,
who was sexually assaulted, are clear and consistent. The oral
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account has been corroborated by the evidence of PW3-brother,
PW4-cousin of PW-1 and PW5-neighbour. The medical evidence,
more particularly, the deposition of PW10-doctor clearly
establishes that PW2 was sexually assaulted. The appellant was
apprehended at the spot in close proximity of the commission of
the offence. The conviction of the appellant for an offence
punishable under Section 376(1) IPC 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
upheld by the High Court is also confirmed.The conviction of the
appellant for an offence under Section 3(2)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act
1989 and the sentence imposed in respect of the offence is set
aside. [Para 11, 73][492-E-G; 523-C-D]
2.1 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 able-bodied counterparts.
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.
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. [Para 43,
44][506-E-F, G-H; 507-A-C]
2.2 This kind of a judicial attitude stems from and
perpetuates the underlying bias and stereotypes against persons
with disabilities. 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
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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 ablebodied 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. [Para 45][507-C-E]
Mange v. State of Haryana (1979) 4 SCC 349 -
referred to.
Mandal, Disabled Women Testimony in Rape Trials,
n.23, p. 6. - referred to
3. The social and economic context in which sexual violence
against women from SC & ST communities occurs is highlighted.
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. 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. [Para 48][510-B-C]
SHREYA
ATREY,
INTERSECTIONAL
DISCRIMINATION, OXFORD UNIVERSITY
PRESS) 2019, P. 69.; 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. A. Dey. 'Others'
within the 'Others': An Intersectional Analysis of
Gender Violence in India, Gender Issues 36, 357-373
(2019).; V. Geetha, UNDOING IMPUNITY: SPEECH
AFTER SEXUAL VIOLENCE, (Zubaan, 2016),
Chapter 11. - referred to.
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4.1 This Court has interpreted s.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 which 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. An intersectional lens enables to view oppression
as a sum of disadvantage resulting from multiple marginalized
identities. To deny the protection of s.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, 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 s.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.
[Para 55][513-B-G]
4.2 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. 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 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
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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 the judgment 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) IPC 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). [Para 56,
57][514-A-B, D-G]
4.3 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. The Sessions Judge rightly held 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 SC 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 instant case
was committed. 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 is
referred to as the single axis model. [Para 58][515-A-D]
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4.4 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 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. [Para 59][515-EG; 516-A]
4.5 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 gendered violence against women from SC
& ST communities. However, 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.
[Para 60][516-E-G]
4.6 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 instant case took place before the
amendment, on 31 March 2011. Thus, the evidence in the instant
case does not establish that the offence was committed on the
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ground that such person is a member of a SC or ST. The conviction
under Section 3(2)(v)is set aside. [Para 61][517-A-B]
Dinesh Alias Buddha v. State of Rajasthan (2006) 3
SCC 771 : [2006] 2 SCR 793; Ramdas and Others v.
State of Maharashtra (2007) 2 SCC 170; Ashrafi v.
State of Uttar Pradesh (2018) 1 SCC 742 : [2017] 12
SCR 128; Khuman Singh v. State of MP Criminal Appeal
1283 of 2019 decided on 27 August 2019- referred
to.
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 - referred to.
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. - referred to.
5.1 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 a sentence of imprisonment for life
should be imposed for the offence under Section 376(1); and 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. [Para
65][518-D-F]
5.2 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. Pursuant to the
said objective, Section 376(1) provided that except for cases
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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. Section 376(1) however also stipulated that
the term of imprisonment "may be for life or for a term of ten
years". [Para 67][518-G-H; 519-A-F]
State of Madhya Pradesh v. Bala (2005) 8 SCC 1 :
[2005] 3 Suppl. SCR 859 - referred to.
5.3 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 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. [Para 68][519-F-H; 520-A]
5.4 Having detailed the amendments in Section 376 by the
Parliament, the law as it was at the time of occurrence of the
crime is to be applied. The range of punishment within which the
judicial discretion is to be exercised 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, the relevant facts and circumstances
are to be seen including the nature and gravity of the crime, the
circumstances surrounding the commission of the sexual assault,
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the position of the person on whom the sexual assault is
committed, the role of the accused in relation to the person
violated and the possibility of the rehabilitation of the offender.
In addition to these factors, the intersectional identity of PW2
and the underlying societal factors within which the offence was
committed are to be taken care of. 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. [Para 69, 70][520-B-E; F-G]
5.5 This Court is also aware of the disadvantage faced by
women (and persons generally) belonging to the Scheduled Castes
and Scheduled Tribes. It is difficult and, 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. In
series of decisions this Court 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.
These judgments do not bar this Court 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. [Para 71][521-E-G; 522-A-B]
5.6 In the instant 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
herparents and brothers. Bereft of eye-sight, PW2 was able to
identify the appellant by his voice with which she was familiar.
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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 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 the observations of the Sessions Judge must
be read 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 instant
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 to Scheduled Caste. The
imposition of a sentence of imprisonment for life cannot be faulted.
[Para 72][522-C-H; 523-A]
Ravji v. State of Rajasthan (1996) 2 SCC 175 : [1995]
6 Suppl. SCR 195; State of Karnataka v. Krishnappa
(2000) 4 SCC 75 : [2000] 2 SCR 761; State of Punjab
v. Prem Sagar (2008) 7 SCC 550 : [ 2008] 8 SCR 574;
Tekan v. State of Madhya Pradesh (Now Chhattisgarh
2014 Cri LJ 1409; State of Karnataka v. Krishnappa
(2000) 4 SCC 75 : [2000]2 SCR761; State of Madhya
Pradesh v. Basodi (2009) 12 SCC 318 : [2009] 6 SCR
1166; State of Karnataka v. Raju (2007) 11 SCC 490 :
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[2007] 9 SCR 970; State of Rajasthan v. Vinod Kumar
(2012) 6 SCC 770 : [2012] 6 SCR 1; State of Madhya
Pradesh v. Santosh Kumar (2006) 6 SCC 1 : [2006] 3
Suppl. SCR 548; Navtej Johar v. Union of India (2018)
10 SCC 1 : [2018] 7 SCR 379; R. v. S (RD) (1997) 3
SCR 484; Samitri and Ors. v. State of Haryana, (2010)
SCC OnLine P & H 2245 - referred to.
Justice JS Verma (Retd.), Justice Leila Seth (Retd.) &
Gopal Subramanium, Report of the Committee on
Amendments to Criminal Law, 23 January, 2013, p. 38
- referred to.
K. Crenshaw, Demarginalizing The Intersection Of Race
And Sex: A Black Feminist Critique Of AntiDiscrimination Doctrine, Feminist Theory, And AntiRacist Policies, University of Chicago Legal Forum, Vol.
4 1(1989) 149 ("Crenshaw, Demarginalizing
Intersection of Race and Sex"); 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; Ben Smith, Intersectional Discrimination
and Substantive Equality: A Comparative and
Theoretical Perspective, The Equal Rights Review, Vol.
16 (2016) 74 ("Smith, Intersectional Discrimination");
Nitya Iyer, Categorical Denials: Equality Rights and the
Shaping of Social Identity, Queen's Law Journal, Vol.
19
(1993-1994)
179;
Smith,
Intersectional
Discrimination, supra n. 5, p. 84; 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); PH Collins, The
Difference That Power Makes: Intersectionality and
Participatory Democracy, 8 (1) Revista de
Investigaciones Feministas (2017), p. 22; D. Pothier,
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Connecting Grounds of Discrimination to Real People's
Experiences, 13(1) Canadian Journal of Women and
the Law (2001), p. 39, 51; K Crenshaw, Mapping the
Margins: Intersectionality, Identity Politics, and
Violence against Women of Color, 43 Stanford Law
Review 1241 (1991), 1246-1250; Shreya Atrey, Lifting
as We climb: Recognising Intersectional Gender
Violence in Law, Onati Socio-legal Series 1512 (2015),
1519-20;
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"); 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/invisiblevictims-sexual violence/access- justice-women-andgirls-disabilities, 3 April 2018; HWR Report, n. 24,
p. 12; 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/
HRBodie/HRC/RegularSessions/Session26/
Documents/A-HRC-26-38-Add1_en.doc, 1 April
2014, para 72.; S. Mohapatra and M. Mohanty, "Abuse
and Activity Limitation: A Study on Domestic Violence
Against Disabled Women in Odisha," available at http:/
/ s w a b h i m a n . o r g / u s e r f i l e s / f i l e /
Abuse%20and%20Activity20Limitation%20Study.pdf,
2004 referred in HRW Report, n. 24, at footnote 19;
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 % 20 Count % 20 Me % 20 In % 21 % 20
Research%20Report.pdf, 2011referred in HRW
Report, n. 24, at footnote 20.; HRW Report, n. 24, p.
8; Ministry of Health and Family Welfare, Guidelines
and Protocols: Medico-legal care for survivors/
victims of sexual violence, 16 May 2019, available at
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https://main.mohfw.gov.in/sites/default/files/
953522324.pdf, p.14 - referred to.
Case Law Reference
[2018] 7 SCR 379
referred to
Para 20
(1979) 4 SCC 349
referred to
Para 43
[2006] 2 SCR 793
referred to
Para 51
(2007) 2 SCC 170
referred to
Para 52
[2017] 12 SCR 128
referred to
Para 53
[2005] 3 Suppl. SCR 859
referred to
Para 67
[1995] 6 Suppl. SCR 195
referred to
Para 69
[2000] 2 SCR 761
referred to
Para 69
[2008] 8 SCR 574
referred to
Para 69
2014 Cri LJ 1409
referred to
Para 70
[2000] 2 SCR 761
referred to
Para 71
[2009] 6 SCR 1166
referred to
Para 71
[2007] 9 SCR 970
referred to
Para 71
[2012] 6 SCR 1
referred to
Para 71
[2006] 3 Suppl. SCR 548
referred to
Para71
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 452 of 2021.
From the Judgment and Order dated 03.08.2019 of the High Court
of Andhra Pradesh at Amravati in Criminal appeal No. 911 of 2014.
Harinder Mohan Singh, Ms. Shabana, Advs. for the Appellant.
Mahfooz Ahsan Nazki, Polanki Gowtham, Shaik Mohamad
Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shrey Sharma, Advs.
for the Respondent.
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The Judgment of the Court was delivered by
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
C.5 Punishment under Section 376 of the IPC
D Conclusion and Summary of Findings
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
1 "SC & ST Act''
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(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.
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.