PATAN JAMAL VALI versus THE STATE OF ANDHRA PRADESH

[2021] 3 S.C.R. 470

[2021] 3 S.C.R.

PATAN JAMAL VALI

THE STATE OF ANDHRA PRADESH

(Criminal Appeal No 452 of 2021)

APRIL 27, 2021

[DR DHANANJAYA Y CHANDRACHUD ANDM R SHAH, JJ.]

Penal Code, 1860:

Cs. 376 – Offence of rape – Prosecution case that appellantcommitted rape of blind Scheduled Caste woman in her own house– Appellant known to the victim and her family – Mother and hersons found the victim in nude condition, bleeding from her genitals– Appellant apprehended when trying to escape – Conviction ofthe appellant for offence punishable u/s. 3(2)(v) of the SC and STDAct and s. 376(1) by courts below – Imposition of life imprisonmentfor each of the offences, which were to run concurrently – On appeal,held: Nature and circumstances in which the offence has beencommitted shows that the appellant took advantage of the victimbeing blind – Testimonies of the victim and her mother clear andEconsistent, and corroborated by the evidence of brother, aunt ofthe victim and the neighbor – Medical evidence and the depositionof doctor clearly established that the victim was sexually assaulted– Appellant was apprehended at the spot in close proximity of thecommission of the offence – Thus, the commission of offenceu/s.376(1) by the appellant proved beyond reasonable doubt – NoFevidence led to prove that the offence was committed on the groundthat she belongs to Scheduled caste within the meaning of s.3(2)(v)of the SC and ST Act– However, the fact that the victim belonged toa Scheduled Caste is an important factor to the sentencing processfor an offence u/s.376 – Appellant was mature individual knownGto victim’s family and committed heinous offence on ScheduledCaste woman – Thus, the conviction of the appellant for an offencepunishable u/s. 376(1) and the sentence of life imprisonment upheld– However, conviction for an offence u/s.3(2)(v) and the sentenceimposed is set aside– Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act 1989 – s.3(2)(v).H

s. 376(1) – Punishment under – Amendments to s. 376(1) –Parliament sought to take tougher stand on crime against womenand limited the discretion of the judiciary regarding imposition ofsentences for offences involving rape – By Criminal Law AmendmentAct, 2013, minimum punishment of seven years and maximumpunishment of life imprisonment provided, without any exceptionsfor reduction of sentence – Thereafter, by the Criminal LawAmendment Act 2018, further amendment to s. 376, by which theminimum punishment enhanced to ten years, with the maximumpunishment remaining the same.

Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) 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 havebeen committed “only on the ground that the victim was memberof the Scheduled Caste”, is debatable –Statute uses the words “onthe ground’ but the juxtaposition of “the” before “ground” doesnot invariably mean that the offence ought to have been committedonly on that ground – Reading the expression “only” would be toadd restriction which is not found in the statute, it would dilutethe statute–To deny the protection of s.3(2)(v) on the premise thatthe crime was not committed against an SC & ST person solely onthe ground of their caste identity is to deny how social inequalitiesfunction in cumulative fashion –It is to grant impunity toperpetrators–It cannot be said that there is no requirement toestablish causal link between the harm suffered and the ground,but it is to recognize that how person was treated or impacted wasa result of interaction of multiple grounds or identities – True readingof s.3(2)(v) would entail that conviction can be sustained as longas caste identity is one of the grounds for the occurrence of theoffence.s. 3(2)(v) – Prosecution case that appellant committed rapeof blind schedule caste girl – Incident occurred in 2011 –Conviction of the appellant for offence punishable u/s. 3(2)(v) ands. 376(1) IPC by courts below – On appeal, held: Both the SessionsJudge as well as the High Court failed to notice the crucial ingredientof s. 3(2)(v)(as it stood then) – No separate evidence led by theprosecution to show that the accused committed the offence on the

Abasis of the caste identity of the victim – Prosecution’s case wouldnot fail merely because the mother of the victim did not mention inher statement to the police that the offence was committed againsther daughter because she was Scheduled Caste woman – However,while it would be reasonable to presume that the accused knew thecaste of victim since village communities are tightly knit and theBaccused was also an acquaintance of victim’s family, the knowledgeby 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 timewhen the offence was committed – Due to the intersectional natureof oppression the victim faces, it becomes difficult to establish whatCled to the commission of offence, whether it was her caste, genderor disability – Furthermore, evidence does not establish that theoffence 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 theDScheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 –Effect of – Held: Words “on the ground of” u/s.3(2)(v) substitutedwith “knowing that such person is member of Scheduled Casteor Scheduled Tribe”–s. 8 which deals with presumptions as tooffences was also amended to include clause (c) to provide that ifthe accused was acquainted with the victim or his family, the courtEshall presume that the accused was aware of the caste or tribalidentity of the victim unless proved otherwise– Current regime underthe Act, post the amendment, facilitates an intersectional analysisunder the Act by replacing the causation requirement u/s.3(2)(v)with knowledge requirement making the regime sensitive to theFkind 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 devaluedby not recording their testimony at all, or recording it withoutadherence to correct legal procedure, thereby rendering itGineffectual, dismissal of the testimony for its lack of intelligibility orfor not being supported by the condition of her body – Thisperpetuates the underlying bias and stereotypes against personswith disabilities which is an affront to their dignity and negationof the principle of equality – Presumptions to construe disability asan incapacity to participate in the legal process reflect not only anH

inadequate understanding of how disability operates but may alsoresult in miscarriage of justice – Testimony of disabled cannotbe considered weak or inferior, only because such an individualinteracts with the world in different manner, vis-a-vis their able-bodied counterparts – If the testimony of such witness inspiresjudicial confidence, it is entitled to full legal weight – On facts,victim’s blindness meant that she had no visual contact with theworld – Her primary mode of identifying those around her, thus, isby the sound of their voice, so the victim’s testimony is entitled toequal weight as that of prosecutrix who would have been able tovisually identify the accused.

Sentence/sentencing:

Quantum of sentence for offence u/s.376 IPC – Determinationof – Facts and circumstances to be considered – Held: Nature andgravity of the crime, circumstances surrounding the commission ofthe sexual assault, position of the prosecutrix, role of the accusedin relation to the person violated, and possibility of rehabilitationof the offender to be considered – Intersectional identity and theunderlying societal factors within which the offence was committed,also to be considered.

Offence of rape – Woman belonging to SC/ST – Sentencingpolicy – Relevant considerations – Held: It is difficult and, artificialto delineate the many different identities of an individual whichoverlap to place them in disadvantaged position of power andcreate the circumstances for heinous offences such as rape to occur–Socio-economic status, religion, race, caste or creed of the accusedor the victim are irrelevant considerations in sentencing policy,however, it is necessary to understand the context in which suchfinding was made – Holistic view is to be taken of the variousintersectional identities which form vital part of the facts andcircumstances of the act and speak to the nature of the crime.

Crime against women:

Intersectionality–Intersectional nature of violence – Analysisof – Held: Intersectionality can be defined as an “oppression thatarises out of the combination of various oppressions which, together,produce something unique and distinct from any one form ofdiscrimination standing alone – When the identity of woman

Aintersects with, inter alia, her caste, class, religion, disability andsexual orientation, she may face violence and discrimination dueto two or more grounds – Intersectional lens is to be used to evaluatehow multiple sources of oppression operate cumulatively to producea specific experience of subordination for blind Scheduled Castewoman – Ananalysis of intersectionality does not mean that caste,Breligion, class, disability and sexual orientation is seen as mere “addons” to the oppression that women may face–Intersectional analysisrequires an exposition of reality that corresponds more accuratelywith how social inequalities are experienced – In India, thefundamental guarantees under the Constitution provide for such aCholistic analysis of discrimination faced by individuals –Intersectionality has also emerged as potent tool to understandgender-based violence – Failureto consider violence perpetratedbased on multiple identities results in an inaccurate portrayal ofthe violence at issue which may impact the ability to obtain relief –Onthe other hand, comprehensive appraisal of the intersectionalDnature of the violence can translate into an appropriate legalresponse – There is need for the Court to address the same.

Disability and Gender–Societal Oppression – Women withdisabilities more susceptible to being at the receiving end of sexualviolence –They are often perceived as “soft targets” and “easyEvictims” for the commission of sexual violence –There is uniquevulnerability of women and girls with disabilities – Attention mustbe exhibited to this salient fact – Court to exhibit sensitivity to theheightened risk of violence and abuse that she was renderedsusceptible to, by reason of her disability.F

Sexual offences against women with disabilities – Reportingof cases of sexual violence and to obtain suitable redress –Suggestionof amendments to Penal Code and Code of CriminalProcedure by Justice J.S. Verma Committee–Issuance of guidelinesby 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 oralH

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 clearlyestablishes that PW2 was sexually assaulted. The appellant wasapprehended at the spot in close proximity of the commission ofthe offence. The conviction of the appellant for an offencepunishable under Section 376(1) IPC and the sentence ofimprisonment for life is upheld. The fine of Rs 1,000/- and defaultimprisonment of six months imposed by the Sessions Judge andupheld by the High Court is also confirmed.The conviction of theappellant for an offence under Section 3(2)(v) of the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act1989 and the sentence imposed in respect of the offence is setaside. [Para 11, 73][492-E-G; 523-C-D]

2.1 There have been instances where the testimony of adisabled prosecutrix has not been considered seriously and treatedat an equal footing as that of their able-bodied counterparts.Presumptions of such nature which construe disability as anincapacity to participate in the legal process reflect not only aninadequate understanding of how disability operates but may alsoresult in miscarriage of justice through devaluation of crucialtestimonies given by persons with disabilities. The legalpersonhood of persons with disabilities cannot be premised onsocietal stereotypes of their supposed “inferiority”, which is anaffront to their dignity and negation of the principle of equality.The testimony of the disabled witnesses is devalued by notrecording the testimony of the prosecutrix at all; or recording itwithout adherence to correct legal procedure, thereby renderingit ineffectual; dismissal of the testimony for its lack of intelligibilityor 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 judicial attitude stems from andperpetuates the underlying bias and stereotypes against personswith disabilities. The testimony of prosecutrix with disability,or of disabled witness for that matter, cannot be consideredweak or inferior, only because such an individual interacts withthe world in different manner, vis-a-vis their able-bodiedcounterparts. As long as the testimony of such witness otherwise

Ameets the criteria for inspiring judicial confidence, it is entitledto full legal weight. It goes without saying that the courtappreciating such testimony needs to be attentive to the fact thatthe witness’ disability can have the consequence of the testimonybeing rendered in different form, relative to that of an able-bodied witness. In the case at hand, for instance, PW2’s blindnessBmeant that she had no visual contact with the world. Her primarymode of identifying those around her, therefore, is by the soundof their voice. And so PW2’s testimony is entitled to equal weightas that of prosecutrix who would have been able to visuallyidentify the appellant. [Para 45][507-C-E]CMange 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 violenceDagainst women from SC & ST communities occurs is highlighted.This contextualized legal analysis has to be adopted by the Courtwhich is sensitive to the nature of evidence that is likely to beproduced in case where various marginalities intersect. distinctindividualized experience for PW2 is created on account of herEgender, caste and disability due to her association with widergroups that face societal disadvantage. [Para 48][510-B-C]

SHREYA ATREY, INTERSECTIONALDISCRIMINATION, OXFORD UNIVERSITYPRESS) 2019, P. 69.; Combahee River Collective, theFCombahee River Collective Statement, in HOMEGIRLS: BLACK FEMINIST ANTHOLOGY,Barbara Smith ed., (New York: Kitchen Table/Womenof Color Press, 1983; reprint, New Brunswick, N.J.:Rutgers University Press 2000) 267. A. Dey. ‘Others’Gwithin the ‘Others’: An Intersectional Analysis ofGender Violence in India, Gender Issues 36, 357-373(2019).; V. Geetha, UNDOING IMPUNITY: SPEECHAFTER SEXUAL VIOLENCE, (Zubaan, 2016),Chapter 11. - referred to.

4.1 This Court has interpreted s.3(2)(v) to mean that theoffence should have been committed “only on the ground thatthe victim was member of the Scheduled Caste,” the correctnessof which is debatable. The statutory provision does not utilizethe expression “only on the ground”. Reading the expression“only” would be to add restriction which is not found in thestatute. The statute undoubtedly uses the words “on the ground’but the juxtaposition of “the” before “ground” does not invariablymean that the offence ought to have been committed only on thatground. To read the provision in that manner will dilute statutoryprovision which is meant to safeguard the Scheduled Castes andScheduled Tribes against acts of violence which pose threat totheir dignity. An intersectional lens enables to view oppressionas sum of disadvantage resulting from multiple marginalizedidentities. To deny the protection of s.3(2)(v) on the premise thatthe crime was not committed against an SC & ST person solelyon the ground of their caste identity is to deny how socialinequalities function in cumulative fashion. It is to render theexperiences of the most marginalized invisible. It is to grantimpunity to perpetrators who on account of their privileged socialstatus feel entitled to commit atrocities against socially andeconomically vulnerable communities. This is not to say that thereis no requirement to establish causal link between the harmsuffered and the ground, but it is to recognize that how personwas treated or impacted was result of interaction of multiplegrounds or identities. true reading of s.3(2)(v) would entail thatconviction under this provision can be sustained as long as casteidentity is one of the grounds for the occurrence of the offence.[Para 55][513-B-G]

4.2 close look at the evidence would demonstrate thatthe prosecution has not led evidence to prove the ingredients ofsection 3(2)(v). Unfortunately, there has been serious gap inthe evidence on that count. The Sessions Judge noticed thedeposition of PW11. However, the Sessions Judge noted thatExhibit P-1 disclosed that PW 2 belongs to Scheduled Caste.The Sessions Judge also observed that PW1, who is the motherof PW2 is an “illiterate village rustic woman” and merely becauseshe did not mention in the report or statement to the police thatthe accused committed the offence on the ground that PW2

Abelonged to the Scheduled Caste is not fatal to the case of theprosecution under Section 3(2)(v) of the SC &ST Act. TheSessions Judge has also made observations in the judgment wherehe stated that the accused would not have dared to commit thecrime if PW2 belonged to an upper caste community particularlyin village atmosphere. In appeal, the submission that theBingredients of the offence under Section 3(2)(v) were notestablished was specifically urged before the High Court. Thesubmission was dismissed with the observation that “evenotherwise still the offence under Section 376(1) IPC is made out”.Both the Sessions Judge as well as the High Court have failed toCnotice the crucial ingredient of Section 3(2)(v) (as it stood at thematerial 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 committedagainst person on the ground that such person is member ofDa SC or ST or such property belongs to such member is to beestablished by the prosecution on the basis of the evidence atthe trial. The Sessions Judge rightly held that the prosecution’scase would not fail merely because PW1 did not mention in herstatement to the police that the offence was committed againsther daughter because she was SC woman. However, there isEno separate evidence led by the prosecution to show that theaccused committed the offence on the basis of the caste identityof PW2. While it would be reasonable to presume that the accusedknew the caste of PW2 since village communities are tightly knitand the accused was also an acquaintance of PW2’s family, theFknowledge by itself cannot be said to be the basis of thecommission of offence, having regard to the language of Section3(2)(v) as it stood at the time when the offence in the instant casewas committed. Due to the intersectional nature of oppressionPW2 faces, it becomes difficult to establish what led to the

commission of offence-whether it was her caste, gender orGdisability. This highlights the limitation of provision wherecausation of wrongful act arises from single ground or what isreferred to as the single axis model. [Para 58][515-A-D]

4.4 Section 3(2)(v) was amended by the Scheduled Castesand the Scheduled Tribes (Prevention of Atrocities) AmendmentAct, 2015, which came into effect on 26 January 2016. The words“on the ground of” under Section 3(2) (v) have been substitutedwith “knowing that such person is member of Scheduled Casteor Scheduled Tribe”. This has decreased the threshold of provingthat crime was committed on the basis of the caste identity to athreshold where mere knowledge is sufficient to sustain aconviction. Section 8 which deals with presumptions as to offenceswas also amended to include clause (c) to provide that if theaccused was acquainted with the victim or his family, the courtshall presume that the accused was aware of the caste or tribalidentity of the victim unless proved otherwise. [Para 59][515-E-G; 516-A]

4.5 The Parliament Standing Committee Report onAtrocities Against Women and Children has observed that, “highacquittal rate motivates and boosts the confidence of dominantand powerful communities for continued perpetration” andrecommends inclusion of provisions of SC &ST Act whileregistering cases of gendered violence against women from SC& ST communities. However, one of the ways in which offencesagainst SC & ST women fall through the cracks is due to theevidentiary burden that becomes almost impossible to meet incases of intersectional oppression. This is especially the casewhen courts tend to read the requirement of “on the ground”under Section 3(2)(v) as “only on the ground of”. The currentregime under the SC &ST Act, post the amendment, has facilitatedthe conduct of an intersectional analysis under the Act by replacingthe causation requirement under Section 3(2)(v) of the Act with aknowledge requirement making the regime sensitive to the kindof 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) ofSection 8 was inserted by Act 1 of 2016 with effect from 26 January2016 these amendments would not be applicable to the case athand. The offence in the instant case took place before theamendment, on 31 March 2011. Thus, the evidence in the instantcase does not establish that the offence was committed on the

Aground that such person is member of SC or ST. The convictionunder Section 3(2)(v)is set aside. [Para 61][517-A-B]

Dinesh Alias Buddha v. State of Rajasthan (2006) 3SCC 771 : [2006] 2 SCR 793; Ramdas and Others v.State of Maharashtra (2007) 2 SCC 170; Ashrafi v.BState of Uttar Pradesh (2018) 1 SCC 742 : [2017] 12SCR 128; Khuman Singh v. State of MP Criminal Appeal1283 of 2019 decided on 27 August 2019– referredto.

Larissa Behrendt, Aboriginal Women and the WhiteCLies of the Feminist Movement: Implications forAboriginal Women in Rights Discourse, 1 AustralianFeminist Law Journal 1, (1993), p. 35 – referred to.

Parliament Standing Committee Report on AtrocitiesAgainst Women and Children, 15 March 2021, 107Davailable 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 theappellant was guilty of an offence under Section 3(2)(v) of the SCEand ST Act and, independent of that, also of an offence punishableunder Section 376(1) of the Penal Code. In considering thesentence to be imposed in respect of the two distinct offences,the Sessions Judge held that sentence of imprisonment for lifeshould be imposed for the offence under Section 376(1); and asentence of imprisonment for life would have to be imposed forFthe offence under Section 3(2)(v) of the SC and ST Act. [Para65][518-D-F]

5.2 On plain reading of Section 376(1), as it stood after itsinsertion with effect from 25 December 1983 by Act 43 of 1983,it is evident that sentence of imprisonment for life is one of theGsentences contemplated by the provision. The Criminal LawAmendment Act 1983 was introduced with the aim of bringingwidespread amendments to the laws of rape in the country, makingit difficult for the offenders to escape conviction. Pursuant to thesaid objective, Section 376(1) provided that except for casesH

covered by sub-Section (2), person committing rape shall bepunished with imprisonment of either description for term whichshall not be less than seven years. However, the provisostipulated that the court may for ‘adequate and special reasons’to be mentioned in the judgment impose sentence ofimprisonment for term of less than seven years. The minimumsentence of seven years could, in other words, be reduced to alesser term only for adequate and special reasons to be recordedin the judgment. This Court has time and again noted thatadequate and special reasons depend on the facts andcircumstances of each case. These special and adequate reasonsare an exception to the rule and must be used sparingly andinterpreted strictly. Section 376(1) however also stipulated thatthe term of imprisonment “may be for life or for term of tenyears”. [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, theCriminal Law Amendment Act 2013 was brought into force whichamended Section 376(1). The Parliament sought to take tougherstand on crime against women and limited the discretion of thejudiciary regarding imposition of sentences for offences involvingrape by providing minimum punishment of seven years and amaximum punishment of life imprisonment, without anyexceptions for reduction of sentence. In 2018, Section 376 hasbeen further amended by the Criminal Law Amendment Act 2018(Act 22 of 2018) by which the minimum punishment has beenenhanced to ten years, with the maximum punishment remainingthe same. [Para 68][519-F-H; 520-A]5.4 Having detailed the amendments in Section 376 by theParliament, the law as it was at the time of occurrence of thecrime is to be applied. The range of punishment within which thejudicial discretion is to be exercised is the imposition of minimumpunishment of 7 years (or less on existence of adequate and specialreasons), or 10 years or imprisonment for life. In determiningthe appropriate sentence, the relevant facts and circumstancesare to be seen including the nature and gravity of the crime, thecircumstances surrounding the commission of the sexual assault,

Athe position of the person on whom the sexual assault iscommitted, the role of the accused in relation to the personviolated and the possibility of the rehabilitation of the offender.In addition to these factors, the intersectional identity of PW2and the underlying societal factors within which the offence wascommitted are to be taken care of. PW2 is woman who is blindBsince birth and is member of Scheduled Caste. Theseintersectional identities placed her in uniquely disadvantageousposition. [Para 69, 70][520-B-E; F-G]

5.5 This Court is also aware of the disadvantage faced bywomen (and persons generally) belonging to the Scheduled CastesCand Scheduled Tribes. It is difficult and, artificial to delineate themany different identities of an individual which overlap to placethem in disadvantaged position of power and create thecircumstances for heinous offences such as rape to occur. Inseries of decisions this Court have stated that “socio-economic

Dstatus, religion, race, caste or creed of the accused or the victimare irrelevant considerations in sentencing policy”. However, itis necessary to understand the context in which this finding wasmade. In all of these cases, the Court was dealing with the plea ofmitigation of sentence awarded by the High Courts or the lowercourts on the ground of existence of ‘adequate and special reasons’Eon account of the accused being member of the scheduled caste/tribe; belonging to rural background; or being illiterate. It ison this count that the Court rejected such plea given the heinousnature of the crime of rape and the gravity of the criminal act.These judgments do not bar this Court from taking holisticFview of the various intersectional identities which form vitalpart of the facts and circumstances of the act and speak to thenature of the crime. [Para 71][521-E-G; 522-A-B]

5.6 In the instant case, several circumstances bearing onthe sentence must be borne in mind. First, PW2, who wasGsubjected to sexual assault was blind since birth. Second, theappellant was known to the brothers of PW2, including PW3. Theappellant used to visit the house in which PW2 resided withherparents and brothers. Bereft of eye-sight, PW2 was able toidentify the appellant by his voice with which she was familiar.

Third, shortly before entering the home of PW2, the appellantenquired of PW1 where her sons were, when he was told thatthey were not at home. PW1 proceeded with her chores at publicwater tap. Taking advantage of the absence of the members ofthe family from the family home, the appellant entered the houseand subjected PW2 to sexual assault. PW1 has deposed thatwhen she entered the house together with PW3, PW4 and PW5she found PW2 in nude condition on the ground bleeding fromthe injuries sustained on her genitals. The nature andcircumstances in which the offence has been committed wouldleave no manner of doubt that the appellant had taken advantageof the position of the PW2 who was blind since birth. He enteredthe house, familiar as he was with members of the family, in theirabsence and subjected PW2 to sexual assault. PW2 belongs toa Scheduled Caste. The prosecution has not led evidence to provethat the offence was committed on the ground that she belongsto Scheduled caste within the meaning of section 3(2)(v) of theSC and ST Act. This is distinct issue. But the fact that PW2belonged to Scheduled Caste is not factor which is extraneousto the sentencing process for an offence under Section 376. It isin that context, that the observations of the Sessions Judge mustbe read with robust common-sense perception of groundrealities. The appellant was 27 years old, mature individual whowas working as coolie together with the brothers of PW2 for acouple of years. The nature and gravity of the offence in the instantcase is serious in itself and it is compounded by the position ofPW2 who was visually disabled woman. heinous offence hasbeen committed on woman belonging to Scheduled Caste. Theimposition of 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 Punjabv. Prem Sagar (2008) 7 SCC 550 : [ 2008] 8 SCR 574;Tekan v. State of Madhya Pradesh (Now Chhattisgarh2014 Cri LJ 1409; State of Karnataka v. Krishnappa(2000) 4 SCC 75 : [2000]2 SCR761; State of MadhyaPradesh v. Basodi (2009) 12 SCC 318 : [2009] 6 SCR1166; State of Karnataka v. Raju (2007) 11 SCC 490 :

[2007] 9 SCR 970; State of Rajasthan v. Vinod Kumar(2012) 6 SCC 770 : [2012] 6 SCR 1; State of MadhyaPradesh v. Santosh Kumar (2006) 6 SCC 1 : [2006] 3Suppl. SCR 548; Navtej Johar v. Union of India (2018)10 SCC 1 : [2018] 7 SCR 379; R. v. S (RD) (1997) 3SCR 484; Samitri and Ors. v. State of Haryana, (2010)SCC OnLine P & 2245 – referred to.

Justice JS Verma (Retd.), Justice Leila Seth (Retd.) &Gopal Subramanium, Report of the Committee onAmendments to Criminal Law, 23 January, 2013, p. 38– referred to.

K. Crenshaw, Demarginalizing The Intersection Of RaceAnd Sex: Black Feminist Critique Of Anti-Discrimination Doctrine, Feminist Theory, And Anti-Racist Policies, University of Chicago Legal Forum, Vol.4 1(1989) 149 (“Crenshaw, DemarginalizingIntersection of Race and Sex”); Mary Eaton,Homosexual Unmodified: Speculations on Law sDiscourse, Race, and Construction of Sexual Identity,in LEGAL INVERSIONS: LESBIANS, GAY MEN ANDTHE POLITICS OF THE LAW, Didi Herman and CarlStychin eds. (Philadelphia: Temple University Press1995), p. 46; Ben Smith, Intersectional Discriminationand Substantive Equality: Comparative andTheoretical Perspective, The Equal Rights Review, Vol.16 (2016) 74 (“Smith, Intersectional Discrimination”);Nitya Iyer, Categorical Denials: Equality Rights and theShaping of Social Identity, Queen’s Law Journal, Vol.19 (1993–1994) 179; Smith, IntersectionalDiscrimination, supra n. 5, p. 84; Gauthier de Boco,Harnessing the Full Potential of IntersectionalityTheory in Human Rights Law: Lessons from DisabledChildren’s Right to Education in INTERSECTIONALITYAND HUMAN RIGHTS LAW (Shreya Atrey& PeterDunne, Hart Publishing 2020); PH Collins, TheDifference That Power Makes: Intersectionality andParticipatory Democracy, 8 (1) Revista deInvestigaciones Feministas (2017), p. 22; D. Pothier,

Connecting Grounds of Discrimination to Real People’sExperiences, 13(1) Canadian Journal of Women andthe Law (2001), p. 39, 51; K Crenshaw, Mapping theMargins: Intersectionality, Identity Politics, andViolence against Women of Color, 43 Stanford LawReview 1241 (1991), 1246-1250; Shreya Atrey, Liftingas We climb: Recognising Intersectional GenderViolence in Law, Onati Socio-legal Series 1512 (2015),1519-20;Saptarshi Mandal, The Burden ofIntelligibility: Disabled Women’s Testimony In RapeTrials, Indian Journal of Gender Studies, 20 No. 1(2013): 1-29, p. 20 (“Mandal, Disabled WomenTestimony in Rape Trials”); Human Rights Watch,“Invisible Victims of Sexual Violence: Access to Justicefor Women and Girls with Disabilities in India”, availableat https://www.hrw.org/report/2018/04/03/invisible-victims-sexual violence/access- justice-women-and-girls-disabilities, 3 April 2018; HWR Report, n. 24,p. 12; UN Human Rights Council, “Report of theSpecial Rapporteur on violence against women, itscauses 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 April2014, para 72.; S. Mohapatra and M. Mohanty, “Abuseand Activity Limitation: Study on Domestic ViolenceAgainst Disabled Women in Odisha,” available at http:// s w i m n . o r / u s r i l s / i l /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 % 20Research%20Report.pdf, 2011referred in HRWReport, n. 24, at footnote 20.; HRW Report, n. 24, p.8; Ministry of Health and Family Welfare, Guidelinesand Protocols: Medico-legal care for survivors/victims of sexual violence, 16 May 2019, available at

486SUPREME COURT REPORTS

[2021] 3 S.C.R.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 452 of 2021.

From the Judgment and Order dated 03.08.2019 of the High Courtof Andhra Pradesh at Amravati in Criminal appeal No. 911 of 2014.G

Harinder Mohan Singh, Ms. Shabana, Advs. for the Appellant.

Mahfooz Ahsan Nazki, Polanki Gowtham, Shaik MohamadHaneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shrey Sharma, Advs.for the Respondent.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into the following sections tofacilitate analysis:

Factual Background

Proceedings before this Court

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 ofMembers 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

Conclusion and Summary of Findings

Factual Background

1. Leave granted.

2. This appeal arises from judgment of Division Bench of theHigh Court of Andhra Pradesh dated 3 August 2019. The High Courthas affirmed the conviction of the appellant for offences punishable underSection 3(2)(v) of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act 1989[1] and Section 376(1) of the IndianPenal Code.

3. The appellant has been sentenced to suffer imprisonment forlife for each of the above offences, the substantive sentences beingdirected to run concurrently. In addition, the appellant has been sentencedto pay fine of Rs. 1,000 for each of the offences and in default tosuffer imprisonment of six months.

4. The appellant was residing in Gajulapalli village and was engagedin carrying out manual work for two years prior to the incident. PW2who is blind since birth used to live with her mother (PW1) and brother

1 “SC & ST Act’’

A(PW3). PW3 and LW5 are the sons of PW1. They were also engagedin manual work together with the appellant, at the same place. Theappellant, according to the prosecution, lived in the same village andregularly visited the house of PW1 due to his acquaintance with hersons.

B5. At about 9 am on 31 March 2011, PW1 was attending to herhousehold chores at public tap which was within distance of fiftyfeet and her sons were cutting fire wood in the vicinity. The appellant isalleged to have enquired about her sons when PW1 replied that herspouse and sons were chopping fire wood and asked him to wait for awhile. After half an hour, on hearing the voice of her daughter (PW2) inCdistress, she rushed to the house and found that the door was lockedfrom inside. Upon raising an alarm her husband and sons rushed to thehouse. The appellant opened the door and tried to escape but wasapprehended at the spot. Upon entering the house, PW1 observed thatPW2 was lying on the ground in nude condition and was bleeding fromDher genitals. The clothes of PW2 were torn and stained with blood.Upon enquiry, PW2 is alleged to have stated that the appellant came tothe house and enquired about her brothers; he locked the door and fellon her, gagged and raped her.6. The case of the prosecution is that at 10 am, the Sub-InspectorEof Police (PW9), Mahanandi Police Station, who received call fromPW4, cousin of PW1, rushed to the scene of the occurrence. By thattime, the Circle Inspector of Police, Nandyal Rural Police Station hadalso arrived and the villagers handed over the appellant to him. PW1furnished written report to the police which was registered as CrimeNo 28/2011. PW11 sent the victim to the Government Hospital whereFshe was examined by PW10, the Civil Surgeon at the District Hospital.The medical examination revealed that PW2 was blind. The medicalreport of the examination of PW2 has been extracted in the judgment ofthe Sessions Judge and the High Court and reads as follows:

“(1) Contusion of 1 x 1 cm on left cheek, red in colour, (2) PubicGHair develop, breast develop (3) Axillary Hair developed. Onexamination of vagina is lacerated at 4-00 O’ clock position,bleeding present. 3 swabs and slides taken from Hymeneal OrificeVaginal canal and near cervix, vaginal wall sutured with 10Chromicatgut, hair and nail clippings taken and she i1ssued theHwound 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 opinedthat the evidence is suggestive of penetration of male genital parts.”

7. Charges were framed against the appellant under Section376(1) of the Penal Code and Section 3(2)(v) of the SC & ST Act. Tosubstantiate its case, the prosecution examined eleven witnesses, PWs1 to 11 in addition to which, it relied on exhibits P1 to P12 and MOs 1 to8. On the closure of the evidence, the appellant was examined underSection 313 of the Code of Criminal Procedure, 1973. By judgmentdated 19 February 2013 the Special Judge for the Trial of Cases underthe SC - ST (POA) Act - Cum - VI[th] Additional District and SessionsJudge convicted the appellant for offences under Section 3(2)(v) of theSC & ST Act and Section 376(1) of the Penal Code. Based primarily onthe testimonies of PW1, PW2 and PW3 the learned Sessions Judge heldthat:

(i)The appellant had access to PW2 since he was acquaintedwith her brothers and was regularly visiting the house whereDshe 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 corroboratedby an independent witness and neighbour, PW5;

(iv)The oral testimony of the witnesses established that theappellant was apprehended at the scene of occurrence andwhen PW1 who was accompanied by PW3 and PW4opened the door of the house, the appellant was apprehendedwhile attempting to escape and PW2 was found bleedingfrom her injuries lying in nude condition on the ground;

(v)PW2 who was blind by birth had identified the appellant byhis voice which was familiar to her since the appellant wasregularly visiting the house;

(vi)PWs 1,3,4,5 apprehended the appellant handed him over toPW11 and the appellant was taken to Mahanandi PoliceStation;

(vii)PW5 is the neighbour whose house was opposite to that ofPW1 and was natural witness. PW4 though related toPW1 had also corroborated the testimony of PW1;

A(viii) The clothes of PW2 had been duly seized;

(ix)The narration of the incident by PW2 was trustworthy andwas duly corroborated by PW1 and PW3; and

(x)The oral testimony was consistent with the medical evidenceand the deposition of PW10, the doctor at the governmentBhospital who deposed in that regard.

The Sessions Judge, in coming to the conclusion that an offenceunder Section 3(2)(v) was established observed thus:

“39. Coming to the facts of the present case P.W.11 in the crossexamination stated that P.W.1 and P.W.2 did not state before himCthat since P.W.2 belongs to scheduled caste, accused committedthe offence. The learned defence counsel argued that in view ofthe evidence of P.W.11, the prosecution failed to prove that theaccused committed the offence on the ground that the victimbelongs to scheduled caste. I do not find any merit in the aboveDargument for the reason that Ex. P.1 discloses that the victimbelongs to Madiga of Scheduled Caste. P.W.1 the mother of thevictim girl is an illiterate village rustic woman simply because shehas not mentioned in the report or in the statement to the policethat accused did commit the offence on the ground that the victimEbelong to scheduled caste is no way fatal to the case of theprosecution to establish the guilt of the accused for the offenceunder section 3 (2) (v) of SC/ST (POA) Act.

40. It is needless to say that if the victim belongs to upper castethan the caste of the accused, particularly in village atmosphere, Iam of the considered view that he would not have done the actFand dared to pounce upon her, and commit the offence of rape ather own house at about 9.30 am in morning when her mother wasworking near the house at public tap and her house is situated inthe residential locality. This court is of the view that as the victimgirl is helpless, blind and belongs to scheduled caste, so that theGaccused developed evil eye on her and taken advantage of herloneliness committed the heinous crime of rape against her. HenceI am not convinced with the argument of the learned defencecounsel and this court held that the accused committed the act ofrape on the victim un-married girl of 19 years at the time of theincident and blind by birth and he did commit the act on the ground

that she belongs to scheduled caste and on the impression thatshe cannot do anything against him. Hence, the prosecution hasestablished the guilt of the accused for the offence under section3 (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 ofthe. offence under section 376 (1) IPC, the accused pleaded totake lenient view stating that he is poor person and eking out hislivelihood by doing coolie work.

In view of the facts and circumstances of the case that it is aheinous crime of rape committed against blind un-married girlof 19 years of age, I am not inclined to exercise my discretion togive lesser punishment to the accused as it is not fit case to takea lenient view.

The accused is sentenced to undergo life imprisonment and topay fine of Rs.1,000/- i/d SI for 6 months for the offencepunishable under section 376 (1) of IPC and also sentenced toundergo life imprisonment and to pay fine of Rs.1,000 /- i/d SIfor 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 affirmedthe conviction and sentence imposed by the Sessions Court. The HighCourt has held that the testimonies of PW1, the mother of PW2; and ofPW2 were consistent and duly corroborated by PW3, the brother ofPW2 and by PW4 and PW5. The High Court adverted to the medicalevidence and, in particular, the deposition of PW10. The prosecutionwas held to have established its case beyond reasonable doubt.

9. Before the High Court, it was urged that the ingredients of theoffence under Section 3(2)(v) were not established as the offence wasnot committed “on the ground” that PW2 belongs to Scheduled Caste.The High Court declined to accede to the submission, observing:

“Section 3(2)(v) of the Act provides that the offence gets attractedif it is committed against person knowing that such person is amember of Scheduled Caste or Scheduled Tribe or suchproperty belongs to such members. Even otherwise still the offenceunder Section 376(1) I.P.C. is made out.”

AB Proceedings before this Court

10. On 19 February 2021, this Court at the preliminary hearing ofthe Special Leave Petition adverted to the submissions of the learnedCounsel appearing on behalf of the appellant and passed the followingorder:B

“2 Mr Harinder Mohan Singh, learned counsel appearing on behalfof the petitioner, has adverted to the findings contained in paragraph39 of the judgment of the Sessions Court dated 19 February 2013(Annexure P-12). Learned counsel submits that in view of theexpression “on the ground that such person is member of aCScheduled Caste or Scheduled Tribe” in Section 3(2)(v) of theScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act 1989, which has been interpreted in the decisionsof this Court, an offence under this provision has not beenestablished. Hence, the imposition of sentence of lifeimprisonment in respect of an offence under Section 376 of theDIndian Penal Code 1860 was not in accordance with law.

3 Issue notice, confined to the aforesaid submission, returnable insix weeks.

4 Liberty to serve the Standing Counsel for the State of AndhraEPradesh, in addition.”

11. Notice has been issued by this Court confined to the abovesubmission. However, before we proceed to analyse the submission, weare unequivocally of the view that the offence under Section 376(1) hasbeen proved beyond reasonable doubt. The testimonies of PW1, theFmother of PW2 and of PW 2, who was sexually assaulted, are clear andconsistent. The oral account has been corroborated by the evidence ofPW3, PW4 and PW5. The medical evidence, more particularly, thedeposition of PW10 clearly establishes that PW2 was sexually assaulted.The appellant was apprehended at the spot in close proximity of thecommission of the offence. The offence under Section 376 has beenGestablished beyond reasonable doubt. This Court shall now proceed todeal with the question of the conviction and sentence under the SC &ST Act.

Analysis

C.1 Intersectionality: The Different Hues of IdentityH

12. The experience of rape induces trauma and horror for anywoman regardless of her social position in the society. But the experiencesof assault are different in the case of woman who belongs to aScheduled Caste community and has disability because the assault is aresult of the interlocking of different relationships of power at play. Whenthe identity of woman intersects with, inter alia, her caste, class,religion, disability and sexual orientation, she may face violence anddiscrimination due to two or more grounds. Transwomen may faceviolence on account of their heterodox gender identity. In such situation,it becomes imperative to use an intersectional lens to evaluate howmultiple sources of oppression operate cumulatively to produce specificexperience of subordination for blind Scheduled Caste woman.13. movement for recognition of discrimination and violenceemanating from the effects of the interaction of multiple grounds waspioneered by African American women in United States. KimberlyCrenshaw has been credited for coining the term intersectionality. Inher seminal work on the subject, she describes the principle with thehelp of the following hypothetical:

“Discrimination, like traffic through an intersection, may flow inone direction, and it may flow in another. If an accident happensin an intersection, it can be caused by cars traveling from anynumber of directions and, sometimes, from all of them. Similarly,if Black woman is harmed because she is in the intersection,her injury could result from sex discrimination or racediscrimination.”[2]

In her article, Crenshaw argues that sex discrimination and racediscrimination statutes, as well as the judicial opinions in the United Statesthat she studied are narrowly tailored and address the claims of the mostprivileged within the targeted group. She states:

“With Black women as the starting point, it becomes more apparenthow dominant conceptions of discrimination condition us to thinkabout subordination as disadvantage occurring along singlecategorical axis. I want to suggest further that this single-axisframework erases Black women in the conceptualization,

2 K. Crenshaw, Demarginalizing The Intersection Of Race And Sex: Black FeministCritique Of Anti-Discrimination Doctrine, Feminist Theory, And Anti-Racist Policies,University of Chicago Legal Forum, Vol. 4 (1989) 149 (“Crenshaw, DemarginalizingIntersection of Race and Sex’’).

Aidentification and remediation of race and sex discrimination bylimiting inquiry to the experiences of otherwise-privileged membersof 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 ison 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 manifestationof male power over female sexuality tends to eclipse the use of rape asCa weapon of racial terror.”

14. Intersectionality can be defined as form of “oppression [that]arises out of the combination of various oppressions which, together,produce something unique and distinct from any one form ofdiscrimination standing alone...”.[4] While the model of intersectionalityDwas initially developed to highlight the experiences of African-Americanwomen, there is growing recognition that an intersectional lens is usefulfor addressing the specific set of lived experiences of those individualswho have faced violence and discrimination on multiple grounds. singleaxis approach to violence and discrimination renders invisible suchminority experiences within broader group since it formulates identityEas “totemic” and “homogenous”.[5] Laws tend to focus on singularidentity due to the apparent clarity monistic identity provides in legalanalysis where an individual claiming differential treatment or violencecan argue that “but for” that identity, they would have been treated inthe same way as comparator. Therefore, their treatment is irrationalFand unjustified.[6] However, such essentialization of experiences of identitygroups creates problem where intersectional discrimination or violencehas occurred. This is because the evidence of discrete discrimination or

3 Id at p. 146.

G4 Mary Eaton, Homosexual Unmodified: Speculations on Laws Discourse, Race, andConstruction of Sexual Identity, in LEGAL INVERSIONS: LESBIANS, GAY MEN AND THE POLITICSOF THE LAW, Didi Herman and Carl Stychin eds. (Philadelphia: Temple University Press1995), p. 46.

5 Ben Smith, Intersectional Discrimination and Substantive Equality: Comparativeand Theoretical Perspective, The Equal Rights Review, Vol. 16 (2016) 74 (“Smith,Intersectional Discrimination’’).H6 Ibid, 83.

violence on specific ground may be absent or difficult to prove.[7] NityaIyer has argued that law based on single axis models forces claimants toignore their own lived reality and “caricaturize themselves so that theyfit into prefabricated, rigid categories”.[8] Their claim will fail if they arenot able to simplify their story to accord with the dominant understandingof how discrimination or violence on the basis of given characteristicoccurs.[9]

15. It is important to note that an analysis of intersectionality doesnot mean that we see caste, religion, class, disability and sexual orientationas merely “add ons” to the oppression that women may face. This isbased on the assumption that gender oppression is oppressive in thesame way for all women, only more so for women sufferingmarginalization on other grounds. However, an intersectional analysisrequires us to consider the distinct experience of sub-set of womenwho exist at an intersection of varied identities. This is not to say thatthese women do not share any commonalities with other women whomay be more privileged, but to equate the two experiences would be toplay down the effects of specific socio-economic vulnerabilities certainwomen suffer. At its worse it would be to appropriate their pain to claima universal subjectivity.

16. There is fear that intersectionality would open Pandora’sbox of “endless new discrete identity categories for every possiblepermutation of identity”[10]We can avoid this trap by eschewing anidentity-based conception of intersectionality in favour of systems-based conception. Specifically, as Gauthier De Beco argues, instead offocusing on identity-categories, the intersectionality enquiry should focuson “co-constituted structures of disadvantage that are associated withtwo or more identity-categories at the same time”.[11] By exhibitingattentiveness to the ‘matrix of domination’[12] created by the intersecting

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. Smith, Intersectional Discrimination, supra n. 5, p. 84.

11 Gauthier de Boco, Harnessing the Full Potential of Intersectionality Theory in HumanRights Law: Lessons from Disabled Children’s Right to Education in INTERSECTIONALITYAND HUMAN RIGHTS LAW (Shreya Atrey & Peter Dunne, Hart Publishing 2020).

12 PH Collins, The Difference That Power Makes: Intersectionality and ParticipatoryDemocracy, 8(1) Revista de Investigaciones Feministas (2017), p. 22, noting:“Intersectionality’s emphasis on intersecting systems of oppression suggests thatdifferent forms of domination each have their own power grid, distinctive “matrix” ofintersecting power dynamics.”

Apatterns at play, the Court can more effectively conduct anintersectionality analysis. legal analysis focused on delineating specificdimensions of oppression running along single axis whether it be caste,disability or gender fails to take into account the overarching matrix ofdomination that operates to marginalise an individual. The workings ofsuch structure have been aptly stated by woman with visualBimpairment (due to Albinism) in the following words:

“I can never experience gender discrimination other than as aperson with disability; I can never experience disabilitydiscrimination other than as woman. I cannot disaggregate myselfnor can anyone who might be discriminating against me. I do notCfit into discrete boxes of grounds of discrimination.

Even when only one ground of discrimination seems to be relevant,it affects me as whole person”[13]

17. Intersectionality merely urges us to have “an open-texturedDlegal approach that would examine underlying structures of inequality”[14].This requires us to analyse law in its social and economic context allowingus to formulate questions of equality as that of “power and powerlessness”instead of difference and sameness.[15] The latter being conceptuallimitation of single axis analysis, it may allow certain intersectional claimsto fall through the cracks since such claims are not unidirectional inEnature.

18. Intersectional analysis requires an exposition of reality thatcorresponds more accurately with how social inequalities areexperienced. Such contextualized judicial reasoning is not an anathemato judicial inquiry. It will be useful to note the comments of JusticeFL’Heureaux-Dubé and Justice McLachlin in the Canadian SupremeCourt’s judgment in R. v. S (RD)[16] that, “[j]udicial inquiry into the factual,social and psychological context within which litigation arises is notunusual. Rather, conscious, contextual inquiry has become an acceptedstep towards judicial impartiality...this process of enlargement is not onlyGconsistent with impartiality; it may also be seen as its essential pre-condition.”

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.H16 (1997) 3 S.C.R. 484 at 506-507.

19. Single axis models of oppression are consequence of howhistorically movements aiming for legal protection of marginalizedpopulations developed. Most political liberation struggles have beenfocused on sole characteristic like anti-caste movements, movementsby persons with disabilities, feminism and queer liberation. Many suchmovements have not been able to adequately address the intra-groupdiversity leading to situation where the needs of the relatively privilegedwithin the group have received more than fair share of spotlight. Whenthese liberation struggles were adopted in law, the law also developedinto mutually exclusive terrains of different statutes addressing differentmarginalities failing to take into account the intersectional nature ofoppression.

20. In India, the fundamental guarantees under the Constitutionprovide for such holistic analysis of discrimination faced by individuals.One of us (Justice DY Chandrachud), in Navtej Johar v. Union ofIndia[17 ]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 theconstitutional guarantee against discrimination meaningless. Forit would allow the State to claim that the discrimination was basedon sex and another ground (‘Sex plus’) and hence outside theambit of Article 15. Latent in the argument of the discrimination,are stereotypical notions of the differences between men andwomen which are then used to justify the discrimination. Thisnarrow view of Article 15 strips the prohibition ondiscrimination of its essential content. This fails to takeinto account the intersectional nature of sex discrimination,which cannot be said to operate in isolation of otheridentities, especially from the socio-political and economiccontext. For example, rule that people over six feet wouldnot be employed in the army would be able to stand an attackon its disproportionate impact on women if it was maintainedthat the discrimination is on the basis of sex and height.Such formalistic view of the prohibition in Article 15,rejects the true operation of discrimination, whichintersects varied identities and characteristics.”

(emphasis supplied)

A21. Noting how the discrimination caused by intersecting identitiesamplifies the violence against certain communities (gendered/religious/otherwise), the Justice J.S Verma Committee appointed in the aftermathof the Nirbhaya incident to suggest reforms in Indian criminal law,observed that:B“34. We believe that while certain measures may have been takenover period of time but they have been too far and too few andthey certainly have not attempted to restructure and transformsociety and its institutions. If there has to be society which isbased on equality of gender, we must ensure that not only does awoman not suffer on account of gender but also not suffer onCaccount of caste or religion in addition. Thus woman may suffera double disadvantage – a) because she is woman, and b) becauseshe belongs to caste/tribe/community/religion which isdisadvantaged, she stands at dangerous intersection if poor.”[18]

22. While intersectionality has made considerable strides in theDfield of human rights law and anti-discrimination law, it has also emergedas potent tool to understand gender-based violence. In 1991, Crenshawapplied the concept of intersectionality to study violence against womenof colour. She showed how race, gender, poverty, immigrant status andbeing from linguistic minority interacted to place these women in violentErelationships.[19]

23. To deal with cases of violence against women fromintersectional backgrounds, Shreya Atrey proposes the model ofintersectional integrity. She notes:

“Intersectional gender violence is about: (i) rejecting violations ofFbodily and mental integrity when perpetrated based on people’smultiple and intersecting identities (intersectionality); and (ii)recognizing that violence should be understood as whole takinginto account unique and shared patterns of violations yielded byintersections of gender, race, caste, religion, disability, age, sexualGorientation etc(integrity).”[20]18 Justice JS Verma (Retd.), Justice Leila Seth (Retd.) & Gopal Subramanium, Report ofthe Committee on Amendments to Criminal Law, 23 January 2013, p. 38 (“JS VermaCommittee Report’’).

19 K Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violenceagainst Women of Color, 43 Stanford Law Review 1241 (1991), 1246-50.20 Shreya Atrey, Lifting as We Climb: Recognising Intersectional Gender Violence inHLaw, 5 Oñati Socio-legal Series 1512 (2015), 1519-20.

24. She points out that failure to consider violence perpetratedbased on multiple identities results in an inaccurate portrayal of theviolence at issue which may impact the ability to obtain relief. On theother hand, comprehensive appraisal of the intersectional nature of theviolence can translate into an appropriate legal response.[21]

25. The above analysis stresses on the need for the Court to addressand unpack the qualitative impact of the various identities an individualmight have on the violence, discrimination or disadvantage being facedby them in the society.

C.2 Disability and Gender: Twin Tales of SocietalOppression

26. For many disabled women and girls in India, the threat ofviolence is an all-too-familiar fixture of their lives, contracting theirconstitutionally guaranteed freedom to move freely and curtailing theirability to lead full and active lives. This threat of violence can translateinto nagging feeling of powerlessness and lack of control, making therealization of the promises held by Parts III and IV of our Constitution aremote possibility for women with disabilities.

27. In saying so, we do not mean to subscribe to the stereotypethat persons with disabilities are weak and helpless, incapable of chartingthe course of their lives or to deprive them of the agency and bodilyautonomy that we all possess and are entitled to exercise. Such negativepresumption of disability translating into incapacity would be inconsistentwith the forward-thinking conceptualization of disabled lives embodiedin our law and, increasingly, albeit slowly, in our social consciousness.As Saptarshi Mandal notes, in critiquing the fashion in which the Punjaband Haryana High Court dealt with the testimony of mentally disabledand partially paralyzed prosecutrix[22], stamping prosecutrix with thebadge of complete helplessness, merely on the basis of disability, is aninapposite course of action. He notes:

“the entire rationale behind the conviction of the accused turnedon sympathy for the helpless prosecutrix and her inability tophysically resist the aggressor. Even if one agrees with the judgethat there cannot be single standard of burden of proof for thedisabled and the able-bodied, differentiated scale of burden of

21 Id at 1531.

22 Samitri and Ors. v. State of Haryana, 2010 SCC OnLine P&H 2245.

Aproof must be based on the concept of vulnerability, notvictimhood.”[23]

28. Instead, our aim is to highlight the increased vulnerability andreliance on others that is occasioned by having disability which makeswomen with disabilities more susceptible to being at the receiving end ofBsexual violence. As the facts of this case make painfully clear, womenwith disabilities, who inhabit world designed for the able-bodied, areoften perceived as “soft targets” and “easy victims” for the commissionof sexual violence. It is for this reason that our legal response to suchviolence, in the instant case as well as at systemic level, must exhibitattentiveness to this salient fact.C29. As the analysis by the Sessions Judge and High Court makesclear, critical feature of this case is the fact that PW2 is blind sincebirth. It would be overly simplistic and reductionist to reduce herpersonality to her disability alone. Equally, however, the Court has toexhibit sensitivity to the heightened risk of violence and abuse that sheDwas rendered susceptible to, by reason of her disability. We would liketo utilize the facts of this case as launching point to explore disturbingtrend that this case brings into sharp focus and is symptomatic of – thatof sexual violence against women and girls with disabilities and to set inmotion thought process for how the structural realities resulting in thisEstate of affairs can be effectively addressed. In this part of the judgment,we will first highlight the unique reasons that make these women morevulnerable to being at the receiving end of sexual violence, with the helpof some illustrations. Thereafter, we will outline some challenges thatare faced by such women in accessing the criminal justice systemgenerally and the judicial system in particular. We will then outline someFmeasures that can be taken to lower the barriers faced by them. We willfinally conclude by outlining the judicial approach which should be adoptedfor assessing their testimony.

Unique vulnerability of women and girls with disabilities

G30. An April 2018 report by Human Rights Watch, titled ‘InvisibleVictims of Sexual Violence: Access to Justice for Women and Girls with

23 Saptarshi Mandal, The Burden of Intelligibility: Disabled Women’s Testimony In RapeTrials, Indian Journal of Gender Studies, 20 No. 1 (2013): 1-29, p. 20 (“Mandal,HDisabled Women Testimony in Rape Trials’’).

Disabilities in India’[24] offers thoroughgoing assessment of the problemof sexual violence against women with disabilities. The report documentsthe stories of 17 survivors of sexual violence – 8 girls and 9 women –who live with spectrum of physical, sensory, intellectual and psychosocialdisabilities.[25]

31. As the report points out, women and girls with differentdisabilities face high risk of sexual violence:

“Those with physical disabilities may find it more difficult to escapefrom violent situations due to limited mobility. Those who are deafor hard of hearing may not be able to call for help or easilycommunicate abuse, or may be more vulnerable to attacks simplydue to the lack of ability to hear their surroundings. Women andgirls with disabilities, particularly intellectual or psychosocialdisabilities, may not know that non -consensual sexual acts are acrime and should be reported because of the lack of accessibleinformation. As result, they often do not get the support theyneed at every stage of the justice process: reporting the abuse topolice, getting appropriate medical care, and navigating the courtsystem.”[26]

32. In India, no disaggregated data is maintained on the extent ofviolence against women and girls with disabilities. This poses formidableobstacle to understanding the problem better and designing suitablesolutions. As Rashida Manjoo, the United Nations Special Rapporteuron violence against women, noted, this lack of data “renders the violencecommitted against women with disabilities invisible.”[27]

33. The HRW report points to two studies that quantify the scaleof this problem. 2004 survey in Orissa conducted in 12 districts with729 respondents found that nearly all of the women and girls with

24 Human Rights Watch, “Invisible Victims of Sexual Violence: Access to Justice forWomen 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, supran. 24, p. 12.

26 Id at p. 4.

27 UN Human Rights Council, “Report of the Special Rapporteur on violence againstwomen, its causes and consequences, Rashida Manjoo,” A/HRC/26/38/Add.1. availableat http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session26/Documents/A-HRC-26-38-Add1_en.doc, 1 April 2014, para 72.

Adisabilities surveyed were beaten at home, and 25 percent of womenwith intellectual disabilities had been raped.[28] In the same vein, 2011study found that 21 percent of the 314 women with disabilities surveyedhad faced emotional, physical or sexual violence from someone otherthan their intimate partner.[29]

B34. The HRW Report brings to light several harrowing examplesof circumstances in which survivor’s disability was exploited by thoseperpetrating sexual violence. To illustrate, the report describes the storyof woman with low vision from Bhubaneshwar, Odisha who allegedthat she was raped in June, 2013. The report notes:

C“The police did not help …get legal aid. The staff of the [residentialshelter home] helped her to find lawyer, but the lawyer theyfound was not free of cost. It has been tough for her to continuewith the lawyer. This has affected the progress of the case.”[30]

Interaction of disabled survivors of sexual violence with the criminalDjustice system and the judiciary

35. In the wake of the Nirbhaya rape incident that shocked theconscience of the nation, Indian criminal law underwent series ofchanges. The Justice J.S. Verma Committee, set up to suggestamendments to the law, attached special emphasis to creating an enablingEenvironment to enable women with disabilities to report cases of sexualviolence and to obtain suitable redress. As the Committee noted:

“6. special procedure for protecting persons with disabilitiesfrom rape, and requisite procedures for access to justice for suchpersons is also an urgent need. Amendments to the Code ofFCriminal Procedure, which are necessary, have been suggested.”[31]

28 S. Mohapatra and M. Mohanty, “Abuse and Activity Limitation: Study on DomesticViolence Against Disabled Women in Odisha,” available at http://swabhiman.org/Guserfiles/file/Abuse%20and%20Activity%20Limitation%20Study.pdf, 2004 referredin HRW Report, supra n. 24, at footnote

29 CREA, “Count Me In! Violence Against Disabled, Lesbian, and Sex-working Womenin Bangladesh, India, and Nepal’’, http://www.creaworld.org/sites/default/files/The%20Count%20Me%20In%21%20Research%20Report.pdf, 2011 referred in HRWReport, supra n. 24, at footnote 20.

30 HRW Report, supra n. 24, p. 8.

H31 JS Verma Committee Report, supra n. 18 .

36 The Committee’s suggestions translated into changes in theIndian Penal Code and the Criminal Procedure Code. Some key changeswere as follows:

(i)When the victim of the offences specified in the provisionis either permanently or temporarily mentally or physicallydisabled, the FIR shall be recorded by police officer, atBthe residence of the person seeking to report such offenceor at convenient place of such person’s choice, in thepresence of special educator or an interpreter, as the casemay be.[32] Such information may also be video-graphed.[33]

(ii)The same accommodations, as outlined above, have alsobeen made as regards the recording of confessions andstatements.[34] Further, as regards those who are physicallyand mentally disabled, such statement shall be considereda statement in lieu of examination-in-chief, obviating theneed for it to be recorded at the time of trial.

(iii)The amendments also sought to put in place frameworkto enable victims with disabilities to participate in testidentification parade. In such cases, judicial magistratewill oversee the procedure to ensure the witness is supportedin identifying the accused with means they findcomfortable.[35] This process must be video-graphed.[36]

37. Further, guidance issued by the Union Ministry of Health andFamily Welfare notes the challenges faced by survivors with disabilitiesin reporting cases given the barriers to communication, their dependencyon caretakers, their complaints not being taken seriously and the lack ofan appropriate environment which encourages them to express theirgrievances and complaints.[37] In addition, unfamiliar and stressful courtenvironments pose heightened challenge, during protracted cases, forsuch women. Lack of information about their entitlements under the

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 2.35 CrPC, Section 54A, proviso 1.36 CrPC, Section 54A, proviso 2.

37 Ministry of Health and Family Welfare, Guidelines and Protocols: Medico-legal carefor survivors/victims of sexual violence, 16 May 2019, available at https://main.mohfw.gov.in/sites/default/files/953522324.pdf, p. 14.

Alaw, as well as the right to seek legal representation, compels them to bemute and helpless spectators.[38]

38. Certain concerns have also been highlighted by the Committeeon the Rights of Persons with Disabilities in its concluding observationson the initial report on India. These include lack of measures to identify,Bprevent and combat all forms of violence against persons with disabilities;lack of disaggregated statistical data in National Crime Records Bureauon cases of gender-based violence against women and girls withdisabilities, including violence inflicted by intimate partners; limitedavailability of accessible shelters for women with disabilities who arevictims of violence; and lack of effective remedies for persons withCdisabilities facing violence, including rehabilitation and compensation.[39]

39. While changes in the law on the books mark significant stepforward, much work still needs to be done in order to ensure that theirfruits are realized by those for whose benefit they were brought. In thisregard, we set out below some guidelines to make our criminal justiceDsystem more disabled-friendly.

(i)The National Judicial Academy and state judicial academiesare requested to sensitize trial and appellate judges to dealwith cases involving survivors of sexual abuse. This trainingshould acquaint judges with the special provisions,Econcerning such survivors, such as those outlined above. Itshould also cover guidance on the legal weight to be attachedto the testimony of such witnesses/survivors, consistent withour holding above. Public prosecutors and standing counselshould also undergo similar training in this regard. The BarFCouncil of India can consider introducing courses in theLL.B program that cover these topics and the intersectionalnature of violence more generally;

(ii)Trained special educators and interpreters must beappointed to ensure the effective realization of thereasonable accommodations embodied in the Criminal LawGAmendment Act, 2013. All police stations should maintain

38 HRW Report, supra n. 24, p. 7.

39 Committee on the Rights of Persons with Disabilities, “Concluding Observations onthe Initial Report Of India”, GE.19-18639(E) available at https://digitallibrary.un.org/Hrecord/3848327?ln=en, 29 October 2019, para 34.

database of such educators, interpreters and legal aidproviders, in order to facilitate easy access and coordination;

(iii)The National Crimes Record Bureau should seriouslyconsider the possibility of maintaining disaggregated dataon gender-based violence. Disability must be one of thevariables on the basis of which such data must be maintainedBso that the scale of the problem can be mapped out andtailored remedial action can be taken;

(iv)Police officers should be provided sensitization, on regularbasis, to deal with cases of sexual violence against womenwith disabilities, in an appropriate way. The training shouldcover the full life cycle of case involving disabledsurvivor, from enabling them to register complaints, obtainnecessary accommodations, medical attention and suitablelegal representation. This training should emphasize theimportance of interacting directly with the disabled personconcerned, as opposed to their care-taker or helper, inrecognition of their agency; and

(v)Awareness-raising campaigns must be conducted, inaccessible formats, to inform women and girls withdisabilities, about their rights when they are at the receivingend of any form of sexual abuse.

40. We hasten to add that these suggestions are not reflectionof the manner in which the investigation, enquiry and trial were conductedin the instant case. They simply represent our considered view on thesystemic reforms needed to ensure that cases such as the instant oneare dealt with in the most appropriate way.

Testimony of disabled prosecutrix:

41. Another feature of the case that we would like to dwell onrelates to the testimony of the prosecutrix, PW2. In his judgment, theSessions Judge noted as follows:

“21. Identification of the accused by the victim girl:- It isneedless to say that identifying the accused basing on the voice isweak type of evidence. Coming to the present facts andcircumstances of the case, P.W.2 is blind by birth as the access ofthe accused to victim proved by the prosecution she can easily

Aidentify 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 whenhe opened the door of the house of P.W.I, on the date of theincident and the evidence of the police officials also corroborateswith the witnesses who caught hold of the accused and handedover him to P.W.II and on the instructions of P.W. II, the accusedBwas taken to Mahanandi Police Station. It was suggested to P.W.2that her statement that she identified the accused with his voice isfalse. 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.Cexamination that he used to visit the house of P.W.l to call theCbrothers of the victim for doing coolie work, the above suggestionhas no legs to stand. The above evidence would amply prove thatthe victim has successfully identified the accused and her evidencecannot be doubted simply because she is blind girl.”

42. In the High Court, the defense sought to cast doubt on theDtestimony of the prosecutrix by arguing that she would have been unableto identify the accused due to her disability. While the above plea wasnot pressed by the appellant in this Court, we would like to take thisopportunity to affirm the conclusion of the Sessions Judge and to clarifythe position of law on this point.

E43. There have been instances where the testimony of disabledprosecutrix has not been considered seriously and treated at an equalfooting as that of their able-bodied counterparts. One such instance isthe judgment of this Court in Mange v. State of Haryana[40], where thetestimony of thirteen year-old girl who was deaf and mute was notrecorded and the conviction was confirmed on the account of an eyeFwitness and supported by medical evidence. This Court in affirming theconviction noted that the non-examination of the prosecutrix was not amajor infirmity in the prosecution’s case “apart from being child witness,she was also deaf and dumb and no useful purpose would have beenserved by examining her.” We are of the considered view thatGpresumptions of such nature which construe disability as an incapacityto participate in the legal process reflect not only an inadequateunderstanding of how disability operates but may also result in amiscarriage of justice through devaluation of crucial testimonies givenby persons with disabilities. The legal personhood of persons withH40 (1979) 4 SCC 349.

disabilities cannot be premised on societal stereotypes of their supposed“inferiority”, which is an affront to their dignity and negation of theprinciple of equality.

44. survey and analysis of High Court judgments by SaptarshiMandal indicates that the testimony of the disabled witnesses is devaluedby not recording the testimony of the prosecutrix at all; or recording itwithout adherence to correct legal procedure, thereby rendering itineffectual; dismissal of the testimony for its lack of intelligibility or fornot being supported by the condition of her body.[41]

45. This kind of judicial attitude stems from and perpetuates theunderlying bias and stereotypes against persons with disabilities. We areof the view that the testimony of prosecutrix with disability, or of adisabled witness for that matter, cannot be considered weak or inferior,only because such an individual interacts with the world in differentmanner, vis-a-vis their able-bodied counterparts. As long as the testimonyof such witness otherwise meets the criteria for inspiring judicialconfidence, it is entitled to full legal weight. It goes without saying thatthe court appreciating such testimony needs to be attentive to the factthat the witness’ disability can have the consequence of the testimonybeing rendered in different form, relative to that of an able-bodiedwitness. In the case at hand, for instance, PW2’s blindness meant thatshe had no visual contact with the world. Her primary mode of identifyingthose around her, therefore, is by the sound of their voice. And so PW2’stestimony is entitled to equal weight as that of prosecutrix who wouldhave been able to visually identify the appellant.

C.3The ‘Caste’ that is Difficult to Cast Away: Protectionof Members of Scheduled Castes and ScheduledTribes

46. Social movements in India for securing justice to those whohave suffered centuries of caste-based discrimination paved way forthe enactment of the SC & ST Act in 1989 to prevent commission ofatrocities against members of the Scheduled Caste and Scheduled Tribe[42]communities. The Act also falls within the purview of Article 17 of theConstitution, which prohibits untouchability. The Statement of Objectsand Reasons of the Act states the following:

41 Mandal, Disabled Women Testimony in Rape Trials, supra n. 23, p. 6.

42 “SC & ST’’

“1. Despite various measures to improve the socio-economicconditions of the Scheduled Castes and the Scheduled Tribes, theyremain vulnerable. They are denied number of civil rights. Theyare subjected to various offences, indignities, humiliations andharassment. They have, in several brutal incidents, been deprivedof their life and property. Serious crimes are committed againstthem for various historical, social and economic reasons.

2. Because of the awareness created amongst the ScheduledCastes and the Scheduled Tribes through spread of education,etc., they are trying to assert their rights and this is not beingtaken very kindly by the others. When they assert their rights andresist practices of un-touchability against them or demand statutoryminimum 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 tryto 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 landby the Scheduled Castes and the Scheduled Tribes is resentedand’ more often these people become victims of attacks by thevested interests of late, there has been an increase in thedisturbing trend of commission of certain atrocities likemaking the Scheduled Castes persons eat inedible substances likehuman excreta and attacks on and mass killings of helplessScheduled Castes and Scheduled Tribes and rape of womenbelonging to the Scheduled Castes and the ScheduledTribes. Under the circumstances, the existing laws like theprotection of Civil Rights Act, 1955 and the normal provisions ofthe Indian Penal Code have been found to be inadequate to checkthese crimes. special legislation to check and deter crimes againstthem committed by non-Scheduled Castes and non-ScheduledTribes has, therefore, become necessary.

3. The term ‘atrocity’ has not been defined so far. It is considerednecessary that not only the term ‘atrocity’ should be defined butstringent measures should be introduced to provide for higherpunishments for committing such atrocities. It is also proposed toenjoining, on the States and the Union territories to take specificpreventive and punitive measures to protect the Scheduled Castes

and the Scheduled Tribes from being victimised and whereatrocities are committed, to provide adequate relief and assistanceto rehabilitate them.”

(emphasis added)

47. While the Statement of Objects and Reasons of the Actspecifically mentions commission of rapes against SC & ST women asa form of atrocity committed against the SC & ST communities, it doesnot specifically articulate the distinct disadvantage women of thesecommunities face on account of casteism, patriarchy and poverty at thesame time. Shreya Atrey notes that while the anti-caste movementsbegan in early 1900s and saw active participation of SC & ST women,their oppression was imagined only on the basis of caste rather thanpatriarchy[43]. On the other hand, the mainstream feminist movement alsofailed to take into consideration the specific forms of oppression that SC& ST women face not only at the hands of upper caste men but alsoupper caste women. To reframe the words of the Combahee RiverCollective Statement, 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 herwork has specifically highlighted that class, caste, geography and religionplay pivotal role in how gender violence is perceived and howpunishments are meted out in the criminal justice system.[45] Howpervasive sexual violence is against women from SC & ST communityis emphatically stated by V. Geetha in extract her book titled ‘UndoingImpunity’:“As for sexual violence, Dalit women activists understood it to bepart of continuum of violence that Dalit women experienced: ina life-world where food, water, clean living spaces are routinelydenied to Dalit women, where their labour was exploited, and noprotection available in their places of work, where to be in bondageto landlord or petty trader was commonplace, and at all times

43 SHREYA ATREY, INTERSECTIONAL DISCRIMINATION, Oxford University Press) 2019, p. 69.

44 Combahee River Collective, The Combahee River Collective Statement, in HOMEGIRLS: BLACK FEMINIST ANTHOLOGY, Barbara Smith ed., (New York: Kitchen Table/Women of Color Press, 1983; reprint, New Brunswick, N.J.: Rutgers University Press2000) 267. The original quote read, “We struggle together with Black men againstracism, while we also struggle with Black men about sexism.”

45 A. Dey. ‘Others’ Within the ‘Others’: An Intersectional Analysis of Gender Violencein India, Gender Issues 36, 357–373 (2019).

Athey are viewed as sexually available, and humiliated in their bodilybeing, sexual violence emerged as not an exceptional act ofviolence, but the most concentrated expression of fundamentalanimus against Dalits”[46]

48. The above discussion highlights the social and economic contextBin which sexual violence against women from SC & ST communitiesoccurs. This contextualized legal analysis has to be adopted by the Courtwhich is sensitive to the nature of evidence that is likely to be producedin case where various marginalities intersect. In the present case, adistinct individualized experience for PW2 is created on account of hergender, caste and disability due to her association with wider groups thatCface 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 materialtime read as follows:D“3. Whoever not being member of Scheduled Caste orScheduled Tribe …

(v) commits any offence under the Indian Penal Code (45 of 1860)punishable with imprisonment for term of ten years or moreagainst person or property on the ground that such person is aEmember of Scheduled Caste or Scheduled Tribe or suchproperty belongs to such member, shall be punishable withimprisonment for life and with fine;”

50. Under Section 3(2)(v), an enhanced punishment ofimprisonment for life with fine is provided whereF

(i)The offence is committed by person who is not memberof Scheduled Caste or Scheduled Tribe;

(ii) The offence arises under the Penal Code and is against aperson or property and is punishable with imprisonment for aterm of ten years or more; and

(iii) The offence is committed “on the ground that such person isa member of Scheduled Caste or Scheduled Tribe” or suchproperty belongs to such person.

46 V. Geetha, UNDOING IMPUNITY: SPEECH AFTER SEXUAL VIOLENCE, (Zubaan, 2016), ChapterH11.

The key words are “on the ground that such person is memberof 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 timeprior to its amendment, which will be noticed later) is an example of astatute recognizing only single axis model of oppression. As we havediscussed above, such single axis models require person to prove adiscrete experience of oppression suffered on account of given socialcharacteristic. However, when oppression operates in an intersectionalfashion, it becomes difficult to identify, in disjunctive fashion, whichground was the basis of oppression because often multiple groundsoperate in tandem. Larrisa Behrendt, an aboriginal legal scholar fromAustralia, has poignantly stated the difficulty experienced by womenfacing sexual assault, who are marginalised on different counts, to identifythe source of their oppression:“When an Aboriginal woman is the victim of sexual assault,how, as black woman, does she know whether it is because sheis hated as woman and is perceived as inferior or if she is hatedbecause she is Aboriginal, considered inferior and promiscuousby nature?”[47]

51. Being cognizant of the limitation of Section3(2)(v) – as it stoodearlier - in dealing with matters of intersectionality, we are howeverbound to apply the standard that has been laid down in the law. Theexpression “on the ground” was considered in two-judge Benchjudgment of this Court in Dinesh Alias Buddha v. State of Rajasthan[48],where the Court speaking through Justice Arijit Pasayat held:

“15. Sine qua non for application of Section 3(2)(v) is that anoffence must have been committed against person on the groundthat such person is member of Scheduled Castes and ScheduledTribes. In the instant case no evidence has been led to establishthis requirement. It is not case of the prosecution that therape was committed on the victim since she was memberof 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

47 Larissa Behrendt, Aboriginal Women and the White Lies of the Feminist Movement:Implications for Aboriginal Women in Rights Discourse, 1 Australian Feminist LawJournal 1, (1993), p. 35.48 (2006) 3 SCC 771.

Aprinciple was subsequently followed in two judge Bench judgment ofthis Court in Ramdas and Others v. State of Maharashtra[49] where itwas held that merely because woman belongs to the SC & STcommunity, the provisions of the SC & ST Act would not be attracted ina case of sexual assault. This Court observed that there was no evidenceto prove the commission of offence under Section 3(2)(v) of the SC &BST Act.

53. The contours of the terms “on the ground of” have beenexplicated by this Court in the following cases. In Ashrafi v. State ofUttar Pradesh[50], two judge Bench of this Court held that convictionunder Section 3(2)(v) of the SC & ST Act cannot be sustained becauseCthe prosecution could not prove that the rape was committed only on theground that the woman belonged to the SC & ST community. This Courtspeaking through Justice R Banumathi held:

“9.The evidence and materials on record do not show that theAppellant had committed rape on the victim on the ground thatDshe belonged to Scheduled Caste. Section 3(2)(v) of the SC/STPrevention of Atrocities Act can be pressed into service only if itis proved that the rape has been committed on the ground thatPW-3 Phoola Devi belonged to Scheduled Caste community. Inthe absence of evidence proving intention of the AppellantEin committing the offence upon PW-3-Phoola Devi onlybecause she belongs to Scheduled Caste community, theconviction of the Appellant Under Section 3(2)(v) of theSC/ST Prevention of Atrocities Act cannot be sustained.”(emphasis added)

F54. In another judgment of this Court in Khuman Singh v. Stateof MP[51], Justice R Banumathi speaking for this Court held :

“As held by the Supreme Court, the offence must be such so asto attract the offence under Section 3(2)(v) of the Act. The offencemust have been committed against the person on the ground thatGsuch person is 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

49 (2007) 2 SCC 170.

50 (2018) 1 SCC 742 (“Ashrafi’’).H51 Criminal Appeal 1283 of 2019 decided on 27 August 2019 (“Khuman Singh’’).

evidence to show that the offence was committed only onthe ground that the victim was member of the ScheduledCaste and therefore, the conviction of the appellant-accused underSection 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 Section3(2)(v) to mean that the offence should have been committed “only onthe ground that the victim was member of the Scheduled Caste.” Thecorrectness of this exposition. Is debatable. The statutory provision doesnot utilize the expression “only on the ground”. Reading the expression“only” would be to add restriction which is not found in the statute.The statute undoubtedly uses the words “on the ground’ but thejuxtaposition of “the” before “ground” does not invariably mean that theoffence ought to have been committed only on that ground. To read theprovision in that manner will dilute statutory provision which is meantto safeguard the Scheduled Castes and Scheduled Tribes against acts ofviolence which pose threat to their dignity. As we have emphasizedbefore in the judgment, an intersectional lens enables us to view oppressionas sum of disadvantage resulting from multiple marginalized identities.To deny the protection of Section 3 (2) (v) on the premise that the crimewas not committed against an SC & ST person solely on the ground oftheir caste identity is to deny how social inequalities function in acumulative fashion. It is to render the experiences of the most marginalizedinvisible. It is to grant impunity to perpetrators who on account of theirprivileged social status feel entitled to commit atrocities against sociallyand economically vulnerable communities. This is not to say that there isno requirement to establish causal link between the harm suffered andthe ground, but it is to recognize that how person was treated or impactedwas result of interaction of multiple grounds or identities. true readingof Section 3(2)(v) would entail that conviction under this provision canbe sustained as long as caste identity is one of the grounds for theoccurrence of the offence. In the view which we ultimately take, areference of these decisions to larger bench in this case is unnecessary.We keep that open and the debate alive for later date and case.

56. If the evidence in this case was sufficient to establish thecommission of the offence on the ground that PW2 was member of aScheduled Caste, fresh look at the judgments in Ashrafi (supra) and

AKhuman Singh (supra) would have been warranted. However, closelook at the evidence would demonstrate that the prosecution has not ledevidence to prove the ingredients of section 3(2)(v). Unfortunately, therehas been serious gap in the evidence on that count. In the presentcase, PW11 who was the Investigating Officer deposed:

B“PW 1 and PW2 did not state before me that since she belongs toSchedule Caste the accused committed the offence. Part 1 C.Ddoes not disclose in specific that the accused was handed over tothe Circle. ‘Inspector of police. Witness adds by the time he reachedthe scene of offence the Sub Inspector and Circle inspector ofpolice were present and the witnesses present there handed overCto the accused to them in turn he instructed them to take theaccused to Mahanandi Police Station. It is not true to suggest thatmy statement that the accused was handed over to Sub Inspectorof police or Circle Inspector of police is false as accused was notpresent at the scene of offence.”D57. The Sessions Judge noticed the deposition of PW11. However,the Sessions Judge noted that Exhibit P-1 disclosed that PW 2 belongsto Scheduled Caste. The Sessions Judge also observed in paragraph39 of the judgment that PW1, who is the mother of PW2 is an “illiteratevillage rustic woman” and merely because she did not mention in theEreport or statement to the police that the accused committed the offenceon the ground that PW2 belonged to the Scheduled Caste is not fatal tothe 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 paragraph40 of the judgment which has been extracted earlier where he statedthat the accused would not have dared to commit the crime if PW2Fbelonged to an upper caste community particularly in village atmosphere.In appeal, the submission that the ingredients of the offence under Section3(2)(v) were not established was specifically urged before the HighCourt. The submission was dismissed with the observation that “evenotherwise still the offence under Section 376(1) of the Penal Code isGmade out”. Both the Sessions Judge as well as the High Court havefailed to notice the crucial ingredient of Section 3(2)(v) (as it stood at thematerial 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, notbeing member of Scheduled Caste or Scheduled Tribe, (v) commits any offenceunder the Indian Penal Code (45 of 1860) punishable with imprisonment for term ofHten years or more against person or property on the ground that such person is

58. The issue as to whether the offence was committed against apersonon the ground that such person is member of SC or ST orsuch property belongs to such member is to be established by theprosecution on the basis of the evidence at the trial. We agree with theSessions Judge that the prosecution’s case would not fail merely becausePW1 did not mention in her statement to the police that the offence wascommitted against her daughter because she was Scheduled Castewoman. However, there is no separate evidence led by the prosecutionto show that the accused committed the offence on the basis of thecaste identity of PW2. While it would be reasonable to presume that theaccused knew the caste of PW2 since village communities are tightlyknit and the accused was also an acquaintance of PW2’s family, theknowledge by itself cannot be said to be the basis of the commission ofoffence, having regard to the language of Section 3(2)(v) as it stood atthe time when the offence in the present case was committed. As wehave discussed above, due to the intersectional nature of oppressionPW2 faces, it becomes difficult to establish what led to the commissionof offence – whether it was her caste, gender or disability. This highlightsthe limitation of provision where causation of wrongful act arisesfrom 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 bythe Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)Amendment Act, 2015, which came into effect on 26 January 2016. Thewords “on the ground of” under Section 3(2) (v) have been substitutedwith “knowing that such person is member of Scheduled Casteor Scheduled Tribe”. This has decreased the threshold of proving thata crime was committed on the basis of the caste identity to thresholdwhere mere knowledge is sufficient to sustain conviction. Section 8which deals with presumptions as to offences was also amended toinclude clause (c) to provide that if the accused was acquainted with thevictim or his family, the court shall presume that the accused was aware

member of Scheduled Caste or Scheduled Tribe or such property belongs to suchmember shall be punishable with imprisonment for life and with fine”The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) AmendmentAct, 2015, w.e.f 26 January 2016, amended Section 3(2)(v) and currently states:“(2) Whoever, not being member of Scheduled Caste or Scheduled Tribe,(v) commits any offence under the Indian Penal Code (45 of 1860) punishable withimprisonment for term of ten years or more against person or property [knowingthat such person is member of Scheduled Caste or Scheduled Tribe or such propertybelongs to such member] shall be punishable with imprisonment for life and with fine”.

Aof the caste or tribal identity of the victim unless proved otherwise. Theamended Section 8 reads as follows:

“8. Presumption as to offences. - In prosecution for an offenceunder this Chapter, if it is proved that

(a) the accused rendered [any financial assistance in relation toBthe offences committed by person accused of], or reasonablysuspected of, committing, an offence under this Chapter, the SpecialCourt shall presume, unless the contrary is proved, that such personhad abetted the offence;

(b) group of persons committed an offence under this ChapterCand if it is proved that the offence committed was sequel to anyexisting dispute regarding land or any other matter, it shall bepresumed that the offence was committed in furtherance of thecommon intention or in prosecution of the common object.

[(c) the accused was having personal knowledge of the victim orDhis family, the Court shall presume that the accused was awareof the caste or tribal identity of the victim, unless the contrary isproved.]”

60. The Parliament Standing Committee Report on AtrocitiesAgainst Women and Children has observed that, “high acquittal rateEmotivates and boosts the confidence of dominant and powerfulcommunities for continued perpetration” and recommends inclusion ofprovisions of SC & ST Act while registering cases of gendered violenceagainst women from SC & ST communities[53]. However, as we havenoted, one of the ways in which offences against SC & ST women fallFthrough the cracks is due to the evidentiary burden that becomes almostimpossible to meet in cases of intersectional oppression. This is especiallythe 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 regimeunder the SC & ST Act, post the amendment, has facilitated the conductof an intersectional analysis under the Act by replacing the causationGrequirement under Section 3(2)(v) of the Act with knowledgerequirement making the regime sensitive to the kind of evidence that islikely to be generated in cases such as these.

53 Parliament Standing Committee Report on Atrocities Against Women and Children,15 March 2021, 107 available at https://rajyasabha.nic.in/rsnew/Committee_site/HCommittee_File/ReportFile/15/143/230_2021_3_14.pdf.

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 January2016 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 presentcase does not establish that the offence in the present case was committedon the ground that such person is member of SC or ST. The convictionunder Section 3(2)(v) would consequently have to be set aside.

C.5 Punishment under Section 376 of the IPC

62. Mr Harinder Mohan Singh, learned Counsel has submittedthat as sequel to the setting aside of the conviction under Section3(2)(v), the imposition of sentence of imprisonment for life for theoffence under section 376 needs to be modified. In this context, learnedCounsel relied upon the provisions of Section 376(1).

63. Now Section 376(1), as it stood at the material time prior to itssubstitution by Act 13 of 2013, was substituted by the Criminal Law(Amendment) Act 1983 (Act 43 of 1983) with effect from 25 December1983. Section 376(1) as substituted by the amendment read as follows :

“376. Punishment to rape: (1) Whoever, except in the casesprovided for by sub-section (2), commits rape shall be punishedwith imprisonment of either description for term which shall notbe less than seven years but which may be for life or for termwhich may extend to ten years and shall also be liable to fineunless the woman raped is his own wife and is not under twelveyears of age, in which case, he shall be punished with imprisonmentof either description for term which may extend to two years orwith fine or with both:

Provided that the court may, for adequate and special reasons tobe mentioned in the judgment, impose sentence of imprisonmentfor term of less than seven years.”

Essentially, the submission which has been urged on behalf of theappellant is that under Section 376(1) as it then stood, Parliament hadmade provisions for:

(i) minimum sentence of seven years;

(ii) The imposition of sentence of imprisonment for term ofless than seven years for adequate and special reasons to be recordedby the Court;

A(iii) term of imprisonment extending to ten years; and

(iv) term of imprisonment for life.

In the context of (iii) and (iv) above, the words used in Section376(1) were “but which may be for life or for term which may extendto ten years”.B

64. On behalf of the appellant it has been urged that in the presentcase the Sessions Judge proceeded to impose term of imprisonmentfor 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 courtCwas not inclined to exercise its discretion “to give lesser punishment tothe accused”. In other words, it was submitted that the Sessions Judgeproceeded on the basis that sentence of imprisonment for life was thenorm and there was discretion to award lesser punishment, which iserroneous.

65. In evaluating the submission, it is necessary to note that theSessions Judge came to the conclusion that the appellant was guilty ofan offence under Section 3(2)(v) of the SC and ST Act and, independentof that, also of an offence punishable under Section 376(1) of the PenalCode. In considering the sentence to be imposed in respect of the twoEdistinct offences, the Sessions Judge held that:

(i)A sentence of imprisonment for life should be imposed forthe offence under Section 376(1); and

(ii) sentence of imprisonment for life would have to be imposedfor the offence under Section 3(2)(v) of the SC and ST Act.

66. For the reasons which we have indicated earlier we havecome to the conclusion that the ingredients of the offence under Section3(2)(v) of the SC and ST Act were not established. The issue whichsurvives for consideration is as to whether the punishment of imprisonmentfor life in respect of the offence under Section 376(1) should have beenGimposed.

67. On plain reading of Section 376(1), as it stood after its insertionwith effect from 25 December 1983 by Act 43 of 1983, it is evident thata sentence of imprisonment for life is one of the sentences contemplatedby the provision. The Criminal Law Amendment Act 1983 was introducedHwith 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 Parliamentfor the amendment of the law relating to rape so that it becomesmore difficult for the offenders to escape conviction and severepenalties are imposed on those convicted. […]

2. […] The changes proposed in the Bill have been formulatedprincipally on the basis of the following considerations:-

(3) minimum punishments for rape should be prescribed;”

Pursuant to the above-mentioned objective, Section 376(1)provided that except for cases covered by sub-Section (2), personcommitting rape shall be punished with imprisonment of eitherdescription for term which shall not be less than seven years.However, the proviso stipulated that the court may for ‘adequateand special reasons’ to be mentioned in the judgment impose asentence of imprisonment for term of less than seven years.The minimum sentence of seven years could, in other words, bereduced to lesser term only for adequate and special reasons tobe recorded in the judgment. This Court has time and again notedthat adequate and special reasons depend on the facts andcircumstances of each case. These special and adequate reasonsare an exception to the rule and must be used sparingly andinterpreted strictly as held by this Court in State of MadhyaPradesh v. Bala[54]. Section 376(1) however also stipulated thatthe term of imprisonment “may be for life or for term of tenyears”.

68. Subsequently, in 2013, post the Nirbhaya case, the CriminalLaw Amendment Act 2013 was brought into force which amendedSection 376(1). The Parliament sought to take tougher stand on crimeagainst women and limited the discretion of the judiciary regardingimposition of sentences for offences involving rape by providing aminimum punishment of seven years and maximum punishment of lifeimprisonment, without any exceptions for reduction of sentence. In 2018,Section 376 has been further amended by the Criminal Law Amendment

AAct 2018 (Act 22 of 2018) by which the minimum punishment has beenenhanced to ten years, with the maximum punishment remaining thesame.

69. Having detailed the amendments in Section 376 by theParliament, we are cognizant that we must apply the law as it was at theBtime of occurrence of the crime. The range of punishment within whichwe must exercise our judicial discretion is the imposition of minimumpunishment of 7 years (or less on existence of adequate and specialreasons), or 10 years or imprisonment for life. In determining theappropriate sentence, this Court has consistently laid down that we mustof necessity be guided by all the relevant facts and circumstancesCincluding

(i) The nature and gravity of the crime;

(ii) The circumstances surrounding the commission of the sexualassault;

D(iii) The position of the person on whom the sexual assault iscommitted;

(iv) The role of the accused in relation to the person violated; and

(v) The possibility of the rehabilitation of the offender.

EThe above factors are relevant for the determination of thequantum of punishment as held in Ravji v. State of Rajasthan[55], Stateof Karnataka v. Krishnappa[56],and State of Punjab v. Prem Sagar[57]among others.

70. In addition to these factors, we must also be alive to theFintersectional identity of PW2 and the underlying societal factors withinwhich the offence was committed. PW2 is woman who is blind sincebirth and is member of Scheduled Caste. These intersectional identitiesplaced her in uniquely disadvantageous position. The ChhattisgarhPradesh High Court in Tekan v. State of Madhya Pradesh (NowChhattisgarh)[58] dealt with the conviction of person accused of rapingG

55 (1996) 2 SCC 175.56 (2000) 4 SCC 75.57 (2008) 7 SCC 550.

58 2014 Cri LJ 1409. Physical disability has been considered as an aggravating factor insentencing by other High Courts as well. See, for e.g.,Rabindrayan Das v. State, 1992HCri LJ 269, Orissa High Court.

blind woman on multiple occasions, on the promise of marriage. TheHigh Court was acutely aware of the misuse of the woman’s disabilityby the accused and sentenced him to 7 years of rigorous imprisonment.The conviction and sentence were later upheld by this Court[59]. ThisCourt also dealt with the question of compensation to be paid to theprosecutrix and the physical disadvantage accruing to her on account ofher disability. In doing so, Justice M Y Eqbal, speaking for the two-judgebench, noted:

“15. Coming to the present case in hand, victim beingphysically disadvantaged, she was already in sociallydisadvantaged position which was exploited maliciously bythe accused for his own ill intentions to commit fraud uponher and rape her in the garb of promised marriage whichhas put the victim in doubly disadvantaged situation andafter the waiting of many years it has worsened. It would notbe possible for the victim to approach the National Commissionfor Women and follow up for relief and rehabilitation. Accordingly,the victim, who has already suffered lot since the day of thecrime till now, needs special rehabilitation scheme.” (emphasissupplied)

71. Similarly, we are also aware of the disadvantage faced bywomen (and persons generally) belonging to the Scheduled Castes andScheduled Tribes. As explained above, it is difficult and, in our opinion,artificial to delineate the many different identities of an individual whichoverlap to place them in disadvantaged position of power and createthe circumstances for heinous offences such as rape to occur. At thispoint, it would be relevant to note that series of decisions of this Courtrendered by three-judge benches[60] and two-judge benches[61], have statedthat “socio-economic status, religion, race, caste or creed of theaccused or the victim are irrelevant considerations in sentencingpolicy”. However, it is necessary to understand the context in whichthis finding was made. In all of these cases, the Court was dealing withthe plea of mitigation of sentence awarded by the High Courts or the

59 (2016) 4 SCC 461.60 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. VinodKumar, (2012) 6 SCC 770; State of Madhya Pradesh v. Santosh Kumar (2006) 6SCC 1.

Alower courts on the ground of existence of ‘adequate and special reasons’on account of the accused being member of the scheduled caste/tribe; belonging to rural background; or being illiterate. It is on thiscount that the Court rejected such plea given the heinous nature of thecrime of rape and the gravity of the criminal act. In our opinion, thesejudgments do not bar us from taking holistic view of the variousBintersectional identities which form vital part of the facts andcircumstances of the act and speak to the nature of the crime.

72. In the present case, several circumstances bearing on thesentence must be borne in mind. First, PW2, who was subjected to asexual assault was blind since birth. Second, the appellant was known toCthe brothers of PW2, including PW3. The appellant used to visit thehouse in which PW2 resided with her parents and brothers. Bereft ofeye-sight, PW2 was able to identify the appellant by his voice with whichshe was familiar. Third, shortly before entering the home of PW2, theappellant enquired of PW1 where her sons were, when he was told thatDthey were not at home. PW1 proceeded with her chores at publicwater tap. Taking advantage of the absence of the members of thefamily from the family home, the appellant entered the house andsubjected PW2 to sexual assault. PW1 has deposed that when sheentered the house together with PW3, PW4 and PW5 she found PW2 ina nude condition on the ground bleeding from the injuries sustained onEher genitals. The nature and circumstances in which the offence hasbeen committed would leave no manner of doubt that the appellant hadtaken 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, intheir absence and subjected PW2 to sexual assault. PW2 belongs to aFScheduled Caste. The prosecution has not led evidence to prove that theoffence, as we have noticed, was committed on the ground that shebelongs to Scheduled caste within the meaning of section 3(2)(v) ofthe SC and ST Act. This is distinct issue. But the fact that PW2 belongedto Scheduled Caste is not factor which is extraneous to the sentencing

process for an offence under Section 376. It is in that context, that weGmust read the observations of the Sessions Judge with robust commonsense perception of ground realities. The appellant was 27 years old, amature individual who was working as coolie together with the brothersof PW2 for couple of years. The nature and gravity of the offence inthe present case is serious in itself and it is compounded by the positionHof PW2 who was visually disabled woman. heinous offence has

been committed on woman belonging to Scheduled Caste. Theimposition of sentence of imprisonment for life cannot be faulted.

Conclusion and Summary of Findings

73. For the above reasons we have come to the conclusion thatthe conviction under Section 376(1) and the sentence imposed by theSessions Judge must be affirmed. In the circumstances we order asfollows:

(i) The conviction of the appellant for an offence under Section3(2)(v) of the SC and ST Act and the sentence imposed inrespect of the offence is set aside and the appeal allowed toCthat extent; and

(ii) The conviction of the appellant for an offence punishable underSection 376(1) of the Penal Code and the sentence ofimprisonment for life is upheld. The fine of Rs 1,000/- anddefault imprisonment of six months imposed by the SessionsJudge and affirmed by the High Court shall also standDconfirmed.

74. The appeal is disposed of in the above terms.

75. Pending application(s), if any, stand disposed of.

Nidhi Jain

Appeal disposed of.