Madhya Pradesh High Court

Morsingh vs The State Of Madhya Pradesh on 21 April, 2025

Author: Vivek Rusia

Bench: Vivek Rusia

                                                             -1-


                                 IN THE HIGH COURT OF MADHYA PRADESH
                                                        AT I N D O R E
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                                      &
                                         HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                                           st
                                                  ON THE 21 OF APRIL, 2025
                                              CRIMINAL APPEAL No. 1346 of 2014
                                                       MOR SINGH
                                                          Versus
                                              THE STATE OF MADHYA PRADESH
                           .......................................................................................

                           Appearance:

                                    Shri Raghunandan Soni - learned counsel for the appellant.
                                 Shri Sudeep Bhargava - learned Deputy Advocate General for the
                           respondent/State.
                           ____________________________________________________________

                                                             ORDER

Per : Justice Gajendra Singh

1. The appellant has filed this appeal challenging the judgment dated 25/06/2014 passed by the Special Judge, SC & ST (POA) Act, 1989 Indore in S.T. No.56/11, whereby he has been convicted and sentenced as under:-

Conviction Sentence Fine amount Imprisonment in lieu of payment of fine amount.

                           S. 376                     10 years R.I.       Rs.2,000/-   1 year











                           S. 3(2)(v) of SC & ST Life Imprisonment Rs.2,000/-    1 year
                           (POA) Act, 1989

2. As per the prosecution case, victim (PW-4) belongs to Bhil Schedule Tribe community whereas the appellant/accused - Mor Singh does not belong to the SC/ST Category. The appellant/accused taken the victim (PW-4) for the purpose of marriage without the consent of lawful guardian and committed the penetrative sexual assault from 16.04.2011 to 19.04.2011. The victim (PW-4) was recovered on 29.04.2011 vide Exhibit-

P/7 and Crime No.192/2011 was registered at Police Station Heeranagar, Indore against the appellant and one Sanju. After investigation, the report was submitted.

3. Learned Special Judge SC/ST (Prevention of Atrocities) Act, Indore framed charges and appellant as well as co-accused abjured guilt and claimed for trial.

4. To bring home the guilt, the prosecution examined as many as 11 witnesses. In examination under Section 313 of the Cr.P.C. they either denied or pleaded ignorance of the circumstances appeared in the evidence. The co-accused Sanju examined Saleem Patel (DW-1) and Sajanbai (DW-2) but present appellant did not examine any witnesses.

5. Appreciating the evidence, the trial Court acquitted the co-accused Sanju but convicted the present appellant Mor Singh and sentenced as mentioned in para 1 of the judgment.

6. This appeal has been preferred on the ground that the trial Court committed error in believing the prosecution witnesses. The trial Court did not appreciated the evidence in entirety.

7. Learned Deputy Advocate General for the respondent/State has

opposed the appeal submitting that there is no ground of interference either in conviction or in sentence.

Heard the learned counsel for the parties & perused the record.

8. The trial Court has recorded the finding that at the time of incident the victim (PW-4) was below the age of 18 years and she was subjected to sexual intercourse without her consent or will. The trial Court attracted the presumption under Section 114A of the Evidence Act, 1872 and further recorded the finding that during the stay with the PW-4, the appellant/accused became known regarding the tribal identity of the victim and convicted the appellant under Section 376 of the IPC r/w S. 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989 and sentenced as mentioned in para 1 of the judgment.

9. On perusal of the testimony of victim (PW-4), Dr. Shambhavi Jain (PW-3), father of the victim (PW-5) and mother of victim (PW-8), the findings recorded in para 29 of the judgment are based on proper appreciation and conviction of the appellant under Section 376 of the IPC does not call for interference.

Now, the question of invocation of Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989 is being examined.

10. In this case, the incident occurred prior to 29.04.2011 and this date of offence was prior to the enforcement of SC & ST (Prevention of Atrocities) Amendment Act, 2015. The issues relating to the applicability of provision of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is case in hand. For ready reference, the provision of Section 3(2)(v) (as applicable prior to Amendment Act, 2015) is being reproduced hereinbelow:-

"Whoever, not being a member of Scheduled Caste or a

Scheduled Tribe-

(i) to (iv) **********

(v) Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine".

(Emphasis supplied)

11. From the language used by the Legislature in Section 3(2)(v) of the Act, it is clear that this Section does not constitute any substantive offence and if any person not being a member of a Scheduled Caste or a Scheduled Tribe commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on he ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member, then enhanced punishment of life imprisonment would be awarded in such cases, meaning thereby that conviction and sentence under Section 3(2)(v) SC/ST Act, simpliciter is not permissible and in cases where an offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more is committed against a person or property on the ground that such a person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member, then in such a case the accused will be convicted and sentenced for the offence under Indian Penal Code read with Section 3(2)(v) SC/ST Act, with imprisonment for life and also with fine. Thus, in order to attract

the provision of Section 3(2)(v) the following ingredients must be established:

(i) The offender should not be a member of a Scheduled Caste or a Scheduled Tribe;

(ii) He must commit an offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more;

(iii) The commission of such offence must be against a person or property of a member of a Scheduled Caste or a Scheduled Tribe;

(iv) The offences must have been committed on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe.

12. The words "on the ground" have not been used in anywhere in the Act, except in clause (v) of Section 3(2) of the Act. It will be seen that only serious offences under the Indian Penal Code which are punishable with imprisonment for a term of 10 years or more are covered by clause (v). However, the provisions of the IPC are universally applicable whereas the clause (v) is applicable only where the victim is a person belonging to a Scheduled Caste or Scheduled Tribe. The law therefore expects a graver kind of mens-rea denoted by the words "on the ground", to render already serious offences under the Indian Penal Code more serious, which has the effect of making it punishable by no less a punishment than imprisonment for life. In order to constitute an offence under Section 3(2)(v), something more than 'intention' is needed - the offence against the victim must have been committed with a particular object., i.e., it must have been committed

'on the ground' that he was a member of a Scheduled Caste or Scheduled Tribe.

13. The expression "on the ground" has been subject matter of decision in a number of cases decided under the SC/ST (P.A.) Act. In the case of Masumsha Hasanasha Musalman V. State of Maharashtra, reported in AIR 2000 SC 1786 it was held that "To attract the provisions of Section 3(2) (v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against him on the basis that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence under the Section 3(2)

(v) of the Act, is constituted. In the case of Dinesh alias Buddha v. State of Rajashtan, reported in AIR 2006 SC 1267 in paragraph no.15 it was held as follows; "sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application." In the case of Ramdas and Ors. v. State of Maharashtra reported in AIR 2007 SC 155 in paragraph no.10 it has been held that "At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi Community,

there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."

14. Thus the words 'on the ground' show that the prosecution is required to prove that the target of crime was selected 'on the ground' that he/she belonged to Scheduled Caste or Scheduled Tribe, or that crime was committed for the reason that such person belonged to such community tribe. In other words it must be shown that if the victim would not have belonged to Scheduled Castes or Scheduled Tribes, the crime would not have been committed. The cause for the offence must contain an element of caste/racial prejudice. Unless it is demonstrated that the accused offended the sensibilities of the victim in relation to his caste, the offence under Section 3(2)(v) is not constituted. If an accused committed rape on a woman belonging to a Scheduled Caste only to satisfy his sexual lust, without any prejudice of caste to which the women belonged or if sexual intercourse was committed by the accused with the consent of Scheduled Caste girl, who was a minor under 18 years of age, he would be guilty of an offence of rape under Section 376 IPC but he would not be guilty of the offence under Section 3(2)(v), as he did not commit sexual intercourse with the girl on the ground that she was a Scheduled Caste girl. Even when accused persons allegedly inflicted injuries on victim and fled away after calling him "CHAMAR" then also in the absence of evidence to show that

injuries were inflicted on ground that victim belongs to Scheduled Caste community, the offence under Section 3(2)(v) cannot be said to have been made out. (Amir v. State of Madhya Pradesh 2004 Cri.L.J. 3686). Similarly, mere knowledge that the victim belongs to Scheduled Caste or Scheduled Tribe community is not sufficient to constitute an offence under Section 3(2)(v) of the Act (Mekala Raji Reddy v. State of Andhra Pradesh, 2002 Cr.L.J. 3407).

15. We have perused the statements of the victim (PW-4), father of the victim (PW-5) and mother of victim (PW-8). There is no iota of evidence that the victim PW-4 was subjected to sexual assault "on the ground" that prosecutrix belongs to Schedule Tribe Community.

16. The trial Court itself has recorded the finding in para 30 of the judgment that during the stay with the victim (PW-4) for a period of two months, the appellant came to know about the schedule tribe identity of the victim. This offence was committed prior to the enforcement of SC & ST (Prevention of Atrocities) Amendment Act, 2015 when the aforesaid condition of "on the ground" has been substituted with the word "knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe"

in Section 3(2)(5) of SC/ST Act by the Parliament.

17. Taking into consideration the above-said facts and circumstances, we proceed to pass the following order:

(i) The Criminal Appeal is partly allowed.

(ii) The conviction and sentence under Section 3(2)(5) of SC/ST (Prevention of Atrocities) Act is quashed. Conviction and sentence in other sections is maintained.

(iii) Supersession warrant be prepared forthwith and sent the same to the concerned jail along with a copy of this judgment by fastest

available mode.

(iv) A copy of the judgment along with record of the case be remitted back to the concerned trial Court forthwith for compliance and necessary action.