Madhya Pradesh High Court
Tapan Mishra vs The State Of Madhya Pradesh on 17 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia, Prakash Chandra Gupta
NEUTRAL CITATION NO. 2025:MPHC-IND:1304
1 CRA-1500-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 17th OF JANUARY, 2025
CRIMINAL APPEAL No. 1500 of 2016
TAPAN MISHRA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Nitin Vyas, learned counsel for the appellant.
Shri Sudeep Bhargava, learned Deputy Advocate General for the
respondent / State.
JUDGMENT
Per: Justice Vivek Rusia
Instead of hearing on the application for suspension of jail sentence
(I.A. No.115/2025), this criminal appeal is heard finally.
02. The appellant has filed the present criminal appeal under Section
374 of the Code of Criminal Procedure, 1973 against the judgment of
conviction and sentence dated 17.10.2016 passed by the Special Judge under
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,
Shajapur in Special Sessions Trial No.91/2014, whereby the present
appellant has been convicted for commission of offences punishable under
Section 376(F), (H) & 376(M) of the Indian Penal Code, Section 5(F) &
5(I)/6 of the Protection of Children from Sexual Offences Act, Section 3(1)
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(12) & 3(2)(5) of SC & ST Act and sentenced to undergo 10 years' rigorous
imprisonment along with fine of Rs.2,000/-, 10 years' rigorous imprisonment
along with fine of Rs.2,000/-, 05 years' rigorous imprisonment along with
fine of Rs.1,000/- and Life Imprisonment along with fine of Rs.1,000/-
respectively with default stipulations.
03. The prosecution story in short is as under:-
3.1. The complainant / prosecutrix lodged a report that she studies in
Class - VII and her date of birth is 28.05.2003. She goes for tuition in the
house of Tapan Mishra, Principal, Sahara C.B.S.C. School. She used to go
for tuition daily from 06:00 - 07:00 pm. The daughter of Sir Ankita @ Chichi
used to attend the class along with her. Sir sent Ankita to some other place,
thereafter, removed her cloths and committed rape upon her. According to
her, earlier also in the month of June, twice, he committed rape upon her.
When she suffered stomach pain, he gave two tablets which she consumed
and thereafter, he gave her four more tablets. She narrated entire story to her
mother, thereafter, FIR was registered and appellant was taken into custody.
3.2. The prosecutrix was medically examined, however, no definite
opinion of rape was given by the doctor. The police seized the cloths of the
prosecutrix and the appellant and both were sent for FSL and in all the
articles, semen was found. Upon completion of the investigation, charge-
sheet was filed. The trial was committed to the Special Judge as the
prosecutrix belongs to Schedule Caste. The appellant denied the charges and
pleaded for trial.
3.3. The prosecution has examined nine witnesses. In defense, the
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appellant examined six witnesses. After analysing the evidence came on
record, the present appellant has been convicted and sentenced as stated
above. The appellant is in custody since 12.07.2015, therefore, he has
completed almost ten years of jail sentence awarded under Section 376(F),
(H) & 376(M) of the IPC and 5 & 6 of the POCSO Act.
04. Learned counsel for the appellant submits that since the appellant
has undergone the sentence under Sections Section 376(F), (H) & 376(M) of
the IPC and 5 & 6, therefore, he is not assailing the findings recorded by the
trial Court. Learned counsel further submits that the appellant had wrongly
been convicted under Section 3(2)(V) of the SC & ST Act and sentenced to
undergo Life Imprisonment. Although prosecutrix belongs to reserve
community, but there is no allegation that the appellant had committed the
rape because she belongs to SC / ST Category. This offence was committed
in the month of June / July, 2015 and thereafter, there was an amendment in
Section 3(2)(V) of the SC & ST Act, therefore, the case falls under the pre-
amendment stage on June / July, 2015. Hence, the present case does not
establish that the offence in the present case was committed on the ground
that the prosectutrix is a member of SC / ST Community.
4.1. In support of the aforesaid contentions, learned counsel for the
appellant has placed reliance upon judgments delivered by the Apex Court in
the cases of Patan Jamal Vali v/s The State of Andhra Pradesh reported in
2021 SCC OnLine 343, Asharfi v/s The State of Uttar Pradesh (Criminal
Appeal No.1182 of 2015) and the judgment delivered by the Division Bench
of this Court in the case of Jagdish v/s The State of Madhya Pradesh
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4 CRA-1500-2016
(Criminal Appeal No.762 of 2016).
05. It is correct that none of the witnesses including prosecutrix have
stated that the appellant committed rape upon her because she belongs to a
reserved community. This incident took place prior to the amendment
brought in Section 3(2)(V) of the SC & ST Act.
06. The Apex Court in the case of Patan Jamal Vali (supra) in
paragraphs - 67 & 68 has held as under:-
''67. The Parliament Standing Committee Report on Atrocities
Against Women and Children has observed that, "high acquittal
rate motivates and boosts the confidence of dominant and
powerful communities for continued perpetration" and
recommends inclusion of provisions of SC & ST Act while
registering cases of PART C gendered violence against women
from SC & ST communities53. However, as we have noted, one
of the ways in which offences against SC & ST women fall
through the cracks is due to the evidentiary burden that becomes
almost impossible to meet in cases of intersectional oppression.
This is especially the case when courts tend to read the
requirement of "on the ground" under Section 3(2)(v) as "only on
the ground of". The current regime under the SC & ST Act, post
the amendment, has facilitated the conduct of an intersectional
analysis under the Act by replacing the causation requirement
under Section 3(2)(v) of the Act with a knowledge requirement
making the regime sensitive to the kind of evidence that is likely
to be generated in cases such as these.
68. However, since Section 3(2) (v) was amended and Clause (c)
of Section 8 was inserted by Act 1 of 2016 with effect from 26
January 2016 these amendments would not be applicable to the
case at hand. The offence in the present case has taken place
before the amendment, on 31 March 2011. Therefore, we hold that
the evidence in the present case does not establish that the offence
in the present case was committed on the ground that such person
is a member of a SC or ST. The conviction under Section 3(2)(v)
would consequently have to be set aside.''
[Emphasis Supplied]
07. In the case of Asharfi (supra) , the Apex Court in the paragraph -
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8 has held as under:-
8 . The evidence and materials on record do not show that the
appellant had committed rape on the victim on the ground that she
belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act can be pressed into service only if it
is proved that the rape has been committed on the ground that PW-
3 Phoola Devi belonged to Scheduled Caste community. In the
absence of evidence proving intention of the appellant in
committing the offence upon PW-3-Phoola Devi only because she
belongs to Scheduled Caste community, the conviction of the
appellant under Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act cannot be sustained.''
[Emphasis Supplied]
08. The Division Bench of this Court in the case of Jagdish (supra)
in paragraphs - 7 & 8 had held thus:-
''7. So far as the offence under Section 3(2)(v) of the SC/ST
(Prevention of Atrocities) Act is concerned, in terms of the
judgment of the Supreme Court in the matter of Asharfi Vs. State
of Uttar Pradesh dated 08.12.2017 in Cr.A.No.1182/2015 the
prosecution was required to prove that the rape was committed on
the victim on the ground that she belonged to the Scheduled Caste.
The Supreme Court in the matter of Asharfi (Supra) in this regard
has held as under:-
''8. The evidence and materials on record do not show that the
appellant had committed rape on the victim on the ground that she
belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act can be pressed into service only if it
is proved that the rape has been committed on the ground that PW-
3 Phoola Devi belonged to Scheduled Caste community. In the
absence of evidence proving intention of the appellant in
committing the offence upon PW-3- Phoola Devi only because
she belongs to Scheduled Caste community, the conviction of the
appellant under Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act cannot be sustained."
8. In the present case, the prosecutrix PW-1 has not stated
anything about the commission of rape on the ground that she
belongs to SC/ST caste or category. In her statement, she had only
disclosed her caste, but had not made any allegation that because
of her belonging to a particular caste, the offence of rape was
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committed on her. PW-3 Lakhan, brother of the prosecutrix has
also not stated that the alleged offence was committed because the
prosecutrix belonged to the SC/ST caste. The trial Court also in the
impugned judgment has not recorded any such finding. A minute
perusal of the judgment of the trial Court reveals that the trial
Court has not taken into account the necessary ingredients of
Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act and has
not even discussed the evidence making out the said offence.''
09. In view of the aforesaid dictum of the Apex Court as well as
Division Bench of this Court, the conviction of the appellant under Sections
376(F) & (H) and 376(M) of the IPC, Section 5(F) & 5(I) r/w 6 of the
POCSO Act and Section 3(1)(12) of the SC & ST Act are hereby upheld, but
the conviction under Section 3(2)(V) of the SC & ST Act is hereby set aside.
10. With the aforesaid, Criminal Appeal stands partly allowed.
(VIVEK RUSIA) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
Ravi
