Mukeshji Ataji Thakor vs State Of Gujarat & Anr

Ilesh J. Vora, J

This Criminal Appeal, preferred by the sole accused Mukeshji Ataji Thakor, under Section 374(2) of the Cr.P.C., is directed against the judgment of conviction and order of sentence dated 21.03.2016, passed by the learned Special Judge (POCSO & Atrocity) & Additional Sessions Judge, Gandhinagar in Special (POCSO) Case No. 29 of 2014, by which, the appellant accused has been convicted and sentenced to as tabulated hereinafter:

Section

Punishment

Fine

In default

363 of IPC

RI for 3 yrs

500

SI for 1 month

366 of IPC

RI for 5 yrs

1000

SI for 3 months

376 of IPC

RI for 10 yrs

1000

SI for 3 months

4 of POCSO Act

RI for 7 yrs

700

SI for 1 month

3(ii)(v) of Atrocity Act

RI for life

The case of the prosecution leading to conviction of the appellant – accused is as follows :

The appellant – accused being a married person, was living with his father-in-law at the village Varsoda, Mansa, Gandhinagar. He came into contact with minor victim aged about 17 years, as a result, on 21.12.2013, he took away the victim and went to Kutch-Bhuj and remained together for about 6 months. The father of the victim PW-1, had lodged an FIR with the Mansa Police Station, which was registered as CR No. 141 of 2013, inter-alia, alleging that, the accused had kidnapped her daughter with malafide intention, During the course of investigation, on 18.06.2014, the accused was arrested and the victim brought back to the village: Varsoda and after due investigation, the appellant accused was chargesheeted for the offences as referred above. The complainant belonged to Schedule Caste and accused was knowing that the victim was a member of Schedule Caste and despite of this, he sexually abused her.

As the case was exclusively triable by the Court of Sessions and it was committed to the Sessions Court, Gandhinagar.

The Sessions Court, framed the charges against the accused – appellant, which he did not admit and claimed to be tried.

In order to prove the charge, the prosecution examined following witnesses and exhibited the documents :

Oral evidence :

PW 1 – Exh.11

Natwarbhai Balabhai Parmar, Complainant

PW 2 – Exh.15

Pushpaben Natwarbhai Shah

PW 3 – Exh.16

Victim

PW 4 – Exh.17

Dr. Jayesbhai Balwantsingh Rupala, Medical officer, Civil Gandhinagar

PW 5 – Exh.26

Dr. Ranu Subirbhai Ghosh, Medical officer, Civil Gandhinagar

PW 6 – Exh.27

Dr. Dipen Purshottambhai Vedh, Radiologist, Civil Gandhinagar

PW 7 – Exh.28

Dr. Manishkumar Vinodanand Khant, Dentist, Civil Gandhinagar

PW 8 – Exh.29

Bhikusingh Rajaji Chavda, Panch witness

PW 9 – Exh.31

Rajendrasinh Ratansinh Chavda, Panch witness

PW 10 – Exh.32

Jagdishbhai Revjibhai Patel, Panch witness

PW 11 – Exh.34

Govindbhai Hirjibhai Patel, Panch witness

PW 12 – Exh.36

Narottambhai Galabhai Shah, Panch witness

PW 13 – Exh.45

Kapilaben Girishbhai Shah, Panch witness

PW 14 – Exh.46

Neelamben Natwarlal Shah

PW 15 – Exh.47

Jinalben Natwarlal Shah

PW 16 – Exh.48

Baldevbhai Balabhai Shah

PW 17 – Exh.49

Ranjanben Baldevbhai Shah

PW 18 – Exh.50

Pradeepsinh Mulsinh Chavda

PW 19 – Exh.51

Ashokbhai Ramjibhai

PW 20 – Exh.52

Neetaben Baldevbhai

PW 21 – Exh.53

Vikramsinh Chatrasinh Rathod, PO

PW 22 – Exh.55

Bakaji Ramaji Thakor

PW 23 – Exh.57

Hetangiben Praghumansinh Chouhan

PW 24 – Exh.59

Manishaben Ranvirsinh Puwar

PW 25 – Exh.60

Navjibhai Rajaji Kotwal

PW 26 – Exh.62

Mauleshbhai Bhanuprasad Joshi, IO

PW 27 – Exh.64

Ramjibhai Varvabhai Rabari, DYSP

Documentary evidence :

Exh.12

Complaint

Exh.13

Victim Birth certificate

Exh.14

Caste certificate of complainant and victim

Exh.18

Police yadi for medical examination of victim

Exh.19

Medical certificate of victim

Exh.20

Victim case papers page 13 and X-ray plates no-4

Exh.21

Vicitm discharge card

Exh.22

Police yadi for medical examination of accused

Exh.23

Accused medical certificate

Exh.24

Accused case papers page-4

Exh.30

Panchnama of place of offence

Exh.33

Panchnama of place where both accused and victim stayed

Exh.37

Panchnama of clothes recovered and state of body of accused

Exh.38-44

Panch slips placed on clothes recovered

Exh.54

FIR

Exh.56

Victim’s birth certificate, application form for caste certificate and necessary documents

Exh.58

Varsoda Gram panchayat Birth register year 1997, pade no. Xerox

Exh.61

Report of founding of victim and accused from Kanakpur village in Abdasa Taluka in Kacch district

Exh.63

Order for investigation

Exh.65

Forwarding of articles to FSL

Exh.66

Receipt of articles by FSL

Exh.67-69

FSL Forwarding letter and Report

After closure of the prosecution evidence, the statement of the appellant accused under Section 313 of Cr.P.C., was recorded, to which, he stated that he is innocent and has been falsely implicated in the alleged offence.

Though the opportunity was extended, no oral evidence being adduced by the accused nor has produced any documentary evidence.

After hearing the parties and upon appreciation of the evidence, the appellant accused held guilty for the offence of kidnapping, rape and sexual abuse. The trial Court, while invoking Section 3(ii)(v) of the Scheduled Castes and Schedule Tribes (prevention of Atrocities) Act, 1989, convicted the accused and sentenced him to suffer life imprisonment.

Mr. Dinesh Prajapati, learned counsel appearing for and on behalf of the appellant – accused, does not press the appeal on merits qua the offences punishable under Sections 363, 366, 376 of Indian Penal Code and Section 4 of POCSO Act. He is questioning the validity and correctness of the conviction under Section 3(ii) (v) of the Atrocity Act.

Mr. Prajapati, learned counsel has submitted that, the trial Court has committed the serious error in holding the appellant – accused guilty of the offence punishable under Section 3(ii)(v) of the Atrocities Act; to invoke the provision of SC ST Act, it must be proved that the offence was committed on the ground that the victim belong to an SC or ST Community and must be shown that the offence of rape was committed only because the victim belonged to SC ST Community and thus, merely proving an offence under the provisions of IPC does not automatically attract the provisions of SC ST Act; the charge under Section 3(ii)(v) of the SC ST Act has not been substantiated by the prosecution, in as much as, there is no evidence to prove that the accused was aware about the caste of the victim and the witnesses including the I.O. failed to throw light on the applicability of the provisions of SC ST Act. In support of his submission, heavy reliance has been placed on the case of Khuman Singh vs. State of Madhya Pradesh (Criminal Appeal No.1283 of 2019 decided on 27.08.2019) to submit that, in order to attract Section 3(ii)(v) of the SC ST Act, it is required to be proved that the offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe.

Learned APP Mr. Ronak Raval on the other hand submitted that the offence of rape is proved against the accused beyond reasonable doubt and the victim being a member of Scheduled Caste had been subjected to sexual assault and therefore, the charge under Section 3(ii)(v) is also proved and there is sufficient evidence for proving the charge.

The issue falls for our consideration as to whether the trial court was justified in convicting the appellant-accused for the offence punishable under Section 3(ii)(v) of the SC ST Act?

In order to appreciate the rival contentions of the parties, it would be useful to reproduce the relevant section 3(ii)(v) of the SC ST Act which reads as under:

“commits any offence under the Indian Penal Code (45 of 1860)

punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine;”

Before we proceed further, it is relevant to analysis the evidence of relevant witnesses on the aspect of invocation of the provision of the Atrocity Act. PW-1 Natvar Parmar, PW-2 Pushpaben, PW-3 X….. victim, are the material witnesses, as admittedly they belonged to ‘Chamar Caste’ and said caste would fall under the ST category. We have carefully examined the oral testimony of the witnesses. None of the witnesses have stated in their chief-examination that, the offence was committed because the victim belonged to SCST caste. It is relevant to note that, for about six months the parties had stayed together as husband and wife and they were in relationship. We have examined the case records, evidence and findings of the court below on the aspect of conviction and sentence awarded under Section 3(ii) (v) of the SC ST Act. The court below while convicting the appellant under Section 3(ii)(v) of SC ST Act, has not properly appreciated the evidence and failed to assign sound and cogent reasons of his conclusion that why the offence under the provision of SC ST Act is proved. The offence in the present case alleged to have been committed on 21.12.2013. Section 3(ii)(v) of the SC ST Act now been amended by virtue of Amendment Act 1 of 2016. By way of this amendment “....on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe” have been substituted with the words “... knowing that such person is a member of Scheduled Caste and Scheduled Tribe”. In the present case unamended Section 3(2)(v) is applicable as the offence was on 21.12.2013. In such circumstances, in order to establish an offence under Section 3(ii)(v) of the SCST Act, the prosecution is required to prove that the offence is committed on the ground that such person is a member of scheduled caste or scheduled tribe. In the case of Asrafi Vs. State of Uttar Pradesh (Criminal Appeal No.1182 of 2015, decided on 08.12.2017), the Supreme Court while interpreting unamended Section 3(2)(v) has observed that the statute laid stress on the intention of the accused in committing such offence and provisions can be pressed into service only it is proved that the offence has been committed on the ground that the victim belonged to SCST community and in absence of evidence proving intention of the accused in committing the offence, upon the victim only because she belongs to SCST community, the conviction cannot be sustained. The same view has been reiterated by the Supreme Court in the case of Asrafi Vs. State of U.P. (2018 (1) SCC 742) and in the case of Khuman Singh Vs. State of Madhya Pradesh (Criminal Appeal No.1283 of 2019, decided on 27.08.2019) and thereafter, in the case of Patan Jamal Vali Vs. State of Andhra Pradesh (AIR 2019 SC Page-2190).

Recently, the Supreme Court in the case of Keshaw Mahto @ Keshaw Kumar Mahto Vs. State of Bihar, [Special Leave Petition (Cri) No. 12144 of 2025 dated 12.01.2026, (Coram: Honourable Mr. Justice J. B. Pardiwala and Hon’ble Mr. Justice Alok Aradhe, JJ.], on the identical issue, after referring its earlier judgment (Shajan Skaria Vs. State of Kerala, 2024 SCC On-line SC 2249), held that, the offence under Section 3(i)(r), cannot stand merely on the fact that the complainant is a member of Scheduled Caste or a Scheduled Tribe, unless the insult or intimidation of the intention to humiliate member of such community. The Supreme Court in para-14 of the judgment, lays down that, even mere a knowledge of the fact that, the complainant is a member of Scheduled Caste is not sufficient to attract Section 3(i)(r).

Reverting to the facts of the present case, and in view of the settled legal position of law, there is nothing on record to show that the offence was committed because of victim belonged to SCST caste. In that view of the matter, we are of the considered opinion that the prosecution failed to bring on record any evidence which may demonstrate that the victim was kidnapped and rapped on the ground of her being scheduled caste and merely because victim is a scheduled caste would not automatically attract the offence under Section 3(ii)(v) of the SCST Act.

For the above reasons, we set aside the judgment of conviction and order of sentence dated 21.03.2016 convicting the accused appellant under Section 3(ii)(v) of the SCST Act. Accordingly, the present appeal is allowed in part. R & P shall be returned forthwith. If the fine deposited qua the offence under Section 3(ii)(v) of the SCST Act, it shall be refunded.

The present appeal stands disposed of in the aforesaid terms.