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2009 DIGILAW 1905 (ALL)

LALLA BHAIYA v. STATE OF U P

2009-04-30

SHIV CHARAN SHARMA, VIRENDRA KUMAR DIXIT

body2009
V. K. DIXIT, J. Heard Sri Anurag Pathak Advocate appearing for the appellant and learned AGA on the prayer of bail of appellant Lalla Bhaiya who was con victed by learned Addl. Sessions Judge/f. T. Court No. 3 Orai in S. T. No. 14 of 2006 State v. Lalla Bhaiya and another under sec tions 363, 363/120, 366 and 366/120, IPC and section 3 (2) (v) SC/st Act P. S. Jalaun District Jalaun and perused the Trial Court record and other relevant record. 2. By the impugned judgment learned Sessions Judge convicted the appel lant for the offence under sections 363 and 366 IPC and section 3 (2) (v) SC/st Act and sentenced maximum to Life imprisonment in section 3 (2) (v) SC/st Act. The appellant has also been convicted and sentenced for the offence under sections 363 and 366 IPC for a period of seven years and impose. fine with default stipulation. 3. It has been argued that there was a love affair in between the victim and Ajai, brother of the appellant. And both of them, namely Ajai and the victim eloped and as per statement of the witness the victim in formed telephonically that both of them had married. That till date neither Ajai nor the victim had been recovered and the ap pellant has been involved in this case only due to the reason as he is the brother of the main accused Ajai. That the appellant was on bail during trial and he had not misused the bail. 4. Learned AGA opposed the bail prayer of appellant and argued that till date the victim had not been recovered. 5. We have considered the facts and circumstances of the case and submissions made by learned Counsel for the appellant and learned AGA. Considering all the facts and without expressing any opinion on the merits of the case it is a fit case for bail. 6. Let the appellant Lalla Bhaiya in volved in the above Sessions Trial be re leased on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of Court con cerned. The realization of fine shall remain stayed to the extent of 50% of the amount of fine and remaining 50% of the fine amount shall be deposited before the Trial Court prior to release on bail. 7. The realization of fine shall remain stayed to the extent of 50% of the amount of fine and remaining 50% of the fine amount shall be deposited before the Trial Court prior to release on bail. 7. Before parting with the judgment we will like to highlight the illegality committed by Sessions Judge in convicting and sentencing the appellant separately under section 3 (2) (v) of SC/st Act and in substantive offence the appellant was sen tenced to seven years imprisonment whereas the appellant has been separately convicted and sentenced to Life Imprison ment under section 3 (2) (v) of SC/st Act. It has been provided in that Act as follows: (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; 8. Hence in view of the above provi sion of section 3 (2) (v) of SC/st Act it is evident that it is an enabling section in or der to award Life Imprisonment in a case when an offence punishable under Indian Penal Code is committed against a person of Scheduled Caste/scheduled Tribe com munity punishable for imprisonment for ten years or more. In the present case sub stantive offence is of sections 363 and 366 IPC and sentence has been awarded for seven years. If learned Sessions Judge was convinced that as the offence has been committed in relation to a person of Schedule Caste community and consider ing the gravity of offence, offender must be awarded for Life Imprisonment in the cir cumstance instead of awarding separate punishment. Under section 3 (2) (v) of SC/st Act for life imprisonment ought to have awarded and sentenced to life im prisonment for the offence under sections 363 and 366 IPC read with section 3 (2) (v) of SC/st Act and in our opinion the sentence awarded by the Sessions Judge separately is not according to the legal position. A copy of the order be sent to the Ses sions Judge concerned for future guidance. Appeal Allowed. .