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2009 DIGILAW 218 (ALL)

GYANENDRA ALIAS LAUWA v. STATE OF U P

2009-01-22

SHIV CHARAN SHARMA, V.K.VERMA

body2009
SHIV CHARAN AND VIJAY KUMAR VERMA, JJ. Heard Shri B. N. Singh, Ad vocate holding brief of Sri Gajendra Chau han, Counsel for the appellant and learned A. G. A. for the State on the prayer of bail of the appellant Gyanendra @ Lauwa, who has been convicted by Sri Prem Nath, the then Special Judge, S. C. /s. T. Act, Fast Track Court No. 3, Mainpuri in Special S. T. No. 33/2005 (State v. Gyanendra Singh @ Lauwa) under section 376 I. P. C. and section 3 (2) (5) Scheduled Castes/schedule Tribes (Prevention of Atrocities) Act (in short, "sc/st Act"), P. S. Bewar, District Main puri. We have also perused the entire ma terial available on record. 2. Learned Counsel for the appellant argued that learned Special Judge wrongly convicted and sentenced the appellant for the offence under section 376 I. P. C. without any reliable evidence. Learned Counsel also argued that Special Judge committed gross illegality in convicting the appellant for the offence under section 3 (2) (5) SC/st Act simplicitor and passing separate sen tence under this section, as section 3 (2) (5) SC/st Act does not constitute any sub stantive offence. It is further contended by the learned Counsel that the victim is a lady of about 70 years of age, whereas the age of the appellant is about 50 years and there appears no probability and possibility of the appellant committing rape on an aged lady of about seventy years. There is no corroboration from the medical evi dence regarding the factum of rape. Nei ther any injury was found on the private part of the victim nor any spermatozoa was found in the report. The prosecution has suppressed the pathology report and hence, inference may be drawn against the prosecution that no sperm was found in vaginal smear. 3. Learned Counsel for the appellant further argued that there was reason against the victim for falsely implicating the appellant. A perusal of the FIR shows that the victim was on inimical terms with one Ranvir Singh Jatav of the same caste due to property dispute and litigation was pending in between them. Ranvir Singh was pressuring to compromise in the liti gation. He (Ranvir Singh Jatav) was ploughing the agricultural land of the ap pellant on batai and in order to pressurise Ranvir Singh Jatav, the appellant has been falsely implicated in this case. Ranvir Singh was pressuring to compromise in the liti gation. He (Ranvir Singh Jatav) was ploughing the agricultural land of the ap pellant on batai and in order to pressurise Ranvir Singh Jatav, the appellant has been falsely implicated in this case. It is further argued that the appellant was on bail dur ing trial and he did not misuse the bail. 4. A. G. A. opposed the prayer of bail. Written objections have also been filed against the prayer of bail and it has been argued that very serious offence has been committed by the appellant in committing the rape of a very old lady of seventy years of age. 5. We have considered all the facts and circumstances of the case as well as the arguments of the learned Counsel for the appellant and A. G. A. Without expressing any opinion on merit of the case, we are of the opinion that it is a fit case of bail. 6. Let the appellant Gyanendra @ Lauwa be released on bail in above case till disposal of the appeal provided he fur nishes personal bond and two sureties in the like amount to the satisfaction of the Court concerned. Realization of fine to the extent of fifty per cent shall remain stayed till disposal of the appeal. Remaining fifty per cent fine shall be deposited before the Trial Court within one month from the date of this order, but prior to the release. 7. It is worthwhile to mention that the learned Special Judge has convicted and sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs. 5000/- under section 3 (2) (5) SC/st Act. He has also been convicted separately un der section 376 I. P. C. and sentenced to un dergo imprisonment for ten years and to pay a fine of Rs. 5000/ -. This method of convicting and sentencing the appellant is not in accordance with law. Section 3 (2) (5) SC/st Act does not constitute any sub stantive offence and hence, conviction and sentence of the appellant under section 3 (2) (5) SC/st Act simplicitor is wholly il legal. Section 3 (2) (5) SC/st Act provides as under:- "3 (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- (i ). . . . . . . . . . . . . . . . Section 3 (2) (5) SC/st Act provides as under:- "3 (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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;" 8. As would appear from the lan guage used by the Legislature in section 3 (2) (5) SC/st Act, it is clear that this sec tion does not constitute any substantive offence and if any person not being a member of a Scheduled Caste or a Sched uled Tribe commits any offence under the Indian Penal Code punishable with impris onment for a term of ten years or more against a person or property on the ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belongs to such member, then with the aid of section 3 (2) (5) SC/st Act enhanced punishment of life imprisonment would be awarded in such case, but conviction and sentence under section 3 (2) (5) SC/st Act simplicitor is not permissible under law and in such case the accused will be con victed for the offence under Indian Penal Code read with section 3 (2) (5) SC/st Act and sentence of imprisonment for life and fine will be awarded. Therefore, the appel lant could not be convicted and sentenced under section 3 (2) (5) SC/st Act simplicitor in present case. 9. Mistake which has been committed by the learned Sessions Judge in present case in convicting and sentencing the appellant under section 3 (2) (5) simplicitor, has been noticed by us in many other cases also. 10. The Registrar General is directed to send a copy of this order to Sri Prem Nath, the then Special Judge SC/st Act/fast Track Court No. 3, Mainpuri for his future guidance. Appeal Allowed. .