Gyanendra alias Lauwa vs State of U.P.

Shiv Charan and Vijay Kumar Verma, JJ.—Heard Shri B.N. Singh, advocate holding brief of Sri Gajendra Chauhan, counsel for the Appellant and learned A.G.A. for the State on the prayer of bail of the Appellant-Gyaendra alias 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. 33/05, State v. Gyanendra Singh alias Lauwa Special S.T. No. 33/05, u/s 376, I.P.C. and Section 3(2)(v) of Scheduled Castes/Scheduled Tribes (Prevention of Attrocities) Act (in short, "S.C./S.T. Act"), P. S. Bewar, district Mainpuri. We have also perused the entire material available on record.

Learned Counsel for the Appellant argued that learned Special Judge wrongly convicted and sentenced the Appellant for the offence u/s 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 u/s 3(2)(v) of S.C./S.T. Act, simplicitor and passing separate sentence under this Section, as Section 3(2)(v) of S.C./S.T. Act, does not constitute any substantive 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 evidence regarding the factum of rape. Neither 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.

Learned Counsel for the Appellant further argued that there was reason against the victim for falsely implicating the Appellant. A perusal of the F.I.R. 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 litigation. He (Ranvir Singh Jatav) was ploughing the agricultural land of the Appellant on batai and in order to pressurize Ranvir Singh Jatav, the Appellant has been falsely implicated in this case. It is further argued that the Appellant was on bail during trial and he did not misuse the bail.

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.

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.

Let the Appellant-Gyanendra alias Lauwa be released on bail in above case till disposal of the appeal provided he furnishes personal bond and two sureties in the like amount to the satisfaction of the Court concerned. Realisation 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.

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. 5,000 u/s 3(2)(v) of S.C./S.T. Act. He has also been convicted separately u/s 376, I.P.C. and sentenced to undergo imprisonment for ten years and to pay a fine of Rs. 5,000. This method of convicting and sentencing the Appellant is not in accordance with law. Section 3(2)(v) of S.C./S.T. Act, does not constitute any substantive offence and hence, conviction and sentence of the Appellant u/s 3(2)(v) of S.C./S.T. Act, simplicitor is wholly illegal. Section 3(2)(v) of S.C./S.T. Act, provided 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 imprison-ment 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.

As would appear from the language used by the Legislature in Section 3(2)(v) of S.C./S.T. 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 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)(v) of S.C./S.T. Act, enhanced punishment of life imprisonment would be awarded in such case, but conviction and sentence u/s 3(2)(v) of S.C./S.T. Act, simplicitor is not permissible under law and in such case the accused will be convicted for the offence under Indian Penal Code read with Section 3(2)(v) of S.C./S.T. Act, and sentence of imprisonment for life and fine will be awarded. Therefore, the Appellant could not be convicted and sentenced u/s 3(2)(v) of S.C./S.T. Act, simplicitor in present case.

Mistake which has been committed by the learned Sessions Judge in present case in convicting and sentencing the Appellant u/s 3(2)(v) of S.C./S.T. Act, simplicitor, has been noticed by us in many other cases also.

The Registrar General is directed to send a copy of this order to Sri Prem Nath, the then Special Judge S.C./S.T. Act/Fast Track Court No. 3, Mainpuri for his future guidance.