Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Section 3(2)(v) SC/ST Act Will Not Be Attracted In Those Cases Where The Offence Committed Under IPC Is Punishable Less Than Ten Years' Imprisonment.
JUDGEMENT TITLE : Munni Devi Vs. State Of U.P. On 31/03/2009 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1716 OF 2009
CORAM : Munni Devi Vs. State Of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 44
Crl. Appeal No. 1716 Of 2009
Munni Devi......................................Appellant
Vs.
State Of U.P......................................Respondent

Hon. Shiv Charan,J.
Hon. Vijay Kumar Verma,J.

Heard Sri A.B.L. Gaur, Senior Advocate, Appearing For The Appellant And Learned AGA For The State On The Prayer Of Bail Of The Appellant Munni Devi, Who Has Been Convicted And Sentenced Under Section 363 IPC Read With Section 3 (2) (v) Scheduled Castes And Scheduled Tribes (Prevention Of Atrocities) Act 1989 (in Short 'the SC/ST Act') And 366 IPC By Sri S.N. Tripathi, The Then Spl. Judge (SC/ST Act)/ Additional Sessions Judge, Fast Track Court No. 4, Aligarh Vide Judgment Dated 20.03.2009 Passed In S.T. No. 1417 Of 2002 Connected With S.T. No. 95 Of 2003, P.S. Banna Devi, District Aligarh. For Both These Offences The Appellant Has Been Sentenced To Undergo Rigorous Imprisonment For Five Years And To Pay A Fine Of Rs. 5000/- Separately With Default Stipulation.
2. Learned Counsel For The Appellant Argued That The Sentence Awarded Is Only Of Five Years And Hence The Appellant, Who Was On Bail During Trial And Did Not Misuse The Same, Should Be Admitted To Bail Pending Appeal. Learned Counsel For The Appellant Further Argued That Prosecution Story Appears To Be Highly Improbable And Doubtful. It Has Come In Evidence That The Prosecutrix Mamta Had Married With Co-accused Chandra Pal, But In The Court, She Refused Even To Identify Him And On This Ground Chandra Pal And Some Other Accused Persons Were Acquitted. Learned Counsel For The Appellant Also Argued That The Prosecutrix Went To Several Places During The Period Of More Than Three Months In Bus And Through Several Other Transport And In These Circumstances, It Can Not Be Said That She Was Kidnapped Against Her Wishes. It Is Further Argued That According To Medical Evidence, The Age Of Km. Mamta Was Found About 17 Years And If In View Several Decisions Of Hon'ble Apex Court And This Court, Margin Of Two Years Is Given, Then Age Of The Prosecutrix Would Come More Than 18 Years. It Is Also Submitted That The Prosecutrix Was Major And She Had Gone With Chandra Pal With Her Consent And Was A Consenting Party In All Activities And She Was Never Kidnapped By The Appellant Or Any Other Accused.
3. Learned AGA Opposed The Bail And Argued That The Prosecutrix Was Kidnapped By The Appellant And Other Accused Persons From Her House And Thereafter Gang Rape Was Committed On Her By Other Accused Persons And Hence The Trial Court Was Justified In Convicting The Appellant.
4. We Have Considered All The Facts And Circumstances Of The Case As Well As The Submissions Made By The Learned Counsel For The Parties. Without Making Any Comment About The Submissions Made By The Parties Counsel, Considering Over All Facts As Well As The Sentence Awarded By The Trial Court, We Are Of The Opinion That It Is A Fit Case For Bail.
5. Let The Appellant Munni Devi Be Released On Bail In The Above Case During Pendency Of Appeal On Her Furnishing A Personal Bond With Two Sureties Each In The Like Amount To The Satisfaction Of Trial Court Concerned And Subject To Deposit Of 50% Of Fine Prior To The Release On Bail.
6. On Depositing 50% Fine, The Remaining 50% Amount Of Fine Shall Remain Stayed Till Disposal Of Appeal.
7. Before Parting With The Order, We Would Like To Comment On The Legal Approach Of The The Learned Trial Judge, Who Has Committed Glaring Mistake In Convicting And Sentencing The Appellant Munni Devi, Under Section 363 Read With Section 3 (2) (v) SC/ST Act. Section 3 (2) (v) SC/ST Act Reads Thus:-
" 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 Language Used By The Legislature In Section 3 (2) (v) SC/ST Act , Enhanced Sentence Of Life Imprisonment With Fine With The Aid Of This Section Can Be Awarded In Those Cases Where The Accused, Not Being A Member Of 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 A Scheduled Caste Or A Scheduled Tribe Or Such Property Belongs To Such Member. From The Plain And Unambiguous Language Of Section 3 (2) (v) SC/ST Act. It Is Crystal Clear That This Section Does Not Constitute Any Substantive Offence And If Any Accused Not Being A Member Of 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 A Scheduled Tribe, Then Enhanced Sentence Of Life Imprisonment With Fine Will Be Awarded. It Means That, If Any Accused Commits Any Offence Under The Indian Penal Code Punishable With Imprisonment For A Term Less Than Ten Years, Then Section 3 (2) (v) SC/ST Act Can Not Be Attracted In Such Case. In The Present Case, The Learned Trial Judge Has Convicted The Accused Munni Devi, Pankaj, Ajay Kumar @ Pappu And Banwari Under Section 363 IPC Read With Section 3 (2) (v) SC/ST Act, Which Is Wholly Illegal, Because Section 363 IPC Is Punishable With Imprisonment For A Term Which May Extend To Seven Years. Since The Offence Under Section 363 IPC Is Not Punishable With Imprisonment For A Term Of Ten Years Or More, Hence The Accused Persons Could Not Be Convicted Under This Section With The Aid Of Section 3 (2) (v) SC/ST Act And They Could Be Convicted Under Section 363 IPC Simplicitor.
9. Another Mistake Committed By The Learned Trial Judge Is That Aforesaid Accused Persons Have Been Convicted Under Section 366 IPC Also And They Have Been Sentenced To Undergo Imprisonment For Five Years And To Pay A Fine Of Rs. 5000/- Each. Although The Conviction Of The Appellant And Some Other Accused Under Section 363 IPC Read With Section 3 (2) (v) SC/ST Act Is Illegal, But It Indicates That In The Opinion Of The Learned Trial Judge, The Offence Of Kidnapping Was Committed By The Accused Persons On The Ground That The Prosecutrix Belongs To Scheduled Cast And It Was For This Reason That The Learned Trial Judge Has Convicted The Accused Persons Under Section 363 IPC Read With Section 3 (2) (v) SC/ST Act. In Such Situation, The Accused Persons, Who Do Not Belong To Schedule Caste Or Scheduled Tribe, Ought To Have Been Convicted Under Section 366 IPC Read With Section 3 (2) (v) SC/ST Act, Because Section 366 IPC Is Punishable With Imprisonment For A Term Which May Extend To Ten Years And In That Case, Minimum Sentence Of Imprisonment For Life And Fine Ought To Have Been Awarded Under Section 366 IPC Read With Section 3 (2) (v) SC/ST Act, Whereas Sentence Of Five Years' Imprisonment With Fine Has Only Been Awarded Under Section 366 IPC In The Impugned Judgment. The Manner In Which The Conviction And Sentence For The Offences Under Section 363 And 366 IPC Has Been Recorded In The Impugned Judgment Shows That The Learned Trial Judge Is Not Well Equipped With Criminal Law, Which Is Really Very Unfortunate.
10. Registrar General Is Directed To Send A Copy Of This Order Through The District Judge Concerned Within A Week To Sri S.N. Tripathi, The Then Additional District & Sessions Judge/Spl. Judge/ Fast Track Court No. 4, Aligarh, Who Is Advised To Improve His Legal Knowledge By Perusing Law Books.

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