Court No.20.
Criminal Appeal No.790 (M/B) of 2005.
Neelu v. State of U.P. and others
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Hon'ble Raj Mani Chauhan, J.
Hon’ble V.K.DIXIT,J.
Heard learned counsel for the appellant, learned A.G.A. on the prayer
for bail of accused appellant and perused the impugned judgement and order
of trial court as well trial court record.
This criminal appeal has been filed by the accused-appellant against
the judgment and order dated 30.4.2005 passed by the then Additional &
Sessions Judge, Court No.2, Sitapur in Session Trial No.334/2001 (Case
Crime No.163 of 2000, State vs. Niloo) under Sections 377, 306 I.P.C. and 3
(2) (V) S.C./S.T. Act, Police Station Khairabad, District Sitapur whereby
learned Additional & Sessions Judge has found the accused-appellant guilty
under Sections 377, 306 I.P.C. and 3 (2) (V) S.C./S.T. Act. Consequently, he
has convicted and sentenced him to undergo rigorous imprisonment for life
and to pay fine of Rs.5000/- under Section 3 (2) (V) S.C./S.T. Act to undergo
rigorous imprisonment for seven years and and to pay fine of Rs.5000/- under
Section 377 I.P.C. and to undergo rigorous imprisonment for a period of
seven years and to pay fine of Rs.5000/- under Section 306 I.P.C. In case of
default of payment of fine, the accused was ordered to further undergo
rigorous imprisonment for one year under each of the Sections 3 (2) (V)
S.C./S.T. Act and 377, 306 I.P.C.
The submissions of the learned counsel for the appellant is that the
accused-appellant has been convicted by the learned Additional & Sessions
Judge under Sections 377 and 306 I.P.C. as well as under Section 3 (2) (V)
S.C.& S.T. Act while accused-appellant cannot be convicted under Section 3
(2) (V) S.C./S.T. Act independently. The offence under Section 3 (2) (V)
S.C./S.T. Act is not a substantive offence and the accused -appellant can only
be convicted under Section 3 (2) (V) S.C./S.T. Act with the aid of Section 377
I.P.C. Learned counsel in support of his argument has placed reliance on the
cases of Ramesh vs. State of U.P., reported in 2009 (1) JIC 451 (Alld) and
Shri Narayan Dwivedi v. State of U.P. reported in 2009 (1) JIC 2003 (All).
Learned counsel for the appellant-accused submits that the cases Ramesh
vs. State of U.P., and Shri Narayan Dwivedi & others v. State of U.P
(Supra) Division Bench of this Court has specifically held that the offence
under Section 3 (2) (V) S.C./S.T. Act is not substantive offence. The appellant
can be convicted under Section 3 (2) (V) of S.C./S.T. Act with the aid
substantive offence under the Indian Penal Code. The sentence awarded by
the learned Additional Sessions Judge under Section 3 (2) (V) of the S.C./S.T.
Act is apparently illegal and liable to be set aside. As regards, the sentences
in other offences, accused-appellant has already undergone jail more than the
sentence awarded to him. He, therefore, deserves to be released on bail.
The accused-appellant cannot be convicted independently under Section 3 (2)
(V) S.C./S.T. Act.
Learned A.G.A. opposed the prayer for bail and argued on plain
reading of Section 377 I.P.C., it appears that Section 3 (2) (V) S.C./S.T. Act is
substantive offence for which accused has been independently convicted,
therefore, the impugned order of conviction of the accused-appellant under
Section 3 (2) (V) S.C./S.T. Act is illegal. Keeping in view the nature of the
offence the accused does not deserve to be released on bail.
We have given thoughtful consideration to the submissions and the
arguments advanced by the learned counsel for the appellant and learned
A.G.A.
Considering the submissions of the learned counsel for the appellant,
learned Additional Government Advocate and keeping in view the statements
of prosecutrix as well as law laid down by the Division Bench of this Court,
without expressing any opinion on the merits of the case, the accused-
appellant may be released on bail.
Let appellant Neelu be released on bail in the aforesaid Sessions Trial
number during pendency of the appeal on his furnishing a personal bond with
two sureties each in the like amount to the satisfaction of the court concerned.
The realization of fine will remain stayed provided the appellant
deposits Rs.10000/- towards payment of fine within sixty days from the date of
his release, failing which this bail order shall stand cancelled.
Dt:20.7.2010.
sks