GYANENDRA ALIAS LAUWA Vs. STATE OF U P

JUDGEMENT

(1.) 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.) 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.