By the Court.—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 20.3.2009 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 cannot 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 Chandrapal 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 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