JUDGMENT S.S. Kulshrestha and Vijay Kumar Verma, JJ.
1. A Heard Sri Devendra Swarup and Sri Kamal Krishna, learned Counsel for the appellant and learned A.C.A. for the State and also perused the material on record.
2. The bail application on behalf of the appellant-accused Anoop Rathaur convicted for the offence under Sections 302 and 201 I.P.C. in S.T. No. 90 of 2002 vide Judgment dated 17.01.2008 passed by Sri O.P. Goel, 1st Additional Sessions Judge, Kannauj has been pressed on the ground that the case is of no evidence. The son of the complainant disappeared on 22.02.1996, but no report was lodged at the police station.
2. After the recovery of the dead body i.e. on 26.02.1996, the report was lodged. In that report, the accused appellant was not named and subsequently, his name figured in the statement under Section 161 Cr.P.C. Entire evidence was fabricated and the case is dependent on the testimony of the child witness, which too is appearing to have been tutored.
3. Having regard to all the facts and circumstances, without expressing any opinion on merit of the case, the accused-appellant may be admitted to bail.
4. Let the appellant Anoop Rathaur be released on boil for the offence indicated above during the pendency of the appeal on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Trial Court concerned.
5. It is worthwhile to mention that the learned Trial Court has not imposed fine, whereas it is mandatory to impose fine in addition to the substantive sentence of imprisonment for the offence punishable under Section 302 I.P.C., as the language used in Section 302 I.P.C. is, "and shall also be liable to fine". We have come across some other cases also, in which, fine was not imposed by the Trial Courts even for those offences where the expression used by the legislature in the Sections for which conviction was recorded was "and shall also be liable to fine". Where such expression is used in any Section, the Court is under obligation to impose fine also in addition to the substantive sentence of imprisonment. No discretion is left to the Court to levy or not to levy fine and imposition of both imprisonment and fine is imperative in such case, as held by Hon'ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. , in which reference has been made to the or case of Rajasthan Pharmaceuticals Laboratory, Bangalore v. State of Karnataka .
6. Let a copy of this order be sent by Registrar Gen oral within a week through the District Judge concerned to Sri O.P. Goel, the then 1st Additional Sessions Judge, Kannauj for his future guidance.