JUDGMENT S.S. Kulshrestha and Vijay Kumar Verma, JJ.
1. Heard Sri Tahir Husain Farooqui, learned Counsel for the appellants and learned A.G.A. for the State and perused the material on record.
Bail application on behalf of the accused-appellants Ashfaq Ali and Azad Khan convicted for the offences under Section 302 read with Section 34 and 201 I.P.C. in S.T. No. 89 of 2001 vide judgement dated 26.10.2007 passed by Sri Brijesh Kumar, the then Additional Sessions Judge (Court No. 2), Kannauj has been pressed on the ground that the entire case has been fabricated against them. They are said to be doing business of sale and purchase of she-goats. On 2nd November, 2000, accused-appellants along with their third companion namely Mustakim came on the house of the complainant. They persuaded the deceased to join them for making the purchase of she-goats. The deceased had taken Rs. 2,500/- with him and since that day, he had not come back. During the pendency of the trial. third accused namely Sri Mustakim died and the case stood abated against him. Against the appellants-accused substantial evidence is missing. Last seen evidence does not inspire confidence. No incriminating article is said to have been recovered on the pointing out of the appellants-accused. They were involved in this case only when the dead body after four days was recovered.
2. However, the bail has been resisted by learned A.G.A. contending that there is sufficient evidence to establish the complicity of the appellants in the alleged incident.
3. Having regard to all the facts and circumstances of the case, without expressing any opinion on merit, the appellants-accused may be admitted on bail.
4. Let the appellants Ashfaq Ali and Azad Khan be released on bail for the offences indicated above, on their executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Trial Court concerned and subject to the deposit of fine amount.
5. It is worthwhile to mention that the learned Trial Court has not imposed fine for any offence, 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 substantiative 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 case of Rajasthan Pharmaceuticals Laboratory, Bangalore v. State of Karnataka ).
6. Let a copy of this order be sent by Registrar General within a week to Sri Brijesh Kumar, the then Additional Sessions Judge, Court No. 2, Kannauj for his future guidance.