# Jadu Nath & others (In Jail v. State of U.P

- **Citation:** (2009) 1 ILRA 129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-02-05
- **Case number:** Criminal Appeal No.5736 of 2007
- **Bench:** Shiv Charan, V.K Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jadu-nath-others-in-jail-v-state-of-u-p-41330
- **Pages:** 4

## Headnote

Code
Section
302punishment of rigorous Imprisonment
only-ignoring mandatory provision for
imposition of fine also-held-court left no
discretion
against
the
statutory
provision-copy of order be send to
concerned Trail court for future guidens.

Held: Para 9

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 IPC, as the
language used in Section 302 IPC 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
Zunjaraao
Bhikaji
Nagarkar vs. Union of India and others
(AIR 1999 SC 2881), in which reference
has been made to the case of Rajasthan
Pharmaceuticals laboratory, Bangalore
V. State of Karnataka (1981) 1 SCC 645).
Case law discussed:
AIR 1999 SC 2881, (1981) 1 SCC 645

## Text

1 All] Jadu Nath and others V. State of U.P.
129
the like amount to the satisfaction of the
court concerned.

15. The realisation of fine imposed
by the trial court against the accused shall
remain stayed during pendency of the
appeal.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2009

BEFORE
THE HON'BLE SHIV CHARAN, J.
THE HON'BLE V.K VERMA, J.

Criminal Appeal No.5736 of 2007
And
Criminal Appeal No. 5598 of 2007
And
Criminal Appeal No. 5681 of 2007
And
Criminal Appeal No. 5682 of 2007

Jadu Nath & others ...Appellants (In Jail

Versus
State of U.P.
 ...Opposite Parties

Counsel for the Appellants:
Sri V.P. Srivastava
Sri Sanjai Kumar Tiwari
Sri V.P. Mishra
Sri Pushpendra Singh Yadav
Sri Umesh Chandra Mishra
Sri Sushil Kumar Dubey
Sri A. Kumar Singh
Sri N.K. Singh
Sri J.K. Mishra
Sri Prem Babu Verma

Counsel for the Opposite Party:
A.G.A.

Indian
Penal
Code
Section
302punishment of rigorous Imprisonment
only-ignoring mandatory provision for
imposition of fine also-held-court left no
discretion
against
the
statutory
provision-copy of order be send to
concerned Trail court for future guidens.

Held: Para 9

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 IPC, as the
language used in Section 302 IPC 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
Zunjaraao
Bhikaji
Nagarkar vs. Union of India and others
(AIR 1999 SC 2881), in which reference
has been made to the case of Rajasthan
Pharmaceuticals laboratory, Bangalore
V. State of Karnataka (1981) 1 SCC 645).
Case law discussed:
AIR 1999 SC 2881, (1981) 1 SCC 645

(Delivered by Hon'ble Shiv Charan, J.)

1. All the above Criminal Appeals
have been instituted against the judgment
and other dated 29.6.2007 passed by
Addl.
Sessions
Judge
Court
No.3
Farrukhabad in Sessions Trial No.346 of
1999 State Vs. Sone Lal and others u/ss
147, 148,149,307,302 IPC P.S. Kampil,
District Farrukhabad. Prayer of bail has
also been made in the above mentioned
appeals on behalf of all the appellants,
namely, Sone Lal, Jadu Nath, Pappu,
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Udaiveer, Rahis, Sibban alias Sheo
Nandan, Kalloo alias Lalaua, Sripal,
Santosh,
Rajendra,
Rajveer,
Raju,
Mahesh, Libbi and Hari Nandan, hence
the prayer of bail is disposed of by
common order.

2. We have heard Sri V.P.
Srivastava Senior Advocate, Sri U.C.
Mishra, Sri S.K. Dube, Sri Pushpendra
Singh Yadav, Sri Sanjai Kumar Tiwari,
Sri A. Kumar and Sri V.P. Mishra learned
counsel for the appellants, learned AGA
for the State and Sri Prashant Saxena
Advocate for the complainant and have
also perused the trial court record as well
as other relevant document.

3. At the outset learned counsel for
the appellants argued that on a careful
consideration of the manner in which the
incident took place according to the
prosecution story, the injuries sustained
by the deceased and injured and number
of the accused persons involved in the
offence only inference can be drawn that
the number of the accused persons is
exaggerated.
It
is
not
possible
to
participate in the commission of the
offence by as many as 15 accused persons
and learned counsel for the appellants
tried to make a distinction in the role
played by each of the accused persons in
the commission of offence and in this
connection it has been argued that Pappu
and Sri Pal appellants were armed with
rifles and on perusal of the injuries of the
deceased as well as of the injured only
inference can be drawn that no injury was
sustained by the rifles. On the strength of
this argument learned counsel for the
appellant tried to emphasize that the
involvement of the accused persons is
false. It has also been argued regarding
Pappu that he was juvenile at the time of
the incident. This point was agitated at the
time of trial before the trial court at a
subsequent stage but prior to judgment.
The learned Sessions Judge declined to
entertain the submission of the appellant
on the ground that this point was not
raised at the earliest available opportunity.
And in this connection learned counsel for
the appellant stated that this point can be
raised even at the appellate stage. It has
also been argued regarding Sone Lal that
he was armed with country made pistol
but role of exhortation has been assigned
to him. However, later on it has also been
alleged that all the accused persons
opened fire from their weapons. And it
has also been argued that his involvement
is also doubtful. Learned counsel also
argued that 12 accused persons were
armed with gun and country made pistol,
one accused was armed with sword and
two armed with rifles and it appears
highly improbable that there was no
dispersal of the pellets of the fire arm.
Learned counsel for the appellant tried to
persuade us that when as many as 12
persons involved and actively participated
in the commission of offence but the fire
arm injuries sustained by deceased as well
as injured are not in proportion to the
weapons used and only inference can be
drawn that they have been involved in this
case falsely. Learned counsel for the
appellants raised certain other points
which are not necessary to be mentioned
for the purpose of disposing of the matter
of bail prayer. This will be considered at
the time of final hearing. Further argued
that they were on bail during trial and did
not misuse the bail.

4. Learned AGA as well as counsel
for the complainant opposed the prayer of
bail of the appellants and argued that the
incident was committed in a very
1 All] Jadu Nath and others V. State of U.P.
131
highhanded manner. All the 15 accused
persons armed with lethal weapons and
caused
injuries
by
their
respective
weapons. It cannot be inferred at this
stage that some of the accused are not
involved in the commission of offence.
Motive was available for committing the
offence and even a baby of two years of
age has not been spared. It has been
argued that FIR was prompt. Incident
took place on 11.6.99 at about 6.30 A.M.
whereas FIR was lodged at the police
station the same day at about 7.30 A.M.
within an hour of the incident. Hence
there was no opportunity available to the
complainant to fabricate a false case
against the appellants or to make
embellishment by exaggerating the story.
That as many as six persons sustained
injuries by different weapons and there
are numerous injuries on the body of the
deceased of fire arm as well as sharp
edged weapons. That the Sessions Judge
was justified in convicting the appellants.

5. We have considered the facts and
circumstances of the case as well as
submissions made by learned counsel for
the appellants, learned AGA for the State
and
counsel
for
the
complainant.
Numerous points have been raised by
learned counsel for the appellants but it is
not possible to give any finding on the
points raised on behalf of the appellants
and point raised by the learned counsel
for the appellants shall be considered at
the time of the final disposal of the
appeal. But seeing the gravity of the
offence we are of the opinion that all the
appellants except Pappu and Sripal are not
entitled for bail.

6. However, we are of the opinion
that the case of the accused Pappu and
SriPal is distinct from rest of the accused
persons. They were armed with rifles but
no injury of rifle was sustained by the
deceased and the injured of Rifle. But
injuries were caused by other fire arms
and sharp edged weapons and without
expressing any opinion on the merit
regarding these two appellants we are of
the opinion that considering the distinct
role of these appellants they are entitled
for bail.

7. Let the appellants Pappu and Sri
Pal involved in the above sessions Trial
be released on bail providedly on their
furnishing
personal
bond
with
two
sureties each in the like amount to the
satisfaction of court concerned.

8. Prayer of bail of rest of the
appellants named above is declined and
rejected.

9. 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 IPC, as the
language used in Section 302 IPC 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 Zunjaraao Bhikaji
132 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Nagarkar vs. Union of India and others
(AIR 1999 SC 2881), in which reference
has been made to the case of Rajasthan
Pharmaceuticals laboratory, Bangalore
V. State of Karnataka (1981) 1 SCC
645).

10. Let a copy of this order be sent
by Registrar General within a week to Sri
Rajeev Kumar Tripathi (H.J.S) the then
Additional Sessions Judge Court No.3
Farrukhabad for his future guidance.

11. However, hearing of the appeal
is expedited. Office is directed to prepare
the typed paper book of the record at the
earliest and list this appeal for final
hearing in the month of May, 2009.
Application rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.01.2009

BEFORE
THE HON'BLE SHIV CHARAN, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Appeal No. 6305 of 2008

Sri Narain Trivedi & others ...Appellants

Versus
State of U.P.

...Opposite party

Counsel for the Appellants:
Sri Jagdish Singh Sengar

Counsel for the Opposite Party:
Sri Manish Srivastava
Sri Saurabh Sinha
Sri Vikas Srivastava

Criminal Appeal-Bail pending appealconviction u/s 3 (2)(5) SC/ST Act
alongwith
separate
conviction
u/s
307/34 IPC-conviction under SC/St Act
simply because the injured belongs
Schduled Cast-held-not proper against
the sprit of section 3(2)(5) of SC/ST Actentitled for Bail.

Held: Para 9

As would appear from the language used
by the Legislature in section 3(2)(5)
SC/ST Act, it is clear that this section
does not constitute any substantive
offence and if any person not being a
member of a Scheduled Caste or a
Scheduled Tribe commits any offence
under the Indian Penal Code 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 Scheduled Caste or
Scheduled
Tribe
or
such
property
belongs to such member, then enhanced
punishment of life imprisonment would
be awarded in such case, meaning
thereby that conviction and sentence
under
section
3(2)(5)
SC/ST
Act
simplicitor is not permissible and in
cases where an offence under the Indian
Penal
Code
punishable
with
imprisonment for a term of ten years or
more is committed 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, then in such
case the accused will be convicted and
sentenced for the offence under Indian
Penal Code read with Section 3(2)(5)
SC/ST Act with imprisonment for life and
also with fine. Therefore, in the present
case,
the
appellants
could
not
be
convicted and sentenced under section
3(2)(5) SC/ST Act simplicitor.

(Delivered by Hon'ble Shiv Charan, J.)

Shri Saurabh Sinha and Sri Manish
Srivastava, Advocates filed parcha pairvi
on behalf of the complainant. It may be
placed on record.

2. Objections filed on behalf of the
State against the prayer of bail be placed
on record.