# Kisan Chandra (In Jail) v. State of U.P

- **Citation:** (2009) 1 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-15
- **Case number:** Criminal Misc. Application No. 5674 of 2007
- **Bench:** R.M. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kisan-chandra-in-jail-v-state-of-u-p-41329
- **Pages:** 4

## Headnote

Sri R.D. Yadav
Sri S.U. Khan
A.G.A

Criminal Appeal-Bail in pending appealappellant already served more than half
of punishment awarded-offence under
Section 304 B,498 IPC read with Section
4 of D.P.Act 10 year RI and 2000-fineaccused already detained for more than
5 years-No possibility of final decision of
appeal in coming future-held-entitled for
Bail.

Held: Para 12 & 14

In this case, the accused has already
spent more than the half of the sentence
awarded by the trial court to him, i.e., he
has spent five years and five months in
jail out of the ten years sentence
awarded by the trial court.

This appeal is pending since long and
there is no possibility that it will be
taken up for hearing in near future.
Keeping in view of the observations of
the Hon'ble Apex Court in the above
cited cases as well as the submissions of
the learned counsel for the appellant,
without prejudice to the merit of the
appeal,
let
the
accused-appellant
convicted and sentenced in the session
trial mentioned above, be released on
bail during the pendency of the appeal
on his executing personal bond with two
sureties each in the like amount to the
satisfaction of the court concerned.
Case law discussed:
2001 SCC (Crl.)-714, (2006) 1 SCC (Crl.) 757,
2001 SCC (Crl.)-714, (2006) 1 SCC (Crl.) 757.

## Text

126 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the contrary. Therefore, the appointment
of the petitioner made on 22.12.1978 on
compassionate ground considered to be
temporary appointment though there is
recital in the order. It should be
considered as permanent appointment
and, therefore, recovery of the amount of
Rs.18,485/- on the ground that the
services of the petitioner were regularized
as Lekhpal on 26.10.1981 and not on
22.01.1979 is illegal.

11. In the result, writ petition is
allowed. Order dated 31.12.2002 passed
by the respondent no. 2, Administrative
Officer, Tehsil Saidpur, district Ghazipur
is quashed.

Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.01.2009

BEFORE
THE HON'BLE R.M. CHAUHAN, J.

Criminal Misc. Application No. 5674 of
2007

Kisan Chandra
...Appellant (In Jail)

Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri Gautam,
Sri N.K. Chaudhary

Counsel for the Opposite Party:
Sri R.D. Yadav
Sri S.U. Khan
A.G.A

Criminal Appeal-Bail in pending appealappellant already served more than half
of punishment awarded-offence under
Section 304 B,498 IPC read with Section
4 of D.P.Act 10 year RI and 2000-fineaccused already detained for more than
5 years-No possibility of final decision of
appeal in coming future-held-entitled for
Bail.

Held: Para 12 & 14

In this case, the accused has already
spent more than the half of the sentence
awarded by the trial court to him, i.e., he
has spent five years and five months in
jail out of the ten years sentence
awarded by the trial court.

This appeal is pending since long and
there is no possibility that it will be
taken up for hearing in near future.
Keeping in view of the observations of
the Hon'ble Apex Court in the above
cited cases as well as the submissions of
the learned counsel for the appellant,
without prejudice to the merit of the
appeal,
let
the
accused-appellant
convicted and sentenced in the session
trial mentioned above, be released on
bail during the pendency of the appeal
on his executing personal bond with two
sureties each in the like amount to the
satisfaction of the court concerned.
Case law discussed:
2001 SCC (Crl.)-714, (2006) 1 SCC (Crl.) 757,
2001 SCC (Crl.)-714, (2006) 1 SCC (Crl.) 757.

(Delivered by Hon'ble R.M. Chauhan, J.)

1. The learned A.G.A. Has already
filed objection against the prayer of bail.

2. This appeal has been filed by the
accused appellant Kisan Chandra, son of
Vishwanath,
resident
of
Village
Madpawna, P.S. Ghanghata, district Sant
Kabir Nagar, against the judgment and
order dated 07.07.2007 passed by the
learned Additional Session/Special Judge
(E.C. Act), Basti in S.T. No. 202 of 2004
(Case Crime No. 366 of 2003) State Vs.
Kisan Chandra and others, whereby the
learned Sessions Judge held the accused
guilty under section 304 B, 498 I.P.C. and
section 4 of the D.P. Act, P.S. Ghanghata,
1 All] Kisan Chandra V. State of U.P.
127
district Sant Kabir Nagar. Consequently,
the learned Sessions Judge has convicted
and sentenced the accused to undergo RI
for ten years and to pay fine of Rs.2000/
under section 304 B I.P.C., to undergo RI
for two years and to pay fine of Rs.1000/-
under section 498 I.P.C. and to undergo
RI of one year and to pay fine of
Rs.1000/- under section 4 of the D.P. Act.
The sentence further directs that in case
the accused fails to pay the amount of
fine, he will further undergo additional RI
for one month for each of the offence i.e.,
under sections 304B, 498A and section 4
of the D.P. Act. All the sentence were
ordered to run concurrently.

3. The prosecution case in brief is
that the complainant Kauleshwar had
married his daughter Anita to accused
Kisan Chandra, son of Vishwanath,
resident of Village Madpawna, P.S.
Ghanghata, district Sant Kabir Nagar,
sometimes three years back prior to the
date of occurrence, when she went to her
nuptial home following her marriage, her
husband Kisan Chandra, her father in law
Vishwanath and her younger father in law
(Uncle in law) Jheenak expressed their
dissatisfaction over the dowry, her father
had presented to accused Kisan Chandra.
They started a fresh demand of a golden
chain and motorcycle from the deceased
in the from of dowry. When their demand
was not satisfied, they used to harass and
torture her. They lastly caused her death
on 31.10.2003 for demand of dowry. The
complainant lodged the first information
report
of
the
occurrence
at
P.S.
Ghanghata. The investigating Officer
after investigation submitted charge sheet
against the accused for the aforesaid
offences, which later on gave rise to
session trial as mentioned above.

4. Heard the learned counsel for the
appellant and the learned A.G.A on the
prayer of bail during the pendency of
appeal.

5. The learned counsel for the
appellant contends that all the three
accused were tried by the learned
Additional
Sessions
Judge
for
the
aforesaid
offences.
The
prosecution
allegation against all the accused are the
same. The prosecution led the same
evidence against all the accused. The
learned Additional Sessions Judge found
that
the
charges
levelled
against
Vishwanath and Jheenak were not proved
beyond
all
reasonable
doubt.
Consequently, he acquitted them of the
charges levelled against them. Since, the
evidence led by the prosecution against
the accused was the same. Therefore, the
charges against the present accused, who
is the husband of the deceased could not
be held to have been established beyond
doubt. The finding of the learned Sessions
Judge as against the present accused
apparently appears to be not based on
proper appreciation of the evidence of
record. The present accused like the other
co accused was also entitled to the benefit
of doubt.

6. The learned counsel further
contends that in this case, accused is in
jail since 30.10.2003. In this way, he has
spent in jail more than the half sentence
awarded by the trial court to him. There is
no possibility that the appeal will be heard
on merit in near future. The accused
therefore, should not be detained till the
disposal of the appeal. The accused
deserves to be released on bail.

7. The learned counsel in support of
his contention has placed reliance on the
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
case of Akhtari Bi (Smt.) Vs. State of
Madhya Pradesh, 2001 SCC (Crl.)-714
and Kamal Vs. State of Haryana(2006)
1 SCC (Crl.)757 decided by Hon'ble apex
Court.

8. The learned A.G.A. Opposed the
bail and argued that the present accused is
the
husband
of
the
deceased.
Undisputedly, the deceased had met to
unnatural death in her nuptial home
within seven years of her marriage. The
allegation of demand of dowry is there,
which has been proved by the prosecution
witnesses. As per prosecution case, the
accused were demanding golden chain
and motorcycle from the deceased in the
form of dowry. The accused being
husband of the deceased was beneficiary
to the dowry. He therefore, cannot escape
away from the criminal liability of the
dowry death of his wife. In view of the
nature of offence the accused does not
deserve to be released on bail.

9. Considered the submissions of the
learned counsel for the appellant and the
learned A.G.A. And gone through the
case laws cited by the learned counsel for
the appellant impugned judgment and the
trial court's record. 3.

10. In the case of Akhtari Bi (Smt.)
Vs. State of Madhya Pradesh, 2001
SCC (Crl.)-714, the Hon'ble Apex Court
has held that a criminal appeal filed by a
convict should be decided by the High
Court within five years of its filing. If the
appeal is not disposed of within five years
for no fault of the accused-appellant, the
accused should be released on bail except
in special circumstances. The relevant
observation of the Hon'ble Apex Court is
being extracted below:

"If an appeal is not disposed of
within the aforesaid period of five
years, for no fault of the convicts, such
convicts may be released on bail on
such conditions as may be deemed fit
and proper by the court. In computing
the period of five years, the delay for
any period, which is requisite in
preparation of the record and the delay
attributable to the convict or his
counsel can be deducted."

11. In case of Kamal Vs. State of
Haryana (2006) 1 SCC (Crl.) 757, the
Hon'ble Apex Court ordered to release an
accused on bail in appeal filed by him
where he had served two ears and four
months in jail out of the seven years of
imprisonment awarded to him by the trial
court.

12. In this case, the accused has
already spent more than the half of the
sentence awarded by the trial court to
him, i.e., he has spent five years and five
months in jail out of the ten years
sentence awarded by the trial court.

13. Considered the submissions of
the learned counsel for the appellant and
the learned A.G.A.

14. This appeal is pending since
long and there is no possibility that it will
be taken up for hearing in near future.
Keeping in view of the observations of
the Hon'ble Apex Court in the above cited
cased as well as the submissions of the
learned counsel for the appellant, without
prejudice to the merit of the appeal, let the
accused-appellant
convicted
and
sentenced in the session trial mentioned
above, be released on bail during the
pendency of the appeal on his executing
personal bond with two sureties each in
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,