- (1.) HEARD Sri Jagdish Singh Sengar learned counsel for the appellant Ram Lal @ Lal Baba, Sri Ashok Kumar Mishra learned counsel for the appellant Shiv Dutt and Sanjay, Sri Dhirendra Kumar Srivastava (earned counsel for the appellant Raja Ram, Sri Prakash Dwivedi learned counsel for the com plainant and learned AGA for the State and also perused the record.
(2.) IN all the aforesaid appeals, prayer for bail has been made on behalf of the appellants-accused, who have been convicted for the offences punishable under Sections 302/34, 324/34, 323/34, 436/34 IPC in S. T. No. 102 of 1999 (State v. Shiv Dutt and others) and the appellant Ram Lal @ Lal Baba has been convicted under Section 25 Arms Act in connected ST. No. 103 of 1999 (State v. Ram Lal @ Lal Baba), Police Station Chunar, District Mirzapur, vide judgment and order dated 25. 10. 2007, passed by Smt. Sandhya Bhatt, the then Session Judge, 'mirzapur. It is contended by learned counsel for the appellants-accused that dispute had arisen between the parties on the question of right of possession in respect of plot No. 225. As per the FIR version, appellant Ram Lal @ Lal Baba and Shiv Dutt are said to have fired on the deceased, but the injuries sustained by the deceased show that fires were made from long distance and hence having regard to the injuries on the person of deceased, intention to cause death cannot be inferred. : It is further argued that there is cross version of the said incident and on the side of appellants accused, the appellants Shiv Dutt and Sanjay had sus tained grievous injuries, but no explanation of their injuries has been furnished by the prosecution.
(3.) HOWEVER, the bail has been resisted by the learned AGA and counsel for the complainant contending that the complicity of the appellants-accused in the said incident is fully established on the basis of the evidence adduced by the prosecution. It is also submitted that the injuries of the appellants-accused Sanjay and Shiv Dutt have been fabricated and no case from the side of accused appel lants was got registered and hence the prosecution was not obliged to furnish explanation of the injuries of these appellants. Having regard to the facts and circumstances of the case, without ex pressing any opinion on the merit, the appellants deserve bail. 7- Let the accused appellants Ram Lal @ Lal Baba, Shiv Dutt, Sanjay and Raja Ram be released on bail for the offences indicated above, during the pen dency of this appeal subject to their executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of Trial Court concerned. 8. It is worthwhile to mention that the learned Trial Court has not imposed fine in any offence, whereas it is mandatory to impose fine in addition to the substan tive sentence of imprisonment in the offences punishable under Sections 302 and 436ipc, as the expression used by the legislature in these sections is "and shall also be liable to fine". Where such language is used in any section, the Court is under obligation to impose fine also in addition to the substantive sentence of imprisonment and no discretion is left to the Court to levy or not to levy fine. 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 others, AIR 1999 SC 2881. The Registrar General is directed to send a copy of this order within a week to Smt. Sandhya Bhatt (the then Session Judge Mirzapur) for her future guid ance. .;