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2009 DIGILAW 56 (ALL)

NEERAJ v. STATE OF U. P.

2009-01-12

SHIV CHARAN, VIJAY KUMAR VERMA

body2009
JUDGMENT By the Court.—We have heard Sri R.D. Dauholia, learned counsel for the appellant and learned A.G.A. for the State on the prayer of bail of the appellant Neeraj convicted by Shri Ashok Kumar Verma, the then Addl. Sessions Judge, Court No. 9, Bulandshahar in S.T. No. 20/2004 connected with S.T. No 90/2004 and S.T. No. 980/2005 (State v. Pankaj Sharma and others) under Sections 302, 201, 120-B, I.P.C., P.S. Ahmadgarh, District Bulandshahar. 2. Learned counsel for the appellant argued that the co-accused Pankaj, Ajay and Sanjay have already been granted bail by this Court vide order dated 2.12.2008. There are similar allegations against the appellant Neeraj also and on the ground of parity, he is also entitled for bail. Learned counsel also argued that there was no evidence against the appellant for convicting him and the learned Sessions Judge was not justified in convicting the appellant. It is further argued that this appellant was on bail during trial and he did not misuse the bail. 3. Learned A.G.A. has opposed the bail. However, it has not been shown that case of the appellant Neeraj is distinct from the co-accused Pankaj, Ajay and Sanjay, who have already been granted bail in bail application No. 56258 of 2008. 4. We have considered the submissions made by learned counsel for the appellant and learned A.G.A. and we are of the opinion that the case of this appellant Neeraj is identical to other accused Pankaj, Ajay and Sanjay and on the ground of parity, he is also entitled for bail. 5. Let the appellant Neeraj be released on bail in the above case till disposal of the appeal on his furnishing personal bond and two sureties to the satisfaction of the trial Court concerned. Realization of fine to the extent of fifty per cent shall remain stayed till disposal of the appeal. Remaining fifty per cent fine shall be deposited in the trial Court within one month from the date of the order and the appellant shall be released only after depositing fifty per cent of the amount of fine. The Sessions Judge concerned shall remit photocopy of the bail bonds to this Court for record. 6. We are surprised to peruse the order of sentence passed by the Sessions Judge concerned. The Sessions Judge concerned shall remit photocopy of the bail bonds to this Court for record. 6. We are surprised to peruse the order of sentence passed by the Sessions Judge concerned. Surprisingly, the present appellant as well as other accused persons were convicted for the offences under Sections 120B read with Section 302, IPC, as well as Section 302 read with Section 34, IPC and 201, I.P.C. Specially, it is material to mention that the learned Sessions Judge sentenced the appellant Neeraj and other accused persons for the offence under Section 120B read with Section 302, I.P.C. to undergo imprisonment for five years. This part of the sentence is devoid of any sanctity of law. If a person has been convicted for the offence under Section 120-B read with Section 302, I.P.C., then he can’t be sentenced to lesser imprisonment less than life imprisonment. The minimum sentence provided for Section 302, I.P.C. is life imprisonment and fine and even with the aid and assistance of Section 120-B, I.P.C., if a person is held guilty for hatching-up a conspiracy for committing a murder, he cannot be sentenced to lesser imprisonment less than life imprisonment. It has been provided in sub-section (1) of Section 120-B, I.P.C. "(1) whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.” Section 109, I.P.C., provides that “Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment for the offence.” Hence, in view of the above provision of law, even for an offence of criminal conspiracy one is to be punished as provided in Sections 120-B, I.P.C and 109, I.P.C. and the person, who is involved in the criminal conspiracy will be treated as abettor of the offence and he will be punished with the same sentence as provided for the offence, for the commission of which conspiracy has been made. Hence, the learned Sessions Judge committed glaring illegality in awarding punishment of imprisonment for a period of five years for the offence under Section 120B read with Section 302, I.P.C. It shows that the learned Sessions Judge was not well equipped with the correct position of law. The learned Sessions Judge concerned shall submit his explanation within a month as to why such a punishment has been awarded in violation of clear provisions of law. 7. Registrar General is directed to communicate this order to the concerned officer through the District Judge, Bulandshahar and list this appeal for further orders in the week commencing 24.2.2009. ————