STATE OF U P Vs. NARAIN

JUDGEMENT

(1.) Leave granted.

(2.) This is again another case, out of many, where the High Court has directed that the respondent convict shall be sentenced to the period already undergone. The Court of Session convicted the respondent for offence u/s. 304 Part II read with Sec. 34 of the Penal Code, 1860 (IPC) and sentenced him to undergo rigorous imprisonment for six years, further convicting him u/s. 452 of the Indian penal code and sentencing him to undergo rigorous imprisonment for one year as also convicting him u/s. 323 read with Sec. 34 of the Indian penal code for which offence he was sentenced for three months. The appeal on merits before the High Court was not pressed and the only submission made was on the question of sentence. The High Court, while dismissing the appeal and maintaining the conviction, made the order as aforesaid reducing the sentence for the period already undergone and, in addition, imposing a fine of Rs 10,000.00 and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Likewise, the sentence in respect of other offences was also reduced to the period already undergone and directions for fine were made. The respondent was given three months' time to deposit the amount of fine. The order does not state as to what was the period which the respondent had already undergone. On 3.12. 2004 a statement was made by the learned counsel, on instructions, that the respondent had undergone more than 4 years' and not just 36 days' sentence at the time of the impugned judgement of the High Court. In view of the said statement, we have directed the summoning of the record. A perusal of the record shows that the respondent had undergone only 89 days' and not 4 years' sentence as was submitted. There is no reason whatever in the impugned order for reducing the sentence for a serious offence in respect of which the respondent was convicted and his conviction was maintained by the High Court. Since the learned counsel for the respondent states that the appeal was not pressed for the reason that the sentence was reduced to the period already undergone, as prayed, we grant, while setting aside the order reducing the sentence, to the respondent an opportunity to argue the appeal in the High Court on merits.

(3.) The appeal is more than 20 years old being criminal appeal of 1985. We are told that the respondent is in jail for not having deposited the fine. Be that as it may, we direct the appeal to be decided within one month of the receipt of the copy of this order.