BABU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) I have heard Mr. Ranjeet Joshi counsel for the petitioners and U C. S. Singhvi Public "prosecutor, on a report lodged by Kaludan, the Police had filed a charge-sheet against 25 accused persons including the fahters of the present petitioners. The Judicial Magistrate Merta by his judgment dated July 4, 1981, held all the twenty five accused guilty for the offence under sections 147. 447 and 323 I. P C. For the offence under section 147 I. P. C. they were sentenced to one month simple imprisonment and a fine of Rs. 50/- and in default of payment of fine to 7 days. imprisonment. For offence under section 447 I. P. C. only a fine of Rs. 250/-was imposed on each of them and in default of payment of fine they were to under go imprisonment for one month. For offence under section 323 I. P. C. each of the 25 accused persons were sentenced imprisonment for three months with a fine of Rs. 100/- each and in default of payment of fine, four month's imprisonment. All the 25 persons convicted by the Judicial Magistrate, Merta, filed Criminal Appeal No. 103 of 1981 before the Sessions Judge, Merta. The Sessions Judge by his judgment dated July 9, 1987 acquitted 22 accused persons for the offences under sections 147, 447 and 323 I. P, C. for which they were convicted by the Judicial Magistrate. However, so far as three convict-appellants named Taru son of Gheesa, Nathu son of Harlal and Poona son of Rugga were concerned, they died during the pendency of Criminal Appeal No. 103 of 1981 and the Sessions Judge, Merta treated the appellant their instance as having abated. Babu petitioner is son of Taru Ram deceased, Tulchha Ram petitioner No. 2 is son of Nathu deceased and Ghewar petitioner No. 3 is son of Poona deceased and they have filed the present revision before this Court. Against the judgment of the Sessions Judge treating the criminal appeal filed by their fathers as having abated on account of the death of the fathers during the pendency of the appeal.

(2.) SECTION 394 (2) Cr. P. C. is very clear on the point. It provides that every appeal in this Chapter (Except appeal from the sentence of fine) shall finally abate on the death of the appellant. It is clear from the judgment of the Judicial Magistrate that he had imposed fine for all the three offences even against Taru, Nathu and Poona deceased. Their appeal was not only against sentence of imprisonment but also against the fine on the sentence imposed in default of payment of fine. Consequently the exception called out in sub-sec. 2 of S. 394 was attracted and the criminal appeal filed by these three deceased persons in relation to the sentence of fine could not be treated to have abated. It is an admitted position that no notice was given to the legal representatives of these three deceased persons. Reference may by made to the decision in the case of Smt. Vidhya Devi v. State (1) in which it was held that where an accused has appealed against the sentence of imprisonment and fine and before the appeal comes for hearing he died, section 431 of the old Code will come into play. Under the provisions of that section that part of the appeal which related to sentence of imprisonment shall abate on the death of the appelant but the other part which relates to the sentence of fine shall not abate on the death of the appellant.