1970 P Cr (PLP)

A. Salam Khan for Appellant. B. N. Chowdhury for the State. Date of hearing ; 15th October 1969. Appellant Anwar Hossain Khan, Chairman of Kalikapur Union Council, Madaripur has been convicted under sec tion 409, P. P. C. read with section 5(2) of Act II of 1947 and sentenced to suffer rigorous imprisonment for one year and .to pay a fine of Rs. 200, in default to rigorous imprisonment for another two months, on the allegations that he misappropriated a sum of Rs.

80. Mr. Abdus Salam Khan, the learned Advocate for the appellant has informed the Court that the sole appellant Anwar Hossain Khan has expired and the appeal has abated. He has also informed that he wrote to the tadbirkar and relations of the deceased-appellant sometime ago but no body took any steps in this respect. He, therefore, submits that the appeal shall be declared to have abated. Mr. B. N. Chowdhury, the learned Advocate for the State submits that. in view of the provisions of section 431, Cr. P. C., only that part of the appeal which relates to the sentence of imprisonment shall abate on the death of the appellant but the other part which relates to the sentence of fine shall not abate on his death. Section 431 of the Code of Criminal Procedure runs as follows :- "Every appeal under section 411-A, subsection (2) or sec tion 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant." Ordinarily a criminal appeal abates on the death of the appellant. But section 431, Cr. P. C. seems to have made an exception to this general rule. A careful perusal of the section will show that an appeal against a sentence of fine shall not abate by reason of the death of the accused-appellant, because it is not a matter which affects his person, but one which affects his estate. Where an accused has appealed against the sentence of imprisonment and fine and before the appeal comes for hearing he dies, that part of the appeal which relates to the sentence of imprisonment shall abate on the death of the appellant but the other part which relates to the sentence fine shall not abate on the death of the appellant. This view receives support from the cases A I R 1957 All. 20=58 Cr. L J 16 and A I R 1962 Mys.

275. If the appeal against a sentence of fine does not abate then the appellate Court may look into the propriety and legality of the sentence of fine imposed upon the accused and set aside the said fine or remit it in fit cases, in consideration of the hardship and surrounding facts and circumstances of the case. In this connection the case of Daulet Ram v. Emperor (20 Cr. L J 214) may be referred to. In the instant case, the amount, involved in the crime is only Rs.

80. In view of the peculiar facts and circumstances of the case, in my opinion, the sentence of fine should be remitted[C as the substantive sentence of one year awarded against the accused will alone meet the ends of justice. Since the sole appellant Anwar Hossain Khan has died during the pendency of the appeal,, his appeal has abated and shall be declared to have so abated. The case reported in P L D 1967 S C 42 may be referred to. The appeal is thus disposed of. Appeal disposed of accordingly.