The Supreme Court has observed that, if the accused-appellant dies during the pendency of a criminal appeal against a composite sentence of imprisonment as well as fine, the appeal does not abate.
The accused, in this case, was convicted under Section 55 (a),(g) of the Abkari Act and was sentenced to punishment of imprisonment of two years and a fine of Rs. one Lakh. During the pendency of the appeal, the High Court noticed the factum of death of the appellant, however, proceeded to decide the appeal on merits referring to the principal under Section 394 Cr.P.C. The High Court after considering the evidence on record upheld the conviction. The High Court took the view that since the appellant died pending the appeal, the sentence of imprisonment has become unworkable, however, regarding the imposition of fine, there is no reason to hold that the lower court committed any mistake and the appeal was consequently dismissed.
The legal heir of the accused approached the Supreme Court in appeal. The contention taken in the appeal was that, when there was a composite sentence of imprisonment as well as fine, the appeal has to abate both against the sentence of imprisonment as well as fine.
The bench comprising Justice Ashok Bhushan and Justice MR Shah referred to some earlier judgments of the Apex court, in context of Section 431 of the 1898 Code and observed:
The above judgment categorically laid down that even if a sentence of fine is imposed along with the sentence of imprisonment under Section 431, such appeal shall not abate. The similar expression, which was used in Section 431, i.e., “except an appeal from the sentence of fine” has been used in Section 394 Cr.P.C. Thus, the appeal in the present case where accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate and High Court did not commit any error in deciding the appeal on merits.
The bench, however, partly allowed the appeal, observing that the High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.