Case Note & Summary
The Supreme Court considered an appeal by special leave under Article 136 of the Constitution against the conviction of a Patwari under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and Section 161 of the Indian Penal Code, 1860. In September 1967, the appellant was working as a Patwari in Halqa Pali. A complainant named Nitya Nand asked for copies of the revenue record and alleged that the appellant demanded a bribe of Rs 30. Nitya Nand borrowed Rs 30 from a friend and lodged a complaint with the Anti-Corruption Department. Sub Inspector Kewal Ram obtained permission from a Mandi Magistrate to investigate and laid a trap. The raiding party went to the appellant's office where the complainant allegedly gave marked currency notes of Rs 30 to the appellant. The Special Judge, Mandi, Kulu and Lahaul Spiti Districts, rejected the defence that the money was planted and convicted the appellant under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of the Penal Code. The appellant was sentenced to rigorous imprisonment for two years and a fine of Rs 300. The High Court of Delhi (Himachal Bench, Simla) confirmed the conviction but reduced the substantive sentence to one year. During the pendency of the appeal in the Supreme Court, the appellant died, and by an order dated February 26, 1972, his widow was substituted as his legal representative. The State of Himachal Pradesh raised a preliminary objection contending that the substantive sentence of imprisonment came to an end with the appellant's death and the appeal in regard to that sentence stood abated. As regards the sentence of fine, the State argued that since the deceased appellant was not sentenced to pay a fine only but was punished with a composite sentence of imprisonment and fine, the appeal would abate as regards the fine also. At the highest, the State contended, the Court could set aside the fine but the order of conviction and substantive sentence must remain. The amicus curiae for the appellant contended that Section 431 of the Code of Criminal Procedure, 1898, had no application to appeals filed in the Supreme Court; such appeals ought to be governed by principles of justice and equity; even if Section 431 applied, the appeal could not abate because the appellant had been sentenced to pay a fine; and if the sentence of fine could not be sustained on the ground that the conviction itself was bad, the order of conviction must also go. The Court examined Section 431 of the Code of Criminal Procedure, 1898, which provides that every appeal under Section 411A(2) or Section 417 shall finally abate on the death of the accused, and every other appeal under the Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. The Court held that although Section 431 does not strictly apply to appeals under Article 136, for the sake of uniformity the same principles should govern abatement. It interpreted 'every other appeal' as an appeal against conviction. The exception for an appeal from a sentence of fine was held to include a composite sentence of imprisonment and fine, because the clause does not contain the word 'only'. The fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability. Therefore, the widow was entitled to prosecute the appeal. The Court further held that while examining the validity of the sentence of fine, the appellate court has to determine whether the conviction itself is sustainable. If the conviction is unsustainable, the appellate court must set aside the conviction and all sentences following upon it, not merely the sentence of fine. On merits, the Court found that the High Court erred in holding that the evidence of hostile witnesses corroborated the evidence of partisan witnesses. The Court observed several circumstances rendering the prosecution evidence unsafe, including that the manner of investigation was not commendable and there was sufficient misbehaviour on the part of the prosecution agency. The evidence on which the conviction was based was wholly unworthy of acceptance. Accordingly, the Supreme Court allowed the appeal, set aside the conviction and sentences, and discharged the appellant from the bail bond. The widow of the deceased appellant was treated as the legal representative for the purpose of the appeal.
Headnote
A) Criminal Procedure - Abatement of Appeals - Section 431 Code of Criminal Procedure, 1898 - Every other appeal under Chapter XXXI except appeal from sentence of fine abates on death of appellant; 'every other appeal' means appeal against conviction; exception includes composite sentence of imprisonment and fine, not only fine-only sentence - The deceased appellant was sentenced to imprisonment and fine; appeal involved consideration of validity of fine sentence, so it did not abate because fine constitutes liability on estate and legal representatives entitled to ward off liability. Held that the appeal from composite sentence is something more not less than appeal from sentence of fine only, and the word 'only' is not in the clause. B) Criminal Procedure - Legal Representative - Continuation of appeal by widow - Widow of deceased appellant can be brought on record as legal representative because sentence of fine directly affects property devolving on her. Held that the widow is entitled to prosecute the appeal. C) Criminal Procedure - Scope of Appellate Review - If appellate court examining sentence of fine finds conviction unsustainable, it must set aside conviction and all sentences, including substantive imprisonment. Held that the order of conviction cannot be allowed to remain merely because only fine sentence was challenged. D) Evidence - Corroboration - Hostile witnesses' evidence cannot corroborate partisan witnesses. Held that conviction based on unreliable prosecution evidence and hostile witness testimony is unsustainable and must be set aside.
Issue of Consideration
Whether an appeal under Article 136 abates on death of appellant sentenced to composite imprisonment and fine; whether widow can be substituted as legal representative to prosecute appeal from sentence of fine; whether appellate court can set aside conviction and substantive sentence when examining sentence of fine; whether conviction is sustainable on merits
Final Decision
Appeal allowed. The preliminary objection of the State was rejected. The widow of the deceased appellant was entitled to prosecute the appeal. The Court held that the appeal from composite sentence of imprisonment and fine did not abate under Section 431 CrPC. On merits, the conviction and sentences were set aside because the prosecution evidence was unreliable and the High Court erred in relying on hostile witnesses to corroborate partisan witnesses. The appellant was discharged from the bail bond.
Law Points
- Section 431 CrPC 1898: 'every other appeal' means appeal against conviction
- exception for appeal from sentence of fine includes composite sentence of imprisonment and fine
- fine constitutes liability on estate and legal representatives can ward off liability
- appellate court examining fine sentence must determine sustainability of conviction and may set aside all sentences
- principles of abatement under Section 431 applied to appeals under Article 136
- hostile witnesses' evidence cannot corroborate partisan witnesses
