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Patna High Court

RAM CHANDER TIWARY and ANRversusTHE STATE OF BIHAR

Decided
Disposal
ABATED

Holding

The appeal abated due to the death of the appellants, and the fine imposed by the trial court was set aside.

Summary

The appellants Ram Chander Tiwary and Kameshwar Tiwary filed a criminal appeal challenging their conviction and fine under Section 302 IPC. While the appeal was pending, both appellants died, as confirmed by police reports and death certificates. The Court examined Section 394 of the Code of Criminal Procedure, 1973 (corresponding to Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023) regarding the continuation of appeals after a party's death. Relying on precedents that a fine in a murder conviction is discretionary, the Court set aside the fine imposed by the trial court. Since the death of the appellants extinguished the sentence of imprisonment, the appeal was held to have abated in its entirety and was disposed of.

Issues considered

  • Whether a criminal appeal can continue when the appellant has died
  • Whether the fine imposed under a conviction for murder can be set aside on the appellant's death
  • Effect of the appellant's death on the sentence of imprisonment

Legislation cited

Subjects

  • criminal appeal
  • death of appellant
  • abated appeal
  • fine discretion
  • IPC 302
  • CPC 394
  • NSS 2023

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                                  CRIMINAL APPEAL (DB) No.508 of 2009
                 ======================================================
                 1. Ram Chander Tiwary, son of Late Ram Dahin Tiwary
                 2. Kameshwar Tiwary, son of Ram Chander Tiwary
                 Both resident of Village- Bishupur, P.S.- Shahpur, District- Bhojpur

                                                                              ... ... Appellants

                                                     Versus

                 The State of Bihar

                                                            ... ... Respondent
                 ======================================================
                 Appearance :
                 For the Appellants    :         Mr. Prabhat Kumar Singh, Advocate
                 For the Respondent    :         Smt. Shashi Bala Verma, A.P.P.
                 ======================================================
                 CORAM: HONOURABLE THE CHIEF JUSTICE
                         and
                         HONOURABLE MR. JUSTICE HARISH KUMAR
                                       ORAL ORDER

                 (Per: HONOURABLE THE CHIEF JUSTICE)

3   26-05-2026                 Perused     the    report      dated   14.05.2026     of    the

                   Superintendent of Police, Bhojpur, Ara along with the report

                   dated 14.05.2026 of the S.H.O., Karnamepur Police Station,

                   Bhojpur, Ara, which indicate that both the appellants Ram

                   Chander Tiwary and Kameshwar Tiwary are dead and the death

                   certificates of the appellants are annexed with the said reports.

                               2. In view of the said reports as also section 394 of the

                   Code of Criminal Procedure, 1973, which corresponds to

                   section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023,

                   since no near relative has filed any application for leave to

                   continue the appeal and having regard to the settled position of
Patna High Court CR. APP (DB) No.508 of 2009(3) dt.26-05-2026
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          law as enunciated by the Hon'ble Division Bench of the High

          Court of Judicature at Allahabad in Santosh Kumar Baranwal

          v. State of UP, reported in 2010 SCC OnLine All 974, wherein

          it has been categorically held that upon conviction under

          Section 302 of the Indian Penal Code, 1860, the imposition of

          fine is discretionary in nature and does not partake the character

          of a mandatory requirement, and the legal position affirmed by

          the Hon'ble Division Bench of the High Court of Judicature at

          Bombay in Gopala Balu Kamble v. State of Maharashtra,

          reported in 2011 SCC OnLine Bom 1290 being in consonance

          therewith, and whereas the appellant has since expired during

          the pendency of the present appeal and the conviction sought to

          be assailed pertains to the year 2009, and the State does not

          intend to pursue the recovery of the fine amount as imposed by

          the learned Trial Court, this Court, upon due consideration of

          the aforesaid facts, circumstances and settled legal position,

          hereby sets aside the order of imposition of fine passed by the

          learned Trial Court, and since the appeal insofar as it pertains to

          the sentence of imprisonment stands abated consequent upon the

          demise of the appellants, the present appeal is disposed of as

          having abated in its entirety.

                       3. Let the trial court record be sent back to the
           Patna High Court CR. APP (DB) No.508 of 2009(3) dt.26-05-2026
                                                       3/3




                     concerned court immediately, if not required in any other case.



                                          (Sangam Kumar Sahoo, CJ)


                                                 (Harish Kumar, J)
shailendra/-

U


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