Full Judgment
John Stanley, C.J.
1. The learned Counsel for the applicant has only addressed me on the subject of sentence. The appellant was found guilty of the offence of embezzlement and sentenced to a term of eight years' rigorous imprisonment and a fine of Rs. 2,500, or in default two years' further rigorous imprisonment. It was also adjudged that the rents and profits of his property during the period of his imprisonment should be forfeited to Government, Subject to such provision for his family and dependents as the Government may think fit to allow. The offence of which the accused has been found guilty is no doubt a most serious one Whilst in Government employment as a clerk in connection with the Botanical Gardens at Saharanpur he was guilty of embezzlement and found to have appropriated sums amounting to Rs. 664 in the year 1905. The learned Sessions Judge was no doubt right in considering that systematic embezzlement of the kind by persons in Government service must be regarded as a very serious offence and that exemplary punishment was necessary. It appears to me, however, that the punishment inflicted in this case is out of all proportion to the gravity of the offence. In the first place I may say that the forfeiture of the rents and profits of the appellant which is permitted by Section 62 of the Indian Penal Code is a punishment which should only be imposed in rare cases--those cases in which crimes of an atrocious nature are exposed or in which offences have been committed under aggravated circumstances. This case of embezzlement does not appear to me to be a case which was contemplated when Section 62 was formulated. I find that this was the view taken by Jackson and Markby, JJ., in the case of Queen v. Mahomed Akhir (1869) 12 W.R., Cr., R., 17. The imposition of a fine of Rs. 2,500 is also a heavy punishment, taken in conjunction with the term of eight years' rigorous imprisonment, which has also been imposed. Whilst upholding, therefore, the conviction, I set aside the sentence and in lieu thereof I direct that the appellant do suffer rigorous imprisonment for a term of five years and do pay a fine of Rs. 1,000, or in default a further period of two years' rigorous imprisonment. As regards the order passed under Section 62, that must necessarily fall, inasmuch as the appellant has not been sentenced to a term of imprisonment of seven years and upwards. It is therefore set aside. The imprisonment will date from the 20th of April 1906.