Himangshu Das Sharma Vs. State of West Bengal - Court Judgment

Excerpt:
- amit talukdar, j.1. when avarice claimed the appellant (in his capacity as a sub-post master), little did he realise that it would cost him his career, his happiness and all he had for himself.2. such is the tale, which has been told in the prosecution case where a sub-post master (the appellant) of a district town leading an otherwise peaceful life with his soul mate and two siblings, when greed overpowered him and he defalcated the deposit which was made by the complainant (p.w.7) in her postal savings account, maintained in the post office he was posted at.3. life took a different course since then which not only resulted in the appellant assailing his conviction awarded by the learned first special court; it not only denuded him from the pride of a public servant but also robbed the tranquility and peace of a home consisting of two girl children and his wife, who, of course, did not live to see the end result of the trial.4. we are now asked to reapprise his fate, suffered before the learned first special court.5. pursuant to a charge-sheet submitted by the investigating officer, p.w.9, amar roy chowdhury the appellant hereinabove was arrayed in special case no. 3 of 1997 before the learned first additional special court, burdwan to answer the following charge:that you on or about the 26th day of march, 1997 at ichlabad post office. p.s. and dist. burdwan, being a public servant in the employment as sub-post master of the said post office and in such capacity entrusted with rs. 7,000/- which being deposed by one smt, rekha chakraborty w/o jadav chakraborty of 3, ichlabad, p.s. and dist. burdwan for crediting the same in her saving bank account no. 756591 of the said post office, and that you by not entering the same in the ledger nor in the pass book misappropriated said government sum of rs. 7,000/- and thereby committed an offence punishable under section 409 ipc.... 6. since the appellant pleaded not guilty to the same he was placed on trial and in order to prove its case the prosecution examined as many as nine witnesses.7. p.w. 1 bijoy krishna biswas was the senior superintendent of post offices of burdwan division. he lodged the written complaint (ext. 1), which was treated as the formal fir (ext. 11) by p.w.7, angad kumar singha, attached to burdwan police station, against the appellant, who was working as a sub-post master at ichabad post office, burdwan. he received the information from the sub-post master of the said post office that there was some discrepancy in making deposit of money in the pass book and he also received a complaint from p.w.6. rekha chakraborty and enquired into the mailer and found there was no credit of rs. 7,000/- in her pass book which was deposited on 26.3.94, although it accepted by the sub-post master against his dated signature in the pay-in-slip (ext. 8). p.w. 1 accorded sanction (ext. 2) for prosecution.8. p.w.2, ranjit haider was the inspector of post offices, burdwan, ichlabad sub-post office was within his jurisdiction. in the official course of his business used to inspect the said sub-post office and in the year 1995 annual inspection at ichlabad sub-post office was held by him. the appellant was the post master of the said sub-post office. in course of his inspection he found some irregularities in discharging of the official duties by the appellant. as such, he submitted a report (ext. 3) to the superintendent of post office, burdwan. p.w.3 narottam kumar saha, assistant treasurer of the head post office, burdwan, at the relevant time on 08.4.96 was posted at ichlabad sub-post office and prior to that he was posted at the head post office, burdwan. he took over the charge of the said sub-post office in place of the appellant, who was the post master of the said sub-post office, which was a 'single post office'. p.w.3 further deposed that the appellant himself performed the work of maintaining ledger accounts, pass book, cash, book etc. after he assumed charge of the said sub-post office he found some discrepancies in the pass book and ledger. he proved pass book issued from the said post office in the name of rekha chakraborty (p.w.6) against s.b. account of 756591 (ext. 5). he also proved the pay-in-slip (ext. 4) in connection with the said pass book dated 26.3.96. he proved the entry in the long book (ext. 6) of the said sub-post office which had been made by the appellant as he was acquainted with his signature. he also proved that the entries (ext. 7) made on 26.3.96 had been done by the appellant.9. pw4 ranjan kumar sarangi, who, at the relevant time was attached to the office of the senior superintendent of post office, burdwan, was a witness to the seizure list (ext. 8) in respect of pass book, pay-in-slip, long book, day book, statement of p.w.6 etc. p.w.5 santosh kumar adhikari worked as an assistant superintendent of post offices, burdwan division. ichlabad sub-post office was under his administrative jurisdiction. he deposed that a misappropriation case was started against the appellant and documents were seized from the said sub-post office by p.w. 1 and were kept under his custody. the said documents which consisted of the account book, long book and two other documents were seized from him by the investigating agency against a seizure list (ext. 1) and subsequently kept in his zimma. zimmanama was marked as ext. 9.10. p.w.6, rekha chakrabory had an account at the said sub-post office bearing account number 756591. her evidence shows that she had deposited a sum of rs. 7,000/- in the said account; but when she went to withdraw the money from the said post office she found the said money was not entered into the pass book. some time in the year 1986 she went to withdraw a sum of rs. 2,000/- from her account, but she came to know that there was no money lying in her account. the deailng assistant asked her to come on the next day for withdrawal of the amount in the afternoon and her pass book was lying with the post office. when on the following day she went to the post office she found a new sub-post master in the said post office. after she received her pass book she found the amount deposited by her was not entered into the said pass book. as such, she was advised to contact p.w. 1 and narrated him the entire incident and submitted a written complaint (ext. 10).11. p.w.8, chittaranjan debnath came to know about the entire incident from p.w. 6. he, in fact, wrote out the complaint (ext. 10) on behalf of p.w.6. p.w.9. amar roy chowdhury was the investigating officer.12. shri bijan kumar moitra, learned judge, first special court, burdwan by his judgment and order dated 22.8.2002, passed in special case no. 3/1997, came to the finding that the prosecution section 409 of the indian penal code and accordingly sentenced the appellant to suffer rigorous imprisonment for ten (10) years and to pay a fine of rs. 5,000/-; in default, to suffer rigorous imprisonment for two(2) months more.13. this appeal was argued by ms. minati gomes and shri sariful islam mallick on behalf of the appellant. learned advocate for the appellant submitted that the prosecution has not been able to prove the exact irregularities for which the appellant has been punished for the charge framed against him. she was of the view that only the 'seal' was proved on the receipt; but as the signature of the appellant was not proved there, he could not be connected with the deposit. she was of the further view that as p.w.6 herself has stated that she could not identify the appellant the entire conviction recorded by the learned special court was liable to fall solely on that ground as it would be deemed the prosecution has been unable to prove that the appellant was the accused.14. according to the learned advocate for the appellant the learned special court convicted the appellant on the basis of unsustainable evidence and legally inadmissible materials; such, the same was liable to be set aside and she referred to the decisions of the supreme court in chittaranjan choudhury v. state of bihar : 1987crilj773 and roshan lal raina v. state of jammu and kashmir air 1983 sc 631 in support of her contention.15. referring to the question of sentence, learned advocate for the appellant submitted that it was indeed very harsh. she has further submitted that the complainant has already received the money and the appellant has suffered a lot for all these years and in the event the conviction is upheld it will not serve any purpose. with the leave of the court, she has used on affidavit showing that the appellant while in custody lost the vision of one of his eyes and that barring paltry rent, receivable by him, the appellant has no other source of income to maintain himself and his two teen aged motherless children. she also invited the attention of the court to the affidavit, affirmed by the sister-in-law of the appellant that during the pendency of the trial the appellant had lost his wife.16. summing up, learned advocate for the appellant referred to the evidence on record and argued that the entire conviction, recorded by the learned special court, is liable to be set aside in the absence of any cogent evidence against the appellant and she has also passionately appealed before us to interfere with, the sentence.17. shri khandakar jalal learned advocate for the state opposed the submissions of the learned advocate for the appellant. shri ahmed submitted that the alleged offence against the appellant was extremely serious and as the prosecution has been able to prove the charge against him the appeal did not deserve any merit. shri khandakar further submitted that as the entrustment made in favour of the appellant was proved by virtue of the pay-in-slip (ext.8), he could not escape his liability; more so, according to shri khandakar, as it was a 'single post office' the appellant alone was responsible for the entire incident and he cannot shift the blame to any other person. referring to the evidence of p.w.6 shri khandakar submitted that the enquiry held by p.w. 1, the senior superintendent of post office, burdwan division has corroborated her allegation and the evidence or record goes to prove the same and he felt that there was no merit in any of the submissions made on behalf of the appellant.18. on the question of sentence, shri khandakar submitted that as the allegation against the appellant was most serious in nature, he being a post master defalcated the amount deposited by the complainant (p.w.6) he did not deserve any sympathy.19. shri khandakar very strongly opposed the prayer for interference with the sentence on the ground that the appellant, in his capacity as a post master by way of defalcating the deposit, made by p.w.6, has, in fact, destroyed the trust reposed upon him by the public. he was of the view that it was the most well deserved sentence, requiring no reduction.20. after we have heard the submission of ms. gomes for the appellant and shri khandakar for the state, we now proceed to see as to whether the conviction recorded by the learned first additional special court, burdwan against the appellant can be sustained.21. as we have seen, the charge in respect of section 409 of the indian penal code was framed against the sole appellant. in order to prove a charge of section 409 of the indian penal code against the appellant the prosecution is required to prove the following elements:(i) the appellant was entrusted with a property over which he has domain in his capacity as a public servant and(ii) he has criminally misappropriated, even temporarily, the same which he is duty bound to account for.22. in other words, before a conviction in respect of the charge of section 409 of the indian penal code can be recorded it is necessary for the prosecution to prove the factum of entrustment coupled with misappropriation of such entrusted amount.23. let us now see how far the prosecution has been able to prove its case against the appellant on the basis of the evidence which has been perused by us earlier.24. it is found from the evidence that the appellant, at the relevant time was the sub-post master of ichlabad sub-post office, burdwan. it is also found from the evidence that p.w.6, rekha chakraborty, who had deposited a sum of rs. 7,000/- against money deposit receipt no. 103/8b dated 26.3.96 against savings bank a/c no. 756591 in item no. 2 of the seizure list (ext. 8) at the said post office which was accepted by the appellant under his dated signature, as shown in ext.8, however, did not credit the same to the account of the complainant (p.w.6).25. p.w.8, who was informed about the incident by the complainant (p.w.6) accompanied her to ventilate their grievance before p.w.1, bijoy krishna biswas, the senior superintendent of post offices at burdwan division and wrote the formal complaint (ext. 10), addressed to him on 11.4.96.26. the evidence of p.w. 1, bijoy krishna biswas, senior superintendent of post offices, burdwan division shows that he had also received information from the said sub-post office that there was some discrepancies in making deposit of sums in the pass book and after receiving the complaint had enquired into the matter and found substance in the allegation of the complainant (p.w.6), he lodged the written information (ext. 1) before the burdwan police station against the present appellant and also accorded sanction for prosecution (ext. 2). p.w.7, angad kumar singha after receiving the complaint from p.w. 1 filled up the formal fir (ext. 11). angad kumar singha attached to the burdwan police station then started burwan police station case no. 221/1996. he partly investigated the case, prepared the rough sketch map (ext. 12) and arrested the appellant and subsequently made over the case docket to the district enforcement branch on 20.4.96.27. the main evidence on behalf of the prosecution is from p.w. 1, who had lodged the written information before the police which was treated as the formal fir disclosing the fact that the depositor of savings bank a/c no. 756591 of ichlabad post office although had deposited rs. 7,000/- in her account against a deposit form sb-103 on 26.3.96, which was received by the appellant with his initial and seal of the post office, but was not credited to her account.28. the substantive evidence of p.w.1, bijoy krishna biswas, who at the relevant time was the senior superintendent of post offices, burdwan division also bears out his earlier version as stated in the fir. he also proved the sanction (ext, 2) accorded by him against the appellant on the basis of which he was prosecuted.29. p.w.2, ranjit haider, an inspector of post offices, burdwan had held inspection of the said post office and detected certain irregularities committed by the present appellant, who was the post master of the said post office. p.w.3, narottam kumar saha, who subsequently took over the charge from the appellant as post master, deposed that it was a 'single post office'. this piece of evidence is of vital importance. p.w.3 further deposed that the appellant himself performed the work of maintenance of ledger accounts, maintaining pass book, cash book etc. and he also came across discrepancies in the pass book and ledger. he also proved the entries (ext. 7) made by the appellant on 26.3.96 and also proved that in the ledger long book (ext. 4) and the pass book (ext. 5) that there was no entry in respect of the amount deposited by p.w.6, the complainant. he proved the pay-in-slip (ext.4).30. p.w.4 and p.w.5 were the signatories to the seizure list (ext.8). in respect of the saving bank account, pass book, money deposit receipt, statement of the complainant, inspection report etc. etc.31. we have seen the evidence of the investigating officer (p.w.9) amar roy chowdhury, who collected various articles against the seizure list (ext.8) and gave it in the zimma of p.w.5 and submitted his report in final form. nothing has been elicited from the cross-examination of any of the witnesses; particularly, the investigating officer (p.w.9), which would militate against the position perceived by us in course of appreciation of the evidence on record.32. from the entire evidence it has been clearly established that the appellant at the relevant time, in his capacity as the sub-post master of ichlabad sub-post office, being a public servant, accepted the sum of rs. 7,000/- towards deposit in the savings bank a/c no. 756591 of rekha chakraborty (p.w.6). although he received the same under his dated signature and official seal, as it can be seen from the deposit form sb-103, but did not credit the same to the government account as such, he has committed a breach of trust.33. the fact of entrustment is proved, as the appellant, being the sub-post master, at the relevant time, was given the amount for credit to the account of the complainant (p.w.6) and the appellant having domain over the said poperly misappropriated it, which has been amply proved from the evidence.34. the decisions referred to by the learned advocate for the appellant have been considered by us. the decision of chittaranjan choudhury v. state of bihar (supra), in our view, cannot in any manner help the appellant as the facts from the same. in chittaranjan choudhury's case (supra) vital documents, which were seized from the custody of the accused were not produced. as such, the supreme court was of the view that the conviction cannot be sustained. but, in the instant case there is no such circumstance for which any benefit can accrue in favour of the appellant in that regard. the decision of roshan lal raina v. state of jammu and kashmir (supra) cannot be applied in the instant case. in roshan lal raina's case (supra) there was no proof of entrustment. as such, the supreme court acquitted the appellant in the absence of any proof of entrustment, but, in the present case we find that the factum of entrustment has been sufficiently proved on the basis of the evidence adduced by the prosecution.35. we have carefully scanned the evidence in our own way and are of the firm opinion that the prosecution has been successfully able to prove its case beyond any reasonable doubt with regard to the entrustment of the amount which was deposited by p.w.6, rekha chakraborty which although accepted by the appellant in his capacity as the sub-post master but was not credited in the government treasury. the charge in respect of the offence of section 409 of the indian penal code, relating to criminal breach of trust by the public servant, stands proved against the appellant. such being the position, we do not have any occasion to interfere with the conviction, recorded by the learned judge, first special court, burdwan against the appellant which has to be left undisturbed.*** *** ***36. now this brings us to the question of sentence.37. the appellant has been convicted in respect of a charge of section 409 of the indian penal code. the allegation against the appellant was pretty serious. he was a sub-post master at the relevant time and in such capacity he defalcated the money of p.w.6, rekha chakraborty. the appellant was discharging his duty as the sub-post master which requires absolute devotion, diligence, integrity and honesty to be preserved each moment of his tenure so that confidence of the depositors is not impaired.38. we cannot lose sight of the fact that the appellant in his capacity as the sub-post master held the position of trust where honesty and integrity are the inbuilt requirement of functioning. the highest degree of trustworthiness and unimpeachable integrity is a sine qua non of such post. misconduct of a person of the capacity of the appellant in any manner deserves to be dealt with very severely.39. upon finding the appellant guilty of the charge of section 409 of the indian penal code the first special court, burdwan directed him to undergo rigorous imprisonment for a period of ten years and to pay a fine of rs. 5,000/-; in default to suffer rigorous imprisonment for two months.40. was it a just sentence?41. ordinarily we would have put our seal of approval even on the sentence, awarded by the learned trial court; but there are certain extenuating circumstances which are not foreclosed from appreciating without in the least being oblivious of the fact that interference with an order of sentence in a conviction of criminal breach of trust without considering its effect on the social order may be, in reality, having widespread ramifications which the court is to guard.42. at the outset we would first advert to the mandatory provisions of sub-section (2) of section 235 of the code of criminal procedure (for short, the said code):235. judgment of acquittal or conviction.--(1) ...(2) if the accused is convicted, the judge, shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.43. the legislature in their wisdom incorporated the said sub-section (2) in the new code which was not existing in the old code, in consonance with the modern trends in penology and sentencing syndrome where both the adjudication of guilt and assessment of the quantum of sentence were of equal importance.44. in fact, the provisions of sub-section (2) of section 235 of the said code although is incorporated in the family of chapter xviii trial before a court of sessions', however, it has to be read as a segregated provision. the provision of sub-section (2) of section 235 of the said code applies only after a conviction is recorded.45. this situation cannot be better described as appearing from the decision of muniappan v. state of tamil nadu : 1981crilj726 where shri y.v. chandrachud. the chief justice of india writing the judgment for the division bench of hon'ble chief justice of india and a.p. sen, j. held:the obligation to hear the accused on the question of sentence which is imposed by section 235(2) of the criminal procedure code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. the judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. all admissible evidence is before the judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. it is the bounden duty of the judge to cast aside the formalities of the court-scene and approach the question of sentence from a broad sociological point of view. the occasion to apply the provisions of section 235(2) arises only after the conviction is recorded. what then remains is the question of sentence in which not merely the accused but the whole society has a stake. questions which the judge can put to the accused under section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the evidence act. the court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. 46. a cursory glance at the tail end of the judgment manifests that there has been a ritualistic performance of the mandatory provision of sub-section(2) of section 235 of the said code, which reads as follows:convict/accused himangshu das sharma is called upon to submit on the point of sentence. the convict submits that his wife has already been expired and he has his two children and there is one to look after them.heard the convict/accused on the point of sentence.considering the nature and gravity of offence i am not inclined to take any lenient view.hence,orderedthat the....47. fictionally it cannot be said that there has been non-compliance of the provisions of the said sub-section by the learned first special court. but, if one probes deeper into the ambit of the finding of the learned trial court it would at once be apparent that there has been a mechanical approach.48. sentencing is an integral part of the criminal justice system. what is the proper sentence has haunted the mind of the jurists since the time immemorial. a sentence has to be well balanced and yet proportionate. the supreme court in ramashraya chakravarti v. state of madhya pradesh : 1976crilj334 where p.k. goswami, j. for the division bench held:to adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. it is always a matter of judicial discretion subject to any mandatory minimum prescribed by law.hegel in his 'philosophy of right' pithily put the difficulty as follows:reason cannot determine, nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty-nine, or hi) a fine of five dollars or four dollars ninety-three, four, etc., cents, or (iii) imprisonment of a year or three hundred and sixty four, three, etc., days or a year and one, two, or three days. and yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or one day, too many or too few. 49. in a recent judgment of the supreme court in adu ram v. mukna and ors. 2005 scc (cri) 1635, arijit pasayat j. writing the judgment for the division bench of arijit pasayat and c.k. thakker, j. held:11. the law regulates social interests, arbitrates conflicting claims and demands. security of persons and property of the people is an essential function of the state. it could be achieved through instrumentality of criminal law. undoubtedly, there is a cross cultural conflict were living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. the contagion of lawlessness would undermine social order and lay it in ruins. protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences. therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting society. friedman in his law in changing society stated that:state of criminal law continues to be -- as it should be -- a decisive reflection of social consciousness of society. therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. by deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. the facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.50. their lordships further held:14. proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. the practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. even now for a single grave infraction drastic sentences are imposed. anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. but in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.15* * * * * * * *16. imposition of sentence without considering its effect on the the social order in many cases may be reality a futile exercise. the social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest cannot be lost sight of and per se require exemplary treatment. any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.51. keeping in mind the aforesaid situation we are now supposed to look into the magnitude of the sentence vis-a-vis the crime committed by the appellant.52. as found earlier the appellant has not only defalcated a certain sum of money but he has also betrayed the faith of an innocent depositor (p.w.6) by virtue of his act, which would not in the conventional sense call for any sympathy from the court.53. yet, there is such a situation which cannot be lost sight of. the supplementary affidavit taken out by the sister-in-law of the appellant depicts certain extenuating circumstances which have to be appreciated in the factual matrix of the present case.54. it is found from paragraph - 4 of the said affidavit that the appellant has two daughters who are aged about 16 and 12 years. it further transpires from the said affidavit that during the pendency of the trial the wife of the appellant, kuheli das sharma pre-deceased him. the said fact has also been reflected from the judgment while the learned first special court was hearing the appellant on the question of sentence in exercise of its power under sub-section(2) of section 235 of the said code.55. to the said affidavit of the sister-in-law is annexed an affidavit from the side of the mother-in-law of the appellant which reflects that the only source of his income is from the rent receivable by him after letting out his three rooms.56. lastly, the said affidavit also reveals that during the period of incarceration in the alipore central jail the vision of his right eye was lost.57. we have carefully heard ms. gomes for the appellant and considered the affidaivt of the mother-in-law of the appellant in the light of the objection khandakar j. ahmed for the state that the court should not interfere with the sentence as it cannot be said that either the substantive sentence or the fine is excessive in the fact situation of the present case.58. we have taken note of the contents of the said affidavit. even though the crime is grave, we feel that the appellant has suffered a lot since the time he entered into the majestic portals of justice way back in the year 1996, while time for him moved from various stages of the trial and pendency of this appeal; time has stood still for his two helpless minor daughters and his soul mate, who has been lost to time. for all these years he must have suffered a lot and undergone immense mental agony which must have engulfed his peace of mind for each moment of his life.59. today he is a lost man. he has lost his soul mate, he has lost his job, he has lost his reputation in society, he has lost sight of one eye; in all today the appellant has lost everything. the appellant has to fend for his two unfortunate motherless daughters, on the basis of his income derived from rent which we have seen earlier.60. in the event we maintain the substantive sentence of sentence of ten (10) long years, we are of the view, it would not serve any purpose. there is a hidden agenda in the entire course of events. while p.w.6, rekha chakraborty the ultimate victim whose interest was impaired, however, subsequently it was redeemed in her favour has to be seen from the standpoint of victimology; there are two other silent consumers of justice, who are mute and beyond the scope of this appeal lying in the back of the beyond. however, while pondering over the question of sentence the court cannot efface from its mind the faces of these two helpless teen-aged girls, who suffered the distraught pain of losing their mother at a very early age coupled with the stigma that society has shoveled upon them by virtue of their father's involvement in the present case.61. if the substantive sentence is affirmed these two little alices, whom fate has made them lost from their wonder land, would be exposed to the vagaries of the life in the absence of the appellant for a long long period of ten years while the appellant would be serving his labour behind the stone walls on the other side of the wall these two little teen-aged girls would lose the prospect of a proper settlement in life by way of education, social rehabilitation and marriage.62. an amalgam of all the situation, particularly the future of the two helpless teen-aged daughters of the appellant, for whom cruel hands of destiny has deprived them of their mother and they suffered from the looming shadow of their father being transported to a long penal term of ten years, who have none else to look after them, appeals to our judicial conscience to interfere with the substantive sentence.63. as a fall out of the aforesaid discussion we feel interference in the substantive sentence of the appellant is called for.64. from the record of g.r. case no. 551 of 1996 and sepcial case no. 3 of 197 it is found that during the period of investigation from 17.4.96 when the appellant was arrested, he was in custody till 27.6.96. thereafter, when the learned first special court passed its judgment the appellant was taken back into custody on 22.8.2002. he remained so pending hearing of the appeal till 13.8.2003 when a division bench of this court suspended the execution of his sentence. by the aforesaid reckoning he is found to have suffered detention for a period of 14 months 7 days; i.e, 427 days in total.65. as such, we feel that in the particular fact situation of the instant case it would be appropriate if we direct that the sentence of the appellant be reduced to the period already undergone.66. but the fine of rs. 5,000/-, imposed by the learned first additional special court, burdwan be increased to rs. 7,000/-; in default of which the appellant is to suffer further rigorous imprisonment of two months.67. since on account of the misconduct of the appellant the government has suffered the revenue loss it would be appropriate that the entire amount of fine, if realised, would be credited to the government treasury under its proper head.68. to wrap up--(a) the conviction of the appellant for the charge of section 409 of the indian penal code is upheld;(b) his sentence is reduced to the period already undergone both during the trial and pending hearing of the appeal;(c) the fine of rs. 7,000/-, imposed by us, if realised, would be entirely paid into the government treasury under its proper head.subject to payment of the fine, the bail bond of the appellant stands discharged.appeal accordingly is disposed of.dipankar datta, j.69. i agree.