JUDGMENT

Thomas, CJ - This is a reference under Section 438, Criminal P.C., by the learned Sessions Judge of Rae Bareli recommending, that the amount of fine imposed upon the accused be reduced. Ganga, Chhatrapal, Baijnath and Ausan were convicted by a third class Magistrate under Section 323, Penal Code, and sentenced to one month's rigorous imprisonment and a fine of Rs. 10 each, in default of payment of fine one week's farther rigorous imprisonment. On appeal the District Magistrate upheld the conviction but increased the fine from Rs. 10 to Rs. 30 each and increased the sentence in default of payment of fine to two months' rigorous imprisonment each.

2. Accused Chhatrapal and Baijanath are brothers. I am of opinion that the order passed by the learned District Magistrate amounts to an enhancement of sentence, which is not permitted by Section 423(1)(b), Criminal P.C., which lays down that "the appellate)Court can alter the nature of the sentence, but, subject to the provisions of Section 106, Sub-section (3), not so as to enhance the same." I am aware that there is a conflict of rulings, but at the same time I consider that there is better authority for the general proposition that to impose a substantial fine in place of a sentence of imprisonment and increase of sentence of imprisonment in default of payment of fine, does amount to an enhancement. The appellants may not be able to pay the fine, then they will have to undergo the imprisonment and their property will be liable to attachment for payment of the fine as well. The question whether there has or has not been an enhancement of sentence will depend upon the circumstances of each case. In the circumstances of the present case, I am of opinion that there has been an enhancement of sentence in appeal and it is, therefore illegal. I accept the reference and reduce the sentence of fine from Rs. 30 to Rs. 10 and in default of payment of fine to undergo one week's further rigorous imprisonment. In other words, the original sentence passed by the trial Court is maintained.