The division judge bench of Justice C.T. Ravikumar and Justice Sudhanshu Dhulia of the apex court in the case of Gurmail Singh & Anr. Vs State of Uttar Pradesh & Anr held that an appeal against conviction (except an appeal from a sentence of fine) would abate on the death of the appellant as in such a situation, the sentence under appeal could no longer be executed.
BRIEF FACTS
The factual matrix of the case is that for offenses under Sections 302/149, 307/149, 147, and 148 of the Indian Penal Code, the appellants, and eight other people were put on trial before the court. They were all found guilty of violating Section 302/149 of the IPC, according to the verdict. Additionally, it was determined that offenses under Sections 324/149 and 323/149 were brought out against them even though Section 307/149 was not found to be the appropriate charge. In light of this, they were likewise found guilty in accordance with those Sections. Additionally, three of the other accused were found guilty under Section 147 of the IPC, while the remaining seven accused, including the appellants, were found guilty under Section 148 of the IPC. They were given a life sentence of incarceration for their conviction under Section 302, IPC. During its pendency seven of them died and consequently, qua them the Appeal was dismissed as abated. As per the impugned judgment, the said appeal qua the surviving appellants – Gurmail Singh, Kewal Singh and Karnail Singh was dismissed and the conviction and the sentences were confirmed. Though this appeal has been preferred jointly by Gurmail Singh and Kewal Singh the latter died during the pendency of this appeal. Hence, this appeal qua Kewal Singh got abated. Karnail Singh did not join in this appeal. In short, this appeal survives only in the case of the first appellant – Gurmail Singh and hence, in this appeal.
ISSUE BEFORE THE COURT
“whether the reduction in number of the convicts below five on account of death of the co-accused got any impact or effect on the surviving convict(s) in the matter of consideration of his/their, vicarious liability in view of Section 149, I.P.C.”
COURT’S OBSERVATION
The apex court held that reduction of number of accused/convicts in an appeal, below five on account of acquittal of co-accused/co-convicts and such reduction in numbers below five due to death of co-convicts are different and distinct. The impact and effect of the former situation is no longer res integra. The hon’ble court relied upon the judgment titled Amar Singh & Ors. Vs. State of Punjab, and Nethala Pothuraju & Ors. Vs. State of Andhra Pradesh.
The term ‘abatement’ or ‘abate’ has not been defined in Cr.P.C. In the said circumstances, its dictionary meaning has to be looked into. As relates criminal proceedings going by the meaning given in Black’s Law Dictionary, 10th Edition, abatement means ‘the discontinuation of criminal proceedings before they are concluded in the normal course of litigation, as when the defendant dies’. Thus, it can be seen that the meaning of abatement can only be taken in criminal proceedings as `discontinuation of such proceedings owing to the death of the accused/convict pending such proceedings’. In short, it would reveal that an appeal against conviction (except an appeal from a sentence of fine) would abate on the death of the appellant as in such a situation, the sentence under appeal could no longer be executed. The abatement is certainly different from acquittal and a mere glance at the proviso to Section 394 (2), Cr.P.C., will make this position very clear.
The long and short of the aforesaid discussion is that the mere fact that seven out of the ten convicts died, either during the pendency of Criminal before the High Court or during the pendency of this appeal, could not be a reason, by that itself, to canvass non-applicability of the provision for constructive/vicarious liability, arising out of the achievement of the common object by the unlawful assembly.
The apex court held that the High Court was justified in dismissing the appeal filed by the appellant herein, confirming the conviction and sentences passed against him. There are no merits in this appeal and hence it is dismissed.
CASE NAME- Gurmail Singh & Anr. Vs State of Uttar Pradesh & Anr
CITATION- CRIMINAL APPEAL NO. 965 OF 2018
CORUM- Justice C.T. Ravikumar and Justice Sudhanshu Dhulia
DATE- 17.10.22
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