BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/11/2008 CORAM THE HONOURABLE Mr.JUSTICE R.REGUPATHI AND THE HONOURABLE MR.JUSTICE R.SUBBIAH Criminal Appeal No.418 of 2002 Sermadurai ... Appellant Vs State rep. by The Sub-Inspector of Police Sathankulam Thoothukudi District. ... Respondent Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the judgment and sentence passed by the learned Additional Sessions Judge (Fast Track Court) No.II, Thoothukudi on 20/2/2002 in S.C.No.504 of 1999 dated 31/1/2002 sentencing the appellant to suffer life imprisonment and also imposed a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for a period of one mnth for an offence under Section 148 of the Indian Penal Code and to suffer one month simple imprisonment for an offence under Section 324 of I.P.C. !For appellants ... Mr.A.J.Jawahar ^For Respondent ... Mr.P.N.Pandithurai Additional Public Prosecutor - - - - - - - :JUDGMENT
(Judgment of the Court was delivered by R.REGUPATHI,J)
The appellant/A.1 was tried along with five other accused by the
learned Additional Sessions Judge (Fast Track Court No.2), Thoothukudi in
S.C.No.504 of 1999 for offences punishable under Sections 148, 341, 302 r/w. 149
and 324 of the Indian Penal Code. Due to animosity against the deceased, on
31/10/1998 at about 5.30 p.m., the accused went to the residence of the deceased
and asked P.W.1, wife of the deceased, as to where the deceased was and, on
finding that the deceased was not available there, they told P.W.1 that on the
next day, by that time, her husband would not be alive and left that place and,
on 1/11/1998 at about 9.10 a.m., all the accused armed with aruval joined
together with the common intention to do away with the deceased and in
furtherance of such common intention, they waylaid the deceased at Alangapuram
and A.1, with aruval, cut the deceased on the head and when P.W.2 intervened, he
pushed him away and in that transaction, P.W.2 sustained a bleeding injury on
the back by coming in contact with the tip of the aruval and, after the deceased
falling down on the ground, A.1 again cut the deceased with aruval on the cheek
and neck; A.2 on the left side of the back and rear part of the head; A.3 on
the right and middle of the head; A.4 on the left side of the head; A.5 on the
right forearm and A.6 on the head and back, resulting in the death of the
deceased. By order of the trial Court dated 31/1/2002, the appellant herein/A.1
was found guilty under Sections 148, 341, 324 and 302 of the Indian Penal Code
and sentenced to undergo rigorous imprisonment for three years for the offence
under Section 148 of the Indian Penal Code; simple imprisonment for one month
for the offence under Section 341 of IPC; three years rigorous imprisonment for
the offence under Section 324 IPC and life imprisonment for the offence under
Section 302 IPC and a fine of Rs.1,000/- in default to undergo rigorous
imprisonment for one month and the sentences were ordered to run concurrently.
Aggrieved against the order of conviction and sentence passed by the trial
Court, the appellant has preferred the above appeal. Along with the appeal, a
Miscellaneous Petition in Crl.M.P.No.60 of 2004 has also been filed wherein,
order was passed on 5/8/2004, granting bail in favour of the appellant.
2. Today, when the Criminal Appeal was taken up for final hearing,
learned counsel appearing for the appellant reported that the appellant is no
more and therefore, the appeal may be closed.
3. Learned Additional Public Prosecutor produced original Death
Certificate of the appellant accompanied with an affidavit sworn by the
respondent Police. In the affidavit, it is stated as follows:-
“The appellant/accused No.1 had expired on 1/2/2007 at Sathankulam,
Thoothukudi District. The Sathankulam Selection Grade Town Panchayat,
Thoothukudi District had issued a death Certificate on 15/2/2007 to the effect
that the appellant/accused No.1 had expired on 1/2/2007.”
4. We have perused the affidavit filed by the respondent Police.
5. As per Section 394 of the Code of Criminal Procedure,
(a). Every Appeal preferred under Section 377 i.e., appeal by the
State Government against sentence, or under Section 378 i.e., appeal in case of
acquittal; and
(b). Every other Appeal under Chapter XXIX of the Code (except an
appeal from a sentence of fine),
shall finally abate on the death of the appellant. Inasmuch as the present
appeal against the conviction under Section 302 IPC and the sentence imposed to
undergo life imprisonment has been preferred under Section 374 Cr.P.C., i.e.,
under Chapter XXIX, having regard to the procedure prescribed in the Code as
well as the circumstance pointed out, the same need not be disposed of on merits
under Section 386. Further, during the pendency of the Appeal, none of the
relatives of the deceased/appellant has preferred a petition for leave to
continue the Appeal within thirty days from the death of the appellant; with the
result, the Appeal abates.
mvs.
To:
1. The Judicial Magistrate No.I, Thoothukudi.
2. – do – thro’ The Chief Judicial Magistrate,
Thoothukudi.
3. The Additional Sessions Judge, Fast Track Court
No.2, Thoothukudi.
4. – do – thro’ The Principal Sessions Judge,
Thoothukudi.
5. The District Collector, Thoothukudi.
6. The Director General of Police, Madras 14.
7. The Superintendent, Central Prison,
Palayamkottai.
8. The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
9. The Inspector of Police, Sathankulam
Police Station, Thoothukudi District.