Impact Of Reduction Of Number Of Convicts Below 5 Pending An Appeal Against Conviction U/Sec 149 IPC Owing To Death Of Co-Convicts : Supreme Court Explains

In a judgment delivered on Monday, the Supreme Court explained the impact of reduction of the number of convicts below five pending an appeal against conviction under Section 149 IPC owing to the death of co-convicts.

The bench of Justices CT Ravikumar and Sudhanshu Dhulia observed that 'abatement' is certainly different from 'acquittal' and therefore "the effect and impact of reduction of the number of convicts pending an appeal owing to the death of co-convicts is bound to be different from the effect and impact of reduction of the number of accused/convicts on account of acquittal".

In this case, the Trial Court convicted ten accused under Section 302/149 IPC  and all of them filed appeal before the Allahabad High Court. During the pendency of appeal, seven of them died and consequently, qua them the Appeal was dismissed as abated. Qua the surviving appellants – Gurmail Singh, Kewal Singh and Karnail Singh, the appeals were dismissed and the conviction and the sentences were confirmed. When appeals were pending before the Supreme Court, Kewal Singh also died and Karnail Singh had not joined in appeal. So the appeal survived only in the case of the Gurmail Singh.

One of the issues raised in this appeal was 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?

The bench noted that reduction in number of convicts due to acquittal will affect conviction of remaining accused under Section 149 IPC. But it observed thus:

"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."

Therefore, the court observed thus:

"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 Appeal No. 1510/1992 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 court answered other issues raised by the appellant against him and dismissed the appeal.

Case details

Gurmail Singh vs State of Uttar Pradesh | 2022 LiveLaw (SC) 854 | CrA 965 OF 2018 | 17 October 2022 | Justices CT Ravikumar and Sudhanshu Dhulia

Headnotes

Indian Penal Code, 1860 ; Section 302,149 - Conviction of one surviving accused (nine others died during pendency of appeal before HC and SC) under Section 302/149 upheld - The effect and impact of reduction of the number of convicts pending an appeal owing to the death of co-convicts is bound to be different from the effect and impact of reduction of the number of accused/convicts on account of acquittal - 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' - The abatement is certainly different from acquittal. (Para 12-16)

Constitution of India, 1950 ; Article 136 - Code of Criminal Procedure, 1973 ; Section 394 - Principles of Section 394, Cr.P.C. would apply to appeals filed before the Supreme Court under Article 136 of the Constitution - Referred to Harnam Singh Vs. State of Himachal Pradesh ((1975) 3 SCC 343) and in Hari Prasad Chhapolia Vs. UOI ((2008) 7 SCC 690). (Para 14)

Indian Penal Code, 1860 ; Section 149 - Object of Section 149 is to make specific that person whose case comes within its gamut cannot be permitted to put forth a defence that he did not, with his own hand, commit the offence committed in prosecution of the common object of the unlawful assembly. (Para 17)

Criminal Trial - Being a relative of the deceased is no reason to discredit their version. (Para 19)

Indian Penal Code, 1860 ; Section 300 -In order to make culpable homicide as murder the act by which death is caused should fall not only under any one or more of clauses firstly to fourthly under Section 300, IPC but they should also not fall under any of the five exceptions to Section 300, IPC. (Para 21)

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