Case Note & Summary
The State of Karnataka filed two criminal appeals against the judgment of the Principal Sessions Judge, Mysore, in S.C. No. 9/99. Criminal Appeal No. 815/2004 was filed under Section 377 Cr.P.C. seeking enhancement of sentence imposed on the respondents-accused for the offence under Section 326 read with 34 IPC, while Criminal Appeal No. 816/2004 was filed under Section 378(1) and (3) Cr.P.C. seeking leave to appeal against the acquittal of the respondents-accused for offences under Sections 341 and 307 read with 34 IPC. The appeals were disposed of by a common judgment dated 28.07.2010. Subsequently, I.A. No. 1/2016 was filed by the widow of deceased respondent No. 1 (Swamygowda @ Subba) seeking modification of the judgment on the ground that the appeals were disposed of without noticing the death of respondent No. 1. The court noted that the death of respondent No. 1 had not been brought to its notice at the time of disposal. The court held that the judgment is liable to be modified and the appeals are restored to file for fresh disposal after bringing the legal representatives of the deceased respondent on record. The court allowed the applications and directed the registry to list the appeals for further proceedings.
Headnote
A) Criminal Procedure - Abatement of Appeal - Death of Respondent - Modification of Judgment - The court considered whether the judgment disposing of appeals could be modified when the death of respondent No.1 was not brought to the court's notice. The court held that the judgment is liable to be modified and the appeals are restored to file for fresh disposal after bringing the legal representatives on record. (Paras 1-3)
Issue of Consideration
Whether the common judgment dated 28.07.2010 disposing of the appeals is liable to be modified as the appeals were disposed of without noticing the death of respondent No.1.
Final Decision
I.A. Nos.1 and 2/2016 are allowed. The common judgment dated 28.07.2010 is modified. Criminal Appeal No.815/2004 and Criminal Appeal No.816/2004 are restored to file for fresh disposal after bringing the legal representatives of the deceased respondent No.1 on record. Registry to list the appeals for further proceedings.
Law Points
- Abatement of appeal
- Death of respondent
- Modification of judgment
- Restoration of appeal
- Legal representatives
- Section 394 Cr.P.C.
Case Details
2016 LawText (KAR) (08) 11
Criminal Appeal No.815/2004 c/w Criminal Appeal No.816/2004
Sri Vijaya Kumar Majage (Addl. SPP for appellant), Sri K.S.Chandrakanth Gowda (for applicant in I.A.No.1/2016 & I.A.No.2/2016)
State of Karnataka by Yelawala Rural Police
Swamygowda @ Subba and Basavaraju
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Nature of Litigation
Criminal appeals by State against judgment of Sessions Court partly convicting and partly acquitting accused.
Remedy Sought
Modification of common judgment dated 28.07.2010 disposing of appeals, as death of respondent No.1 was not brought to court's notice.
Filing Reason
Death of respondent No.1 not brought on record before disposal of appeals.
Previous Decisions
Common judgment dated 28.07.2010 disposing of Criminal Appeal No.815/2004 and Criminal Appeal No.816/2004.
Issues
Whether the common judgment dated 28.07.2010 is liable to be modified due to death of respondent No.1 not being brought to court's notice.
Submissions/Arguments
Applicant (widow of deceased respondent No.1) submitted that the appeals were disposed of without noticing the death of respondent No.1, and therefore the judgment should be modified and appeals restored.
Ratio Decidendi
When a party to an appeal dies and the fact of death is not brought to the court's notice before disposal, the judgment is liable to be modified and the appeal restored to file for fresh disposal after bringing the legal representatives on record.
Judgment Excerpts
I.A.No.1/2016 is filed by widow of deceased respondent No.1 in Criminal Appeal Nos.815 and 816/2004 for modification of the common judgment dated 28.07.2010 rendered by this Court in the said appeals on the ground that the appeals were disposed of without noticing the death of respondent No.1.
In the circumstances, the common judgment dated 28.07.2010 is liable to be modified and the appeals are to be restored to file for fresh disposal after bringing the legal representatives of the deceased respondent No.1 on record.
Procedural History
The Principal Sessions Judge, Mysore, passed judgment in S.C. No. 9/99 on 31.01.2004 convicting accused for offence under Section 326 r/w 34 IPC and acquitting them for offences under Sections 341 and 307 r/w 34 IPC. The State filed Criminal Appeal No.815/2004 for enhancement of sentence and Criminal Appeal No.816/2004 against acquittal. The appeals were disposed of by common judgment dated 28.07.2010. Subsequently, I.A. No.1/2016 was filed by widow of deceased respondent No.1 seeking modification.
Acts & Sections
- Code of Criminal Procedure, 1973 (Cr.P.C.): 377, 378(1), 378(3), 394
- Indian Penal Code, 1860 (IPC): 326, 34, 341, 307
