Appellants challenged a conviction under IPC 304 read with 34. Court found appellants dead and no relatives sought leave to continue appeal under Cr.P.C. 394, leading to abatement and dismissal.
Appeal abated and disposed due to death of appellants without application by near relatives for leave to continue.
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CRA No.147 of 1990
1.Kandarp Kudei
2.Tike Kudei
…. Appellants
-VERSUS-
State of Odisha
... Respondent
None appears on behalf of the appellants.
Heard learned counsel for the State.
This criminal appeal has been filed by appellants Kandarpa Kudei and Tike Kudei challenging the impugned judgment and order dated 16.05.1990 passed by the learned Sessions Judge, Bolangir in Sessions Case No.1 of 1990 in convicting the appellants under section 304 (Part-I) read with section 34 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for three years.
Mr. S.S. Pradhan, learned Additional Government Advocate submitted that he has received a letter dated 31.10.2020 of Inspector in Charge of Dunguripali police station wherein it is mentioned that on inquiry it is found that both the appellants are dead. He has filed the copy of the letter which is taken on record.
Section 394 of the Cr.P.C. states about abatement of appeals. Sub-section (2) of section 394 of Cr.P.C. indicates that every other appeal than section 377 and 378 of Cr.P.C. under Chapter XXIX (except an appeal
from a sentence of fine) shall finally abate on the death of the appellants. In the proviso to the said section, it is mentioned that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellants, apply to the Appellate Court for leave to continue the appeal and if leave is granted, the appeal shall not abate. In the explanation portion of section 394 of Cr.P.C., it is mentioned that "near relative" means a parent, spouse, lineal descendant, brother or sister.
Since both the appellants are died and no fine has been imposed and none of the relatives of the appellants have applied for leave to continue the appeal, this appeal stands abetted and accordingly disposed of.
…………………..…… S.K. Sahoo, J.
Sisir
2 issues framed by the court
Whether the criminal appeal abates on the death of appellants without continued leave from appellate court
Whether near relatives applied for leave to continue the appeal after death of appellants
2 provisions across 2 enactments
Kandarp Kudei
Tike Kudei
State of Odisha
S.K. Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
