MUKUNDAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Can an appeal under Sec. 374 Cr.P.C be continued after the death of the accused? This important question is raised in this appeal since Cheruvayi Mukundan, the accused in S.C. No. 541 of 2001 was convicted by the Sessions Court, Thalassery for the offences punishable under Sec. 8 (2) of the Abkari Act. The charge against the accused is that on 18.08.1998 at 6.10 p.m., he was found with 10 litres of arrack on the side of the road at Cheruvanchery Amsom, Puvathur desom by the Excise Inspector, Kuthuparamba. He was arrested and the contraband articles were seized after preparing a mahazar, thereafter registered a crime. After completing investigation, the Excise Inspector, Kuthuparamba laid charge against the accused before the Judicial First Class Magistrate Court, Kuthuparamba. From there, the case was committed to Sessions Court, Thalassery and subsequently, it was made over to Additional Sessions Court (Adhoc-III), Thalassery.

(2.) In the trial court, prosecution examined PW1 to PW3 and marked Exts.P1 to P8. M01 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec. 313 of the Code of Criminal Procedure. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused under Sec. 8(2) of the Kerala Abkari Act and sentenced him to undergo rigorous imprisonment for one year and fine of L1,00,000.00 (Rupees one lakh only) in default to undergo simple imprisonment for six months. Being aggrieved by that he preferred this appeal.

(3.) During the pendency of this appeal, on 08.11.2009 the appellant died. In the circumstances this court obtained a report from the Excise Inspector, Kuthuparamba. Along with the report, the Excise Inspector produced the death certificate of the appellant issued from the Registrar of Births and Deaths, Pattiam Grama Panchayath, which is marked as Ext.Cl Subsequently, wife of the appellant was impleaded as the 2nd appellant vide order dated 30.03.2016 in Crl. M.A. No. 1739 of 2016. The principal point raised in support of the appeal is that after the death of the accused whether any abatement for the sentence of fine. On this question the common law maxim "actio personalis moritur cum persona " is of little use and answer to the question must be found in other provision of law.