IMPORTANT POINT
The court applied Section 394(2) of the Cr.P.C. to determine the abatement of the appeal and the modification of the sentence and compensation in a case involving the death of the appellant.

JUDGMENT :

A.K. Jayasankaran Nambiar, J.

When the case was taken up for hearing, it was reported to us by the learned counsel appearing for the appellant/accused that the appellant has expired on 07.04.2024. Taking note of the said submission, we have to examine whether the appeal would abate in terms of Section 394(2) of the Code of Criminal Procedure [Cr.P.C.]. We note, in this connection, that the conviction of the appellant was for the offences under Section 376 (2) (f) (i) (n) of the Indian Penal Code and Section 5 (l) (n) read with Section 6 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 and the prosecution case was that he had repeated sexual intercourse with his own daughter, who was only 12 years of age and studying in the 7th Standard. The learned Sessions Judge found the appellant guilty of the offence under Section 376 (2) (f) (i) (n) of IPC and Section 5 (l) (n) read with Section 6 of the POCSO Act and sentenced him to undergo rigorous imprisonment for the remainder of his natural life and to pay a fine of Rs.25,000/-and in default to undergo rigorous imprisonment for another three months. It was further directed that the fine amount, if realised, was to be paid to the victim PW1, who is the beneficial child of the late appellant, as compensation under Section 357 (1) of the Cr.P.C.

2. Inasmuch as there is a sentence of fine that is impugned in this appeal, we have to take note of the Full Bench judgment of this Court in Pazhani v. State of Kerala – [2017 (1) KHC 173], which mandates that even if the near relatives of the appellant do not file an application to come on record, for the purposes of continuing to prosecute the appeal in terms of the proviso to Section 394(2) of the Cr.P.C., the Court has to consign the appeal to the record room. On the facts in the instant case, we do not see a possibility of any near relative of the appellant approaching this Court for pursuing the appeal. It is trite that the permission granted by the Statute to a near relative for leave to continue the appeal is with the object of providing a machinery whereby the children or member of the family of a convicted person, who dies during the pendency of an appeal, can challenge the conviction and get rid of the stigma attached to the family. In a case such as the present, where the child of the late appellant, who is his lineal descendant, is also the victim of the crime for which he was convicted, we don't perceive of the situation where his child would be interested in pursuing the appeal.

3. We also note that inasmuch as the recovery of the fine amount, if directed, would have to be from the estate of the late appellant, which would now devolve upon PW1, in the peculiar circumstances of this case, the ends of justice would be met by partly allowing the appeal solely for the purposes of modifying the sentence imposed by the trial court, cancelling the sentence of fine imposed by the said court, and directing the Kerala State Legal Services Authority/District Legal Services Authority [KeLSA/DLSA] to pay compensation to the victim.

4. As per Section 357A of Cr.P.C and Section 33(8) of the POCSO Act and Rule 9 (1), (2) of the POCSO Rules 2020, the Special Court, on conclusion of the trial, has to recommend the award of compensation and on receipt of such recommendation or on the application, the State or the District Legal Services Authority shall after due enquiry determine and award adequate compensation. The said compensation shall be payable by the State Government through Schemes or Funds established for such purpose [Rule 9(4) of the POCSO Rules]. Considering the fact that almost nine years have elapsed since the injury suffered by the victim, we deem it just and proper to quantify the quantum of compensation ourselves instead of delegating the said task to Kerala State Legal Services Authority/District Legal Services Authority. Though loss and injury suffered by the victim cannot be measured in terms of money,