BIJU, S/O. KUTTAPPAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938** ## **CRL.REV.PET.NO. 2282 OF 2006 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.221/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA DATED 17-04-2006** **AGAINST THE JUDGMENT IN CC NO.506/2002 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM DATED 25.07.2005** **-----------------------** **REVISION PETITIONER(S)/APPELLANT/1ST ACCUSED::** **---------------------------------------------** **BIJU, S/O. KUTTAPPAN, PANNIPPUZHATHADATHIL VEEDU, UPPUKANDOM BHAGOM, CHARALMEDU KARA, KALKOONTHAL VILLAGE.** **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA** **RESPONDENT(S)/RESPONDENT/COMPLAINANT::** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-------------------------------Crl. Rev.Pet. No.2282 of 2006 ---------------------------------Dated this the 28[th] day of October, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.221 of 2005 of the Additional Sessions Judge, Adhoc-II, Thodupuzha. He was the 1[st] accused in C.C. No.506 of 2002 of the Judicial First Class Magistrate, Nedumkandam which was filed under Sec.379 read with Sec.34 of the Indian Penal Code (IPC for short). The learned Magistrate acquitted A2 to A8 and convicted A1 under Sec.379 IPC and sentenced him to simple imprisonment for two years. Against that, the 1[st] accused preferred the above Criminal Appeal, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 2. The charge against the accused in that on 13.04.2001 at 12.00 a.m. the accused trespassed into the property of PW3 in Block No.419 in Ward No.1 of Karunapuram Panchayath, cut one teak tree and removed Crl. Rev.Pet. No.2282 of 2006 2 it in a jeep bearing registration No.KLF/1274 and committed the aforesaid offence. Sub Inspector, Nedumkandom registered a crime and after completing investigation, laid charge in the trial court. To prove the offence prosecution examined PW1 to PW7 and marked Exts.P1 to P8 as documentary evidence. MO1 to MO40 were admitted as material objects. Incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. The learned Magistrate convicted the 1[st] accused. 3. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that the accused is no more. In the circumstance, this Court obtained a report from the Sub Inspector, Nedumkandom who reported that the revision petitioner died on 02.09.2007. Death certificate obtained from the Nedumkandom Grama Panchayath is marked as Ext.C1. 4. According to Section 394 Cr.P.C., every Crl. Rev.Pet. No.2282 of 2006 3 appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided 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 appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister.” Proviso says that if 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 appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., every other appeal (except an appeal from a sentence of ## Crl. Rev.Pet. No.2282 of 2006 4 fine) shall finally abate on the death of the appellant. But in case of revision even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction. 5. Five Judges Bench of the Apex Court in **Pranab Kumar Mitra** v. **State of W.B. and another** [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 6. Revisional jurisdiction is a supervisory power Crl. Rev.Pet. No.2282 of 2006 5 to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a subordinate court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. 7. To prove the offence, prosecution examined PW1 to PW7. PW3, who is the owner of the property, deposed that he is having 26 cents of landed property and is holding the title deed. On 13.04.2001, somebody cut and removed teak tree from his property. He gave Ext.P2 statement to the Police. Subsequently, Police recovered ## Crl. Rev.Pet. No.2282 of 2006 6 the wooden logs which were marked as Exts.P1 to P40. PW4 signed in Ext.P3 mahazar. PW1 attested Ext.P1 mahazar. But he denied the recovery of wooden logs from the house of Pulikathudy George but PW2 admitted Ext.P1. PW5 denied the purchase of logs. PW6 attested Ext.P4 mahazar. PW7 recorded Ext.P2 statement and registered the case. PW3 registered Ext.P5 FIR and prepared Ext.P3 mahazar. Revision petitioner was arrested on 30.06.2001. On the basis of information given by him, the wooden logs were recovered. PW5 prepared Ext.P5 mahazar. The disclosure portion of the confession is marked as Ext.P1(a). Nothing has been brought out to discredit the evidence of the investigating officer. Therefore, the recovery was effected on the basis of information given by the accused itself. ## 8. Apex Court in **K. Chinnaswamy Reddy v. State of Andhra Pradesh and another [AIR 1962 Supreme Court 1788]** held as follows: S.27 is an exception to Ss.25 and 26, which prohibit the proof a confession made to a Police officer or a confession made while a person is in Crl. Rev.Pet. No.2282 of 2006 7 police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police “whether it amounts to a confession or not” which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.27. (Para 9) The trial court and appellate court rightly analysed the evidence and convicted the 1[st] accused. No connecting evidence against other accused and the trial court acquitted them. The appellate court rightly analysed the evidence and confirmed the conviction of the trial court. I find no illegality or irregularity in the above finding. There is no merit in this revision petition and is dismissed accordingly. ## Sd/- **P.D. RAJAN, JUDGE** NS/31/10/2016 / True Copy / P.A. To Judge