Damodaran Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938** **CRL.REV.PET.NO. 2958 OF 2004 (D) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.174/1999 OF ADDITIONAL SESSIONS JUDGEII, MAVELIKKARA DATED 10-08-2004** **AGAINST THE JUDGMENT IN CC NO.49/1995 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM DATED 30-06-1999** **----------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **DAMODARAN PILLAI, ILLATHU PUTHEN VEETIL, CHERAVALLY MURI, KAYAMKULAM.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP** **RESPONDENT(S)/STATE & COMPLAINANT::** **----------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** ## **2. CIRCLE INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION.** **BY PUBLIC PROSECUTOR SMT.M.G.LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev. Pet. No.2958 of 2004 ---------------------------------Dated this the 12[th] day of July, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.174 of 1999 of the Additional Sessions Judge-II, Mavelikkara. He was charge sheeted in C.C. No.49 of 1995 of the Judicial First Class Magistrate Court, Kayamkulam under Secs.279, 337 and 304(A) of the Indian Penal Code (hereinafter referred to as IPC for short). The learned Magistrate convicted the accused to undergo simple imprisonment for six months each under Sec.279, 337 and 304(A) IPC and directed that the sentence shall run concurrently. Against that, he preferred the above Criminal Appeal where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 25.04.1994 at 3.35 p.m., he had driven a bus no.KCE4411 in a rash and negligent manner endangering human Crl. Rev. Pet. No.2958 of 2004 2 life from west to east in front of the Kayamkulam Police station. When it reached at SD Pharmacy, it hit behind a motor cycle No.KL4-3750 driven by PW1. As a result, PW1, the pillion rider Sathiyamma and his grant daughter sitting in front of PW1 fell down and sustained serious injuries. Subsequently the bus ran over the head of Sathiyamma and due to the fatal injures, she succumbed to the injuries. Kayamkulam Police registered a crime and after completing investigation laid charge in the trial court. During trial prosecution examined PW1 to PW14 and marked Exts.P1 to P16. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that the revision petitioner is no more. During trial, he was aged 74 years, which was mentioned in the judgment of the trial court. In the circumstances, this court obtained a report from the Circle Inspector, Kayamkulam in which, it is reported that the revision Crl. Rev. Pet. No.2958 of 2004 3 petitioner died long back. His death was not registered by the Registrar of Births and Deaths, Kayamkulam Municipality. 4. According to Section 394 Cr.P.C., every 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 Crl. Rev. Pet. No.2958 of 2004 4 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 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 Crl. Rev. Pet. No.2958 of 2004 5 view. 6. Revisional jurisdiction is a supervisory power 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. Prosecution examined PW2, who is the injured, to prove the occurrence. Her evidence shows that when PW1 was riding the motor cycle, the accused had driven the vehicle in a rash and negligent manner and it hit behind their motorcycle. She knew the driver Crl. Rev. Pet. No.2958 of 2004 6 earlier and identified him. PW8, the owner of the vehicle also submitted Ext.P6(a) to the Sub Inspector of Police. As per Ext.P6(a) report, the revision petitioner was the driver of the bus at the relevant time. PW1, the rider of the motor cycle deposed that revision petitioner was driving the bus KCE-4411 in a rash and negligent manner and hit on the back side of his vehicle. PW1 knew the driver and he identified him. Analysing the evidence of PW1 and PW2 it is clear that the accident was due to rash and negligent driving of the bus. 8. In this context, I have considered the medical evidence. Ext.P10 postmortem certificate shows that she died due to multiple injuries sustained in the accident. Ext.P8 is the wound certificate of PW1 and Ext.P9 is the wound certificate of PW2. PW1 and PW2 deposed that they sustained injures in the accident. Revision petitioner has no case that PW1 and PW2 sustained injuries in some other accident. Ext.P11 and P12 are the vehicle inspection reports. There is no mechanical defect noticed to the vehicle. There is no dispute with regard to the place of occurrence. No allegation from the side of the Crl. Rev. Pet. No.2958 of 2004 7 revision petitioner that the death was due to the contributory negligence of PW1. The trial court verified the evidence of PW1 and PW2 and fully convinced the prosecution story. Therefore, it is proved that the revision petitioner had driven the vehicle in a rash and negligent manner at the place of occurrence which resulted in the accident, thereby, PW1 and PW2 sustained injuries and Sathiyamma succumbed to the injuries. 9. The court below rightly analysed the evidence and convicted the revision petitioner which was upheld by the appellate court. I find no illegality or irregularity in the finding of the courts below. There is no merit in this revision petition and it is dismissed accordingly. ## Sd/- **P.D. RAJAN, JUDGE** NS/13/07/2016 / True Copy / P.A. To Judge