Gopinath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** **CRL.REV.PET.NO. 66 OF 2008 ( ) -------------------------------** **AGAINST THE JUDGMENT IN CRA NO.287/2006 OF SESSIONS COURT, PATHANAMTHITTA DATED 18-10-2007** **AGAINST THE JUDGMENT IN CC NO.89/2004 OF CHIEF JUDICIAL MAGISTRATE, PATHANAMTHITTA DATED 25-07-2006** **-------------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **GOPINATH, S/O.GOPALAN, KOLLANTAYYATHU VEEDU, KADUVAKKUZHY, EDANADU MURI, MALAYALAPPUZHA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **RESPONDENT(S)/COMPLAINANT : ----------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **---------------------Crl. Rev.Pet. No.66 of 2008 ---------------------------------Dated this the 24[th] day of November, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.287 of 2006 of the Sessions Judge, Pathanamthitta. He was the accused in C.C. No.89 of 2004 of the Chief Judicial Magistrate, Pathanamthitta which was filed under Secs.279 and 304(A) of the Indian Penal Code (for short, IPC) and Sec.134(a) & (b) of the M.V. Act. The learned Chief Judicial Magistrate convicted the accused and sentenced him to fine of Rs.1,000/- in default simple imprisonment for 15 days under Sec.279 IPC, rigorous imprisonment for two years under Sec.304(A) IPC, fine of Rs.1000/- in default simple imprisonment for 15 days under Sec.134(a) & (b) read with Sec.187 of the M.V. Act. Against that, the accused preferred the above Criminal Appeal, where the learned Sessions Judge allowed the appeal in part and the sentence of imprisonment for two years under Sec.304(A) IPC is reduced to one year. Being Crl. Rev.Pet. No.66 of 2008 2 aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 01.01.2004 at 9.00 a.m., the accused was driving an auto rickshaw KL-03/G-7740 in a rash and negligent manner along the Malayalappuzha-Puthukkulam public road from west to east. When it reached near the community hall, Malayalappuzha the vehicle hit against one Bhadran Nair who was talking with others on the side of the road. As a result, he sustained serious injuries. While undergoing treatment, he died at General Hospital, Pathanamthitta. In this incident, Pathanamthitta Police registered a case and after completing investigation, Sub Inspector, Pathanamthitta laid charge in the Chief Judicial Magistrate, Pathanamthitta. During trial, prosecution examined PW1 to PW12 and marked Exts.P1 to P14. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused. 3. When the matter came up for hearing there Crl. Rev.Pet. No.66 of 2008 3 was no representation from the side of the revision petitioner. In the circumstance, this Court issued notice to the revision petitioner through Sub Inspector, Pathanamthitta who reported that revision petitioner is no more and produced the death certificate obtained from Malayalappuzha Grama Panchayath, which is marked as Ext.C1. As per Ext.C1 revision petitioner died on 30.09.2008. 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 but there is no such abatement possible in the case of revision. 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” Crl. Rev.Pet. No.66 of 2008 4 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 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 Crl. Rev.Pet. No.66 of 2008 5 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 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 Crl. Rev.Pet. No.66 of 2008 6 note that the possibility of another view on a point is not a ground for interfering with the above power. 7. Rash and negligent driving has been explained by the Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads as follows: 1. Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with the recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. (ii) Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. 8. The occurrence was deposed by PW1 who gave Ext.P1 statement to the Police. His evidence shows that on 01.01.2004 at 9.00 a.m., the deceased was talking with PW2 and PW3 on the southern side of the road, at that time the revision petitioner had driven the auto Crl. Rev.Pet. No.66 of 2008 7 rickshaw in a rash and negligent manner and hit against the deceased. As a result, the deceased sustained serious injuries. Immediately he was removed to General Hospital, Pathanamthitta where he died after three days. The evidence of PW1 shows that revision petitioner was rash and negligent at that time. PW2, PW3 and PW4 who were standing near the place of occurrence had seen the incident and supported the evidence of PW1. The medical evidence is corroborating the prosecution case. PW8 conducted post mortem examination and issued Ext.P3 post mortem certificate. PW7 attested the inquest report. The direct oral testimony of PW1 to PW4 is believable and the trial court rightly analysed the evidence and convicted the accused. I find no illegality or irregularity in the findings of the trial court which was upheld by the appellate court. There is no merit in this revision petition and it is dismissed accordingly. Sd/- NS/28/11/2016 **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge