HaneeFa v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945 CRL.REV.PET NO. 7 OF 2011 ``` ``` AGAINST THE ORDER/JUDGMENT CC 291/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PATTAMBI CRA 211/2009 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT -II), PALAKKAD ``` ## **`REVISION PETITIONER/S:`** ``` HANEEFA, AGED 27 YEARS S/O.KUNJUHEETHU,VAKKATTIL HOUSE, PONNANI AMSOM, DESOM, KALPAKAMCHERRY. BY ADVS. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE C I OF POLICE, PATTAMBI, THROUGH THE, PUBLIC PROSECUTOR,HIGH COURT OF KERALA,, AT ERNAKULAM. SMT.SEETHA.S ,PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.R.P No. 7 of 2011 ## **C.S DIAS,J.** **--------------------------Crl.R.P No. 7 of 2011 ----------------------------Dated this the 17[th] day of November, 2023** ## **ORDER** The revision petition is filed challenging the legality and correctness of the judgment in Crl.A No.211/2009 of the Court of the Additional Sessions Judge (Fast Track Court No.II), Palakkad (Appellate Court), confirming the conviction and sentence passed in the judgment in CC No.291/2006 of the Court of the Judicial Magistrate of First Class, Pattambi, (Trial Court) holding the revision petitioner guilty for the offence under Sec.511 of Sec.380 of the Indian Penal Code ( in short, IPC). The revision petitioner was the first accused before the court below 3 Crl.R.P No. 7 of 2011 and case against the second accused was split up and refiled as CC No.787/2002. ## **Prosecution case in brief** 2. The prosecution case was that, on 27.6.2002, the two accused in furtherance of their common intention to commit the offence under Sec.380 of the IPC, broke open the front door of the house bearing No.12/5 in Anakkara Village belonging to PW2 had attempted to commit theft. Thus, the accused have committed the offences under Secs.454, 511 of 380 read with Sec.34 of the IPC. 3. The first accused denied the substance of accusation read over to him. In the trial, the prosecution examined PWs 1 to 3 and marked Exts.P1 to P4 and MOs 1 and 2 in evidence. 4 Crl.R.P No. 7 of 2011 ## **Trial Court Judgment** 4. The Trial Court, after analysing the materials placed on record, found the first accused guilty and convicted him for the offence under Sec.511 of Sec.380 and sentenced him to undergo simple imprisonment for a period of one year and pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for a further period of one month. 5. Aggrieved by the said judgment, the first accused preferred Crl.A No.211/2009 before the Appellate Court. ## **Appellate Court judgment** 6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, 5 Crl.R.P No. 7 of 2011 dismissed the appeal and confirmed the conviction and sentence imposed by the Trial Court. 7. Confronted with the concurrent judgments of the courts below; the present revision petition is filed. 8. Heard; Sri.C.V Manuvilsan, the learned Counsel appearing for the revision petitioner/first accused and Smt.Seetha S., the learned Public Prosecutor appearing for the respondent /State. 9. The learned counsel appearing for the revision petitioner vehemently argued that the courts below have concurrently gone wrong in finding the revision petitioner guilty for the offence charged against him. He contended that a bare reading of the oral testimonies of DWs 1 to 3 substantiate that the prosecution case is 6 Crl.R.P No. 7 of 2011 entirely false. The glaring infirmities and contradictions in the oral testimonies of the above witnesses raise a doubt regarding the credibility of the prosecution case. Since the prosecution has failed to prove the case beyond reasonable doubt, the revision petitioner is to granted the benefit of doubt. The learned counsel submitted that the Trial Court has not put all the incriminating circumstances to the revision petitioner in the questioning under Sec.313 of the Code, which again vitiates the entire case. Hence, the revision petition may be allowed and the impugned judgment may be set aside. 10. The learned Public Prosecutor, on the contrary, defended the impugned judgment and contended that this Court may not interfere with the concurrent findings of the fact finding Court. The courts below have, on a 7 Crl.R.P No. 7 of 2011 threadbare analaysis of the materials placed on record, found that the revision petitioner has committed the offence charged against him. Hence, the revision petition may be dismissed. 11. Is there and any illegality, impropriety irregularity in the impugned judgments of the courts below? 12. It is trite law that the revisional jurisdiction of this Court is to be sparingly exercised in cases of exceptional rarity. The said power is in the nature of a supervisory jurisdiction to correct the patent errors, manifest illegality and when there is total misreading of records. 8 Crl.R.P No. 7 of 2011 13. In **Sanjaysinh Ramrao Chavan vs Dattatray** **Gulabrao Phalke & Anr** [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and purport of the powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 9 Crl.R.P No. 7 of 2011 14. The prosecution case is that, on 27.6.2002, while PW2 was returning to his house, he found a person attempting to break open the front door of his house with an iron bar (MO1). On seeing PW2, the person ran away. PW2 ran behind him by shouting ‘thief’, ‘thief’. On hearing his cry, more than fifty locals ran behind the accused and a Police patrol party apprehended the accused. Thereafter, the statements of PWs 1 and 2 were recorded. MOs 1 and 2 were recovered on the basis of the confession of the accused. 15. The courts below, after analysing the pleadings and materials on record, have concluded that the prosecution has proved the case beyond reasonable doubt, that the accused has committed the offences charged 10 Crl.R.P No. 7 of 2011 against him, and consequently found him guilty and convicted and sentenced him . 16. The learned counsel for the revision petitioner persuaded this Court to re-appreciate the entire evidence in the case, which was perfunctorily declined in view of the limited scope of the revisional powers of this Court. Therefore, the sole question of law that survives is whether the Trial Court erred in not putting all incriminating circumstances appearing in the evidence to the accused in the questioning under Sec.313 of the Code. 17. It is well settled that, even an omission to put question under Sec.313 of the Code will not per se vitiate the trial, unless it is proved that the omission has resulted in failure of justice. I have carefully gone through the questioning of the revision petitioner and the materials 11 Crl.R.P No. 7 of 2011 that are on record. It is seen that, not only did the Trial Court put all the relevant questions to the revision petitioner but he also bluntly denied the question and did not state anything more. Furthermore, the revision petitioner did not raise the above question before the Appellate Court. Therefore, the present contention is untenable and cannot be permitted to be raised for the first time in a revision petition. 18. On an anxious consideration of the materials placed on record, particularly the oral testimony of PW2 read with Exts P1 to P3 and MOs 1 & 2, I do not find or in the any illegality, impropriety irregularity conclusions arrived at by the courts below to take a contrary view by exercising the revisional powers of this Court. Hence, I confirm the conviction and sentence of 12 Crl.R.P No. 7 of 2011 the courts below. The revision petition is meritless and is without any substance. Resultantly, the revision petition is dismissed. sd/- sks/13.11.23 **C.S.DIAS,JUDGE**