HARIS, S/O.KUNJU v. STATE OF KERALA

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2016-06-16
Court Decision / Holding: There is no merit in this petition and it is dismissed accordingly.
Final Disposition: Revision petition dismissed

Parties to the Case

Appellants / Petitioners

HARIS, S/O.KUNJU

Respondents

State of Kerala represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Adv. SMT. Lilly Leslie

Counsels for Respondents

• Public Prosecutor SMT. M.G. Lisha

Case Synopsis & Summary

HARIS, the accused, challenged a conviction under section 307 IPC recorded by the Principal Assistant Sessions Judge, Kochi, which was upheld on appeal (Sessions Court, Ernakulam) and the sentence was modified. He was charged for assaulting PW2 with a knife on 18.10.2002; PW3 corroborated the incident; the prosecution examined PW1–PW10, with Exts P1–P8 and MO1–MO3. The trial court convicted, and the appellate court confirmed the conviction and modified the sentence. The revision petition before the Kerala High Court arose after the accused died on 25.12.2008, as per Ext.C1 (death certificate). The central legal issue was whether a criminal revision abates on the death of the accused. Section 394 Cr.P.C. deals with abatement of appeals, not revisions; the court notes there is no explicit provision abating revisions, but the High Court can exercise revisional jurisdiction to pass appropriate orders. The five-judge apex Court in Pranab Kumar Mitra v. State of W.B. (AIR 1959 SC 144) is cited to support that the High Court may examine the entire question of correctness, propriety or legality of the sentence even where death occurs during pendency. After reviewing the evidence, the judge found no illegality in the lower courts’ findings and dismissed the revision petition, thereby upholding the conviction and sentence. The decision clarifies abatement principles for revisions and reaffirms the court’s revisional powers.

Provisions of Law Cited

Section 307 IPCSection 394 Cr.P.C.Section 394(2) Cr.P.C.

Legal Doctrines & Maxims

Abatement of appeals under Cr.P.C.; revision abatement is not automatic
Revisional jurisdiction may continue post-death of the accused (Mitra v. State of West Bengal, AIR 1959 SC 144)
In the absence of statutory provision, the High Court may pass appropriate orders in revisional jurisdiction

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision contends that abatement rules under Section 394 Cr.P.C. apply only to appeals and not to revisions; relying on the principle laid down in Mitra v. State of West Bengal (AIR 1959 SC 144), the High Court has the power to continue the revision and examine the entire order of conviction and sentence even after the death of the accused. It is urged that the absence of a specific statutory provision for revision abatement should notbar the court from exercising revisional jurisdiction to correct any prima facie illegality.

Contentions of Respondents

The State argues that Section 394 Cr.P.C. governs appeals and not revisions, and that abatement is not expressly provided for revisions; nevertheless, the High Court retains revisional power to pass appropriate orders where required. The evidence against the accused is examined and the conviction is supported by eyewitness testimony and medical evidence, and the lower courts’ findings are consistent with the record. The respondent contends there is no merit in the challenge to the conviction or sentence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pranab Kumar Mitra v. State of West Bengal and another	AIR 1959 SC 144	Positive	Cited to support that the High Court may continue revisional scrutiny and examine the sentence even after the death of the accused, in the absence of a statutory abatement provision for revision.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 3382 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.1201/2004 of SESSIONS COURT,ERNAKULAM DATED 16-06-2005** **AGAINST THE JUDGMENT IN SCC 248/2003 of PRINCIPAL ASSISTANT SESSIONS COURT,KOCHI DATED 21-08-2004** **REVISION PETITIONER(S)/APPELLANT/ACCUSED: -----------------------------------------HARIS, S/O.KUNJU, HARIPARAMBU HOUSE, PANDITHANAM TEMPLE ROAD, MATTANCHERRY.** **BY ADV. SMT.LILLY LESLIE** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.3382 of 2005 ---------------------------------------------Dated this the 16[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.1201/2004 of Session Court, Ernakulam. The accused was charge sheeted in S.C.No.248/2003 by the Principal Asst. Sessions Judge, Kochi u/s.307 IPC. The learned Asst. Sessions Judge convicted the accused u/s.307 IPC and sentenced to rigorous imprisonment for three years and fine of 10000/- with₹ default sentence. Against that the accused preferred Crl.Appeal No.1201/2004, where the learned Sessions Judge confirmed the conviction and modified the sentence. Being aggrieved by that, the accused preferred this revision Crl.R.P. No.3382/2005 2 petition. 2. The charge against the accused is that on 18.10.2002 at about 1.15 p.m., the accused assaulted one Venu with a knife, at that time the brother of Venu intervened and the accused attacked the brother and he sustained injury. Mattancherry Police registered a case and after completing investigation laid charge before Court, from there it was committed to the Sessions Court, subsequently it was made over to the trial Court. During trial, prosecution examined PW1 to PW10 and marked Exts.P1 to P8. MO1 to MO3 were also admitted in evidence. 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 revision petition came up for Crl.R.P. No.3382/2005 3 hearing, it is reported that the revision petitioner died, accordingly, this Court obtained a report from the Circle Inspector of Police, Mattancherry, who filed a report with Death Certificate, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 25.12.2008. 4. According to Section 394 of Cr.P.C., there is abatement of appeals, but there is no provision in the Cr.P.C. with regard to the abatement 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. Crl.R.P. No.3382/2005 4 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 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 Crl.R.P. No.3382/2005 5 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. While adverting to the argument I have examined the oral and documentary evidence in this case. In the trial Court, the injured was examined as Crl.R.P. No.3382/2005 6 PW2. His evidence shows that on 18.10.2002 the revision petitioner reached in front of the shop varanda and PW3 Venu told him not to sit in the varanda which is a nuisance to the passers by and the business. Hearing this accused left the place and at about 1.15 p.m., he came there with MO1 knife, and attacked him. Immediately, PW2 resisted this attack, and accused inflicted cut injury on his neck with MO1 and he warded off that attack and he sustained injury. Again the accused chased him, on seeing this, others interfered. This evidence was supported by PW3. Analysing the direct oral evidence of PW2 and PW3, it is clear that the revision petitioner assaulted PW2. 7. The injured was removed to Government Hospital where PW1 Dr. Jancy Augustine treated him and issued Ext.P1 wound certificate. PW9 recorded Crl.R.P. No.3382/2005 7 Ext.P2 statement and registered Ext.P7 FIR. MO1 was also recovered on the basis of information given by the accused. After completing investigation, PW10 C.I. laid charge in the trial Court. These witnesses were cross examined by the defence counsel, but nothing has been brought out to discredit the oral and documentary evidence adduced by the prosecution. The trial Court convicted the accused, which was upheld by the appellate Court. Therefore, I do not find any illegality in the finding of the Court below. Therefore, there is no merit in this petition and it is dismissed accordingly. ## **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.3382/2005 8