Koyyon Chandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** **CRL.REV.PET.NO. 327 OF 2003 ( )** **--------------------------------** **AGAINST THE JUDGMENT IN CRA NO.166/1998 OF ADDITIONAL SESSIONS JUDGE (ADHOC-I), THALASSERY DATED 20-09-2002** **AGAINST THE JUDGMENT IN CC NO.468/1995 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE,THALASSERY DATED 21-04-1998** **-------------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **KOYYON CHANDRAN, S/O. KANNAN, AGED 55, PAPPINISSERY AMSOM DESOM, KANNUR TALUK.** **BY ADV. SRI.V.RAMKUMAR NAMBIAR** **RESPONDENT(S)/RESPONDENT/DEFACTO COMPLAINANT:** **---------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.P.SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.327 of 2003 ---------------------------------Dated this the 19[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.166 of 1998 of the Additional Sessions Judge, Adhoc-I, Thalassery. He was charge sheeted in C.C. No.468 of 1995 of the Additional Chief Judicial Magistrate, Thalassery for the offences punishable under Secs.279, 337 and 304(A) of the Indian Penal Code (For short 'IPC). After trial, the learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for three months each under Secs.279 and 337 IPC and simple imprisonment for eight months and fine of Rs.2,000/- in default, simple imprisonment for three months under Sec.304(A) IPC. Against that, the accused preferred Criminal Appeal No.166 of 1998 before the Additional Sessions Judge, Adhoc-I, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. Crl. R.P. No.327 of 2003 2 2. The charge against the accused is that on 26.02.1995 at 9.00 p.m., he had driven the bus bearing registration no.KL-13A-4059 in a rash and negligent manner endangering human life through ChakkarakkalKeezhara public road. When he reached at the place of occurrence, the vehicle knocked down five persons. The injured were removed to the AKG hospital, but, one Vasu succumbed to the injuries. Edakkad Police registered a crime and after completing investigation, Circle Inspector, Kannur laid charge in the trial court. In pursuance of the charge, prosecution examined PW1 to PW19 and marked Exts.P1 to P13. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2. 3. When the matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that the revision petitioner is no more. In the circumstance, this Court directed the Sub Inspector, Edakkad to produce the death certificate of the accused. Crl. R.P. No.327 of 2003 3 Accordingly, Sub Inspector, Edakkad Police station produced the death certificate obtained from the Registrar of Births and Deaths, Condonment Board Office, Kannur, which is marked as Ext.C1. As per Ext.C1 revision petitioner Chandran died on 14.06.2003. 4. According to Sec.394 of the Code of Criminal Procedure, after the death of the appellant there is abatement of appeal. But in revision there is no such provision and no abatement. The legal heirs did not show any interest in prosecuting this revision petition. 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 Crl. R.P. No.327 of 2003 4 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 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 Crl. R.P. No.327 of 2003 5 ## **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 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 Crl. R.P. No.327 of 2003 6 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. Heard both sides. In this context, I have examined whether there is any illegality, irregularity or misreading of evidence committed by the Courts below while exercising their powers. On a perusal of the documents, it is clear that the courts below had considered all the relevant evidence for reaching its conclusion. The occurrence was deposed by PW1, the injured. His evidence shows that on 26.02.1995 at 9.00 p.m., while he was walking along the side of the road with PW2, PW3 and PW4, at that time, the revision petitioner had driven the vehicle in a rash and negligent manner and hit against them. He clearly stated that the bus came at terrific speed without noticing the Crl. R.P. No.327 of 2003 7 pedestrians on the road. Vasu sustained serious injuries in the incident, and he died while removing to hospital. The evidence of PWs.2, 3 and 4 shows that they saw the rash and negligent driving of the accused and they identified him. Therefore, I can conclude that while appreciating the evidence of PW1 to PW4, it is sufficient to prove the rash and negligent driving of the revision petitioner. 8. The injured were treated at Government hospital, Kannur. PW11 examined PW1 and issued Ext.P4 certificate. PW12 examined PW2 and PW4, who issued Exts.P5 and Ext.P7 wound certificates. PW13 conducted postmortem examination of the deceased Vasu and issued Ext.P8 certificate. From Ext.P8 it is clear that the death was due to the injury sustained in the accident. 9. Analysing the evidence of the occurrence witnesses with medical evidence it is found that the pedestrians who were standing at the place of occurrence sustained injury due to the rash and negligent driving of the revision petitioner. No circumstances are brought out Crl. R.P. No.327 of 2003 8 to discredit their evidence. The trial court rightly appreciated the evidence and convicted the revision petitioner. I find no illegality or irregularity in the above finding. There is no merit in this revision petition and this revision petition is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge