Mathai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF JULY 2016/3RD SRAVANA, 1938** **Crl.Rev.Pet.No. 3331 of 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.301/2004 of ADDITIONAL SESSIONS/SPECIAL JUDGE, NDPS CASES,THODUPUZHA DATED 13-10-2005** **AGAINST THE JUDGMENT IN CC 242/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS- I, IDUKKI DATED 25-09-2004** **REVISION PETITIONER(S)/APPELLANT/ACCUSED.:** **-----------------------------------------** **MATHAI, S/O.SOURISH, KUNNATHUPUTHEN PURAYIL HOUSE, KEERITHODU KARA, KANJIKUZHY, IDUKKI DISTRICT.** **BY ADVS.SRI.LATHEESH SEBASTIAN SMT.BINITHA JAMES** **RESPONDENT(S)/RESPONDENT/COMPLAINANT.:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.3331 of 2005 ---------------------------------------------Dated this the 25[th] day of July, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.301/2004 of Additional Sessions Judge, Thodupuzha. He was charge sheeted in C.C.No.242/2002 before Judicial First Class Magistrate Court, Idukki for having committed an offence punishable u/s.457 & 380 IPC. The learned Magistrate convicted the accused u/s.457 and 380 IPC. Against that, the accused preferred the above Crl.Appeal before Additional Sessions Judge, Thodupuzha, where the learned Sessions Judge modified the sentence. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 30.4.2002 at 11.30 p.m., the accused broke the outer door of the house of PW1 and committed theft of 16 aluminium dishes worth Crl.R.P. No.3331/2005 2 ₹1200/-, thereby committed the offence. Kanjikuzhy police registered a crime and after completing investigation laid charge in the Judicial First Class Magistrate Court, Idukki. To prove the offence, the prosecution examined PW1 to PW5 and marked Exts.P1 to P3. Aluminium dishes 16 numbers were marked as MO1 series in the trial Court. 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 hearing, the Sub Inspector, Kanjikuzhy has filed a report stating that the revision petitioner died on 12.2.2009 and he produced the Death Certificate, which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 12.02.2009. 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: Crl.R.P. No.3331/2005 3 **“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,” Therefore, a perusal of Section, it is found that except an appeal from a sentence of fine, there shall be finally abate on the death of the appellant. Proviso shows that near relatives may, within thirty days of the death of the appellant, may apply to the Appellate Court for leave to continue the appeal and if leave is granted, the appeal shall not abate. Here, after the death of the revision petitioner, the legal heirs were not impleaded, which is not a bar for continuing this revision. 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 Crl.R.P. No.3331/2005 4 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. According to Section 27 of Indian Evidence Act, when any fact is deposed by a person and anything is discovered in consequence of the information received from a person accused by an offence while in the custody of a police officer. So much of such information relates distinctly to the facts thereby discovered is admissible if that fact is proved. Therefore, it is clear that if any fact is actually discovered in consequence to the information given by an accused person in the custody of a police officer, it is an incriminating article against him. The Apex Court in _**Earabhadrappa**_ v. S _**tate of Karnataka**_ [AIR 1983 SC 446] held that - Section 27 is an Crl.R.P. No.3331/2005 5 exception to Sections 25 and 26 and is a proviso to Section 26. It makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime irrespective of the question whether it is confessional or not. The essential ingredient is that the information given by the accused must lead to the discovery of the fact which is direct outcome of such information. Secondly, only such portion of information given as distinctly connected with the said discovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. When these ingredients are proved, the embargo on the statement of the accused before the Police while in custody, will not apply. In another decision in _**Golkonda Venkateswara Rao**_ v. _**State of A.P**_ . [AIR 2003 SC 2846] held that,- The provisions of Section 27 of the Evidence Act are based on the view that if a fact s actually discovered in consequence of information given, some guarantee is afforded thereby that the information was Crl.R.P. No.3331/2005 6 true, and consequently, the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about confession made as to the articles of crime then cannot be false. In this case, the material objects and other articles were recovered on the basis of information given by the accused. 7. The occurrence was deposed by PW1, who preferred Ext.P1. He filed Ext.P1 stating that on 30.4.2002 somebody has stolen his article. On 1.5.2002 at 6 a.m., he got information about the stolen articles and identified those articles. PW4 investigation officer deposed that PW1 gave Ext.P1 statement and he registered Ext.P1(a) FIR. He also recovered MO1 series from the accused. Ext.P2 is the recovery mahazar. PW4, the independent witness attested Ext.P4. PW2 and PW3 deposed about the possession of MO1 series in the custody of the revision petitioner. The above Crl.R.P. No.3331/2005 7 evidence of the prosecution witness is corroborated and thus the recovery was properly proved. Therefore, I do not find any illegality in the finding of the Court below and there is no merit in this petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd