High Court of KeralaSingle Judge2016-07-13Revision petition dismissed

Mathew s/o Augusthy v. State of Kerala

Case / Petition Number:Crl.Rev.Pet.No.444 of 2005 (A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2016-07-13
Court Decision / Holding: There is no illegality in the findings of the trial Court; the revision petition is dismissed; the death of the petitioner does not render the revision abated and the matter ends with dismissal.
Final Disposition: Revision petition dismissed

Parties to the Case

Appellants / Petitioners

Mathew s/o Augusthy, Kochupparambil Veettil, Kurinjikara, Purappuzha Village, Thodupuzha

Respondents

State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. A. P. Subhash

Counsels for Respondents

• Public Prosecutor, SMT. M. G. Lisha

Case Synopsis & Summary

This criminal revision petition arises from the judgment in Crl. Appeal No.118/2004 of the Sessions Court, Thodupuzha, which modified the conviction and sentence in a case under IPC sections 324 and 326. The accused Mathew was charged in CC 342/2002 before the Judicial First Class Magistrate-I, Thodupuzha, for stabbing injuries with a chisel during a 25 September 2001 altercation near a shop in Purappuzha. The Magistrate acquitted under section 326 IPC but convicted under section 324 IPC and sentenced to two years’ simple imprisonment along with a fine of Rs. 5,000. The Sessions Court on appeal adjusted the sentence. The revision petitioner later challenged this sequence before the Kerala High Court. During proceedings, the petitioner’s death on 15 May 2014 was brought to light; Ext. C1 confirms the death. The High Court discusses abatement under Cr.P.C. section 394, noting there is no explicit provision for abatement of revisions, but proviso allows near relatives to seek continuation. Citing a five-judge decision in Pranab Kumar Mitra v. State of West Bengal, the court acknowledges that a High Court may entertain revision and scrutinize the order of conviction and sentence notwithstanding death, when warranted. On evaluation of the evidence (PW1–PW12, MO1–MO2, Exts. P1–P9, D1), the court finds no illegality in the trial court’s findings and dismisses the revision petition, clarifying that death does not automatically abate a revision.”

Provisions of Law Cited

IPC s.324IPC s.326Cr.P.C. s.394

Legal Doctrines & Maxims

Abatement of revision petitions upon death – Cr.P.C. s.394; Proviso allowing continuation with leave (as interpreted by higher courts).
Power of High Court to examine revision despite death of accused (as per Pranab Kumar Mitra v. State of West Bengal)

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the revision petitioner argued that the revision petition abates on the death of the accused under Cr.P.C. s.394 and that the legal heirs could only continue the revision with leave; however Cr.P.C. contains no explicit provision for abatement of revisions. The court noted the death certificate Ext.C1 and proceeded to consider whether abatement applies to revisional petitions. It was submitted that since the petitioner had died, the revision should be dismissed, or alternatively that leave to continue could be obtained by legal heirs; the petitioner’s counsel contended the court should interpret Cr.P.C. provisions to permit continuation, given the lack of explicit abatement provisions in revisions.

Contentions of Respondents

The State contended that the revision petition should be considered in light of applicable abatement principles and that the absence of an abatement provision for revisions allows the High Court discretion to continue; the State relied on judicial precedents including the five-judge decision in Pranab Kumar Mitra v. State of West Bengal and another, to argue that the High Court can examine the entire question of correctness and legality of the sentence even in revision and notwithstanding the death of the accused.

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 the proposition that a High Court may entertain revision and examine the entire question of sentencing even after the death of the convicted person, indicating scope to proceed with revision notwithstanding abatement concerns.

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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** **WEDNESDAY, THE 13TH DAY OF JULY 2016/22ND ASHADHA, 1938** **Crl.Rev.Pet.No. 444 of 2005 (A)** **-------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL 118/2004 of SESSIONS COURT,THODUPUZHA DATED 24-01-2005** **AGAINST THE JUDGMENT IN CC 342/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS-1, THODUPUZHA DATED 16-04-2004** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------MATHEW,S/O.AUGUSTHY, KOCHUPARAMBIL VEETTIL, KURINJIKARA, PURAPPUZHA VILLAGE, THODUPUZHA.** **BY ADV. SRI.A.P.SUBHASH** **RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------** **STATE OF KERALA REPRESENTED BY** **THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,** **ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G. LISHA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.444 of 2005 ---------------------------------------------Dated this the 13[th] day of July, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl. Appeal No.118/2004 of Sessions Judge, Thodupuzha. He was charge sheeted in C.C. No.342/2002 of Judicial First Class Magistrate-I, Thodupuzha u/s.324 and 326 IPC. The learned Magistrate acquitted the accused for offence u/s.326 IPC, but he was convicted and sentenced to simple imprisonment for two years and compensation of 5,000/-₹ u/s.324 IPC. Against that, he preferred the above Crl.Appeal before Sessions Court, Thodupuzha, where the learned Sessions Judge modified the sentence. Being aggrieved by that, he preferred this revision petition. 2. The the accused was that on charge against 25.9.2001 at 6.45 pm, the accused inflicted injuries on the left Crl.R.P. No.444/2005 2 and right side of chest with a chisel. Thereafter a scuffle was occurred between the accused and the injured in the veranda of the building owned by one Joseph situated in the 9[th] ward of Purappuzha Panchayat. Again, the accused inflicted an injury on the left buttock of PW1. On the basis of statement given by PW1, Sub Inspector, Karikunnam registered a case and after completing investigation, he laid charge in the trial Court. In pursuance of the charge, prosecution examined PW1 to PW12 and marked Exts.P1 to P9. The material objects MO1 and Mo2 were also admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and marked Ext.D1. 3. When the matter came up for hearing, the learned counsel for the revision petitioner submitted that the revision petitioner died two years back. In the circumstances, this Court directed S.I. Karimkunnam to furnish a report and produce the Death Certificate of the Crl.R.P. No.444/2005 3 revision petitioner. Accordingly, he produced the Death Certificate issued by the Registrar of Birth and Death, Purapuzha Grama Panchayat, which is marked as Ext.C1, in which it is stated that the revision petitioner died on 15.5.2014. 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 petition. Every appeal shall abate on the death of the accused except an appeal from a sentence of fine. 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 Crl.R.P. No.444/2005 4 144] 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. For ascertaining the illegality or irregularity committed by the court below, I have gone through the evidence adduced by the injured in this case. The evidence of PW1 shows that while he was standing infront of the provision shop of one Joy situated at Chenaparamabu and talking to one Sasi, the accused came there and stabbed on the right side of his loin with a chisel. Again he stabbed on the left loin, left side of his thigh and the right hand muscle. For that, he gave Ext.P1 statement to the Police. MO2 is the weapon used for attacking PW1, he also identified MO1. Crl.R.P. No.444/2005 5 PW2 saw the incident while he was standing infront of the shop of Joy, who supported the evidence. PW3 and PW4 did not support the case. PW4 also not supported the case. PW5, who is the brother of PW1 saw the incident and narrated the occurrence. PW6 attested Ext.P2 mahazar. PW7 attested seizure mahazar of MO2. PW8 attested Ext.P3 seizure mahazar. 7. The injured was treated at the Medical Mission Hospital, Kolencherry by PW9 and issued Ext.P9, in which he noted the following injuries: “1. Stabbed wound right arm 1 x 0.5 x 1 cm. 2. Cut injury of 4 x 3 x 1 cm. buttocks. 3. Stabbed wound on the left chest 1 x 2 x 1 cm. 4. Stabbed wound on the lower chest right side 1 x 0.5 cm.” 8. The above evidence shows that PW1 sustained injury in the incident and the revision petitioner attacked the injured with MO2. Whoever voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which used as weapon of offence is likely to Crl.R.P. No.444/2005 6 cause death is an offence u/s.324 IPC. Even though DW1 was examined in the trial Court and produced Ext.D1 certificate, the defence contention itself is not believable. The trial Court discarded the evidence and convicted the accused, which was upheld by the appellate Court. I do not find any illegality in the finding of the trial Court. There is no merit in this petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.444/2005 7