P.G. Binu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** **Crl.Rev.Pet.No. 2899 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.416/2003 of ADDITIONAL DISTRICT & SESSIONS COURT,PATHANAMTHITTA DATED 02-06-2005** **AGAINST THE JUDGMENT IN SC 517/2001 of ASSISTANT SESSIONS COURT,THIRUVALLA DATED 28-10-2003** **REVISION PETITIONER(S)/APPELLANT/1ST ACCUSED:: --------------------------------------------P.G. BINU, AGED 24, S/O. GOPALAN, PUNNOLIL VEEDU, ELENJIMELKARA,, ENNAKKADU VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.JOHN BRITTO** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:: -------------------------------------STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING THE EXCISE INSPECTOR, THIRUVALLA RANGE.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.2899 of 2005 ---------------------------------------------Dated this the 27[th] day of June, 2016 ## **ORDER** This revision petition is filed by the 1[st] accused against the judgment of conviction and sentence in Crl.Appeal No.416/2003 of Additional District & Sessions Judge, (Adhoc) Fast Track Court-II, Pathanamthitta. The accused was charge sheeted in S.C.No.517/20021 before Assistant Sessions Judge,Thiruvalla u/s.8(1) of the Abkari Act. After trial, learned Asst. Sessions Judge convicted the accused u/s.8(1) and (2) of the Abkari Act and sentenced to rigorous imprisonment for six months and fine of 1 lakh, in default₹ simple imprisonment for six months. The second accused was found not guilty under Section 8(1) of the Abkari Act Crl.R.P. No.2899/2005 2 and acquitted thereunder. Against that, he preferred Crl.Appeal before Additional Sessions Judge where the learned Sessions Judge dismissed the appeal. 2. The charge against the accused is that on 24.1.2000 evening, the Circle Inspector of Excise, Excise Enforcement and Anti Narcotic Special Squad, Kottayam while conducting patrol duty got information that there was sale of arrack in toddy shop No.18/1999 at Idinjillam. At 7 p.m., they reached infront of the toddy shop, at that time, the 1[st] accused ran away from the toddy shop holding a plastic can. The Circle Inspector seized the can and detected two litres of arrack. The contraband article was seized, reaching at the Excise Office, they registered a crime. After completing investigation, Excise Inspector, Thiruvalla laid charge before Judicial First Crl.R.P. No.2899/2005 3 Class Magistrate Court, Thiruvalla from there the case was committed to Sessions Court, Pathanamthitta. Subsequently it was made over to the Asst. Sessions Court, Thiruvalla. During trial, prosecution examined PW1 to PW4 and marked Exts.P1 to P8 as documentary evidence. MO1 to MO3 were admitted as material objects. 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 matter came up for hearing, the learned counsel appearing for the revision petitioner submitted that the revision petitioner died on 9.8.2010. The Excise Inspector, Thiruvalla produced the death certificate of the revision petitioner issued by the Registrar of Births and Deaths, Budhanoor Crl.R.P. No.2899/2005 4 Grama Panchayat which is marked as Ext.C1. As per Ext.C1, the revision petitioner died on 9.8.2010. 4. 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 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 Crl.R.P. No.2899/2005 5 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 **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 Crl.R.P. No.2899/2005 6 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 of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided Crl.R.P. No.2899/2005 7 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. The offence was detected by PW1, his evidence shows that on 24.1.2000 at 7 p.m., while he was conducting patrol duty, he got information about the possession of illicit arrack in the toddy shop No.18 at Idinjillam. When he reached at the place of occurrence at 7 p.m., the revision petitioner was found carrying MO1 can. He intercepted him and inspected MO1 in which he detected two litres of arrack. He seized the arrack, after preparing Ext.P1 mahazar. He took 200ml as sample and sealed at the place of occurrence. The seized articles were produced before Crl.R.P. No.2899/2005 8 the Excise Inspector and registered Ext.P3 crime and occurrence report. Ext.P2 is the arrest memo, Ext.P4 is the remand application and Ext.P5 is the property list. Ext.P6 is the forwarding note. PW2 identified MO1 to MO3. PW3 also admitted that the accused and the seized articles were produced before him. He also attested Ext.P1 mahazar. PW4 independent witness turned hostile. PW3 stated that he completed investigation and laid charge before Court. Ext.P6 is the forwarding note, Ext.P7 chemical examination report through Court, Ext.P8 is the copy of the licence. Analysing the evidence, trial Court was of the opinion that the revision petitioner was in possession of MO1 and offence under Section 8(1) (2) was proved in the trial Court. 8. The appellate Court rightly appreciated the Crl.R.P. No.2899/2005 9 evidence and confirmed the finding against the revision petitioner. I do not find any illegality in the finding of the court below. There is no merit in this revision petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd