PHILIPOSE, S/O.THOMAS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. D. Rajan
Judgment Date: 2016-11-29
Court Decision / Holding: Conviction and sentence set aside; accused acquitted and liberty granted; since the accused has died, further proceedings in the case are not necessary.
Final Disposition: Disposed of by acquittal and discharge of the accused; no further proceedings necessary.

Parties to the Case

Appellants / Petitioners

PHILIPOSE, S/O.THOMAS, AGED 70 YEARS, CHAKKUNKAL HOUSE, NARANAMMOOZHY, ATHIKAYAM, PATHANAMTHITTA

Respondents

STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
R, BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN

Legal Representation & Advocates

Counsels for Petitioners

• Sri. S. Santosh Kumar (Perunad)

Counsels for Respondents

• Public Prosecutor Sri D. Chandrasenan

Case Synopsis & Summary

This is a Kerala High Court criminal revision challenging the conviction and sentence recorded by a Magistrate for offences under Sections 324 and 326 IPC in CC 426/1998. The accused, Philiose S/o Thomas, was convicted by the Judicial First Class Magistrate, Ranny, on 31-7-2002 and sentenced to six months’ rigorous imprisonment under Section 324 IPC and one year’s rigorous imprisonment under Section 326 IPC, with a compensation of Rs. 5000 under Section 357(3) Cr.P.C., in default of which simple imprisonment was imposed. The conviction was challenged in Crl.Appeal No. 192/2002 before the Additional District and Sessions Judge (Adhoc), Fast Track Court-II, Pathanamthitta, which dismissed the appeal. The revision petitioner then approached this Court. During the revision, Ext.C1, a death certificate issued by the local Gram Panchayat, showed that the petitioner died on 7-8-2016, triggering discussion on abatement under Section 394 Cr.P.C. The Court explains abatement provisions for appeals, and notes a five-judge precedent (Pranab Kumar Mitra v. State of West Bengal) recognizing revisional power to examine the record even after death, while other appeals abate. The Court ultimately finds lack of Medical evidence supporting serious injury, observes miscarriage of justice, and for this reason sets aside the conviction and sentence and acquits the deceased. The revision petition is disposed of accordingly.

Provisions of Law Cited

Section 394 Cr.P.C.Section 377 Cr.P.C.Section 378 Cr.P.C.Section 324 IPCSection 326 IPCSection 357(3) Cr.P.C.

Legal Doctrines & Maxims

Revisional jurisdiction as supervisory power to correct illegality or irregularity
Abatement of appeals on death of accused under Section 394 Cr.P.C.
Proviso to Section 394(2) Cr.P.C. allowing continuation of appeal on leave where death occurs during pendency (where applicable)
Pranab Kumar Mitra v. State of West Bengal, AIR 1959 SC 144 – revisional power post-death

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision challenges the trial court’s conviction under 324 and 326 IPC on the ground that there is no corroboration of serious injury due to lack of medical evidence. It is argued that the evidence of PW1 and PW2, without medical substantiation, is insufficient to sustain the convictions; the defense offered no evidence. The revision also discusses abatement, noting that deaths during pendency raise complex issues, but that revisional jurisdiction may operate to correct miscarriage of justice even post-death.

Contentions of Respondents

The State contends that the trial court rightly convicted based on the witnesses’ testimony (PW1 and PW2) and that abatement rules for appeals apply; the revision should not upset the verdict; it relies on the settled law regarding revisional powers and abatement to urge dismissal or maintenance of the conviction where justified.

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 premise that a High Court may entertain a revision and examine the record for correctness of the sentence notwithstanding death of the accused; justifies continuation of revisional power post-death.

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** **TUESDAY, THE 29TH DAY OF NOVEMBER 2016/8TH AGRAHAYANA, 1938** **Crl.Rev.Pet.No. 1133 of 2006 ( )** **--------------------------------AGAINST THEJUDGMENT IN CRL.APPEAL NO.192/2002 of ADDITIONAL DISTRICT.SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA DATED 07-12-2005** **AGAINST THE JUDGMENT IN CC 426/1998 of J.M.F.C.,RANNI DATED 31.7.2002** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------PHILIPOSE, S/O.THOMAS, AGED 70 YEARS, CHAKKUNKAL HOUSE, NARANAMMOOZHY,, ATHIKAYAM, PATHANAMTHITTA.** **BY ADV. SRI.S.SANTOSH KUMAR (PERUNAD)** **RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.1133 of 2006 ---------------------------------------------Dated this the 29[th] day of November, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No. Additional District and Sessions Judge (Adhoc), Fast Track Court-II, Pathanamthitta. He was the accused in C.C. No.426/1998 of Judicial First Class Magistrate Court, Ranny for offence u/s.324 and 326 IPC. The learned Magistrate convicted the accused u/s.324 IPC and sentenced to rigorous imprisonment for six months and rigorous imprisonment for one year u/s.326 IPC. He was also directed to pay 5000/- as compensation to the complainant u/s.357₹ (3) Cr.P.C., in default simple imprisonment for six months. Against that, the accused preferred the above criminal appeal before Additional District and Sessions Judge (Adhoc), Fast Crl.R.P. No.1133/2006 2 Track Court-II, Pathanamthitta, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 24.1.1998 at 5.45 p.m., the accused assaulted PW1 by pelting stone, as a result he sustained simple as well as grievous injuries at Adichipuzha in Karikulam muri of Ranny Pazhavangadi Village. In this incident, Ranni Police registered a crime and after completing investigation, ASI laid charge in the Judicial First Class Magistrate Court, Ranny. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P4. 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, it is reported that the revision petitioner is no more. Hence, this Court directed C.I, Ranny to obtain Death Certificate of the revision petitioner. Accordingly, he produced the Death Crl.R.P. No.1133/2006 3 Certificate issued from Naranammoozhy Grama Panchayat, which was marked as Ext.C1. As per Ext.C1, the revision petitioner died on 7.8.2016. 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 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 Crl.R.P. No.1133/2006 4 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 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. Crl.R.P. No.1133/2006 5 6. In the trial Court, the injured was examined as PW1. His evidence shows that on 24.1.1998 at 5.45 p.m., while he was grazing the goat, the accused came there and took him about 3 kms, at that time there was altercation between the accused with respect to some money transaction and then the accused got agitated and pelted a stone towards him, which hit on his lips and one of his teeth in the upper jaw was lost. The accused again pelted stones towards him and it hit on his right elbow, he fell down on the ground and sustained fracture. People came there, removed him to hospital and he gave Ext.P1 statement to the police. Ext.P3 is the FIR. PW6 recorded the statement of PW1 and registered the above crime. 7. The independent witness PW2 supported the evidence of PW1. PW3 turned hostile. Analysing the evidence of PW1 and PW2, it is found that PW1 sustained serious injury in the incident. Even though PW1 and PW2 deposed so, no evidence has been adduced by the Crl.R.P. No.1133/2006 6 prosecution to show that he sustained serious injury. In the absence of any medical evidence, the conviction and sentence passed by the trial Court u/s.324 and 326 IPC are liable to be set aside. 8. 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 misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. In the circumstances, the conviction and sentenced against the accused is set aside and he is acquitted and set at Crl.R.P. No.1133/2006 7 liberty. Since the accused is no more, further proceedings in this case is not necessary. Crl.R.P. is disposed of as above. **P.D. RAJAN, JUDGE.** acd