Philish v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938** **CRL.REV.PET.NO. 282 OF 2005 (A) --------------------------------** **AGAINST THE JUDGMENT IN CRA NO.114/2004 OF SESSIONS COURT, THODUPUZHA DATED 06.10.2004** **AGAINST THE JUDGMENT IN CC NO.555/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDOM ----------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **PHILISH, S/O.KUNJUMON, AGED 25 YEARS, KALLUNGAL HOUSE, MAVADI BHAGOM, MAVADI KARA, KALKOONTHAL VILLAGE.** **BY ADV. SRI.JOICE GEORGE** **RESPONDENT(S)/RESPONDENT: -------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.N.PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.282 of 2005 ---------------------------------Dated this the 25[th] day of October, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.114 of 2004 of the Sessions Judge, Thodupuzha. He was charge sheeted in C.C. No.555 of 1999 by the Judicial First Class Magistrate, Nedumkandom for the offences punishable under Secs.279, 338 and 304(A) of the Indian Penal Code (‘IPC’ for short). The learned Magistrate convicted the accused under Secs.279, 338 and 304(A) IPC and sentenced to simple imprisonment for three months each under Secs.279 and 338 IPC and simple imprisonment for six months under Sec.304(A) IPC. Against that, the accused preferred the above Criminal Appeal, 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 06.04.1999 at 5.30 p.m., the accused had driven an auto rickshaw bearing Reg. No. KL-7/N-5942 through Kumily- Crl. Rev.Pet. No.282 of 2005 2 Munnar public road in a rash and negligent manner, when it reached at Melekallar in Vattaparmabu Bhagaom the vehicle capsized to the side of the road and PW5 and one Shaji who were the passengers in the vehicle sustained injuries. PW5 sustained injuries including fracture and Shaji sustained head injury. Immediately they were removed to hospital. But Shaji succumbed to the injuries at the Medical College Hospital, Kottayam. Nedumkandom Police registered a crime and after completing investigation laid charge in the Judicial First Class Magistrate Court, Nedumkandom. During trial, prosecution examined PW1 to PW16 and marked Exts.P1 to P10. MO1 and MO2 were admitted in evidence. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Magistrate convicted the accused. 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 Crl. Rev.Pet. No.282 of 2005 3 circumstance, this court issued a direction to the Sub Inspector, Nedumkandom to produce the death certificate of the revision petitioner. As per the direction Sub Inspector, Nedumkandom produced the death certificate of the revision petitioner which is marked as Ext.C1. As per Ext.C1 the revision petitioner died on 20.11.2010. 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.” Crl. Rev.Pet. No.282 of 2005 4 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 **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 Crl. Rev.Pet. No.282 of 2005 5 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 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 Crl. Rev.Pet. No.282 of 2005 6 note that the possibility of another view on a point is not a ground for interfering with the above power. 7. In this context, I have examined whether there is any illegality or irregularity in the finding of the courts below. PW3 and PW4 are the occurrence witnesses and PW5 is a passenger in the auto rickshaw who sustained serious injuries. The evidence of PW5 shows that while he was travelling in the auto rickshaw revision petitioner had driven the vehicle in a rash and negligent manner and when it reached at the place of occurrence the vehicle capsized. As a result, he sustained serious injuries. The deceased Shaji also sustained serious injuries and died due to the injuries sustained in the accident. He gave Ext.P1 statement to the Police. Ext.P1(a) is the body note. PW4 is another occurrence witness. PW1 and PW2 removed the injured to the hospital. PW3 is another witness residing near the place of occurrence. PW4 turned hostile and did not support the prosecution case. Analysing the evidence adduced it is found that the revision petitioner was rash and Crl. Rev.Pet. No.282 of 2005 7 negligent at the time of accident. Ext.P2 is the inquest report prepared by the Police. PW6 is an independent witness who attested Ext.P2. Exts.P2 and P4 are the reports and Ext.P5 is the kychit. 8. The medical evidence is corroborating the prosecution case. Ext.P7 is the wound certificate. Ext.P10 is the post mortem certificate issued from the Medical College Hospital, Kottayam. PW12 deposed before that court that he examined PW5 at Medical Trust Hospital and noticed the following injuries. 1. Multiple small abrasion over right forearm, right elbow and right palm. 2. Multiple small abrasions in the left fore arm. 3. Contused abrasion 3x3 cms on the dorsum of left hand. 4. Contused abrasion 15x5 cms involving the lower part of front of left leg, lateral aspect of left ankle and dorsum of left foot and, 5. Abrasion 1x5 cms at the base of dorsum of right big toe. The oral evidence of PW12 and Ext.P7 show that PW5 sustained serious injuries. Ext.P10 is the postmortem certificate. PW16 deposed that the injuries are Crl. Rev.Pet. No.282 of 2005 8 sufficient in the ordinary course to cause death. He conducted post-mortem examination on 11.4.1999. The post mortem evidence is corroborating the prosecution story. Analysing the evidence, the trial court concluded that due to the rash and negligent of the revision petitioner, the vehicle capsized. 9. The principle of rash and negligent driving has been explained by the Apex Court in **S.N. Hussain v. State of A.P. [1972 (3) Supreme Court Cases 18]** which reads as follows: (i). Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with the recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. (ii) Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Crl. Rev.Pet. No.282 of 2005 9 While appreciating the evidence of the occurrence witness, it is clear that the rash and negligent driving of the revision petitioner was proved in the trial court. There is no reason to interfere in the finding of the courts below. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / NS/28/10/2016 P.A. To Judge