Purushan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938** **CRL.REV.PET.NO. 1096 OF 2006 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.367/2001 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC), MAVELIKKARA DATED 16-02-2006** **AGAINST THE JUDGMENT IN CC NO.662/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, HARIPAD DATED 21-11-2001** **---------------------** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **PURUSHAN, S/O. NANU, AGED 68 YEARS, VINOD BHAVAN, (KARINGATTUCHIRAYIL), MUTHUKULAM THEKKUM MURI, MUTHUKULAM VILLAGE.** **BY ADV. SRI.R.REJI** **RESPONDENT(S)/STATE AND COMPLAINANT:** **------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE CHIEF SECRETARY, THIRUVANANTHAPURAM BY THE ASST. SUB INSPECTOR OF POLICE, KANAKAKUNNU.** **BY PUBLIC PROSECUTOR SRI. C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01-09-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. R.P. No.1096 of 2006 ---------------------------------Dated this the 1[st] day of September, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.367 of 2001 of the Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara. He was charge sheeted in C.C. No. 662 of 1997 by the Judicial First Class Magistrate Court-I, Haripad under Secs.509, 354, 323 and 324 of the Indian Penal Code (IPC for short). The learned Magistrate convicted the accused and sentenced to undergo simple imprisonment for six months under Sec.509 IPC, simple imprisonment for one year under Sec.354 IPC, simple imprisonment for three months under Sec.323 IPC and simple imprisonment for 2 years under Sec.324 IPC. Against that, the accused preferred the above Criminal Appeal before the Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. Crl. R.P. No.1096 of 2006 2 2. The charge against the accused is that on 21.09.1997 at 5.30 p.m., while CW1 was proceeding along the lane on the northern side of the house bearing No.VII/218 the accused lifted his linen and exhibited his nudity and thereafter pressed both her breast and when her mother and CW3 rushed there he fisted her on her both cheeks and beat CW3 with an iron road causing injuries on his head. In pursuance of trial, prosecution examined PW1 to PW9 and marked Exts.P1 to P9 as documentary evidence. The 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, learned counsel appearing for the revision petitioner submitted that he has no information about the revision petitioner. In the circumstance, this court issued notice to the revision petitioner through Circle Inspector, Haripad who reported that the revision petitioner died on 03.09.2013 at Rajasthan and produced the death certificate of the revision petitioner which is marked as Crl. R.P. No.1096 of 2006 3 Ext.C1. 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 leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., Crl. R.P. No.1096 of 2006 4 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. 6. In the light of the above facts I have Crl. R.P. No.1096 of 2006 5 ascertained whether there is any illegality or irregularity in the findings of the court below. In the trial court, prosecution examined PW1 as occurrence witness. Her evidence shows that on 21.09.1997, the accused entered into her house exhibited his nudity and pressed on her both breast, committed the offence, PW2, her daughter made alarm. When PW1 and PW3 intervened, the accused slapped on her both cheeks and beat PW3 with an iron rod. She went to the Haripad Police and gave Ext.P1 statement where they registered a crime. Ext.P6 is the FIR. PW2 and PW3 supported the evidence of PW1. During cross examination of these witnesses, nothing has been brought out to discredit the oral evidence of these witnesses. Exts.P3, P4 and P5 are the wound certificates. PW7 and PW8 who were the doctors also supported the prosecution case. No circumstances are brought out to discredit the direct oral evidence of these witnesses. 7. Learned counsel submitted that the evidence of interested witness needed corroboration and it is not fully admissible. Apex Court in **Yogesh Singh** v. Crl. R.P. No.1096 of 2006 6 ## **Mahabeern Singhs [AIR 2016 Supreme Court 5160** ] ## (weekly) held as follows: **“** A survey of the Judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai. v. State of Bihar, (2001) 7 SCC 318: (AIR 2001 SC 3173); State of U.P. v. Jagdeo Singh , (2003) 1 SCC 456: (AIR 2003 SC 660); Bhagalool Lodh & Anr. v. State of U.P., (2011) 13 SCC 206 : (AIR 2011 SC 2292) ; Dahari & Ors. v. State of U.P., (2012) 10 SCC 256: (AIR 2013 SC 308); Raju @ Balachadran & Ors. v. State of Tamil Nadu, (2012) 12 SCC 701: (AIR 2013 SC 983); Gangabhavani v. Rajapati Venkat Reddy & Ors., (2013) 15 SCC 298: (AIR 2013 SC 3681); Jodhan v. State of M.P. (2015) 11 SCC 52:(AIR 2015 SC (Supp) 1991)).” 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 Crl. R.P. No.1096 of 2006 7 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 note that the possibility of another view on a point is not a ground for interfering with the above power. 9. Therefore, it is found that the courts below rightly analysed the evidence and convicted the accused. There is no illegality or irregularity in the findings of the Courts below. There is no merit in this revision petition and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** NS/05/09/2016 / True Copy / P.A. To Judge