Ravi (alias T. Raveendran) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** **Crl.Rev.Pet.No. 1354 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 444/1998 of I ADITIONAL SESSIONS COURT,TRIVANDRUM DATED 20-08-2004** **AGAINST THE JUDGMENT IN CC 488/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II,NEYYATTINKARA DATED 27-10-1998** **REVISION PETITIONER(S):** **---------------------RAVI, AGED 51, S/O.THANKAPPAN, KALLUVILA VEEDU, KAZHIVOOR DESOM, KANJIRAMKULAM VILLAGE.** **BY ADVS.SRI.R.T.PRADEEP SRI.VIJULAL.V.** **RESPONDENT(S):** **--------------** **THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.1354 of 2005 ---------------------------------------------Dated this the 30[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment of conviction and sentence in Crl.Appeal No.444/1998 of I Additional Sessions Judge, Thiruvnanthapuram u/s.55(a) of the Abkari Act. He was charge sheeted by the Judicial First Class Magistrate CourtIII, Neyyattinkara u/s.55(a) of the Abkari Act. The learned Magistrate convicted the accused u/s.55(a) of the Abkari Act and sentenced to simple imprisonment for six months and fine of 25,000/-in default of payment of fine, simple₹ imprisonment for three months. Against that he preferred the above Crl.Appeal before I[st] Additional Sessions Judge, Crl.R.P.No.1354/2005 2 Thiruvananathapuram, where the learned Sessions Judge set aside the conviction u/s.55(a) of the Abkari Act and convicted the appellant u/s.58 of the Abkari Act and sentenced to simple imprisonment for six months and fine of 15,000/-, in default of payment of fine, simple₹ imprisonment for two months. Being aggrieved by that, he preferred this revision petition. 2. The charge against the accused is that on 3.4.1996 at 2.45 p.m, he was found in possession of two litres of illicit arrack on the public road in Kazhuvoor junction by the Kanjiramkulam Police. He was arrested and the contraband articles were seized. Thereafter registered a crime 45/1996. After completing investigation, filed a complaint before Judicial First Class Magistrate Court-III, Neyyattinkara. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to Crl.R.P.No.1354/2005 3 P3 as documentary evidence. MO1 and Mo2 were admitted in evidence. 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 revision petition came up for hearing, it is reported that the revision petitioner died. In the circumstances, this Court obtained the death certificate of the revision petitioner through Sub Inspector of Police, Kanjiramkulam obtained from the Secretary Registrar of Births and Deaths, Kanjiramkulam Grama Panchayat, which is marked as Ext.C1. As per Ext.C1, the revision petition died on 12.9.2009. In Ext.C1, the name of the deceased is shown as 'T. Raveendran'. The revision petitioner's name is 'Ravi'. The Sub Inspector of Police, Kanjiramkulam reported that 'Ravi' and Raveendran are one and the same person and Raveendran @ Ravi is his original name. Crl.R.P.No.1354/2005 4 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 Crl.R.P.No.1354/2005 5 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.1354/2005 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 Crl.R.P.No.1354/2005 7 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 It to note that the power. is pertinent possibility of another view on a point is not a ground for interpreting with the above power. 7. I have examined the oral and documentary evidence in this case. The occurrence was deposed by PW1, the Sub Inspector of Police, Kanjiramkulam. His evidence shows that while he was conducting patrol duty, on 3.4.1996 at 2.45 a.m., the revision petitioner was found carrying illicit arrack. On seeing the Police party, the accused became perplexed and on suspicion, he inspected the can in the presence of the independent witnesses and detected arrack in it. After preparing Ext.P1 mahazar, he seized the arrack and the contraband articles, which were Crl.R.P.No.1354/2005 8 marked in the trial Court as MO1 and MO2. He took sample from there and sealed at the place of occurrence. The independent witness present there affixed their signature in the sample. This witness was cross examined by the defence counsel. Nothing has been brought out to discredit the oral evidence of PW1. PW2 to PW4, the other police officials also supported the evidence of PW1. 8. The independent witnesses present there did not support the prosecution case. They turned hostile. They did not see the seizure of arrack. Simply because PW1 to PW4 happened to be police officials is not a ground to discard their evidence. The other circumstances show that their evidence is believable. Ext.P2 is the FIR. Ext.P3 is the chemical analysis report. Analysing the evidence of the prosecution witnesses, the trial Court convicted the revision petitioner, which Crl.R.P.No.1354/2005 9 was modified by the appellate Court. I do not find any illegality in the above finding. There is no merit in this revision petition and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd