Sasidhasran Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 2615 of 2005 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.APPEAL NO.77/1996 of ADDITIONAL SESSIONS JUDGE-II, MAVELIKKARA DATED 25-01-2005** **AGAINST THE JUDGMENT IN CC 186/1991 of JUDICIAL FIRST CLASS MAGISTRATE COURT,KAYAMKULAM DATED 18-03-1996** **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **-----------------------------------------** **SASIDHASRAN NAIR, NELPURA KIZHACHETHIL, AYAPARAMBU, CHERUTHANA, KARTHIKAPPALLY,, ALAPPUZHA.** **BY ADV. SRI.S.SHANAVAS KHAN** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:: ---------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.2615 of 2005 ---------------------------------------------Dated this the 16[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.77/1996 of Additional Sessions Judge -II, Mavelikkara. He was charge sheeted in C.C.No.186/1991 u/s.452 and 324 IPC by the Judicial First Class Magistrate, Kayamkulam and convicted the accused u/s.452 and 324 IPC and sentenced to imprisonment for three months and fine of 1000/-under Section 452 IPC and₹ fine of 1000/- under Section 324 IPC, in default simple₹ imprisonment for three months. Against that, the accused preferred Crl.Appeal No.77/1996 before Additional Sessions Judge-II, Mavelikkara, which was dismissed by the learned Crl.R.P. No.2615/2005 2 Judge. Being aggrieved by that, the accused preferred this revision petition. 2. The case against the accused is that on 26.9.1991 at about 9.30 p.m., the accused committed house trespass into house NO.292 in Ward NO.V of Cheruthana Panchayat owned by PW1, stabbed him with a broken glass bottle and intimidated his wife and children by showing a broken glass bottle, thereby committed the offence. Veeyapuram Police registered a crime and after completing investigation, Sub Inspector of Police laid charge before Judicial First Class Magistrate Court, Kayamkulam. In pursuance of the charge, prosecution examined PW1 to PW9 and marked Exts.P1 to P5. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Crl.R.P. No.2615/2005 3 3. When the matter came up for hearing, the learned counsel for the revision petitioner submitted that the revision petitioner died. Hence this Court obtained a report from the Sub Inspector of Police, Veeyapuram who has reported that the revision petitioner died on 5.7.2011 and the death Certificate has been produced which is marked as 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. Crl.R.P. No.2615/2005 4 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., 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 Crl.R.P. No.2615/2005 5 144] 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. 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 Crl.R.P. No.2615/2005 6 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 interpreting with the above power. 7. While adverting to the incident it is found that prosecution examined PW1 to prove the occurrence. His evidence shows that on 2.6.1991 at 9.30 p.m. the accused trespassed into the house of PW1 with a broken glass bottle and assaulted him. PW2 and PW4, who are the children of PW1, supported the evidence of PW1. The wife of PW1, who was examined as PW3 reiterated the same version given by PW1. Even though PW1 to PW4 were cross examined by the defence counsel, nothing has been brought out to discredit the evidence. The injured was removed to Government Hospital, Harippad where PW7 the Crl.R.P. No.2615/2005 7 doctor treated PW1 and issued Ext.P3 wound certificate, in which it is noted clean incised wound multiple linear injury 3' x 1' over the back of chest right side. This medical evidence of PW7 supported the evidence of PW1. Analysing the oral and documentary evidence, there is no reason to discard the oral testimony of PW1 to PW4 and prosecution proved its case beyond reasonable doubt. 8. The case was registered by PW8 on the basis of statement given by PW1. Ext.P4 is the FIR. He conducted portion of the investigation. PW9 after completing investigation laid charge in the trial Court. The attestor of Ext.P2 Mahazar supported the prosecution story. The trial Court analysed the evidence of the prosecution witness and come to a conclusion that the story stated by PW1 is believable. Hence, the trial Court convicted the accused, which was upheld by the appellate Court. When Crl.R.P. No.2615/2005 8 there is no adverse evidence with regard to the conviction, I am of the opinion that there is no merit in this revision and it is dismissed accordingly. **P.D. RAJAN, JUDGE.** acd