Ummar s/o Attan Kutty and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **THURSDAY, THE 25TH DAY OF AUGUST 2016/3RD BHADRA, 1938** **CRL.REV.PET.NO. 1033 OF 2007 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.581/2004 OF SESSIONS COURT, MANJERI DATED 11-10-2006** **AGAINST THE JUDGMENT IN CC NO.83/2000 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA DATED 29-10-2004** **-------------------** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED 1 TO 3 :** **-------------------------------------------------** **1. UMMAR,S/O.ATTHAN KUTTY, POOLAKUZHIYL HOUSE, PARAL AMSOM AND DESOM, PERINTHALMANNA,POST THOOTHA, MALAPPURAM DISTRICT.** **2. HAMSAKUTTY,S/O.ATHANKUTTY, POOLAKUZHIYL HOUSE, PARAL AMSOM AND DESOM, PERINTHALMANNA, POST THOOTHA, MALAPPURAM DISTRICT.** **3. SUBAIDA VERALIKATTIL,W/O.POOLA KUZHIYIL UMMAR,POOLAKUZHIYIL HOUSE, PARAL AMSOM AND DESOM, PERINTHALMANNA, POST THOOTHA, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.S.ABDUL SALAM** ## **RESPONDENT(S)/COMPLAINANT AND STATE :** **------------------------------------** **STATE OF KERALA** **REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.1033 of 2007 ---------------------------------Dated this the 25[th] day of August, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.581 of 2004 of the Sessions Court, Manjeri. They were charge sheeted by the Judicial First Class Magistrate Court-I, Perinthalmanna in C.C. No.83 of 2000 for the offences under Secs.448, 323 and 324 read with Sec.34 of the Indian Penal Code (for short, IPC). The learned Magistrate convicted A1 and A2 under Secs.448, 323 and 324 IPC and sentenced to undergo simple imprisonment for one month and fine of Rs.500/- under Sec.448 IPC, simple imprisonment for one month and fine of Rs.500/under Sec.323 IPC and simple imprisonment for two months and fine of Rs.500/- under Sec.324 IPC. The third accused is convicted under Sec.448 and 323 IPC and sentenced to pay a fine of Rs.500/- each under Secs.448 and 323 IPC in default, simple imprisonment for one month each. Against that, they preferred Criminal Crl. Rev.Pet. No.1033 of 2007 2 Appeal No.581 of 2004 before the Sessions Court, Manjeri, which was dismissed by the learned Sessions Judge. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on 28.01.2000 at 11.45 a.m., A1 and A2 plucked coconut from the coconut tree standing on the southern side of the house of PW1. When PW1 questioned that act, the accused pelted stones towards her and her daughter as a result, they sustained serious injuries. In the after noon, her husband came there, she informed about the incident and reported the matter to the Perinthalmanna Police. Sub Inspector, Perinthalmanna investigated the crime and laid charge in the Judicial First Class Magistrate Court-I, Perinthalmanna. In pursuance of trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P4. Incriminating circumstances brought out in evidence were denied by the accused while questioning them. They examined DW1 and DW2 and marked Exts.D1 in support of their defence. Crl. Rev.Pet. No.1033 of 2007 3 3. When the matter came up for hearing, the learned counsel appearing for the revision petitioners submitted that the 2[nd] revision petitioner is no more. In the circumstance, this Court obtained a death certificate issued from the Registrar of Births and Deaths, Aliparmaba Grama Panchayath which is marked as Ext.C1. According to Sec.394 Cr.P.C., after the death of the appellant, there is abatement of appeal, but in case of revision no such abatement is possible. 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. Rev.Pet. No.1033 of 2007 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 144] considered the question of Crl. Rev.Pet. No.1033 of 2007 5 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 particular point is decided misconstruing the evidence on record or ## Crl. Rev.Pet. No.1033 of 2007 6 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. Learned counsel appearing for the revision petitioner contended that prima facie no materials are available to prove the offence. The medical evidence is not supporting the prosecution evidence. Moreover, the evidence of PW1 is not believable. When there is no evidence to prove the alleged offence, the conviction is unsustainable. 8. In reply, learned Public Prosecutor submitted that the injured are close relatives of the revision petitioner and are living in enmical terms. The identity is not questioned and no need to interfere in the finding of the trial court. 9. While exercising the revisional jurisdiction, it is for the court to interfere in exceptional cases, when it feels that substantial injustice have been done by the courts below. I have also ascertained whether there is Crl. Rev.Pet. No.1033 of 2007 7 any violation of any fundamental rules in the matter of appreciation of evidence which resulted in any miscarriage of justice. In the trial court, prosecution examined PW1 to prove the occurrence. The evidence of PW1 shows that on 28.01.2000, she had plucked coconuts from her property, at that time accused 1 and 3 took away those plucked coconuts and beat CW2 (Basheer). On seeing this, PW1 went near him (CW2), the 1[st] accused kicked her and the 2[nd] accused caught hold on her neck. They also assaulted CW2 with MO1 stick. Immediately, they were removed to the Government Hospital, Perinthalmanna, where she gave Ext.P1 statement to the police. PW2 supported the evidence of PW1. He also gave a similar version as given by PW1. 10. The medical evidence is not fully corroborating the prosecution story. PW5 treated the injured and issued Exts.P3 and P4 wound certificates. Exhibit P3 wound certificate shows three contused abrasions on the back about 6 inches long one inch wide (right side). He was admitted in the hospital on Crl. Rev.Pet. No.1033 of 2007 8 28.01.2000 **.** Exhibit P4 shows that 'Abida', P.W.1 was also treated in the hospital. No external injuries were noted in Ext.P4. On a perusal of Exts.P3 and P4 and the evidence of PW5, it is clear that CW2 sustained injury with a weapon MO1. Since he was not examined as a witness, the injury found in Ext.P3 is not proved. Analysing the evidence, it is found that the prosecution has failed to prove the offence under Section 324 of IPC and the conviction under the said Section is liable to be set aside. 11. It is seen from the oral evidence of PW1 that accused 1 to 3 trespassed into her house and assaulted her and committed offence under Sections 448 and 323 read with Section 34 IPC. Therefore, the illegality committed by the trial court is to be rectified by invoking the revisional jurisdiction. It is the primary responsibility of the prosecution to prove the ingredients of offence punishable under Section 324 of IPC. The presumption of law is that a person is innocent unless and until otherwise found proved by the prosecution. When an Crl. Rev.Pet. No.1033 of 2007 9 accused is charge-sheeted for an offence for voluntarily causing hurts that offence has to be proved by the prosecution by convincing evidence. The trial court failed to appreciate that position and convicted the accused. 12. In the result, conviction under Section 324 of IPC is set aside. The revision petitioners are convicted under Sections 448 and 323 read with Section 34 IPC and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs.1,000/- (Rupees one thousand only) each under Sections 448 read with Section 34 IPC and 323 read with Section 34 IPC, in default, simple imprisonment for two months each. This Criminal Revision Petition is disposed of with the above modification. **==> picture [61 x 11] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/- Sd/-<br>**----- End of picture text -----**<br> **P. D. RAJAN, JUDGE** DST / True Copy / P.A. To Judge