Yohannan, S/o Mosha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938** **CRL.REV.PET.NO. 1816 OF 2007 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.32/2004 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM DATED 07.10.2006** **AGAINST THE JUDGMENT IN CC NO.732/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEYYATINKARA DATED 31.12.2002** **---------------** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **----------------------------------------** **YOHANNAN,S/O.MOSHA, INJIKKATTUKADAYARA VEEDU, CHAKKALAVILA, ERUMBIL DESOM, NEYYATTINKARA.** ## **BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.C.N. PRABHAKARAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.1816 of 2007 ---------------------------------Dated this the 24[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.32 of 2004 of the Additional Sessions Judge, Fast Track (Adhoc)-IV, Thiruvananthapuram. He was charge sheeted in C.C. No.732 of 1998 by the Judicial First Class Magistrate-I, Neyyantinkara for the offences punishable under Sec.447 and 324 of the Indian Penal Code (‘IPC’ for short). The learned Magistrate convicted the accused under Secs.447 and 324 IPC and sentenced to simple imprisonment for one month under Sec.447 IPC and simple imprisonment for one year and fine of Rs.2,000/- in default, simple imprisonment for three months under Sec.324 IPC. Against that, the accused preferred the above Criminal Appeal, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. 2. The charge against the accused is that on Crl. Rev.Pet. No.1816 of 2007 2 13.12.1997 at 8.30 a.m., the accused attacked PW1 with a chopper and inflicted injury on his left forearm while he was working in his property at Chekkalavila as a result, PW1 sustained serious injuries. Neyyattinkara Police registered a crime and after completing investigation laid charge in the Judicial First Class Magistrate Court-I, Neyyattinkara. To prove the offence, prosecution examined PW1 and PW7 and marked Exts.P1 to P5 as documentary evidence. Exts.D1 and D2 were also marked during cross examination of PW1 and PW2. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. When this revision petition came up for hearing, the learned counsel submitted that the revision petitioner is no more. In the circumstance, this court directed the Sub Inspector, Neyyattinkara to produce the death certificate of the revision petitioner. Accordingly, Neyyattinkara Police produced the death certificate obtained from the Thiruvananthapuram Corporation Crl. Rev.Pet. No.1816 of 2007 3 which is marked as Ext.C1. As per Ext.C1, revision petitioner died on 23.05.2015. 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 but no such abatement is possible in the case of revision. 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. Rev.Pet. No.1816 of 2007 4 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 in revision or calls for the record suo motu, then notwithstanding the death of the convicted person Crl. Rev.Pet. No.1816 of 2007 5 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 note that the possibility of another view on a point is not a ground for interfering with the above power. Crl. Rev.Pet. No.1816 of 2007 6 7. The evidence in this case shows that PW1 sustained injury in the incident on 13.12.1997 at 8.30 a.m. On that date, the revision petitioner trespassed into the property of PW1 and attacked him with a chopper on his right hand as a result he sustained serious injuries. Immediately he was removed to Taluk hospital, Neyyanttinkara. From there, he was referred to Medical College Hospital. The other occurrence witnesses PW2 and PW3 supported the evidence of PW1. Since there was a property dispute between the revision petitioner and PW1, the revision petitioner attacked PW1. Ext.P3 is the wound certificate issued by PW5. In Ext.P3 he noticed two injuries. PW6 issued Ext.P4 treatment certificate. On the basis of information given by PW1, Neyyanttinkara Police registered a case and Ext.P5 is the FIR. PW1 gave Ext.P1 statement. During investigation, it was revealed that there was no fracture and the offence under Sec.326 IPC was deleted from the charge by PW7. There is no illegality or irregularity in the finding of the trial court which was approved by the appellate court. In the Crl. Rev.Pet. No.1816 of 2007 7 circumstance, I do not find any illegality or irregularity in the above order. The trial court rightly appreciated the evidence and acquitted the accused. There is no merit in this appeal and it is dismissed accordingly. NS/27/10/2016 Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge