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2019 Supreme(Ker) 651
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. SHAFFIQUE, N. ANIL KUMAR, JJ.
Benny P. Jacob, S/o Jacob - Appellant
Versus
Rajesh Kumar Unnithan S/o. Late Madhavan Nair & Ors. - Respondents
Crl.Rev.Pet.No.656 of 2010, CRL.A.No.305 of 2014
Decided On : 25-09-2019
For the Appellant : Sri. Bechu Kurian Thomas (SR.).
For the Respondent: Sri. P. Vijaya Bhanu (SR.), Sri. P.M. Rafiq, Sri. M. Revikrishnan, Sri. Vipin Narayan, Sri. Ajeesh K. Sasi, Sri. V.C. Sarath, Smt. Pooja Pankaj, Sri. Thomas J. Anakkallunkal Sruthy N. Bhat, SR. P.P., Sri. S.U. Nazar, Sri. P. Vijaya Bhanu SR.
IMPORTANT POINTS
Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the Revisional Court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial.
Headnote:
Criminal Procedure Code, S.378(1)- It is neither possible nor advisable to make an exhaustive ist of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party.
Statement of facts:
Whether the Government can direct the Advocate General to prefer an appeal against acquittal, it was held that in terms of S.378(1), of the Criminal Procedure Code, the State has to file an appeal before the High Court against an order of acquittal through the Public Prosecutor of a High Court appointed by the State Government or Central Government u/s 24(1) of the Cr.P.C. and nobody else can present the appeal even if there is a direction by the State. For that reason, the appeal filed by the State is incompetent and has to be rejected as not maintainable.
Finding of the court:
It is one of the exceptional cases as the finding of acquittal is on a total misreading and perverse appreciation of evidence. On the face of it, the High Court rightly set aside the order of acquittal but it gravely erred in converting the order of acquittal into that of conviction, instead of directing rehearing by the trial court. Ordinarily we would have set aside the order of the Revisional Court to the extent aforesaid and directed for rehearing by the trial court, but taking into account the nature of offence, at such a distance of time we would not like to charter that course.
Result: Criminal Revision Petition is allowed
JUDGMENT :
Shaffique, J.
Crl.R.P No.656 of 2010 is a victim revision filed by Benny P. Jacob who is the brother of the deceased and Crl.Appeal No. 305 of 2014 is preferred by State of Kerala. Both these cases are filed challenging the judgment passed by the Additional Sessions Judge, Manjeri in S.C. No.151 of 2008 dated 15/09/2009 by which the accused Rajeshkumar Unnithan was acquitted of all charges levelled against him.
2. At the very outset, it can be seen that the appeal preferred by the State is defective as it was not preferred by the State Public Prosecutor. In State of Kerala v. Krishnan (1981 KLT 839) a Division Bench of this Court after considering the question as to whether the Government can direct the Advocate General to prefer an appeal against acquittal, it was held that in terms of S.378(1), of the Criminal Procedure Code, the State has to file an appeal before the High Court against an order of acquittal through the Public Prosecutor of a High Court appointed by the State Government or Central Government u/s 24(1) of the Cr.P.C. and nobody else can present the appeal even if there is a direction by the State. For that reason, the appeal filed by the State is incompetent and has to be rejected as not maintainable. Hence, we are concerned with Criminal Revision Petition only at present.
3. Case of the prosecution is that on 03/08/2005 at about 11.45 p.m., accused trespassed into the courtyard of the house of the deceased Johny situated at Pathirappadam, with an intention to kill PW4 who is the Revision Petitioner herein, and in fact made an attempt on his life by stabbing on his chest and back with a dagger due to which PW4 sustained serious injuries. When Johny intervened and tried to separate them, accused stabbed him with a dagger on his chest and abdomen with the intention to kill him. As a result of the said injuries, Johny died. Motive for the crime is alleged to be the scandals spread by PW4 Benny about the lady love of the accused.
4. Learned Senior counsel Sri.Bechu Kurian Thomas, appearing on behalf of the revision petitioner argued that great prejudice and grave injustice is done to the victim by the Court below through its verdict. Court below committed serious error in acquitting the accused. Evidence of PW4 who is an injured eyewitness, was not at all considered properly. Trial Judge was carried away by the minor discrepancies in the evidence. The learned Public Prosecutor Sri.S.U.Nazar also, while supporting the victim's revision, argued that the acquittal of the accused by the court below was perverse and unreasonable and hence warrants interference.
5. Learned counsel for the accused argued that the case on hand was disposed of by the learned Sessions Judge on merits and it is a well-reasoned verdict. Any attempt from the part of this Court to remit back the case for re-trial or re-hearing would obviously be taken as an indirect direction to the learned Sessions Judge to convert the finding of acquittal into one of conviction. The Revision Petition is a baseless one. Evidence even from the stage of registering FIR is fabricated and manipulated. He pleaded to dismiss the petition.
6. Section 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') deals with powers of High Court in Revision. Section 401 reads as under:-
401. High Court's Powers of revisions.
(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) No
