IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 Crl.Rev.Pet.No. 162 of 2009() ----------------------------- CRA.652/2004 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.218/1999 of CHIEF JUDICIAL MAGISTRATE COURT, MANJERI .................... REVN. PETITIONER: APPELLANT/1ST ACCUSED ------------------------------ ASSAINAR, S/O. ABOOBACKER, VAKKOYIL, KOZHIPPALAM, GUDALLUR, TAMIL NADU. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA RESPONDENT: RESPONDENT/STATE: ------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO.162 OF 2009 -------------------------------------------------- Dated this the 15th day of January, 2009 O R D E R Revision petitioner is the first accused in C.C. 218 of 1999 on the file of Chief Judicial Magistrate, Manjeri. He along with two others were charged for the offence under section 498A, 406 and 323 read with section 34 of Indian Penal Code. All the accused pleaded not guilty. The Chief Judicial Magistrate on the evidence acquitted accused 2 and 3 and convicted revision petitioner for the offence under section 498A and 406 of Indian Penal Code. Revision petitioner challenged the conviction before Sessions Court, Manjeri in Crl. Appeal 652 of 2004. Learned Additional Sessions Judge as per judgment dated 24.9.2008 confirmed the conviction for the offences under section 498A and 406 of Indian Penal Code but set aside the sentence for not imposing fine which is mandatory for the offence under section 498A of Indian Penal Code and remanded the case back to the Magistrate to award proper sentence for the offence under section 498A of Indian Penal Code. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner and the CRRP 162/2009 2 learned Public Prosecutor were heard. 3. Learned counsel argued that the judgment of the appellate Court shows that there was no independent reappreciation of the evidence and appellate Court has only found that the trial Court has appreciated the evidence properly and without an independent reappreciation of evidence, confirmed the conviction and therefore the judgment is vitiated and is to be set aside. 4. The learned Public Prosecutor did not dispute the fact that there was no independent reappreciation of evidence by the appellate Court. 5. A perusal of the judgment of the learned Additional Sessions Judge establish that there was no independent reappreciation of evidence by the Additional Sessions Judge. Except stating that evidence of PWs 1, 2, 5, 6 and 10 will go to show that there was nothing to disbelieve their version and the trial Court has appreciated the evidence and arrived at right conclusion, evidence was not independently considered. The appellate Court in an appeal against conviction is bound to reappreciate the evidence and independently decide whether conviction for the offence is sustainable or not. Being the final fact finding Court, it is the duty of the appellate Court. As the learned Additional Sessions Judge did not consider the appeal as mandated by law, the judgment is set aside. CRRP 162/2009 3 The appeal is remanded to Additional Sessions Court, Manjeri for fresh disposal in accordance with law. Revision petition is allowed. The judgment in Crl.Appeal 652 of 2004 by Additional Sessions Judge, Manjeri is set aside. Additional Sessions Judge is directed to re-hear the appeal and dispose the appeal in accordance with law after reappreciation of the evidence in the proper perspective. Revision petitioner is directed to appear before the Additional Sessions Court on 12.2.2009. M. SASIDHARAN NAMBIAR, JUDGE okb