IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1581 of 2006(C)
1. SAMBASIVAN, S/O.KUTTAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA, A.S.I. OF POLICE,
... Respondent
For Petitioner :ADV.P.V.VIJAYAKUMAR(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.THANKAPPAN
Dated :03/01/2007
O R D E R
K. THANKAPPAN, J.
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Crl.A.No. 1581 OF 2006-C
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Dated this the 3rd day of January, 2007.
JUDGMENT
The appellant, accused in S.C.No.398/2005 on the file of
the Additional Sessions Judge (Adhoc)II, Kalpetta, faced trial
for the offences punishable under Sections 55(b),(g) and 58 of
the Abkari Act on the allegation that he was found in distilling
illicit arrack and also in possession of 5.5 liters of arrack on
24.8.2004 and thereby committed the above offences. To
prove the prosecution allegation, prosecution examined PWs
1 to 8 and relied on Exts.P1 to P7. MOs 1 to 6 were also
produced. On closing the prosecution evidence, the
appellant was questioned under Section 313 of the Code of
Criminal Procedure. The appellant denied the entire
prosecution and had stated that he is innocent and he was at
Coorg and when he came back from Coorg on 4.10.2005, he
was arrested by the police. Relying on the evidence adduced
by the prosecution, the trial court found the appellant guilty
under Sections 55(b) and (g) of the Abkari Act and he was
convicted thereunder and sentenced to undergo R.I for five
CRL.A.NO.1581/06 2
years and to pay a fine of Rupees One Lakh with default
sentence of payment of fine, further simple imprisonment
for a period of six months more. The trial court also allowed
the benefit of Section 428 of the Cr.P.C to the appellant.
The conviction and sentence awarded against the appellant are
assailed in the appeal.
2. Since the appeal is filed through the jail authorities and
the appellant is not defended by any counsel of his own
choice, a member from the State brief panel has been
appointed to argue the appeal for and on behalf of the
appellant. This Court heard the learned counsel appearing
for the appellant as well as the Public Prosecutor. The
counsel appearing for the appellant had taken two contentions
specifically before this Court in challenging the judgment of
the trial court. Firstly, the counsel submits that the trial
court miserably failed to note that the prosecution has not
succeeded in proving the identity of the appellant as the
person responsible for keeping the contraband article.
Secondly, the learned counsel submits that the evidence of the
prosecution witnesses cannot be relied on to prove that the
CRL.A.NO.1581/06 3
shed from which the contraband article alleged to have been
seized by the police belongs to the appellant and the appellant
is in exclusive possession of the shed and he is residing in
that shed. The prosecution tried to prove the case against the
appellant relying on the evidence of Pws 1, 2,4 and 7 with
regard to seizure of the contraband article from the shed.
PW7 is the detecting officer, who had deposed before the
court that on 24.8.2004 while himself, PW4 and other police
officers were returning from attending a public programme,
he received a reliable information that the appellant is
distilling arrack in the house at Aarthavayal in Cheeral amsom
and on receiving such an information, PW7 and other officers
went near the house and when they reached the house,
they have seen that somebody was running out of the house
through a nearby lane and as informed by the witness, who
had already accompanied him, PW7 identified the person
jumped out of the house was the appellant. This witness has
further stated that himself and the police party along with
Pws 1 and 2 went to the shed on preparing a search memo to
search the house and sending the same to the court, PW7
and the other police officials along with the witnesses went
CRL.A.NO.1581/06 4
inside the shed. It was seen that, in the kitchen room of the
shed an aluminum pot was on the hearth and two aluminum
vessels were also on the pot and a pipe was also connected
with the aluminum pot. It was seen on further verification
that the aluminum pot contained wash for preparing arrack
and a black can was kept near by the hearth. On further
verification, it was seen that the can contained 5.5 liters of
arrack. This witness has further stated that on preparing
Ext.P1 seizure mahazar, he had seized the aluminum pot and
other vessels and had also taken sample from the arrack kept
in the can in the presence of the witnesses. Further this
witnesses has stated that he had labeled and sealed the
sample as well as the contraband article and thereafter came
to the police station and registered Crime No.381/2004 of
Sulthanbattery Police Station. This witness had further
deposed that the sample taken from the contraband article
and the material objects were produced before the court on
26.8.2004. This witness has further stated that investigation
of the case has been continued by Pws 6 and 8 and finally
charge has been laid against the appellant by PW8. The
evidence of this witness, with regard to the seizure of the
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material objects and taking of the sample, has been
supported by the evidence of PW4. PW4, the head constable,
who accompanied PW7 while the crime was detected, had
given evidence before the court that himself and PW7 along
with PW1 and 2 went near the shed where he had seen that
somebody running out of the house and the witnesses
accompanied them had stated that the person running out of
the house was the appellant. This witness also had stated that
PW7 had prepared Ext.P1 seizure mahazar and seized the
contraband article and also taken the sample. PW1, an
independent witness who accompanied PW7 while they were
going to the house of the appellant, had deposed before the
court that he had gone along with PW7 and PW4 to the house
of the appellant and he had seen that PW7 had prepared
Ext.P1 seizure mahazar and had seized the contraband
article and had taken the sample from the arrack contained in
the can. He had further stated that when they reached the
kitchen of the shed from which the contraband articles were
seized, MOs were already in the shed. He had also stated
that he knows the appellant and the shed belongs to the
appellant. Though PW2 was examined to support the
CRL.A.NO.1581/06 6
prosecution case, he turned hostile and had stated that he had
not seen anything seized by PW7 from the shed as alleged by
the prosecution., however, he had stated that the appellant
was residing in the shed. PW3 was examined to prove Ext.P2
scene mahazar prepared by PW5. PW5 is the Village Officer,
who had given Ext.P3 certificate of possession of the property
in which the shed is situated. PW5 had stated that as per
Ext.P3 certificate issued by him the property in which the shed
situated is jointly owned by the children of one Yesodha
Nangiar including the appellant. PW6 and 8 are the police
officers, who completed the investigation and filed the charge.
Exhibit P4 is the chemical certificate produced by PW6
which would show that the sample contained ethyl alcohol at
37.88% and 2.54% by volume.
3. The question to be decided in this appeal is whether the
findings entered by the trial court are sustainable or not. The
contention of the learned counsel appearing for the appellant
is that the trial court went wrong in accepting the
prosecution evidence regarding the identity of the appellant,
who was responsible for keeping MOs 1 to 6 in the shed.
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To decide this question it has to be analysed that whether
Pws 1,2,4 and 7 have given evidence to show that the
appellant was the person, who jumped out of the shed when
they reached near the shed. When PW4 and 7 were examined
before the Court they had only stated that they have been
told by the other witness that the person gone out of the
house was the appellant. But they have no previous
acquaintance with the appellant at all. That apart, these
witnesses have not stated that which witnesses, either
examined by the prosecution or questioned by the officials,
had told that the appellant was the person, who jumped out of
the house when they reached near the house. PW1 or PW2
had also no case that they have identified the appellant as
the person who jumped out of the house. The only evidence
given by these witnesses before the court was that they had
seen the appellant in the premise of the shed certain
occasions and they were not sure whether the appellant was
permanently residing in the house. Hence, the identity of
the appellant as the person who responsible for keeping the
material objects seized by PW6 is doubtful. That apart, it
could be seen that when PW5 was examined before the court
CRL.A.NO.1581/06 8
he had only stated that the property in which the shed
situated jointly belongs to the children of Yeshodha Nangiar
and he had no case that there was any proof to show that the
appellant was residing in the shed and the shed belongs to the
appellant alone. That apart, it has to be noted that when Pws
1, 2,4 and 7 were cross examined by the counsel for the
defendant, they have admitted that anybody can enter the
shed and the shed was not properly protected by any door.
It is also to be noted that while PW5 had prepared Ext.P2
scene mahazar, he had only stated that the shed contained
two rooms and a coat was also iside the shed. In Ext.P2, PW5
had also given a discussion of the shed. But, it was stated
that the shed does not contain any registration number or
panchayath number. In the above circumstances, it could be
seen that the prosecution has not proved that the shed from
which the material objects recovered exclusively belongs to
the appellant or exclusively in his possession. It was also
come out in evidence that in the same compound in which the
shed situated, the house of the sister of the appellant was
situated and there were other residential houses also in
clear vicinity of the shed. In the above circumstances, it is
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the duty of the prosecution to prove that the shed from
which the contraband article seized actually belongs to the
appellant and the appellant was the person responsible for
keeping the contraband article inside the shed as alleged by
the prosecution. Hence, this Court is of the view that the
reasonable conclusion cannot be arrived that the shed
belongs to the appellant and the appellant is responsible for
keeping the article seized by the police. In the above
circumstances, benefit of doubt shall be given to the
appellant.
Accordingly, the findings entered by the trial court are
not based on any legal evidence. The judgment under
appeal is set aside and the conviction and sentence awarded
against the appellant are also liable to be set aside. The
appeal is allowed. The appellant, accused in
S.C.No.398/2005 on the file of the Additional Sessions Court,
Kalpetta, is hereby acquitted and he shall be released
forthwith, if he is not required to be kept in jail in
connection with any other case.
K. THANKAPPAN, JUDGE.
cl
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K. THANKAPPAN, J.
CRL.A.NO.1581 OF 2006-C
JUDGMENT
3rd January, 2007.
CRL.A.NO.1581/06 11