IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2450 of 2007()
1. RAJAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI. BIJU MARTIN [STATE BRIEF]
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :19/06/2008
O R D E R
R.BASANT, J
------------------------------------
Crl.Appeal. No.2450 of 2007
-------------------------------------
Dated this the 19th day of June, 2008
JUDGMENT
This appeal is preferred by the appellant who is undergoing
imprisonment against the verdict of guilty, conviction and
sentence imposed on him in a prosecution under Section 58 of the
Kerala Abkari Act.
2. The crux of the allegations against the petitioner is
that on 02.11.2000, he was found carrying /transporting 10 litres
of arrack when an excise party led by PW4, of which PW3 was a
member, intercepted him, effected seizure and arrested him. The
contraband article in M.O 1 container was seized under Ext.P1.
PWs 1 and 2 are the attestors to Ext.P1 seizure mahazar. PWs 3
and 4, as stated earlier, are the detecting officer and an officer
who accompanied him. Ext.P2 is the arrest memo. Ext.P3 the
occurrence report and Ext.P4 remand report and Ext.P5 the
property list and Ext.P6 the chemical examiner’s report. Exts.P7
to P9 were wrongly marked in this case and they are not relevant
to the controversy. Exts.P11 to P13 are the covering letter,
sample seal and the forwarding note under which sample of the
contraband article was forwarded to the chemical examiner to
Crl.Appeal. No.2450 of 2007 2
secure Ext.P6 report. PW5 is the Investigating Officer and PW6 is
the property clerk. Final report was filed by PW5 after completing
the investigation. Cognizance was taken. Accused denied the
charges after committal before the Additional Sessions Court.
Thereupon the prosecution examined PWs 1 to 6 and proved
Exts.P1 to P13. PWs 1 and 2 turned completely hostile to the
prosecution. They did not even admit their signatures in Ext.P1.
The petitioner examined DW1, a friend of his. He is a public
activist. According to him, he had seen the arrest. But the arrest
was at a different time and place. He was cross examined by the
prosecution.
3. The court below considered all the relevant inputs and
came to the conclusion that there is satisfactory evidence to
come to a conclusion beyond doubt about the complicity of the
petitioner. Accordingly, the learned Judge proceeded to pass the
impugned judgment.
4. Before me the learned counsel for the appellant and
the learned Public Prosecutor have advanced their arguments.
The learned counsel for the appellant assails the verdict of guilty
and conviction on the following grounds.
i) The oral evidence of PWs 3 and 4 must have been
discarded by the court below;
Crl.Appeal. No.2450 of 2007 3
ii) At any rate, the sentence imposed is excessive;
5. The prosecution primarily relies on the oral evidence of
PWs 3 and 4. The prosecution wanted to rely on the oral evidence
of PWs 1 and 2 as also Ext.P1 seizure mahazar. But PWs 1 and 2
turned hostile to the prosecution completely. The prosecution
was thus left with the oral evidence of PWs 3and 4 to establish
the overt act alleged against the appellant. PWs 3 and 4 gave
evidence about the incident proper. The learned counsel for the
appellant submits that the oral evidence of PWs 3 and 4 should
not have been accepted or acted upon inasmuch as they are
interested. They have contradicted each other about the name of
the place where from the arrest took place. Inherently on broad
probabilities their evidence do not commend acceptance,
contends counsel.
6. The challenge raised on the ground of interestedness
does not at all appeal to me. There is no specific suggestion that
PWs 3 and 4 had any motive, ill will or malice against the
appellant. They are of course exercise officials. But the mere
fact that they are excise officials cannot persuade the Court to
approach the evidence with any undeserved doubt, distrust or
suspicion. Hostility of PWs 1 and 2 is heavily relied on. That mere
fact cannot also in any way justify an approach with doubt and
Crl.Appeal. No.2450 of 2007 4
distrust against the oral evidence of PWs 3 and 4. They, it must
be noted, are public officials whose duty it is to detect offences
and bring the offenders to book. That duty, which the law enjoins
on them, cannot persuade the Courts to approach their testimony
with any unjustified suspicion.
7. The counsel submits that there is some incongruity
about the name of the place proper. The place stated in Ext.P1
seizure mahazar does not tally with the oral evidence of PWs 3
about such place. The counsel further contends that there is a
dispute as to whether the road at the place is Marayamuttam
Aruvippuram or Marayamuttam Malakulangara road. The counsel
then relies on the circumstances that in Ext.P4 the name of the
accused has been described as Sasi though Rajan is his real
name. The counsel also relies on the improbability of the version
of the prosecution that the accused was carrying the contraband
article for retail sale. He did not even have a glass/tumbler with
him to effect such retail sales. The counsel submits that the
investigation must be approached with doubt and reservation as
Exts.P7 to P9 documents have been marked which have no
relevance whatsoever with the case and long later realizing the
folly Exts.P10 to 13 have been pressed into service. The counsel
then points out that in Ext.P13 there is no sample seal at the
Crl.Appeal. No.2450 of 2007 5
space shown. In Ext.P12 though there is a sample seal, there is
no crime number noted there. For all these reasons the learned
counsel for the appellant submits that the oral evidence of PWs 3
and 4 may be approached with due care and caution. Their
evidence may be discarded and the accused may be given the
benefit of doubt. He may be acquitted, it is prayed.
8. I am unable to accept any of these contentions. As
already stated PWs 3 and 4 are public officials and they have
tendered evidence on oath. There is no reason to disbelieve the
testimony on inherent probabilities. Not even a semblance of
suggestion is made that PWs 3 and 4 have any reason to depose
falsely against the appellant. The fact that the name Sasi had
crept into Ext.P4 remand report is irrelevant in as much we see
that in the same document the appellant is described as Rajan,
S/o.Jacob. In all other contemporaneous documents the name has
been correctly recorded as Rajan, S/o.Jacob. The name of the
accused happened to be incorrectly made in one place in the
remand report. Though dissatisfied about the quality of the
investigation, it cannot at any rate deliver any undue advantage
to the accused.
9. The alleged inaccuracy in the description of the road
does not at all generate any doubt in my mind as there is no
Crl.Appeal. No.2450 of 2007 6
material whatsoever to show that the Marayamuttam
Aruvippuram or Marayamuttam Malakulangara road are not one
and the same road. Different description of end points may be
made by persons while describing the road. There is not even a
semblance of suggestion that Marayamuttam Aruvippuram or
Marayamuttam Malakulangara roads are different roads and that
the version of the two witnesses cannot simultaneously stand.
Moreover, it is seen that in Ext.P1 seizure mahazar as also in the
oral evidence of Pws 3 and 4 the scene is described with
reference to an electric post which is specifically described in
Ext.P1 and in the evidence of Pws 3 and 4.
10. That no tumbler was carried by the petitioner is of no
crucial relevance. The accused was allegedly carrying the
contraband article for retail sale eventually and not at the spot of
detection. The fact that there was no tumbler available with the
appellant does not also generate any doubt against the very case
of the prosecution.
11. Exts.P11, 12 and 13 like Exts.P7, P8 and P9 together
constitute a set of documents. Marking of Exts.P7 to P9 an
obvious mistake only. Though in Ext.P11 there is a space for
affixing the sample seal impression, it is not affixed there. But we
find that Ext.P12 is accompanying Exts.P11 and P13 and Ext.P12
Crl.Appeal. No.2450 of 2007 7
is the specimen impression of the sample seal. In Ext.P12, of
course, the crime number is not noted. Ext.P11 cannot be
considered in isolation. It is part of one set of documents, ie.
Exts.P11 to P13. They are sent together to the chemical
examiner. There is no sample seal affixed against the column in
Ext.P13; whereas in a separate paper, before the sample seal is
sent as Ext.P12 along with Exts.P11 and P13. This circumstance
does not also generate any reasonable doubt in my mind.
12. No other serious contentions are raised and I am
satisfied that the court below committed no error in accepting and
acting upon the oral evidence of Pws 3 and 4.
13. Finally it is contended that the sentence imposed is
excessive. I find merit in that contention. The petitioner is not
shown to have any criminal antecedents. He has been sentenced
to undergo R.I for a period of 3 years and to pay a fine of Rs.1
lakh. In default he is sentenced to undergo R.I for a period of 6
months. The sentence of fine imposed is the minimum prescribed
under statue. I am satisfied in the totality of circumstances that a
lenient view can be taken and the sentence can be modified and
reduced.
Crl.Appeal. No.2450 of 2007 8
14. In the result:
a) This Appeal is allowed in part;
b) The impugned verdict of guilty and conviction of the
appellant are upheld;
c) The substantive sentence of imprisonment imposed on
the appellant is reduced from R.I for a period of 3 years to R.I for
a period of 1 year and the default sentence is reduced from R.I for
a period of 6 months to R.I for a period of 3 months. The
sentence of fine is upheld.
15. The court below shall take necessary steps to issue
revised warrant of commitment forthwith. The Registry shall
ensure that the records are sent to the learned Magistrate
forthwith along with a copy of this judgment.
(R.BASANT, JUDGE)
rtr/-