High Court Kerala High Court

Rajan vs State Of Kerala Represented By on 6 February, 2007

Kerala High Court
Rajan vs State Of Kerala Represented By on 6 February, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 1377 of 2006()


1. RAJAN S/O.RAMAKRISHNAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :ADV.KURIKOSE (STATE BRIEF)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.THANKAPPAN

 Dated :06/02/2007

 O R D E R
                                 K.THANKAPPAN, J.

                 ---------------------------------------------------------

                  CRL. APPEAL  NOS. 1377 & 1598 OF 2006

                 ---------------------------------------------------------


                      Dated this the 6th day of February, 2007


                                       JUDGMENT

The appellants are accused Nos.2 and 1 in Sessions Case No.1168 of

2005 on the file of the Additional Sessions Court for trial of Abkari Act

Cases, Neyyattinkara. Both the appellants faced trial for offence

punishable under Section 55(a) and (i) of the Abkari Act.

2. The prosecution case against the appellants was that on 4.5.2004

PW.3, the Sub Inspector of Police, Nemom Police Station on getting

information regarding sale of arrack in the property belonging to one

Madhavan Nair @ Melom situated near Pamamcode Parayil Temple, went

to the place of occurrence and found accused No.1, appellant in Crl.

Appeal No.1598 of 2006, in possession of a 3 litre bottle containing 1 =

litres of arrack and a glass tumbler and accused No.2, appellant in Crl.

Appeal No.1377 of 2006, carrying a 35 litre white jerry can containing 30

litres of spirit, both engaged in the sale of arrack. It is the further case of

the prosecution that on seeing the police party, accused No.1 abandoned

the bottle and ran away from the place, accused No.2 was arrested on the

spot and the contraband articles were seized on preparing Ext.P1 mahazar.

CRL.A. NOS. 1377 & 1598/2006 2

and both the accused were charge sheeted by the police. To prove the case

against the appellants, the prosecution examined PWs.1 to 3 and produced

Exts.P1 to P7 and MOs. 1 and 2. Ext.D1 was produced on the side of the

defence. On closing the prosecution evidence, the appellants were

questioned under Section 313 Cr.P.C. The appellants denied the

allegations levelled against them. Accused No.1 stated that he was in jail

in connection with another Abkari case of Kattakada Police Station and

that he was arrested on production warrant. However, the trial court

found both the appellants guilty under Section 58 of the Abkari Act,

convicted them thereunder and sentenced them to undergo rigorous

imprisonment for a period of 4 years each and to pay a fine of

Rs.1,00,000/- each and in default of payment of fine, to undergo rigorous

imprisonment for a further period of six months each. Set off was also

allowed against the substantive term of imprisonment. The above

conviction and sentence are challenged in these appeals.

3. Both these appeals are filed through the jail authorities and a

State Brief has been appointed in each appeal to defend the appellants.

Heard the learned counsel appearing for the appellants as well as the

learned Public Prosecutor.

CRL.A. NOS. 1377 & 1598/2006 3

4. Learned counsel appearing for the appellants have raised three

contentions before this Court: (i) the trial court went wrong in finding the

appellants guilty on the basis of the evidence of PWs.2 and 3 who were

police officials and whose evidence was contradictory, (ii) PW.3, the Sub

Inspector of Police violated the provisions of the Abkari Act and the

provisions of the Kerala Excise Manual while seizing the contraband

articles and taking samples for chemical analysis and (iii) the trial court

had not considered the fact that the prosecution witnesses had not

identified accused No.1 as the person who had ran away from the scene of

occurrence.

5. The prosecution tried to prove the case against the appellants

through the evidence of PWs.2 and 3. PW.3 was the Sub Inspector of

Police, of Nemom Police Station who detected the crime. He stated that

on getting information regarding sale of arrack, he went to the place of

occurrence and found accused No.1 in possession of MO.2 bottle

containing arrack and accused No.2 holding MO.1 plastic can containing

spirit. He further stated that on seeing the police party, accused No.1

abandoned the bottle, jumped into the river and escaped from the place and

accused No.2 was arrested. This witness also stated that the contraband

articles were seized as per Ext.P1 mahazar and sample was taken from

CRL.A. NOS. 1377 & 1598/2006 4

both MOs.1 and 2 for chemical analysis and then the material objects were

produced before the court. Ext.P7 is the certificate of chemical analysis.

This witness also deposed that from the statement given by accused No.2,

it was revealed that the person who escaped from the scene of occurrence

was accused No.1. PW.3 further stated that he registered crime against

both the accused and subsequently accused No.1 was arrested on

production warrant.

6. The Head Constable who had accompanied PW.3 on the day of

the incident was examined as PW.2. This witness also stated that when he

and PW.3 reached the spot accused No.1abandoned the bottle containing

arrack and escaped from the place. He also stated that accused No.2 was

found holding a can which on examination was found to contain 30 litres

of spirit. PW.2 further stated that accused No.2 informed that he was

only an employee of accused No.1 and that the person who raw away from

the spot was accused No.1.

7. The question to be considered, in the light of the contentions

raised by the learned counsel for the appellants, is whether the evidence

adduced by the prosecution is sufficient to identify accused No.1 and also

to hold that the appellants were in possession of MOs. 1 and 2.

CRL.A. NOS. 1377 & 1598/2006 5

8. The evidence of PW.3 would show that when he reached the spot,

he saw one person jumping into the river and he was told by accused No.2

that the person who fled from the scene of occurrence was accused No.1.

PW.3 had no previous acquaintance with accused No.1. Further, Ext.P1

mahazar would show that the seizure of the contraband articles and taking

of samples were witnessed only by PW.2, the Police Constable and no

independent witness had signed Ext.P1. The only independent witness

examined turned hostile to the prosecution. She stated that she had not

seen either of the accused at the spot or seizure of the contraband articles

as spoken to by PWs.2 and 3. Hence, the case of the prosecution that

PW.3 seized MOs.1 and 2 in the presence of independent witness is

doubtful.

9. The evidence of PW.2 would show that he was not in a position

to identify accused No.1 as the person who had ran away from the scene of

occurrence as he had no previous acquaintance with accused No.1. He

also stated that there were houses nearby, but PW.3 had not called anybody

to witness the action taken by him. When cross-examined, this witness

stated that accused No.1 while escaping from the scene of occurrence

threw away MO.2 bottle containing arrack and the glass into the river and

CRL.A. NOS. 1377 & 1598/2006 6

thereafter the bottle was taken from the river. It is to be noted that PW.3

had no such case. He stated that accused No.1 abandoned MO.2 bottle at

the spot. PW.2 also stated that no independent witness was present at the

time of detection of the crime. Hence, the evidence of PWs.2 and 3 alone

is not sufficient to prove that MOs.1 and 2 were seized from the appellants.

10. With regard to the contention that PW.3 had not complied with

the provisions of the Abkari Act and the Kerala Excise Manual while

effecting seizure of the contraband articles and taking samples, the

evidence of PW.2 is relevant. It is seen from the evidence of PW.2 that

accused No.1 threw away MO.2 bottle and the glass into the river while

escaping from the place. If that be so, sample could not have been taken

from MO.2. Though the trial court found that there was no need to doubt

the integrity of the witnesses, there is lack of evidence to prove that

MOs.1 and 2 were seized from the appellants. Further, though PW.2 had

stated that samples were taken by PW.3 and the same were sealed and

labelled before sending to the court, it was reported that the samples were

not seen produced in the court . In the above circumstances, this Court is

of the view that the prosecution failed to prove that PW.3 complied with

the provisions of the Abkari Act and the Kerala Excise Manual. Further,

the prosecution case was that accused No.1 was arrested after about three

CRL.A. NOS. 1377 & 1598/2006 7

months from the date of occurrence and that too on production warrant. It

has come out in evidence that accused No.1 was in jail in connection with

another Abkari case. If that be so, it was the duty of the prosecution to

explain how accused No.1 was involved in the present case. There was no

explanation in this regard from PWs.2 and 3. It appears that the evidence

adduced by the prosecution is not free of doubt. Hence, the appellants are

entitled to the benefit of doubt.

11. On an overall appreciation of the entire evidence, this Court is

of the view that the prosecution has not succeeded in proving the case

against the appellants. In the above circumstances, the conviction and

sentence ordered against the appellants are set aside and the appellants are

found not guilty of the offence alleged against them. The appellants,

accused Nos.2 and 1 in Sessions Case No.1168 of 2005 on the file of the

Additional Sessions Court for trial of Abkari Act Cases, Neyyattinkara are

acquitted. They shall be released forthwith, if they are not wanted in

connection with any other case.

The Crl. Appeals are allowed as above.

(K.THANKAPPAN, JUDGE)

sp/

CRL.A. NOS. 1377 & 1598/2006 8

K.THANKAPPAN, J.

CRL.A.NOS.1377 & 1598

OF 2006

JUDGMENT

6TH FEBRUARY, 2007.