IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12621 of 2008(C)
1. LATHA MOHAN, S/O M.S.MOHAN KUMAR,
... Petitioner
Vs
1. TAHSILDAR(R.R),
... Respondent
2. THE TAXATION OFFICER,
For Petitioner :SRI.A.K.ABDUL AZEEZ
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :16/09/2010
O R D E R
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+CRL.A.No. 1890 of 2008()
#1. SHAJI, S/O.DEVASYA, MAYATHUPARAMBIL (H)
... Petitioner
2. VARGHESE, S/O.MATHAI, PLAMOOTTIL (H)
3. VANARAJ, S/O.RAJENDRAN, PUTHEN VEEDU,
Vs
$1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
! For Petitioner :SRI.V.V.RAJA
^ For Respondent : No Appearance
*Coram
The Hon'ble MRS. Justice K.HEMA
% Dated :06/09/2010
: O R D E R
K.HEMA, J.
———————————————-
Crl.Appeal Nos. 1890/08 & 592/2010
———————————————-
Dated 6th September, 2010.
J U D G M E N T
The appellants are accused nos.1, 3 and 4 against
whom, charge-sheet was laid by police for offences under
Sections 55(a), (g) and 8(1) and (2) of Abkari Act. They were
convicted and sentenced under the above said Sections to
undergo rigorous imprisonment for four years each and to pay
fine of Rs.One lakh each. On default of payment of fine, they
were sentenced to undergo rigorous imprisonment for one year
each. The said conviction and sentence are challenged in this
appeal. (Accused nos.3 and 4 are still in jail).
2. According to prosecution, on 10.12.2004 in the
evening, PW3, the Sub Inspector, along with police party were on
patrol duty and he received reliable information that arrack was
being manufactured and hence, he proceeded to the place of
occurrence at about 4.30 p.m. The police party reached the
scene which is in a cardamom estate, and they saw accused nos.1
to 4 engaged in manufacture of arrack. 5 litres of arrack and
1500 litres of wash were seized from the scene under a mahazar.
Arrack was found in MO1, can. Wash was seen in 4 jars having a
CRA NOS.1890/08 & 592/10 2
capacity of 200 litres, 5 jars having a capacity of 100 litres, and 1
iron barrel having capacity of 200 litres. Samples were drawn
from the arrack in two bottles and samples of wash were also
taken in two bottles. The utensils found at the scene, which were
used for manufacturing liquor were also seized. The accused was
arrested from the spot. The mahazar Ext.P1 was prepared at the
scene.
3. The court framed charge against appellants under
Sections 55(a) and (g) and 8(1) and (2) of Abkari Act. As per the
details in the charge, accused were found in possession of 1000
litres of wash and other utensils used for manufacturing liquor
and also 5 litres of arrack for the purpose of sale, on 10.12.2004
at about 4.30 p.m. (The accused was not charge-sheeted for
manufacturing liquor).
4. To prove the prosecution case, PWs. 1 to 4, Ext.P1 to
P9, MOs 1 to 12 and Exts.D1 and D2 series were marked. On an
analysis of the evidence adduced, learned Additional Sessions
Judge found that the prosecution established that accused were
engaged in manufacturing arrack and they were in possession of
the implements for manufacturing arrack and that wash was also
CRA NOS.1890/08 & 592/10 3
prepared for it. The lower court held that 3 litres of arrack were
found in possession of the accused and the accused were
convicted for all the offences, for which they were charge-
sheeted.
5. The accused were questioned under section 313
Cr.P.C., after the close of the evidence. The accused came forward
with a specific case that this is a falsely foisted case since police
had specific motive to do so. The first accused gave a detailed
statement as follows : First accused and PW2’s brother,
Kunjumon were neighbours and there was property dispute
between them. Pursuant to such dispute, first accused had
assaulted the said Kunjumon and he was admitted in the Taluk
Headquarters Hospital.
6. The first accused also contended that a complaint
was lodged against first accused before the Nedumkandom Police
Station in respect of the said incident. The police insisted that the
first accused should appear at the Police Station. Three times,
different Police Constables were sent to him, but the accused did
not go to the police station, since he was afraid that he would be
subjected to third degree method at the police station, under the
CRA NOS.1890/08 & 592/10 4
influence of Joy, who was the Block President and an active
worker of Congress party, who was also the brother of Kunjumon.
7. According to first accused, on 10.12.2004, while first
accused and thee workers were working in the plantation, three
police officials from the Nedumkandom police station came to the
place in mufti and they tried to forcibly remove him from the
place. Following this, there was an altercation between accused
and the police. All of them were taken to the police station by
force under the influence of PW2’s brother Joy. Another
complaint was also lodged against them alleging that they had
manhandled the police etc. and charge was also laid. This case
was also falsely charge sheeted.
8. The court below found that the evidence of PW1 and
PW2, who are the independent witnesses are believable and that
their evidence is not discredited in cross-examination. According
to the learned Additional Sessions Judge, some discrepancies
were brought out “by confusing the witnesses and by asking some
confusing questions”. It is also found that the evidence of
independent witnesses corroborated the evidence of PW3, who is
the detecting officer and the entire evidence shows that PW1 and
CRA NOS.1890/08 & 592/10 5
PW2 were telling the truth. It is held that the accused were in
possession of the contraband articles, a can containing arrack and
also wash and other materials and implements used for
manufacturing arrack and they were also engaged in
manufacturing arrack. The lower court also held that 3 litres of
arrack were in possession of accused and that wash was prepared
for manufacture. The above findings are challenged by the
appellants on various grounds.
9. Learned defence counsel, at the very outset, pointed
out that two appeals are filed by accused nos.3 and 4 against the
same judgment – one through him and another appeal as jail
appeal. Hence, the jail appeal is not pressed. It is also submitted
that accused nos.3 and 4 were asked to deposit a fine of
Rs.50,000/- while suspending the sentence. Since they were not
able to deposit the fine, they are in custody for about more than
two years. The sentence is for a period of four years.
10. Learned counsel who was appointed as State Brief
for hearing the jail appeal (filed by accused no.3 and 4) submitted
that since the appeal is being argued on behalf of accused nos.3
and 4 by another counsel, who was engaged by the appellants
CRA NOS.1890/08 & 592/10 6
personally, she may be allowed to withdraw, Crl.Appeal
No.592/10.
11. Learned counsel for appellants submitted that the
trial court relied upon only the chief examination of the witnesses
and it did not consider any of the relevant materials brought out
in cross examination. Relating to the evidence given by PW1 and
PW2, it was submitted that they are close relatives, being the
uncle and nephew. Their evidence is full of contradictions. PW2
deposed that when he reached the place of occurrence, the wash
and arrack had already been destroyed. So, the evidence of PW3
cannot be said to have corroborated the evidence of independent
witnesses. PW1 stated that Ext.P2 series, which are labels were
signed by him, but it is brought out in cross examination that his
signatures in Ext.P2 series are different from the signature in the
summons. Therefore, his evidence is not believable, it is
submitted.
12. It was also pointed out that there is a contradiction
in the evidence of PW1 and PW2, regarding the direction, in which
they were coming towards the place of occurrence. PWs.1 and 2
stated that they were coming back from Parathode, whereas the
CRA NOS.1890/08 & 592/10 7
case diary contradictions, Exts.D1 and D2 will show that they had
given a statement to the police that they were going to
Parathode, when they happened to see the incident. It is also
submitted that PW1 has no case in the chief examination that
PWs.1 and 2 were going together. But, he deposed in cross
examination that he went for work and was coming back from
Parathode. In such circumstances, PWs.1 and 2 are unbelievable,
especially since they are relatives and they were going together
and they have no case how and why they happened to be
together.
13. In this context, it is also submitted that the accused
have a case that there was previous enmity for the brother of
PW2 with the first accused and all these facts are admitted by
PW1. It is also in the evidence of PW1 that PW2’s brother Joy is
politically influential and that first accused had bitten Kunjumon,
and PW1 was making all efforts to see that a case is registered
against first accused. It is also pointed out that while PW1 stated
that the incident happened on the right side of the road, PW3
stated that it was on the left side. PW1 also stated that arrack
was only in one jar and it was a blue one, but he had no such case
CRA NOS.1890/08 & 592/10 8
before the police.
14. According to prosecution, huge quantity of wash
and several jars were seen at the place of occurrence, but no
inventory was prepared, as contemplated under Section 53 of the
Kerala Abkari Act and the relevant provisions are not complied
with, it is submitted. The articles were allegedly destroyed from
the scene itself. PW2 gave evidence in chief examination,
supporting the prosecution version but while examined in court,
his case was that PWs.1 and 2 met at Nedumkandom and from
there they went to Parathode. A case diary contradiction was
brought out as Ext.D2, regarding the direction in which PW2 was
proceeding. He also stated that the incident happened on the left
side of the road, which is contradictory to the evidence given by
PW1.
15. It is also submitted that PWs.1 and 2 stated that
the place of occurrence can be seen from the road whereas,
according to PW3, the police official, the scene of occurrence
cannot be seen from the road. PW2 stated that they reached the
place, after the police poured out the wash and arrack. He also
stated that he did not see wash being poured off. Ext.P1 mahazar
CRA NOS.1890/08 & 592/10 9
does not show that labels were affixed as S1 and S3 at the scene.
Ext.P2 series are the labels which were allegedly affixed on the
sample bottles, but, crime number of the case is mentioned in the
labels. As per the evidence of PW3, the crime was registered only
at the police station at 8.30 p.m. Therefore, it is not believable
that Ext.P2 series were prepared at the scene and this itself will
destroy the worth of the entire prosecution case, it is contended.
16. It is also submitted that except PW3, no other
police official was examined. A reading of the judgment will show
that none of the relevant aspects were considered by the court
below while appreciating the evidence, it is argued. It is also
submitted that the discrepancies and contradictions which were
brought out in evidence were treated as not vital and the court
below went wrong in doing so. Hence, the conviction and
sentence may be set aside, it is submitted.
17. Learned Public Prosecutor submitted dthat the
evidence of PWs.1 and 2 will clearly establish that arrest,
manufacture of arrack, seizure and sampling. The mahazar also
contains the signature of PWs.1, 2 and 3. The sample bottle also
contains their signature. All the accused were arrested from the
CRA NOS.1890/08 & 592/10 10
spot and there is nothing to discredit the evidence of PWs.1, 2
and 3. Though it is brought out from the cross examination of
PW2 that the signature in Ext.P2 series and the summons are
different, it is of no consequence because PW2 denied his
signature in the summons. He admitted only his signature in
Ext.P2 series.
18. It was also submitted by learned Public Prosecutor
that PW3 clarified that the crime number was ascertained from
the police station and it was written in the slip at the scene.
Therefore, the discrepancies pointed out by defence counsel are
not material to discard the evidence adduced by the prosecution,
it is contended. Regarding the motive, it is submitted by learned
Public Prosecutor that there is only a boundary dispute and it was
settled also, as admitted by the accused. But, this motive is not
sufficient to reject the evidence adduced by the prosecution
through any of the witnesses, it is argued.
19. On hearing both sides and on a perusal of the
evidence on record, I find that though the trial court found that
the prosecution established that “manufacturing” of liquor was
proved, there is no charge for “manufacturing” liquor, under
CRA NOS.1890/08 & 592/10 11
Section 55(b) or Section 8(1) of the Abkari Act. In the charge
framed by the court, the accused was not called upon to answer
any allegation regarding manufacture of arrack. Therefore,
accused cannot be found guilty for “manufacturing” arrack or
liquor. What remains is only possession of wash, arrack and
utensils which are used for manufacturing arrack.
20. To prove the possession of the contraband articles
by the accused, Pws.1 to 3 were examined. PWs.1 and 2 are the
independent witnesses and PW3 is the Sub Inspector, who is the
sole official witness who was examined to prove the occurrence.
Before analysing the evidence, it is beneficial to keep in mind
what the accused has to speak about the circumstances under
which the case was registered. According to the accused, this is a
falsely foisted case. The first accused and PW2’s brother
Kunjumon, who is also the uncle of PW1 was having a property
dispute with first accused. Consequent to this, first accused
assaulted Kunjumon and the latter got admitted in the hospital
and he gave a complaint against first accused.
21. The first accused also contended that the police
wanted him to go to the police station and thrice, Police
CRA NOS.1890/08 & 592/10 12
Constables were sent to him, but he refused to go. This was due
to the reason that he was afraid that Joy, who is is politically
influential and he is the Block President and an active worker of
the UDF. He would influence the police and under his influence,
police may man-handle him at the police station, he
apprehended. The said Joy is the uncle of PW1, an eye witness.
He is also the brother of PW2 and Kunjumon, who is on inimical
terms with first accused. The police went to his estate while he
was engaged in work there along with his workers. Three police
constables went there and tried to physically remove 1st accused
by force.
22. According to first accused, there was a quarrel
between the police officials and the workers and all the four
persons were taken to the police station by force. According to
the accused, a false case was filed thereafter, against the
accused without any basis. No seizure or search was conducted
at the scene, The witnesses PWs.1 and 2 were obliging the police
at the instance of Kunjumon and his brother Joy. Admittedly, both
PWs.1 and 2, the independent eye witnesses are closely related
to Kunjumon. But, according to accused, they were not present at
CRA NOS.1890/08 & 592/10 13
the time when the accused were taken into custody on the
alleged date of occurrence.
23. PWs.1 and 2 are independent witnesses. PW1
admitted in cross examination that PW2 is his uncle and that
Kunjumon is the elder brother of PW2. He also admitted that Joy
was a UDF worker and in 2004, and at that time, the Government
was ruled by UDF. It is also admitted that the property of first
accused and Kunjumon were situated close to each other and first
accused and Kunjumon had some dispute with respect to the
boundary. Consequent to such dispute, first accused had bitten
Kunjumon and a case was also registered against him. PW2 also
admitted that himself and Joy had taken best efforts to get a case
registered against accused in respect of the said incident. A
suggestion was made that the case was compromised between
first accused and Kunjumon without getting permission from PW1,
Joy etc. and this was not to the liking. These suggestions were
denied. However, PW1 admitted that the incident happened prior
to the registration of the case.
24. But, PW2, who is none other than the own brother
of Kunjumon pretended ignorance of any of the above facts. He
CRA NOS.1890/08 & 592/10 14
stated that he did not know whether his brother Kunjumon had
any property dispute with first accused and whether any police
case was registered in respect of any incident as an off-shoot of
the property dispute. PWs.1 and 2 are examined to prove that
the manufacture of arrack was going on at the scene of
occurrence and that the accused were engaged in manufacture of
arrack. The evidence of PW1 and PW2 who are the independent
witnesses are to be evaluated in the light of what is discussed
above.
25. It is clear from evidence that PW1 and PW2 are
close relatives and they are not residing close to the place of
occurrence. But, in the chief examination, PW2 did not say
anything to connect the accused with possession or manufacture
of liquor. In fact, he did not implicate any one of the accused with
the offence. He had no case that any one of the accused was
found either manufacturing liquor or keeping the contraband
articles in their possession. He also did not identify any of the
accused while he was examined in court. Therefore, the evidence
of PW1 will not disclose that the accused was in possession of the
contraband articles or was manufacturing arrack using wash, as
CRA NOS.1890/08 & 592/10 15
alleged by the prosecution.
26. As per the prosecution case, PWs.1 and 2 were
proceeding together to the scene in the same direction and they
happened to be in the scene together. But the evidence of PW2
shows that before they reached the place of occurrence, wash and
arrack were already poured off. He also stated that he did not see
pouring of the arrack and wash, but such information was
conveyed to him. That means, going by the evidence of PW1,
everything was over before PW1 and PW2 reached the spot.
27. PW2 also stated that he did not know, from which
article, the sample was taken. He also stated that he did not
know whether the article which was in possession of “police” was
the article taken as sample or not. He did not know how much is
the quantity of arrack, which was available at the scene. He
repeatedly asserted that though wash wash poured off, it was not
in his presence. He was confronted with his earlier statements
given by him to police, which is Exts.D2(a) and D2(b), as per
which he had seen the articles kept at the scene etc., but he
bluntly denied having made any such statement to the police.
Therefore, going by the evidence of PW2, neither PW1 nor PW2
CRA NOS.1890/08 & 592/10 16
would have seen what transpired at the place of occurrence.
There was little chance for either of them to see the contraband
articles being kept at the scene or being in possession of the
accused, when they reached the place.
28. It is pertinent to note that PW2 is not a hostile
witness. He is the star witness, who is owned by the prosecution.
He is the person, on whose evidence the court convicted the
accused. But, the lower court failed to take note of the fact that
even in the chief examination of PW2, he was conspicuously silent
about the material aspects to connect or incriminate the accused
with the offence. If the evidence of PW2 is to be relief upon, the
evidence of PW1 on the material aspects cannot be relied upon,
since those are mutually contradictory.
29. There are also material discrepancies in the
evidence of PW1, the other alleged eye witness, regarding the
nature of articles seized from the place of occurrence. According
to prosecution and the evidence of PW3, the official witness,
arrack was found in a “can”. In his evidence, he made a
distinction between “jar” and “can”. A reading of his evidence
reveals that wash was allegedly present in the “jar”, whereas
CRA NOS.1890/08 & 592/10 17
arrack was present in the “can”. But, the evidence of PW1, the
alleged eye witness will show that he found arrack in a “jar” and
according to him, the colour of the “jar” was blue. PW3, the
detecting officer has no case that arrack was found either in the
blue jar or in a jar of any colour. Therefore, the evidence of PW1
cannot be said to have corroborated the evidence of PW3 or the
prosecution regarding the container in which the arrack was kept
in possession by accused.
30. It is also seen from the evidence of PW1 that the
relevant aspects regarding the presence of the jars, cans,
contraband articles etc. are denied by him, while portions of the
case diary statement were put to him and those are marked as
Exts.D1(a) to D1(c). In the light of all the above facts and
circumstances, the evidence of PW1 and PW2 cannot be accepted
to hold that arrack or wash was seized from the possession of the
accused, as alleged by the prosecution. Of course, PW1 stated
that accused were found manufacturing arrack when they
reached the place.
31. But, the evidence of PW2, another eye witness,
who deposed that both PWs.1 and 2 went to the place together
CRA NOS.1890/08 & 592/10 18
gave a totally contradictory version. According to PW2, no
manufacture was going on at the scene. Neither the arrack or
wash was seen by him at the scene. He had also not seen those
articles being poured off. In such circumstances, the court ought
not to have accepted the evidence of PW1 or PW2. The court
cannot conveniently rely upon the evidence of PW1, which
supports the prosecution and reject the other, which is against
prosecution. This is specially since, prosecution has not sought to
declare PW2 as hostile. The prosecution owns the evidence of
PW1 and PW2, which are mutually contradictory.
32. Now, the evidence of PW3 can be looked into. PW3
is the detecting officer. His evidence also does not inspire the
confidence of the court to conclude that the contraband articles
were seized, as alleged by the prosecution. The evidence of PW3
shows that there were 4+5 “jars” and an iron drum at the scene
in which wash was kept. He also stated that he had tested the
article, which was present in the “jar”, by taste and smell in the
presence of PWs.1 and 2. According to him, the “jar” contained
arrack. He has not given evidence as to what was the article
which was present in the “can”. Therefore, based on the evidence
CRA NOS.1890/08 & 592/10 19
of PW3 or PW1 and PW2, it cannot be said that the “can”
contained arrack.
33. There are also material contradictions in the
evidence of PWs.1 to 3 in respect of the place of occurrence.
PWs.1 and 2 stated that they were proceeding in the same
direction on the road, which was lying east-west, but, PW1 would
say that the place of occurrence lies on the right side, that is, on
the southern side, whereas according to PW2, the incident
happened on the left side of the road, which is on the northern
side. In such circumstances, it is doubtful whether PWs.1 and 2
had gone to the place of occurrence at all.
34. The evidence given by them regarding the
circumstances under which they happened to be in the place of
occurrence is also doubtful. While to the police, they gave a
particular version, as per the portions of the case diary statement,
they denied the same while examined in court and in evidence,
they gave a totally different version, which is diametrically
opposite to the statement given by them to the police, as to the
circumstances under which PWs.1 and 2 reached the place. There
are also various other discrepancies regarding the sampling,
CRA NOS.1890/08 & 592/10 20
sealing etc.
35. In the light of what is already discussed, I find that
prosecution failed to prove its case beyond reasonable doubt.
The court below went wrong in holding that the evidence of PWs.1
to 3 corroborated each other in material particulars and that their
evidence would prove the manufacture, possession etc. The court
below failed to analyse the evidence and appreciate the same in
the proper perspective. In a case in which accused took up a plea
of false implication and a specific motive, court should have been
more careful before while evaluating the evidence. The
conviction and sentence are unsustainable and are liable to be
set aside.
In the result, the following order is passed :
(i) The conviction and sentence passed against the
appellants in Crl.A.1890/08 (accused 1, 3 and 4) are
set aside.
(ii) Appellants (accused 1, 3 and 4) are found not guilty of
offences under Sections 55(a), (g), 8(1) and (2) of
the Kerala Abkari Act and they are acquitted of the
offences under the said sections.
CRA NOS.1890/08 & 592/10 21
(iii) Appellants are set at liberty forthwith.
(iv) Release order shall be issued forthwith.
Crl.Appeal No.1890/2008 is allowed. Crl.Appeal
No.592/2010 is dismissed as not pressed.
K.HEMA, JUDGE.
tgs