IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.3.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.217 of 2009 Budithi Subbarao .. Petitioner/appellant/accused Vs. State, rep. by The Excise Inspector, Yanam. .. Respondent/respondent/complainant Criminal Revision Case against the judgment dated 11.2.2009 in Crl.A.No.2 of 2007 on the file of the Principal Sessions Court, Puducherry, against the order dated 13.12.2006 in C.C.No.10 of 2004 on the file of the Subordinate Judge's Court/Assistant Sessions Court-cum-Judicial Magistrate, Yanam. For petitioner : Mr.C.Prabakaran For respondent : Mr.M.R.Thangavel, Govt. Advocate (Puducherry) ORDER
Criminal Revision Case is filed against the judgment dated 11.2.2009 in Crl.A.No.2 of 2007 on the file of the Principal Sessions Court, Puducherry, modifying the judgment of conviction and confirming the sentence, dated 13.12.2006 in C.C.No.10 of 2004 on the file of the Subordinate Judge’s Court/Assistant Sessions Court-cum-Judicial Magistrate, Yanam.
2. The trial Court convicted the revision petitioner/accused for the offence under Section 38(1 and 2) of the Pondicherry Excise Act, 1970 and sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for one months, and the appellate Court modified the conviction of the revision petitioner/accused by convicting him for the offence under Section 38(2) read with 33 of the Pondicherry Excise Act, 1970, instead of Section 38(1 and 2) of the Act and sentenced him to undergo the imprisonment as awarded by the trial Court.
3. The case of the prosecution in nut-shell is as follows:
On 23.1.2002 at about 6.30 p.m., when P.W.4, along with P.W.3, went for a raid at Flood Bank Road, Kanakalapeta, they witnessed some persons selling arrack and at that time, he found the accused along with some other persons holding a black colour plastic can and P.W.4 went and caught hold of the revision petitioner/accused and the accused pushed P.W.4 down and went in his Scooter and fled away from the place and thereafter, P.W.4, in the presence of P.Ws.1 and 2 who are the independent witnesses, collected the sample of arrack from the black colour plastic can marked as M.O.1 with glass tumblers M.O.2 series, and they have been seized under Ex.P-1 seizure mahazar in the presence of P.Ws.1 and 2 and Ex.P-2 report was prepared and sent to P.W.5 Inspector of Excise, Yanam, who registered a case in Cr.No.4 of 2002 for the offences under Sections 33 and 38(1 and 2) of the Pondicherry Excise Act, 1970 and took up the investigation and prepared Ex.P-3 FIR and recorded the statement of the witnesses and handed over the case file to his successor P.W.6, who verified and conducted further investigation and concluded the same after receipt of the laboratory report Ex.P-5 and filed the charge sheet against the revision petitioner/accused for the said offences.
4. The trial Court, after considering the oral evidence of P.Ws.1 to 6 and the documentary evidence of Exs.P-1 to P-5 and M.Os.1 and 2, came to the conclusion that the revision petitioner/accused is guilty of the offences and convicted him for the offence under Section 38(1 and 2) of the Pondichery Excise Act and sentenced him to undergo rigorous imprisonment for three months and to pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for one months, against which, the revision petitioner/accused preferred appeal in Crl.A.No.2 of 2007 and the appellate Court, after hearing the arguments of both sides’ counsel, modified the conviction into one under Section 38(2) read with 33 of the Pondicherry Excise Act and confirmed the sentence imposed by the trial Court. As against the judgment of the appellate Court, the present Crl.R.C. is filed by the revision petitioner/accused.
5. Challenging the judgment of the Courts below, learned counsel appearing for the revision petitioner/accused submitted that in the trial Court, totally six witnesses were examined, out of whom, P.Ws.5 and 6 are investigating officers and P.Ws.1 and 2 are the attestors of seizure mahazar and they have not identified the accused and they are not the eye-witnesses and P.Ws.3 and 4 who are alleged to be the eye-witnesses, of whom, P.W.3 turned hostile and only on the basis of the evidence of P.W.4, the conviction has been passed, as there was enmity between the revision petitioner/accused and P.W.4 and earlier, the petitioner/accused gave complaint for the offence under Section 353 IPC against the P.W.4, which case ended in acquittal, and so, he wanted to robe the petitioner in the present criminal case and he gave a false report. He further submitted that P.W.5 has clearly conceded that he does not know Telugu, whereas the statement of witnesses had been recorded by one Ramana Rao, the VAO, but the said VAO was not examined, and so, he prayed for setting aside the conviction and sentence.
6. Repudiating the said contentions, learned Government Advocate (Puducherry) submitted that P.W.4 who is a Government servant, who is also a Sub-Inspector of Revenue Department, during the period, he went on raid, and at that time, the revision petitioner was caught red-handed, but some how, the revision petitioner-accused escaped from his clutches and ran away and subsequently, P.W.4 seized the material objects in the presence of P.Ws.1 and 2 and the arrack has been sent for chemical examination where it was found that it contained Atropine with 34.3 lethal alcohol, which is injurious to health, as evidenced by Ex..P-5 lab-analysis report and that has been considered by both the Courts below and they came to the correct conclusion and there is no necessity for interfering with the conviction and sentence passed by the appellate Court and prayed for dismissal of the Crl.R.C.
7. Considering the rival submissions made by learned counsel on either side and the materials available on record, it is true that the charge has been framed against the revision petitioner/accused for the offences under Sections 33 and 38(1 and 2) of the Pondicherry Excise Act and even though the trial Court convicted him for the offence under Sections 38(1 and 2), the first appellate Court convicted him only under Section 38(2) read with 33 of the Act.
8. Now, this Court has to decide as to whether the findings of the Courts below are sustainable. Admittedly, P.Ws.1 and 2 are third parties and they are the independent witnesses, but they have not identified the accused and in their evidence, in chief examination, they have stated that they did not know the accused and so, the remaining two witnesses are P.Ws.3 and 4, of whom, P.W.3 turned hostile, who is a Government servant and the only available evidence is P.W.4, Sub-Inspector of Revenue Department. P.Ws.5 and 6 are the investigating officers and they are not the eye-witnesses to the incident.
9. It is true that the evidence of single eye-witness is reliable, provided it is cogent, natural, trustworthy and convincing.
10. At this juncture, it is appropriate to consider the argument of the learned counsel for the revision petitioner/accused that there was enmity between P.W.4 and the revision petitioner/accused and on the basis of the complaint given by P.W.4 in a case in STR.No.231 of 2002 registered for the offence under Section 353 IPC, which ended in acquittal, and because of the said enmity, a false case had been foisted against the revision petitioner/accused.
11. Considering the enmity between the revision petitioner/accused and P.W.4, it is true that enmity/motive is a double-edged weapon, but there must be corroboration for the evidence of P.W.4 before it is taken into account. Admittedly, as already stated, P.W.3 is alleged to have accompanied P.W.4 at the time of raid, but he turned hostile. P.W.4’s evidence is that he caught the accused red-handed. The evidence of P.W.4 is that when he caught the accused, the accused pushed him down and left the place in a Scooter. In such circumstances, I am of the view that it is unsafe to convict the accused only on the basis of the evidence of P.W.4, who is inimical towards the petitioner/accused. Hence, no reliance can be placed on the evidence of P.W.4
12. Since the evidence of P.W.4 is not reliable, there is no other evidence to robe the revision petitioner/accused with the commission of offence under Sections 33 and 38(1 and 2) of the Pondicherry Excise Act. Both the Courts below have considered the evidence of P.W.4 who is having a grudge against the revision petitioner/accused and convicted the revision petitioner/accused, which is improper. Since already this Court in paragraph 11 of this order, held that the evidence of P.W.4 is not reliable, there is no other evidence to prove that the revision petitioner/accused committed the offence.
13. Therefore, I am of the view that the prosecution has not proved the guilt of the revision petitioner/accused beyond reasonable doubt and the benefit of doubt has to be given in favour of the revision petitioner/accused and he is entitled for acquittal.
14. Accordingly:
(a) The Crl.R.C. is allowed.
(b) The conviction and sentence passed by both the Courts below are set aside.
(c) The revision petitioner/accused is acquitted of the charges.
(d) The bail bond, if any executed by the revision petitioner/accused shall stand cancelled.
(e) The fine amount, if paid by him, shall be refunded.
cs
To
1. Principal Sessions Court, Puducherry.
2. Sub-Judge/Asst. Sessions Judge-cum-Judicial Magistrate, Yanam.
3. The Excise Inspector, Yanam.
4. The Public Prosecutor (Puducherry), High Court, Madras.
5. The Record Keeper, Criminal Section, High Court,
Madras