High Court Kerala High Court

Sambasivan vs State Of Kerala on 3 January, 2007

Kerala High Court
Sambasivan vs State Of Kerala on 3 January, 2007
       

  

  

 
 
  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.

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

                         Crl.A.No. 1581  OF 2006-C

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

                 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

CRL.A.NO.1581/06 5

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.

CRL.A.NO.1581/06 7

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

CRL.A.NO.1581/06 9

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

CRL.A.NO.1581/06 10

K. THANKAPPAN, J.

CRL.A.NO.1581 OF 2006-C

JUDGMENT

3rd January, 2007.

CRL.A.NO.1581/06 11