{"id":120477,"date":"2007-01-03T00:00:00","date_gmt":"2007-01-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sambasivan-vs-state-of-kerala-on-3-january-2007"},"modified":"2015-10-26T05:38:04","modified_gmt":"2015-10-26T00:08:04","slug":"sambasivan-vs-state-of-kerala-on-3-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sambasivan-vs-state-of-kerala-on-3-january-2007","title":{"rendered":"Sambasivan vs State Of Kerala on 3 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sambasivan vs State Of Kerala on 3 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL A No. 1581 of 2006(C)\n\n\n1. SAMBASIVAN, S\/O.KUTTAN NAIR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, A.S.I. OF POLICE,\n                       ...       Respondent\n\n                For Petitioner  :ADV.P.V.VIJAYAKUMAR(STATE BRIEF)\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice K.THANKAPPAN\n\n Dated :03\/01\/2007\n\n O R D E R\n                              K. THANKAPPAN,  J.\n\n                                --------------------------------------\n\n                         Crl.A.No. 1581  OF 2006-C\n\n                              ---------------------------\n\n                 Dated this the   3rd   day of  January,  2007.\n\n\n                                      JUDGMENT\n<\/pre>\n
      The appellant, accused in S.C.No.398\/2005 on the file of<\/p>\n
the Additional  Sessions   Judge  (Adhoc)II, Kalpetta, faced trial<\/p>\n
for the offences punishable under Sections 55(b),(g) and 58 of<\/p>\n
the Abkari Act on the allegation that  he was found in distilling<\/p>\n
illicit arrack and also  in possession of  5.5  liters of arrack on<\/p>\n
24.8.2004   and   thereby   committed     the   above   offences.         To<\/p>\n
prove the prosecution  allegation,   prosecution examined  PWs<\/p>\n
1 to 8 and   relied on   Exts.P1 to P7.     MOs   1 to 6   were   also<\/p>\n
produced.         On   closing   the   prosecution     evidence,   the<\/p>\n
appellant   was   questioned   under   Section   313     of   the   Code   of<\/p>\n
Criminal   Procedure.         The   appellant     denied     the   entire<\/p>\n
prosecution  and had stated that  he is innocent  and he was at<\/p>\n
Coorg  and when he came back from  Coorg on  4.10.2005,  he<\/p>\n
was arrested by the police.    Relying on the evidence adduced<\/p>\n
by the prosecution,   the trial  court found the appellant guilty<\/p>\n
under   Sections     55(b)   and   (g)   of   the   Abkari   Act   and   he   was<\/p>\n
convicted  thereunder and    sentenced to   undergo  R.I for  five<\/p>\n
CRL.A.NO.1581\/06                          2<\/span><\/p>\n
  years   and   to   pay   a     fine   of   Rupees   One   Lakh   with   default<\/p>\n
  sentence   of  payment  of  fine,        further     simple  imprisonment<\/p>\n
  for a period of six months more.     The trial court also allowed<\/p>\n
  the   benefit     of   Section   428   of   the   Cr.P.C     to   the   appellant.<\/p>\n
  The conviction and sentence awarded against the appellant are<\/p>\n
  assailed  in the appeal.\n<\/p>\n<\/p>\n
  2.     Since the appeal is filed   through the jail authorities and<\/p>\n
  the   appellant   is   not   defended   by   any   counsel   of   his     own<\/p>\n
  choice,   a   member   from   the   State   brief     panel   has   been<\/p>\n
  appointed   to   argue   the   appeal     for   and   on   behalf   of   the<\/p>\n
  appellant.     This Court   heard   the learned counsel appearing<\/p>\n
  for   the   appellant   as   well   as   the       Public   Prosecutor.       The<\/p>\n
  counsel appearing for the appellant had taken  two contentions<\/p>\n
  specifically  before  this Court  in challenging  the judgment of<\/p>\n
  the     trial   court.       Firstly,   the   counsel   submits   that   the   trial<\/p>\n
  court miserably   failed  to   note that the  prosecution    has not<\/p>\n
  succeeded     in     proving   the   identity   of   the   appellant   as   the<\/p>\n
  person   responsible   for     keeping   the   contraband   article.<\/p>\n
  Secondly, the learned counsel  submits that the evidence of the<\/p>\n
  prosecution     witnesses   cannot   be   relied   on   to   prove   that   the<\/p>\n
CRL.A.NO.1581\/06                        3<\/span><\/p>\n
  shed  from  which the contraband  article alleged to have been<\/p>\n
  seized by the police belongs to the appellant and the appellant<\/p>\n
  is in   exclusive possession  of the  shed and he   is residing   in<\/p>\n
  that shed. The  prosecution tried to prove the  case against the<\/p>\n
  appellant   relying   on   the   evidence   of   Pws   1,   2,4   and   7   with<\/p>\n
  regard   to   seizure   of   the   contraband   article   from   the   shed.<\/p>\n
  PW7   is   the   detecting   officer,     who   had   deposed   before   the<\/p>\n
  court that   on 24.8.2004  while himself, PW4 and other police<\/p>\n
  officers  were returning  from attending  a public programme,<\/p>\n
  he   received   a     reliable   information   that   the   appellant   is<\/p>\n
  distilling arrack in the house at Aarthavayal in Cheeral amsom<\/p>\n
  and on receiving such an information,  PW7 and other officers<\/p>\n
  went   near     the   house   and   when   they   reached     the     house,<\/p>\n
  they have seen  that somebody was running    out of the  house<\/p>\n
  through   a   nearby   lane   and     as   informed   by   the   witness,   who<\/p>\n
  had   already   accompanied   him,     PW7   identified   the   person<\/p>\n
  jumped out of the house  was the appellant.   This witness has<\/p>\n
  further   stated   that     himself   and   the   police   party   along   with<\/p>\n
  Pws 1 and 2 went to the shed on  preparing  a search memo  to<\/p>\n
  search   the   house  and  sending   the   same  to  the    court,      PW7<\/p>\n
  and   the other police officials along with the   witnesses went<\/p>\n
CRL.A.NO.1581\/06                         4<\/span><\/p>\n
  inside the  shed.   It was seen that,  in the kitchen room of the<\/p>\n
  shed an  aluminum  pot  was on the hearth and  two aluminum<\/p>\n
  vessels  were also on the  pot  and a pipe was also  connected<\/p>\n
  with   the    aluminum  pot.      It  was  seen   on   further   verification<\/p>\n
  that  the aluminum pot  contained  wash  for  preparing  arrack<\/p>\n
  and   a black can   was kept near  by   the hearth.     On  further<\/p>\n
  verification,   it was seen that the   can   contained 5.5 liters of<\/p>\n
  arrack.       This   witness   has   further   stated   that   on   preparing<\/p>\n
  Ext.P1 seizure  mahazar,  he had seized  the aluminum pot and<\/p>\n
  other  vessels  and had also taken  sample from the arrack kept<\/p>\n
  in  the  can  in  the  presence  of    the  witnesses.        Further     this<\/p>\n
  witnesses   has     stated   that   he   had     labeled   and     sealed     the<\/p>\n
  sample as well as the contraband  article  and thereafter came<\/p>\n
  to   the   police   station   and   registered     Crime   No.381\/2004   of<\/p>\n
  Sulthanbattery   Police   Station.       This   witness   had   further<\/p>\n
  deposed that   the  sample taken from the    contraband   article<\/p>\n
  and the material objects were   produced before the   court on<\/p>\n
  26.8.2004.     This witness has further stated that investigation<\/p>\n
  of   the   case   has   been   continued   by   Pws   6   and   8   and     finally<\/p>\n
  charge     has   been   laid     against   the   appellant   by     PW8.       The<\/p>\n
  evidence of   this   witness,     with regard to the seizure   of the<\/p>\n
CRL.A.NO.1581\/06                       5<\/span><\/p>\n
  material     objects   and     taking   of   the   sample,     has   been<\/p>\n
  supported by the evidence of PW4.  PW4,  the  head constable,<\/p>\n
  who     accompanied   PW7   while   the   crime   was   detected,     had<\/p>\n
  given  evidence before the court  that  himself and PW7 along<\/p>\n
  with PW1 and 2 went near the   shed   where he had seen that<\/p>\n
  somebody     running   out   of   the   house   and   the   witnesses<\/p>\n
  accompanied them had stated that the person running   out of<\/p>\n
  the house was the appellant.  This witness also had stated that<\/p>\n
  PW7     had   prepared   Ext.P1   seizure   mahazar   and       seized   the<\/p>\n
  contraband   article   and   also   taken   the     sample.       PW1,     an<\/p>\n
  independent witness who accompanied PW7 while   they were<\/p>\n
  going   to   the   house   of   the   appellant,   had   deposed   before   the<\/p>\n
  court that  he had  gone along with PW7 and PW4 to the house<\/p>\n
  of   the   appellant   and   he   had     seen   that   PW7   had   prepared<\/p>\n
  Ext.P1   seizure   mahazar   and   had   seized     the       contraband<\/p>\n
  article and had taken the sample from the arrack contained in<\/p>\n
  the can.   He had further stated that   when they reached   the<\/p>\n
  kitchen of the shed from which   the contraband articles were<\/p>\n
  seized,   MOs were   already in the shed.     He had   also stated<\/p>\n
  that  he  knows    the     appellant   and      the  shed  belongs   to the<\/p>\n
  appellant.           Though   PW2   was   examined   to   support   the<\/p>\n
CRL.A.NO.1581\/06                          6<\/span><\/p>\n
  prosecution case, he turned hostile and  had stated that he had<\/p>\n
  not seen  anything seized  by PW7 from the shed as alleged by<\/p>\n
  the   prosecution.,   however,   he   had     stated  that     the   appellant<\/p>\n
  was residing in the shed.   PW3 was examined to prove Ext.P2<\/p>\n
  scene mahazar prepared by PW5.  PW5 is the   Village Officer,<\/p>\n
  who had given Ext.P3 certificate of possession of the property<\/p>\n
  in   which   the   shed     is   situated.       PW5   had   stated   that   as   per<\/p>\n
  Ext.P3 certificate issued by him the property in which the shed<\/p>\n
  situated   is   jointly   owned   by   the     children   of   one   Yesodha<\/p>\n
  Nangiar     including   the   appellant.     PW6   and   8   are   the   police<\/p>\n
  officers, who completed the investigation and filed the  charge.<\/p>\n
  Exhibit   P4     is   the     chemical     certificate   produced   by   PW6<\/p>\n
  which would show that  the  sample contained  ethyl  alcohol at<\/p>\n
  37.88% and 2.54% by volume.\n<\/p>\n<\/p>\n
  3.     The  question to be decided in this  appeal is whether  the<\/p>\n
  findings entered by the trial court are  sustainable or not.   The<\/p>\n
  contention of the learned counsel appearing  for the  appellant<\/p>\n
  is   that       the     trial   court     went     wrong     in   accepting   the<\/p>\n
  prosecution evidence  regarding the identity of the   appellant,<\/p>\n
  who was    responsible   for     keeping   MOs    1 to 6  in  the   shed.<\/p>\n
CRL.A.NO.1581\/06                         7<\/span><\/p>\n
  To decide this question    it  has  to be  analysed     that  whether<\/p>\n
  Pws   1,2,4   and   7   have     given     evidence   to   show   that   the<\/p>\n
  appellant was the person, who jumped   out of the shed   when<\/p>\n
  they reached  near the shed.  When PW4 and 7 were examined<\/p>\n
  before   the    Court     they   had  only  stated  that   they  have  been<\/p>\n
  told   by the other   witness   that   the person   gone   out of the<\/p>\n
  house   was     the   appellant.     But   they   have     no   previous<\/p>\n
  acquaintance     with   the   appellant   at   all.         That   apart,   these<\/p>\n
  witnesses     have     not     stated   that     which       witnesses,     either<\/p>\n
  examined   by   the     prosecution    or   questioned   by   the   officials,<\/p>\n
  had told that the  appellant was the  person, who jumped out of<\/p>\n
  the   house   when   they   reached   near   the   house.     PW1   or   PW2<\/p>\n
  had also no  case that they have  identified      the  appellant   as<\/p>\n
  the person who jumped out of the house.     The only evidence<\/p>\n
  given by these witnesses before   the court was that   they had<\/p>\n
  seen     the   appellant   in   the   premise     of   the     shed     certain<\/p>\n
  occasions and   they were not sure   whether the appellant was<\/p>\n
  permanently     residing     in   the   house.       Hence,   the   identity   of<\/p>\n
  the appellant  as the person who  responsible  for keeping the<\/p>\n
  material   objects     seized   by   PW6   is   doubtful.       That   apart,   it<\/p>\n
  could be seen that when PW5 was examined before the court<\/p>\n
CRL.A.NO.1581\/06                         8<\/span><\/p>\n
  he   had   only   stated   that   the   property   in   which   the   shed<\/p>\n
  situated  jointly belongs to  the children of  Yeshodha Nangiar<\/p>\n
  and he had no case that  there was any proof  to  show that the<\/p>\n
  appellant was residing  in the shed and the shed belongs to the<\/p>\n
  appellant alone.   That apart, it has to be noted that when Pws<\/p>\n
  1,   2,4   and   7   were   cross   examined   by   the   counsel   for   the<\/p>\n
  defendant,   they have   admitted that   anybody can enter   the<\/p>\n
  shed  and the  shed was not properly  protected     by  any door.<\/p>\n
  It   is   also   to   be   noted   that   while   PW5   had   prepared   Ext.P2<\/p>\n
  scene  mahazar,  he had only  stated that the  shed  contained<\/p>\n
  two rooms and  a coat  was also iside the shed.  In Ext.P2, PW5<\/p>\n
  had also given   a   discussion   of the shed.     But, it was stated<\/p>\n
  that   the  shed   does  not    contain     any    registration   number   or<\/p>\n
  panchayath number.    In the above circumstances, it  could be<\/p>\n
  seen that the  prosecution   has not proved  that the shed from<\/p>\n
  which   the   material   objects   recovered     exclusively   belongs   to<\/p>\n
  the   appellant   or   exclusively   in   his   possession.       It   was   also<\/p>\n
  come out in evidence that   in the same compound in which the<\/p>\n
  shed     situated,     the house of the sister of the appellant was<\/p>\n
  situated       and       there   were   other     residential   houses   also   in<\/p>\n
  clear vicinity of the shed.         In the above circumstances, it is<\/p>\n
CRL.A.NO.1581\/06                             9<\/span><\/p>\n
  the   duty   of   the   prosecution   to   prove   that       the   shed     from<\/p>\n
  which the   contraband article   seized   actually belongs to the<\/p>\n
  appellant   and   the   appellant     was   the   person   responsible     for<\/p>\n
  keeping the  contraband  article inside the shed as  alleged by<\/p>\n
  the   prosecution.     Hence,   this   Court   is   of   the   view   that     the<\/p>\n
  reasonable     conclusion     cannot   be   arrived     that   the   shed<\/p>\n
  belongs to the appellant  and the  appellant is  responsible for<\/p>\n
  keeping   the     article     seized   by   the   police.         In   the   above<\/p>\n
  circumstances,       benefit   of     doubt   shall   be   given   to   the<\/p>\n
  appellant.\n<\/p>\n<\/p>\n
         Accordingly, the findings  entered  by the  trial court  are<\/p>\n
  not   based   on   any     legal   evidence.         The   judgment     under<\/p>\n
  appeal is set aside and the   conviction and   sentence awarded<\/p>\n
  against   the   appellant   are     also   liable   to   be   set   aside.       The<\/p>\n
  appeal   is   allowed.                      The   appellant,        accused   in<\/p>\n
  S.C.No.398\/2005   on the file of the Additional Sessions Court,<\/p>\n
  Kalpetta,     is   hereby   acquitted   and     he   shall   be     released<\/p>\n
  forthwith,     if     he     is   not  required  to    be  kept in  jail in<\/p>\n
  connection with any other case.\n<\/p>\n<\/p>\n
                                                  K. THANKAPPAN, JUDGE.\n<\/p>\n
\n  cl<\/p>\n
CRL.A.NO.1581\/06    10<\/span><\/p>\n
                          K.  THANKAPPAN, J.\n<\/p>\n
                          CRL.A.NO.1581 OF 2006-C<\/p>\n
                          JUDGMENT<\/p>\n
                          3rd  January, 2007.\n<\/p>\n
\nCRL.A.NO.1581\/06    11<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-120477","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSambasivan vs State Of Kerala on 3 January, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sambasivan-vs-state-of-kerala-on-3-january-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sambasivan vs State Of Kerala on 3 January, 2007 - 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