{"id":98183,"date":"2010-09-16T00:00:00","date_gmt":"2010-09-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/latha-mohan-vs-tahsildarr-r-on-16-september-2010"},"modified":"2017-11-27T04:01:16","modified_gmt":"2017-11-26T22:31:16","slug":"latha-mohan-vs-tahsildarr-r-on-16-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/latha-mohan-vs-tahsildarr-r-on-16-september-2010","title":{"rendered":"Latha Mohan vs Tahsildar(R.R) on 16 September, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Latha Mohan vs Tahsildar(R.R) on 16 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 12621 of 2008(C)\n\n\n1. LATHA MOHAN, S\/O M.S.MOHAN KUMAR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. TAHSILDAR(R.R),\n                       ...       Respondent\n\n2. THE TAXATION OFFICER,\n\n                For Petitioner  :SRI.A.K.ABDUL AZEEZ\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :16\/09\/2010\n\n O R D E R\n\n? IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\n+CRL.A.No. 1890 of 2008()\n\n\n#1. SHAJI, S\/O.DEVASYA, MAYATHUPARAMBIL (H)\n                      ...  Petitioner\n2. VARGHESE, S\/O.MATHAI, PLAMOOTTIL  (H)\n3. VANARAJ, S\/O.RAJENDRAN, PUTHEN VEEDU,\n\n                        Vs\n\n\n\n$1. STATE OF KERALA, REPRESENTED BY THE\n                       ...       Respondent\n\n!                For Petitioner  :SRI.V.V.RAJA\n\n^                For Respondent  : No Appearance\n\n*Coram\n The Hon'ble MRS. Justice K.HEMA\n\n% Dated :06\/09\/2010\n\n: O R D E R\n<\/pre>\n
                           K.HEMA, J.\n<\/p>\n
           ———————————————-
\n            Crl.Appeal Nos. 1890\/08 & 592\/2010\n<\/p>\n
           ———————————————-\n<\/p>\n
                  Dated 6th September, 2010.\n<\/p>\n
                         J U D G M E N T<\/p>\n
           The appellants are accused nos.1, 3 and 4 against<\/p>\n
whom, charge-sheet was        laid by police for offences under<\/p>\n
Sections 55(a), (g) and 8(1) and (2) of Abkari Act. They were<\/p>\n
convicted and sentenced under the          above said Sections to<\/p>\n
undergo rigorous imprisonment for four years each and to pay<\/p>\n
fine of Rs.One lakh each. On default of payment of fine, they<\/p>\n
were sentenced to undergo rigorous imprisonment for one year<\/p>\n
each. The said conviction and sentence are challenged in this<\/p>\n
appeal. (Accused nos.3 and 4 are still in jail).<\/p>\n
           2. According to prosecution, on 10.12.2004 in      the<\/p>\n
evening, PW3, the Sub Inspector, along with police party were on<\/p>\n
patrol duty and he received reliable information that arrack was<\/p>\n
being manufactured and hence, he proceeded to the place of<\/p>\n
occurrence at about 4.30 p.m.       The police party reached the<\/p>\n
scene which is in a cardamom estate, and they saw accused nos.1<\/p>\n
to 4 engaged in manufacture of arrack. 5 litres of arrack and<\/p>\n
1500 litres of wash were seized from the scene under a mahazar.<\/p>\n
Arrack was found in MO1, can. Wash was seen in 4 jars having a<\/p>\n
CRA NOS.1890\/08 & 592\/10           2<\/span><\/p>\n
capacity of 200 litres, 5 jars having a capacity of 100 litres, and 1<\/p>\n
iron barrel having capacity of 200 litres. Samples were drawn<\/p>\n
from the arrack in two bottles and samples of wash were also<\/p>\n
taken in two bottles. The utensils found at the scene, which were<\/p>\n
used for manufacturing liquor were also seized. The accused was<\/p>\n
arrested from the spot. The mahazar Ext.P1 was prepared at the<\/p>\n
scene.\n<\/p>\n
           3. The court framed charge against appellants under<\/p>\n
Sections 55(a) and (g) and 8(1) and (2) of Abkari Act. As per the<\/p>\n
details in the charge, accused were found in possession of 1000<\/p>\n
litres of wash and other utensils used for manufacturing liquor<\/p>\n
and also 5 litres of arrack for the purpose of sale, on 10.12.2004<\/p>\n
at about 4.30 p.m. (The accused was not charge-sheeted for<\/p>\n
manufacturing liquor).\n<\/p>\n
           4. To prove the prosecution case, PWs. 1 to 4, Ext.P1 to<\/p>\n
P9, MOs 1 to 12 and Exts.D1 and D2 series were marked. On an<\/p>\n
analysis of the evidence adduced, learned Additional Sessions<\/p>\n
Judge found that the prosecution established that accused were<\/p>\n
engaged in manufacturing arrack and they were in possession of<\/p>\n
the implements for manufacturing arrack and that wash was also<\/p>\n
CRA NOS.1890\/08 & 592\/10           3<\/span><\/p>\n
prepared for it. The lower court held that 3 litres of arrack were<\/p>\n
found in possession of the accused and            the accused were<\/p>\n
convicted for all the offences, for which they were charge-<\/p>\n
sheeted.\n<\/p>\n
            5. The accused were questioned under section 313<\/p>\n
Cr.P.C., after the close of the evidence. The accused came forward<\/p>\n
with a specific case that this is a falsely foisted case since police<\/p>\n
had specific motive to do so. The first accused gave a detailed<\/p>\n
statement as follows : First accused           and   PW2’s brother,<\/p>\n
Kunjumon were neighbours and there was property dispute<\/p>\n
between them. Pursuant to such dispute, first accused had<\/p>\n
assaulted the said Kunjumon and he was admitted in the Taluk<\/p>\n
Headquarters Hospital.\n<\/p>\n
            6. The first accused also contended that a complaint<\/p>\n
was lodged against first accused before the Nedumkandom Police<\/p>\n
Station in respect of the said incident. The police insisted that the<\/p>\n
first accused should appear at the Police Station.      Three times,<\/p>\n
different Police Constables were sent to him, but the accused did<\/p>\n
not go to the police station, since he was afraid that he would be<\/p>\n
subjected to third degree method at the police station, under the<\/p>\n
CRA NOS.1890\/08 & 592\/10           4<\/span><\/p>\n
influence of Joy, who was the Block President and an active<\/p>\n
worker of Congress party, who was also the brother of Kunjumon.<\/p>\n
            7. According to first accused, on 10.12.2004, while first<\/p>\n
accused and thee workers were working in the plantation, three<\/p>\n
police officials from the Nedumkandom police station came to the<\/p>\n
place in mufti and they tried to forcibly remove him from the<\/p>\n
place. Following this, there was an altercation between accused<\/p>\n
and the police. All of them were taken to the police station by<\/p>\n
force under the influence of PW2’s           brother Joy. Another<\/p>\n
complaint was also lodged against them alleging that they had<\/p>\n
manhandled the police etc. and charge was also laid. This case<\/p>\n
was also falsely charge sheeted.\n<\/p>\n
            8. The court below found that the evidence of PW1 and<\/p>\n
PW2, who are the independent witnesses are believable and that<\/p>\n
their evidence is not discredited in cross-examination. According<\/p>\n
to the learned Additional Sessions Judge,      some discrepancies<\/p>\n
were brought out “by confusing the witnesses and by asking some<\/p>\n
confusing questions”.     It is also found that the evidence of<\/p>\n
independent witnesses corroborated the evidence of PW3, who is<\/p>\n
the detecting officer and the entire evidence shows that PW1 and<\/p>\n
CRA NOS.1890\/08 & 592\/10           5<\/span><\/p>\n
PW2 were telling the truth. It is held that the accused were in<\/p>\n
possession of the contraband articles, a can containing arrack and<\/p>\n
also wash and other materials and implements used for<\/p>\n
manufacturing    arrack    and     they  were   also  engaged    in<\/p>\n
manufacturing arrack. The lower court also held that 3 litres of<\/p>\n
arrack were in possession of accused and that wash was prepared<\/p>\n
for manufacture.      The above findings are challenged by the<\/p>\n
appellants on various grounds.\n<\/p>\n
           9. Learned defence counsel, at the very outset, pointed<\/p>\n
out that two appeals are filed by accused nos.3 and 4 against the<\/p>\n
same judgment – one through him and another appeal as jail<\/p>\n
appeal. Hence, the jail appeal is not pressed. It is also submitted<\/p>\n
that accused nos.3 and 4 were asked to deposit a fine of<\/p>\n
Rs.50,000\/- while suspending the sentence. Since they were not<\/p>\n
able to deposit the fine, they are in custody for about more than<\/p>\n
two years. The sentence is for a period of four years.<\/p>\n
           10. Learned counsel who was appointed as State Brief<\/p>\n
for hearing the jail appeal (filed by accused no.3 and 4) submitted<\/p>\n
that since the appeal is being argued on behalf of accused nos.3<\/p>\n
and 4 by another counsel, who was engaged by the appellants<\/p>\n
CRA NOS.1890\/08 & 592\/10          6<\/span><\/p>\n
personally, she may be allowed to withdraw, Crl.Appeal<\/p>\n
No.592\/10.\n<\/p>\n
            11. Learned counsel for appellants submitted that the<\/p>\n
trial court relied upon only the chief examination of the witnesses<\/p>\n
and it did not consider any of the relevant materials brought out<\/p>\n
in cross examination. Relating to the evidence given by PW1 and<\/p>\n
PW2, it was submitted that they are close relatives, being the<\/p>\n
uncle and nephew. Their evidence is full of contradictions. PW2<\/p>\n
deposed that when he reached the place of occurrence, the wash<\/p>\n
and arrack had already been destroyed. So, the evidence of PW3<\/p>\n
cannot be said to have corroborated the evidence of independent<\/p>\n
witnesses.    PW1 stated that Ext.P2 series, which are labels were<\/p>\n
signed by him, but it is brought out in cross examination that his<\/p>\n
signatures in Ext.P2 series are different from the signature in the<\/p>\n
summons.        Therefore, his evidence is not believable, it is<\/p>\n
submitted.\n<\/p>\n
            12. It was also pointed out that there is a contradiction<\/p>\n
in the evidence of PW1 and PW2, regarding the direction, in which<\/p>\n
they were coming towards the place of occurrence. PWs.1 and 2<\/p>\n
stated that they were coming back from Parathode, whereas the<\/p>\n
CRA NOS.1890\/08 & 592\/10             7<\/span><\/p>\n
case diary contradictions, Exts.D1 and D2 will show that they had<\/p>\n
given a statement to the police that they were going to<\/p>\n
Parathode, when they happened to see the incident. It is also<\/p>\n
submitted that PW1 has no case in the chief examination that<\/p>\n
PWs.1 and 2 were going together. But, he deposed in cross<\/p>\n
examination that he went for work and was coming back from<\/p>\n
Parathode. In such circumstances, PWs.1 and 2 are unbelievable,<\/p>\n
especially since they are relatives and they were going together<\/p>\n
and they have no case how and why they happened to be<\/p>\n
together.\n<\/p>\n
            13. In this context, it is also submitted that the accused<\/p>\n
have a case that there was previous enmity for the brother of<\/p>\n
PW2 with the first accused and all these facts are admitted by<\/p>\n
PW1. It is also in the evidence of PW1 that PW2’s brother Joy is<\/p>\n
politically influential and that first accused had bitten Kunjumon,<\/p>\n
and PW1 was making all efforts to see that a case is registered<\/p>\n
against first accused. It is also pointed out that while PW1 stated<\/p>\n
that the incident happened on the right side of the road, PW3<\/p>\n
stated that it was on the left side. PW1 also stated that arrack<\/p>\n
was only in one jar and it was a blue one, but he had no such case<\/p>\n
CRA NOS.1890\/08 & 592\/10          8<\/span><\/p>\n
before the police.\n<\/p>\n
            14. According to prosecution, huge quantity of wash<\/p>\n
and several jars were seen at the place of occurrence, but no<\/p>\n
inventory was prepared, as contemplated under Section 53 of the<\/p>\n
Kerala Abkari Act and the relevant provisions are not complied<\/p>\n
with, it is submitted. The articles were allegedly destroyed from<\/p>\n
the scene itself.     PW2 gave evidence in chief examination,<\/p>\n
supporting the prosecution version but while examined in court,<\/p>\n
his case was that PWs.1 and 2 met at Nedumkandom and from<\/p>\n
there they went to Parathode. A case diary contradiction was<\/p>\n
brought out as Ext.D2, regarding the direction in which PW2 was<\/p>\n
proceeding. He also stated that the incident happened on the left<\/p>\n
side of the road, which is contradictory to the evidence given by<\/p>\n
PW1.\n<\/p>\n
            15. It is also submitted that PWs.1 and 2 stated that<\/p>\n
the place of occurrence can be seen from the road whereas,<\/p>\n
according to PW3, the police official, the scene of occurrence<\/p>\n
cannot be seen from the road. PW2 stated that they reached the<\/p>\n
place, after the police poured out the wash and arrack. He also<\/p>\n
stated that he did not see wash being poured off. Ext.P1 mahazar<\/p>\n
CRA NOS.1890\/08 & 592\/10         9<\/span><\/p>\n
does not show that labels were affixed as S1 and S3 at the scene.<\/p>\n
Ext.P2 series are the labels which were allegedly affixed on the<\/p>\n
sample bottles, but, crime number of the case is mentioned in the<\/p>\n
labels. As per the evidence of PW3, the crime was registered only<\/p>\n
at the police station at 8.30 p.m. Therefore, it is not believable<\/p>\n
that Ext.P2 series were prepared at the scene and this itself will<\/p>\n
destroy the worth of the entire prosecution case, it is contended.<\/p>\n
            16. It is also submitted that except PW3, no other<\/p>\n
police official was examined. A reading of the judgment will show<\/p>\n
that none of the relevant aspects were considered by the court<\/p>\n
below while appreciating the evidence, it is argued. It is also<\/p>\n
submitted that the discrepancies and contradictions which were<\/p>\n
brought out in evidence were treated as not vital and the court<\/p>\n
below went wrong in doing so.        Hence, the conviction and<\/p>\n
sentence may be set aside, it is submitted.\n<\/p>\n
            17. Learned Public Prosecutor submitted dthat the<\/p>\n
evidence of PWs.1 and 2 will clearly establish that arrest,<\/p>\n
manufacture of arrack, seizure and sampling. The mahazar also<\/p>\n
contains the signature of PWs.1, 2 and 3. The sample bottle also<\/p>\n
contains their signature. All the accused were arrested from the<\/p>\n
CRA NOS.1890\/08 & 592\/10         10<\/span><\/p>\n
spot and there is nothing to discredit the evidence of PWs.1, 2<\/p>\n
and 3. Though it is brought out from the cross examination of<\/p>\n
PW2 that the signature in Ext.P2 series and the summons are<\/p>\n
different, it is of no consequence because PW2 denied his<\/p>\n
signature in the summons. He admitted only his signature in<\/p>\n
Ext.P2 series.\n<\/p>\n
           18. It was also submitted by learned Public Prosecutor<\/p>\n
that PW3 clarified that the crime number was ascertained from<\/p>\n
the police station and it was written in the slip at the scene.<\/p>\n
Therefore, the discrepancies pointed out by defence counsel are<\/p>\n
not material to discard the evidence adduced by the prosecution,<\/p>\n
it is contended. Regarding the motive, it is submitted by learned<\/p>\n
Public Prosecutor that there is only a boundary dispute and it was<\/p>\n
settled also, as admitted by the accused. But, this motive is not<\/p>\n
sufficient to reject the evidence adduced by the prosecution<\/p>\n
through any of the witnesses, it is argued.\n<\/p>\n
           19. On hearing both sides and on a perusal of the<\/p>\n
evidence on record, I find that though the trial court found that<\/p>\n
the prosecution established that “manufacturing” of liquor was<\/p>\n
proved, there is no charge for “manufacturing” liquor, under<\/p>\n
CRA NOS.1890\/08 & 592\/10       11<\/span><\/p>\n
Section 55(b) or Section 8(1) of the Abkari Act. In the charge<\/p>\n
framed by the court, the accused was not called upon to answer<\/p>\n
any allegation regarding manufacture of arrack.       Therefore,<\/p>\n
accused cannot be found guilty for “manufacturing” arrack or<\/p>\n
liquor.  What remains is only possession of wash, arrack and<\/p>\n
utensils which are used for manufacturing arrack.<\/p>\n
           20. To prove the possession of the contraband articles<\/p>\n
by the accused, Pws.1 to 3 were examined. PWs.1 and 2 are the<\/p>\n
independent witnesses and PW3 is the Sub Inspector, who is the<\/p>\n
sole official witness who was examined to prove the occurrence.<\/p>\n
Before analysing the evidence, it is beneficial to keep in mind<\/p>\n
what the accused has to speak about the circumstances under<\/p>\n
which the case was registered. According to the accused, this is a<\/p>\n
falsely foisted case.    The first accused and PW2’s brother<\/p>\n
Kunjumon, who is also the uncle of PW1 was having a property<\/p>\n
dispute with first accused.   Consequent to this, first accused<\/p>\n
assaulted Kunjumon and the latter got admitted in the hospital<\/p>\n
and he gave a complaint against first accused.<\/p>\n
           21. The first accused also contended that the police<\/p>\n
wanted him to go to the police station and thrice, Police<\/p>\n
CRA NOS.1890\/08 & 592\/10        12<\/span><\/p>\n
Constables were sent to him, but he refused to go. This was due<\/p>\n
to the reason that he was afraid that Joy, who is is politically<\/p>\n
influential and he is the Block President and an active worker of<\/p>\n
the UDF. He would influence the police and under his influence,<\/p>\n
police   may   man-handle    him   at    the  police  station,  he<\/p>\n
apprehended. The said Joy is the uncle of PW1, an eye witness.<\/p>\n
He is also the brother of PW2 and Kunjumon, who is on inimical<\/p>\n
terms with first accused. The police went to his estate while he<\/p>\n
was engaged in work there along with his workers. Three police<\/p>\n
constables went there and tried to physically remove 1st accused<\/p>\n
by force.\n<\/p>\n
            22. According to first accused, there was a quarrel<\/p>\n
between the police officials and the workers and all the four<\/p>\n
persons were taken to the police station by force. According to<\/p>\n
the accused, a false case was        filed thereafter, against the<\/p>\n
accused without any basis. No seizure or search was conducted<\/p>\n
at the scene, The witnesses PWs.1 and 2 were obliging the police<\/p>\n
at the instance of Kunjumon and his brother Joy. Admittedly, both<\/p>\n
PWs.1 and 2, the independent eye witnesses are closely related<\/p>\n
to Kunjumon. But, according to accused, they were not present at<\/p>\n
CRA NOS.1890\/08 & 592\/10         13<\/span><\/p>\n
the time when the accused were taken into custody on the<\/p>\n
alleged date of occurrence.\n<\/p>\n
           23. PWs.1 and 2 are independent witnesses.         PW1<\/p>\n
admitted in cross examination that PW2 is his uncle and that<\/p>\n
Kunjumon is the elder brother of PW2. He also admitted that Joy<\/p>\n
was a UDF worker and in 2004, and at that time, the Government<\/p>\n
was ruled by UDF. It is also admitted that the property of first<\/p>\n
accused and Kunjumon were situated close to each other and first<\/p>\n
accused and Kunjumon had some dispute with respect to the<\/p>\n
boundary. Consequent to such dispute, first accused had bitten<\/p>\n
Kunjumon and a case was also registered against him. PW2 also<\/p>\n
admitted that himself and Joy had taken best efforts to get a case<\/p>\n
registered against accused in respect of the said incident.     A<\/p>\n
suggestion was made that the case was compromised between<\/p>\n
first accused and Kunjumon without getting permission from PW1,<\/p>\n
Joy etc. and this was not to the liking. These suggestions were<\/p>\n
denied. However, PW1 admitted that the incident happened prior<\/p>\n
to the registration of the case.\n<\/p>\n
           24. But, PW2, who is none other than the own brother<\/p>\n
of Kunjumon pretended ignorance of any of the above facts. He<\/p>\n
CRA NOS.1890\/08 & 592\/10          14<\/span><\/p>\n
stated that he did not know whether his brother Kunjumon had<\/p>\n
any property dispute with first accused and whether any police<\/p>\n
case was registered in respect of any incident as an off-shoot of<\/p>\n
the property dispute. PWs.1 and 2 are examined to prove that<\/p>\n
the manufacture of arrack was going on at the scene of<\/p>\n
occurrence and that the accused were engaged in manufacture of<\/p>\n
arrack. The evidence of PW1 and PW2 who are the independent<\/p>\n
witnesses are to be evaluated in the light of what is discussed<\/p>\n
above.\n<\/p>\n
            25. It is clear from evidence that PW1 and PW2 are<\/p>\n
close relatives and they are not residing close to the place of<\/p>\n
occurrence.    But, in the chief examination, PW2 did not say<\/p>\n
anything to connect the accused with possession or manufacture<\/p>\n
of liquor. In fact, he did not implicate any one of the accused with<\/p>\n
the offence. He had no case that any one of the accused was<\/p>\n
found either manufacturing liquor or keeping the contraband<\/p>\n
articles in their possession.   He also did not identify any of the<\/p>\n
accused while he was examined in court. Therefore, the evidence<\/p>\n
of PW1 will not disclose that the accused was in possession of the<\/p>\n
contraband articles or was manufacturing arrack using wash, as<\/p>\n
CRA NOS.1890\/08 & 592\/10       15<\/span><\/p>\n
alleged by the prosecution.\n<\/p>\n
           26. As per the prosecution case, PWs.1 and 2 were<\/p>\n
proceeding together to the scene in the same direction and they<\/p>\n
happened to be in the scene together. But the evidence of PW2<\/p>\n
shows that before they reached the place of occurrence, wash and<\/p>\n
arrack were already poured off. He also stated that he did not see<\/p>\n
pouring of the arrack and wash, but such information was<\/p>\n
conveyed to him. That means, going by the evidence of PW1,<\/p>\n
everything was over before PW1 and PW2 reached the spot.<\/p>\n
           27. PW2 also stated that he did not know, from which<\/p>\n
article, the sample was taken. He also stated that he did not<\/p>\n
know whether the article which was in possession of “police” was<\/p>\n
the article taken as sample or not. He did not know how much is<\/p>\n
the quantity of arrack, which was available at the scene. He<\/p>\n
repeatedly asserted that though wash wash poured off, it was not<\/p>\n
in his presence. He was confronted with his earlier statements<\/p>\n
given by him to police, which is Exts.D2(a) and D2(b), as per<\/p>\n
which he had seen the articles kept at the scene etc., but he<\/p>\n
bluntly denied having made any such statement to the police.<\/p>\n
Therefore, going by the evidence of PW2, neither PW1 nor PW2<\/p>\n
CRA NOS.1890\/08 & 592\/10        16<\/span><\/p>\n
would have seen what transpired at the place of occurrence.<\/p>\n
There was little chance for either of them to see the contraband<\/p>\n
articles being kept at the scene or being in possession of the<\/p>\n
accused, when they reached the place.\n<\/p>\n
           28. It is pertinent to note that PW2 is not a hostile<\/p>\n
witness. He is the star witness, who is owned by the prosecution.<\/p>\n
He is the person, on whose evidence the court convicted the<\/p>\n
accused. But, the lower court failed to take note of the fact that<\/p>\n
even in the chief examination of PW2, he was conspicuously silent<\/p>\n
about the material aspects to connect or incriminate the accused<\/p>\n
with the offence. If the evidence of PW2 is to be relief upon, the<\/p>\n
evidence of PW1 on the material aspects cannot be relied upon,<\/p>\n
since those are mutually contradictory.\n<\/p>\n
           29. There are also material discrepancies in the<\/p>\n
evidence of PW1, the other alleged eye witness, regarding the<\/p>\n
nature of articles seized from the place of occurrence. According<\/p>\n
to prosecution and the evidence of PW3, the official witness,<\/p>\n
arrack was found in a “can”.       In his evidence, he made a<\/p>\n
distinction between “jar” and “can”. A reading of his evidence<\/p>\n
reveals that wash was allegedly present in the “jar”, whereas<\/p>\n
CRA NOS.1890\/08 & 592\/10         17<\/span><\/p>\n
arrack was present in the “can”. But, the evidence of PW1, the<\/p>\n
alleged eye witness will show that he found arrack in a “jar” and<\/p>\n
according to him, the colour of the “jar” was blue. PW3, the<\/p>\n
detecting officer has no case that arrack was found either in the<\/p>\n
blue jar or in a jar of any colour. Therefore, the evidence of PW1<\/p>\n
cannot be said to have corroborated the evidence of PW3 or the<\/p>\n
prosecution regarding the container in which the arrack was kept<\/p>\n
in possession by accused.\n<\/p>\n
           30. It is also seen from the evidence of PW1 that the<\/p>\n
relevant    aspects regarding the presence of the jars, cans,<\/p>\n
contraband articles etc. are denied by him, while portions of the<\/p>\n
case diary statement were put to him and those are marked as<\/p>\n
Exts.D1(a) to D1(c).     In the light of all the above facts and<\/p>\n
circumstances, the evidence of PW1 and PW2 cannot be accepted<\/p>\n
to hold that arrack or wash was seized from the possession of the<\/p>\n
accused, as alleged by the prosecution. Of course, PW1 stated<\/p>\n
that accused were found manufacturing arrack when they<\/p>\n
reached the place.\n<\/p>\n
           31. But, the evidence of PW2, another eye witness,<\/p>\n
who deposed that both PWs.1 and 2 went to the place together<\/p>\n
CRA NOS.1890\/08 & 592\/10         18<\/span><\/p>\n
gave a totally contradictory version.      According to PW2, no<\/p>\n
manufacture was going on at the scene. Neither the arrack or<\/p>\n
wash was seen by him at the scene. He had also not seen those<\/p>\n
articles being poured off. In such circumstances, the court ought<\/p>\n
not to have accepted the evidence of PW1 or PW2. The court<\/p>\n
cannot conveniently rely upon the evidence of PW1, which<\/p>\n
supports the prosecution and reject the other, which is against<\/p>\n
prosecution. This is specially since, prosecution has not sought to<\/p>\n
declare PW2 as hostile. The prosecution owns the evidence of<\/p>\n
PW1 and PW2, which are mutually contradictory.<\/p>\n
           32. Now, the evidence of PW3 can be looked into. PW3<\/p>\n
is the detecting officer. His evidence also does not inspire the<\/p>\n
confidence of the court to conclude that the contraband articles<\/p>\n
were seized, as alleged by the prosecution. The evidence of PW3<\/p>\n
shows that there were 4+5 “jars” and an iron drum at the scene<\/p>\n
in which wash was kept. He also stated that he had tested the<\/p>\n
article, which was present in the “jar”, by taste and smell in the<\/p>\n
presence of PWs.1 and 2. According to him, the “jar” contained<\/p>\n
arrack. He has not given evidence as to what was the article<\/p>\n
which was present in the “can”. Therefore, based on the evidence<\/p>\n
CRA NOS.1890\/08 & 592\/10         19<\/span><\/p>\n
of PW3 or PW1 and PW2, it cannot be said that the “can”<\/p>\n
contained arrack.\n<\/p>\n
            33. There are also material contradictions in the<\/p>\n
evidence of PWs.1 to 3 in respect of the place of occurrence.<\/p>\n
PWs.1 and 2 stated that they were proceeding in the same<\/p>\n
direction on the road, which was lying east-west, but, PW1 would<\/p>\n
say that the place of occurrence lies on the right side, that is, on<\/p>\n
the southern side, whereas according to PW2, the incident<\/p>\n
happened on the left side of the road, which is on the northern<\/p>\n
side. In such circumstances, it is doubtful whether PWs.1 and 2<\/p>\n
had gone to the place of occurrence at all.\n<\/p>\n
           34. The evidence given by them regarding the<\/p>\n
circumstances under which they happened to be in the place of<\/p>\n
occurrence is also doubtful. While to the police, they gave a<\/p>\n
particular version, as per the portions of the case diary statement,<\/p>\n
they denied the same while examined in court and in evidence,<\/p>\n
they gave a totally different version, which is diametrically<\/p>\n
opposite to the statement given by them to the police, as to the<\/p>\n
circumstances under which PWs.1 and 2 reached the place. There<\/p>\n
are also various other discrepancies regarding the sampling,<\/p>\n
CRA NOS.1890\/08 & 592\/10           20<\/span><\/p>\n
sealing etc.<\/p>\n
            35. In the light of what is already discussed, I find that<\/p>\n
prosecution failed to prove its case beyond reasonable doubt.<\/p>\n
The court below went wrong in holding that the evidence of PWs.1<\/p>\n
to 3 corroborated each other in material particulars and that their<\/p>\n
evidence would prove the manufacture, possession etc. The court<\/p>\n
below failed to analyse the evidence and appreciate the same in<\/p>\n
the proper perspective. In a case in which accused took up a plea<\/p>\n
of false implication and a specific motive, court should have been<\/p>\n
more careful before while evaluating the evidence.                The<\/p>\n
conviction and sentence are unsustainable and are liable to be<\/p>\n
set aside.\n<\/p>\n
      In the result, the following order is passed :<\/p>\n
        (i) The conviction and sentence passed against the<\/p>\n
              appellants in Crl.A.1890\/08 (accused 1, 3 and 4) are<\/p>\n
              set aside.\n<\/p>\n
        (ii) Appellants (accused 1, 3 and 4) are found not guilty of<\/p>\n
              offences under Sections 55(a), (g), 8(1) and (2) of<\/p>\n
              the Kerala Abkari Act and they are acquitted of the<\/p>\n
              offences under the said sections.\n<\/p>\n
CRA NOS.1890\/08 & 592\/10        21<\/span><\/p>\n
      (iii) Appellants are set at liberty forthwith.<\/p>\n
      (iv) Release order shall be issued forthwith.<\/p>\n
                Crl.Appeal No.1890\/2008 is allowed. Crl.Appeal<\/p>\n
No.592\/2010 is dismissed as not pressed.\n<\/p>\n<\/p>\n
                                             K.HEMA, JUDGE.\n<\/p>\n
tgs<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Latha Mohan vs Tahsildar(R.R) on 16 September, 2010 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 […]<\/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-98183","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nLatha Mohan vs Tahsildar(R.R) on 16 September, 2010 - 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\/latha-mohan-vs-tahsildarr-r-on-16-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Latha Mohan vs Tahsildar(R.R) on 16 September, 2010 - 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