C. Vasudevan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942** ## **CRL.A.No.2457 OF 2007** **AGAINST THE JUDGMENT IN SC 174/2005 DATED 19-11-2007 OF THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA** ## **APPELLANT/ACCUSED:** **C.VASUDEVAN AGED 38 YEARS S/O. KANJIRAMTHONDIL CHATHAN, LAYANAM HOUSE, CHERUKUNNU, POOTHADI VILLAGE, SULTHAN BATHERY.** ## **BY ADV. SRI.MATHEW KURIAKOSE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, (CRIME NO. 5/04 OF KALPETTA EXCISE RANGE) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2020,** **THE COURT ON 04-12-2020 DELIVERED THE FOLLOWING:** Crl. A. No. 2457 of 2007 2 ## **JUDGMENT** The appellant is the convict in S.C. No. 174/2005 of the Additional Sessions Court, (Adhoc) II, Kalpetta, who has suffered conviction for offence punishable under Section 8(2) of the Abkari Act. By judgment dated 19.11.2007, the learned Additional Sessions Judge found him guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1 lakh, in default to undergo rigorous imprisonment for three months. He has also been allowed to set off the period of judicial custody undergone by him during the period of investigation. 2. The prosecution allegation is that on 23.02.2004, at about 8.30 P.M., while the Excise Inspector attached to the Excise Enforcement and Anti Narcotic Special Squad and party were on patrol duty through the Koodothummal - Cheekkallur road, while they reached a place by name Cheekkallur, at about 8.30 P.M., found a person moving against them carrying a can with him. Seeing the Excise party, he was found trying to hide the can with the lunky worn by him. Out of suspicion, the person was intercepted and the content Crl. A. No. 2457 of 2007 3 of the can was examined in the presence of independent witnesses. It was a five litre can containing about 2[1] /2 litres of liquid. When the content was tested by tasting and smelling, it was found arrack. Thus in the presence of independent witnesses, the item was seized, the said Vasudevan, the appellant was arrested and Crime No. 5/2004 of the Excise Range Office, Kalpetta was registered. He was produced before court on the following day. After completing the procedural formalities, a final report was laid before the Chief Judicial Magistrate, Kalpetta where the case was taken on file as C. P. 70/2004. After completing the formalities, by serving copies of records etc., the Chief Judicial Magistrate committed the case to the Sessions Court, Kalpetta from where the case was made over to the trial court. 3. In response to the summons, the appellant appeared before the trial court. He was defended by a counsel of his choice. After hearing counsel on both sides, the charge was framed, read over and explained, to which he pleaded not guilty. He is on bail. 4. The prosecution examined six witnesses on their side as PWs 1 to 6. Exts. P1 to P8 were also marked. The material objects Crl. A. No. 2457 of 2007 4 were identified and marked as MO1 series. On conclusion of prosecution evidence, when examined under Section 313(1)(b) of the Criminal Procedure Code, hereinafter referred to as the 'Cr.P.C.', he reiterated his innocence and denied all the incriminating materials and also filed a statement in writing. According to him, he is totally innocent in the matter, that no incriminating material was seized from him as alleged by the prosecution. The statement of PWs 1 and 2, that he was arrested from the road leading to Cheekkallur ghat is false, he did not possess arrack with him. According to him, on 23.02.2004, his neighbour, Thankachan had gone to Koodothummal toddy shop and had taken toddy therefrom. As it was spurious toddy, he felt some uneasiness and became unconscious. Knowing about that, the appellant and two neighbours went to the toddy shop and talked with the Manager of the shop, which led to an altercation. In the incident, 2 to 3 toddy bottles were broken. They returned from the shop at about 4.45 P.M. He had threatened that he will make complaint to authorities and out of that animosity, in order to prevent him from making any complaint, at the instance of the Manager of the shop, a false case was foisted against him. Thereafter to prove the contention, Crl. A. No. 2457 of 2007 5 he examined one witness as DW1. Exts.D1 and D2 were also marked on his side. 5. Inspite of the said contentions and examination of DW1 and marking Exts.D1 and D2 documents, the learned Additional Sessions Judge believed the version of the prosecution tendered through oral testimony of PWs 1 and 2 and other connected materials, found the appellant guilty and imposed the sentence as aforestated. That finding is the subject matter of this appeal. 6. Heard the learned counsel for the appellant as well as the learned Senior Public Prosecutor in detail. According to the learned counsel for the appellant, it is a falsely foisted case. He restated the stand of the appellant taken at the time of examination under Section 313 of the Cr.P.C. According to him, the oral testimony of PWs 1 and 2 cannot be acted upon without corroboration through independent sources. Both PWs 3 and 4, independent witnesses, have given statement in conformity with the defence version of the appellant. Similarly DW1, who himself was the person who had fallen unconscious after taking spurious liquor from the shop has stated that such an incident had occurred in the shop. Thus the contention of the Crl. A. No. 2457 of 2007 6 learned counsel is that it is clearly a case of false implication. The counsel also raised various contradictions crept in the testimony of witnesses and according to him, the prosecution could not give a consistent, uniform case and the inconsistencies crept in the evidence are sufficient to doubt the veracity of the version. He also said that these are circumstances capable of giving benefit of doubt to the appellant and therefore, prayed for granting him the benefit of doubt. 7. On the other hand, the learned Senior Public Prosecutor said that the prosecution could bring home the guilt of the accused, there is absolutely no danger in believing PWs 1 and 2 official witnesses, the crime was registered immediately after the incident, the material objects were also produced before court without delay, there is forwarding note and the case of the defence cannot be accepted, it is not believable also. Therefore, he prayed for sustaining the conviction and sentence imposed on the appellant. 8. PW1 is Excise Inspector K.S. Shaji, who was the Inspector attached to the Excise Enforcement and Anti Narcotic Special Squad, who had detected the offence. He gave a statement in support of the prosecution case. PW2, P.J. Baby, Preventive Officer who Crl. A. No. 2457 of 2007 7 accompanied PW1 also gave statement in conformity with that of PW1. Both PWs 1 and 2 have given a uniform, consistent case with regard to the allegations in the prosecution case. After believing both PWs 1 and 2 and the connected materials, the learned trial Judge who had occasion to watch their demeanour has believed their version and proceeded against the appellant. After re-visiting the evidence, I also do not find any reason to disbelieve the statements of PWs 1 and 2, who have no previous acquaintance with the appellant and therefore, other things remaining the same, there is no harm in believing their version. 9. PWs 3 and 4 independent witnesses have turned hostile to the prosecution though they admitted that they had signed some of the documents. PW3 Gopalan has stated that he had signed the arrest memo whereas denied having signed the Ext.P2 seizure mahazar. On the other hand PW4, P.K.Madhavan, another independent witness has admitted his signatures both in Exts. P1 and P2. But both of them have stated that they had signed the document at the toddy shop, that both of them were employees in the toddy shop, that they had signed the document as directed by the Manager of the toddy shop. Thus, they Crl. A. No. 2457 of 2007 8 supported the case of the defence. PW5 P.T. Kandan was the Preventive Officer, who registered the crime and sent the property to the court and also prepared the forwarding note. He proved Exts. P4 to P6 documents. PW6, P.A. Joseph is the Excise Inspector who investigated the case and laid the charge sheet. He proved the Exts.P7 and P8 documents and also Exts. D1 and D2. As mentioned earlier, DW1 is the said Thankachan, who said that, that day he went to toddy shop and had occasion to consume spurious liquor, felt some uneasiness, thereafter his neighbours had gone to the toddy shop and questioned the Manager about it, that led to an altercation etc. I have already noticed that there is uniformity in the version of PWs 1 and 2, official witnesses. Their statements stand corroborated each other. They have given a consistent version with regard to the detection of the offence, arrest of the appellant, seizure of the item and removal of the appellant from the said spot. Both of them have emphatically denied the suggestion that they were acting at the instance of the Manager of the toddy shop; they were unaware of any such incident that had allegedly happened in the toddy shop. Crl. A. No. 2457 of 2007 9 10. It is true that PWs 3 and 4, independent witnesses and DW1 have spoken about an incident that had happened in the toddy shop, as stated by the appellant during his examination under Section 313 of the Cr.P.C. But there are reasons to think that such a version is the result of a second thought. That version was introduced in these proceedings only when PW1 was examined before court. What I endeavour to say is that if it was a false implication and the officials were motivated by extraneous considerations and the appellant was made victim to a foul play played by the Excise officials and the toddy shop Manager, necessarily when the appellant was produced before court on 24.02.2004, he would have related the incident to the Magistrate. In fact that was the earliest possible opportunity made open to him to give a complaint to a judicial authority. If that matter was spoken to the Magistrate, necessarily these versions would have got extra weightage. Moreover, when the Magistrate had asked him about any complaint against the Excise officials, if he had given such a statement, necessarily that must have been recorded by the Court. Even the defence has no case that he had given such a statement to the Court. This circumstance is sufficient to cast doubt on the version of Crl. A. No. 2457 of 2007 10 the defence. Moreover as stated earlier, there is absolutely nothing to disbelieve PWs 1 and 2. They have given a clear, uniform, consistent case with regard to the involvement of the appellant and his arrest along with the contraband. In this circumstance, the fact that the residence of the appellant is on the other side of the river, that there is no connecting access or bridge across the river at that place, that independent witnesses do not belong to that area etc., have no relevance or importance. 11. The learned counsel has also raised various circumstances to say that there are contradictions, embellishments etc., in the prosecution evidence. But I do not find such material contradictions or embellishments in the case. Minor aspects like whether the Guard was sent to serve notice of arrest before the preparation of the seizure mahazar or after the preparation, who had taken the sample, who had affixed the seal etc., which cannot have much bearing in the case and these minor aspects cannot be blown out of proportion. In the decision reported in **Sukhdev Yadav and Others v. State of Bihar [(2001) 8 SCC 86]** , it is held that once trustworthiness of the prosecution evidence is satisfied, it cannot be discarded merely on the ground of Crl. A. No. 2457 of 2007 11 presence of minor variations in evidence. Such minor contradictions which do not affect the substratum of the prosecution case can be ignored by the court. Some discrepancy is inevitable, especially when the witnesses depose after three or four years of the date of occurrence. A discrepancy existing in prosecution case should not weigh with the court so long as it does not materially affect the case. ( **Krishna Mochi and others v. State of Bihar [AIR 2002 SC 1965]** and **State of M. P. v. Mansingh and Others [(2003) 10 SCC 414]** etc.) After re-assessment of the evidence in toto and having regard to the Ext.P2 document and the oral testimony of PWs 1 and 2 and other contemporaneous documents, there is absolutely nothing to discredit the prosecution evidence. The learned Sessions Judge has considered all these aspects in proper perspective. The oral testimony of DW1 also cannot change the fate of the case. Even though he has spoken about some incident happened in the toddy shop and that some neighbours had intervened in the matter and if some untoward incident had happened inside the toddy shop, as rightly pointed out by learned Public Prosecutor, that would have been reported to the police as it was a law and order issue. There is also no allegation or case that Crl. A. No. 2457 of 2007 12 even after the registration of the crime, any such complaint was laid before the Excise officials touching the alleged supply of spurious liquor or the intervention of the appellant and others in the matter. Even otherwise, DW1 was not shown present at the time when some neighbours had allegedly gone to the toddy shop and questioned the Manager. Therefore, I have reasons to think that such a case has been introduced as a result of an after thought on experimental basis to consider whether the appellant can be salvaged from criminal liability. 12. Turning to the contention that the appellant may be given the benefit of doubt, cannot be accepted in the above backdrop. It is true that there is no absolute standard for proof beyond reasonable doubt. To constitute reasonable doubt, it has been held by Hon'ble Supreme Court, it must be free from over emotional response. Doubts must be actual and substantial as to the guilt of the accused person arising from the evidence or lack of it. Reasonable doubt must not be an imaginary, trivial or merely possible doubt. Courts have to take a practical view of legitimate inference flowing from evidence. Reasonable doubt does not mean a doubt begotten by sympathy, out of reluctance to convict; it means a real doubt, a doubt founded on Crl. A. No. 2457 of 2007 13 reasons. After assessing the evidence, this Court do not find any such doubt founded on reasons. 13. On these considerations, the judgment of the trial court convicting the appellant is only to be confirmed and I do so. However, having regard to the fact that the incident had happened 16 years before and the quantity of arrack is only 2[1] /2 litres, a modification in substantive sentence can be allowed. Therefore, the substantive sentence is modified and reduced into rigorous imprisonment for six months, maintaining the penalty and default sentence. Subject to the above modification, the appeal is dismissed. Sd/- **K.HARIPAL JUDGE** DCS/01.12.2020