K. Suresh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 2ND NOVEMBER, 2011 / 11TH KARTHIKA, 1933 CRL.A.No. 179 of 2011 -----------------------------(AGAINST THE ORDER IN SC.NO.478/2006 of ADDL.DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGOD) .................... APPELLANT(S): APPELLANT. --------------------K.SURESH,CONVICT NO.8786, CENTRAL PRISON, KANNUR. BY ADV. SMT.RASHMI RAVINDRAN RESPONDENT(S): ----------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SMT.LALIZA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 179 of 2011 ----------------------------------------** Dated this the 2[nd] day of November, 2011 ## **JUDGMENT** Challenging the conviction and sentence imposed against the accused under Section 58 of the Kerala Abkari Act, by judgment dated 20.9.2010 in S.C.No.478 of 2006 of the court of Additional District and Sessions Judge (ADHOC)-III, Kasaragod, the appellant/accused preferred this appeal. 2. The prosecution case is that the accused was found in possession of 5 litres of illicit arrack kept in a 5 litres black plastic can and caught him with the said material from the eastern side of the Panchayath well situated north to the Nelliyadukkam Colony Road at Nelliyadukkam at about 7.45 p.m. on 19.9.2005 and thereby, the accused has committed the offence punishable under Section 55(a) of the Kerala Abkari Act. With the above allegation, Crime No.308 of 2005 was registered in the Bekal Police Station and after investigation, a report was filed in the Judicial First Class Magistrate Court-II, Hosdurg wherein the same was received and ## Crl.A.No.179 of 2011 :-2-: instituted as C.P.No.100/2006 and thereafter, the learned Magistrate committed the case to the Sessions Court wherein the same is received as S.C.No.478 of 2006 and subsequently, the case is made over to the trial court for disposal. When the accused was brought under arrest and as there was no counsel to be engaged by him, the trial court arranged a counsel under the Legal Aid Services Scheme so as to defend the case. Thus, the learned Judge of the trial court after hearing the prosecution as well as the defence, framed a formal charge against the accused for the offence punishable under Section 55(g) of the Kerala Abkari Act, which when read over and explained to the accused, he pleaded not guilty. Thereafter, the prosecution has examined Pws.1 to 5 and produced Exts.P1 to P9 and P9(a) documents. Subsequently, the accused was also examined under Section 313 of Cr.P.C., during which he denied the evidence of the prosecution and further submitted that he had no connection whatsoever with the contraband liquor seized in this case. The trial court has finally Crl.A.No.179 of 2011 :-3-: found that the prosecution has proved through legal and acceptable evidence, that when the accused was keeping in his possession 5 litres of illicit distilled arrack, he was taken into custody with such contraband article and thus, he is found guilty under Section 58 of the Kerala Abkari Act and he is convicted thereunder. On such conviction, the trial court sentenced him to suffer rigorous imprisonment for 4 years for the offence under Section 58 of the Kerala Abkari Act and to pay a fine of Rs.1 lakh and in default of payment of fine, he is directed to undergo rigorous imprisonment for three months. Set off was allowed under Section 428 of Cr.P.C. It is the above finding and order of conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance of the impugned judgment, he preferred this appeal from the jail and on receiving the same as ordered by this Court, the Registry has appointed Smt.Rashmi Raveendran, counsel from the panel of State Brief to prosecute the appeal for an on behalf of the ## Crl.A.No.179 of 2011 :-4-: appellant. Thus, I have heard Smt.Rashmi Raveendran, learned counsel appearing for the appellant and Smt.Laliza, the learned Public Prosecutor. 4. According to the prosecution, when Pws.1 and 2 were on patrol duty at about 7.45 p.m. On 19.9.2005, they saw the accused holding a 5 litre capacity can and on examining the contents of the can, it was realised that the liquid therein is illicit arrack. Consequently, the appellant/accused was arrested from the spot and the contraband articles were seized then and there and thereafter, they registered a crime and the accused was produced before the committal court. In order to prove the above allegation, as I indicated earlier, five witnesses were examined from the side of the prosecution. Though PW3 turned hostile, the substantial part of the prosecution allegation is proved through Pws.1 and 2. PW1 is the then Sub Inspector of Police, Bekal Police Station who detected the crime and PW2 was the Police Constable attached to the Bekal Police Station, who accompanied PW1 during the Crl.A.No.179 of 2011 :-5-: detection of the crime. The further investigation was undertaken by PW5 through whom Ext.P5 sketch plan and Ext.P7 chemical analysis report were marked. Ext.P4 forwarding note, Ext.P5 scene mahazar etc were prepared by the Additional S.I. Of Police, Bekal Police Station, who is no more. The trial court, though PW3 turned hostile, based upon the evidence mainly of Pws.1,2 and 5 and the documents Exts.P1 to P9(a) came to the conclusion that the prosecution has succeeded in proving its case against the accused. The above findings of the trial court are under challenge in this appeal. 5. Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt. In support of the above argument, the learned counsel has pointed out that the only evidence available on record is that of Pws.1 and 2 to prove the seizure and arrest of the accused and their evidence cannot be believed because of the contradiction that occurred in the evidence Crl.A.No.179 of 2011 :-6-: of Pws.1 and 2. It is also pointed out that though PW3 was cited and examined, he has not supported the prosecution case and therefore, absolutely there is no independent evidence to corroborate the evidence of Pws.1 and 2. It is also the submission of the learned counsel that in spite of the fact that PW3 turned hostile, the prosecution has not examined the other signatory to Ext.P1 seizure and the above fault of the prosecution is very vital, especially when the evidence of Pws.1 and 2 is not satisfactory. In support of the above contention, the learned counsel placed reliance upon the decision of this Court reported in **Vikraman** v. **State of Kerala** [2007(1) KLT 1010]. It is the further submission of the learned counsel that even though the prosecution has got a case that the accused was found in possession of 5 litre can wherein the contraband articles were kept, the prosecution has not produced the said can as a material object and therefore, according to the learned counsel, there is no physical evidence in support of the prosecution allegation. Thus, according to the learned counsel, Crl.A.No.179 of 2011 :-7-: the findings and conviction recorded by the trial court is without any basis and the same are liable to be set aside. 6. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1 and 2 is intact though there is a slight difference regarding the date of occurrence given in their evidence. The documentary evidence produced by the prosecution are sufficient to show that the actual date of occurrence was on 19.9.2005 and the difference with respect to the date of occurrence that occurred in the deposition of Pws.1 and 2 is not sufficient to disbelieve the entire prosecution case. According to the learned Public Prosecutor, all other aspects of the prosecution allegation are positively proved by adducing cogent and satisfactory evidence. It is also the submission of the learned Public Prosecutor that though PW3 turned hostile, the evidence of Pws.1 and 2 remained intact and it was under that background, the learned Judge of the trial court, after due appreciation of their evidence, accepted the same which forms the basis for the conviction. Crl.A.No.179 of 2011 :-8-: According to the learned Public Prosecutor, either the hostile attitude of PW3 or the non-examination of other signatories to Ext.P1 is not a legally sustainable ground to disbelieve the case of the prosecution and to interfere with the order of conviction recorded by the trial court since the evidence of Pws.1 and 2 established the prosecution allegation beyond reasonable doubt. Thus, according to the learned Public Prosecutor, no interference is warranted. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have perused the judgment of the trial court and the evidence and materials on record. 8. As I indicated earlier, the trial court, relying upon the evidence mainly PWs.1 and 2 and the documentary evidence such as Exts.P1 to P9(a), approved the prosecution case and found against the appellant and convicted him under Section 58 of the Kerala Abkari Act. In the light of the above findings, based upon Crl.A.No.179 of 2011 :-9-: the materials and evidence referred to above and in view of the rival contentions advanced by the counsel for the appellant as well as the learned Public Prosecutor, the question to be considered is whether the trial court is justified in its finding and convicting the appellant/accused under Section 58 of the Kerala Abkari Act. 9. As I indicated earlier, the prosecution allegations disclosed through the evidence of PWs.1 and 2 and according to PW1, when himself and party were on patrol duty, on 19.9.2005 at the place of occurrence, they had seen the accused holding 5 litres capacity can and on seeing the party, when the appellant tried to escape from the spot, they intercepted him and on inspection of the can, which was possessed by the accused, they realised that the can contains illicit arrack and they themselves satisfied that the content is arrack by smelling and tasting the same. The above evidence of PW1 is fully corroborated by the evidence of PW2, a Police Constable attached to the Bekal Police Station who accompanied PW1 at the time of detection of the crime. Though PWs.1 and 2 Crl.A.No.179 of 2011 :-10-: were subjected to extensive cross-examination, nothing brought on record to discredit or disbelieve their version. The learned counsel for the appellant has pointed out that when PW1 says that he detected the crime on 19.5.2005, PW2 says that the detection of the crime was on 19.4.2003, and therefore, the version regarding the actual date of occurrence, there is conflict between PWs.1 and 2. On a reading of the deposition of PW1, it can be seen that in the chief examination, PW1 has stated as follows:- “............19.5.2005-ന� ഞ�ന Bakal Police Station S.I. ആയ�ര�ന�.അന� ഞ�ന police party-യ�മ��ത� ........” On the basis of the above words of PW1 in the chief examination, learned counsel submitted that the evidence of PW1 cannot be believed. The above submission is not acceptable. It is relevant to note that as per the Police records, the date of occurrence was on 19.9.2005 and PW1 was examined on 6.5.2010 after five years from the date of occurrence. So, the mistake that crept while giving the date according to me, is quite natural and possible. Crl.A.No.179 of 2011 :-11-: When examining the evidence of PW2, the same is the position. He was also examined after five years from the date of occurrence. But, at the very same time, it is relevant to note that even according to PW1, Ext.P1 seizure mahazar, Ext.P2 F.I.R. and Ext.P3 property list etc, were prepared by himself which bears the correct date. So, the contemporary document, which is prepared by PW1, would show the correct date of occurrence and if that be so, the slight mistake that occurred while deposing the date of occurrence cannot be isolated and separated from the contemporary documents especially when the other part of the deposition of PWs.1 and 2 are strictly in accordance with the prosecution allegation. Therefore, I find no reason to disbelieve PWs.1and 2. 10. Another contention advanced by counsel for the appellant is that there is no independent evidence to corroborate the evidence of PWs.1 and 2. There is no rule that unless and until the evidence of Official witnesses are corroborated from independent sources, their evidence cannot be relied and acted Crl.A.No.179 of 2011 :-12-: upon. Rule of prudence insists for corroboration of evidence of official witnesses, when the evidence of official witnesses are doubtful or if there is any infirmity or contradiction in their evidence, especially when those contradictions or infirmities are vital as far as the prosecution case is concerned. As I indicated earlier, the only infirmity that can be seen in the evidence of PWs.1 and 2 is with respect to the date of occurrence which according to me, is not vital especially when those witnesses were examined after five years from the date of occurrence. It is also relevant to note that it is not a case where the prosecution has not made any attempt to cite and examine independent witnesses. The records show that to prove the prosecution, besides the examination of PWs.1 and 2, PW3, who is one of the signatories to Ext.P1, was cited and examined, but he turned hostile. He had admitted his signature in Ext.P1. In the decision cited supra, this Court has held that when the evidence of detecting officer is credible, hostility of independent witness was not fatal in abkari trials. On examination Crl.A.No.179 of 2011 :-13-: of the evidence of PWs.1 and 2, as I indicated earlier, the same are trustworthy and credible and therefore, even though PW3 had turned hostile, it will not go against the prosecution. Another point raised by the counsel is that though there is one more signatory in Ext.P1, that person was not examined. There is no rule that all the persons cited in the seizure mahazar should be cited and examined a prosecution witnesses. In the present case, though there were two persons in Ext.P1 seizure mahazar as attestor of the same, the prosecution has cited PW3 as the charge witnesses. In the light of the decisions of this Court reported in Paravan v. State of Kerala [2007(1) KLT 396], this Court has held as follows “.......no doubt, the independent witnesses turned hostile to the prosecution, but admitted their signature in the mahazar, much strain is not necessary to conclude that they turned out to be cunning performers in the witness box evidently with a view to jettison the appellant from his criminal liability. .......” In the instant case, PW3 turned hostile only to save the appellant/accused from Crl.A.No.179 of 2011 :-14-: criminal liability. 11. Another contention raised by the counsel is to the effect that the MO1 was not produced before the court and there is no physical evidence in support of the prosecution allegation. According to PW1, on the detection of the crime, he arrested the accused then and there and out of the contents in the 5 litres black plastic can, he took 375 ml. each in two separate bottles and the same was properly sealed and labelled by complying the procedural requirements of law and the residue of the sample was also similarly taken into custody under Ext.P1 seizure mahazar and thereafter, according to PW1, he took the accused to the Police Station and registered Ext.P2 F.I.R. It is the further evidence of PW1 that thereafter, the two bottles containing the sample of the liquid drawn out of the contents in 5 litres black plastic can were produced before the committal court by himself under Ext.P3 property list. Thus, it can be seen that PW1 has no case that he had produced the plastic can before the court. From the evidence Crl.A.No.179 of 2011 :-15-: of PW1, it is further clear that the then Additional Sub Inspector of Bakal Police Station has interrogated the witnesses and prepared Ext.P4 forwarding note and also Ext.P5 scene mahazar. Those documents were marked through PW1 since the said Additional Sub Inspector, who prepared these documents, was not available. According to PW1, the residue of the sample was brought before the Assistant Excise Commissioner by the said Additional Sub Inspector and Ext.P8 inventory was prepared by the Assistant Excise Commissioner and he had also taken Ext.P9 photograph of the property. So, Ext.P9 photograph is with respect to 5 litres plastic can which was seized out of the possession of the accused and Ext.P9(a) is the photonegative of Ext.P9(a) photograph. The above proceedings of the Additional Sub Inspector of Police is fully justified in view of Section 55(a) of the Abkari Act. So, the non-production of plastic can before the court will not affect the prosecution case and in the present case, the residue of the contraband article after taking samples were produced before the Crl.A.No.179 of 2011 :-16-: competent statutory authority as envisaged under Section 53(a) of the Abkari Act, Ext.P8 inventory, Ext.P9 photogaphs and Ext.P9 (a) photo negative of the same are positively proved the above procedure adopted by the prosecution agency. 12. In the light of the above facts and circumstances and the discussion, I am of the view that the prosecution has proved its case beyond reasonable doubt and they succeeded in establishing that the appellant was found in possession of 5 litres of illicit arrack at 7.45 p.m. on 19.9.2005 at the place of occurrence. Therefore, the finding of the learned Judge of the trial court is in accordance with the evidence on record and no interference is warranted. Accordingly, the conviction recorded against the appellant is confirmed. 13. Regarding the sentence, the learned counsel submitted that a lenient view may be taken since the appellant is the first offender. From the records, it appears that at the time of incident, the appellant was only at the age of 24 years. The prosecution has Crl.A.No.179 of 2011 :-17-: no case that the appellant/accused is involved in any other similar offences previously. However, the quantity involved in this case is 5 litres of illicit arrack. Having regard to the facts and circumstances involved in the case, especially in the light of the mitigating circumstances pointed out earlier, I am of the view that the sentence imposed against the appellant requires reconsideration. Accordingly, in modification of the sentence awarded by the trial court, the appellant is sentenced to undergo rigorous imprisonment for a period of two years under Section 58 of the Kerala Abkari Act and also sentenced to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for one month. The appellant is entitled to get set off under Section 428 of the Cr.P.C. for the period which he had undergone imprisonment as a pre-trial prisoner. In the result, this appeal is dismissed confirming the conviction of the appellant under Section 58 of the Kerala Abkari Act, but subject to the modification with respect to the sentence as Crl.A.No.179 of 2011 :-18-: indicated above. In the light of the above modification with respect to the sentence, the Registry is directed to forward a gist of this judgment to the **Superintendent of Central Prison, Kannur** for appropriate action. The Criminal Appeal is accordingly dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.179 of 2011 :-19-: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 955 of 2010** **----------------------------------------** Dated this the 31[st] day of October, 2011 ## **GIST OF JUDGMENT** In the light of the above discussion and materials and evidence referred to above, I find no reason to interfere with the Crl.A.No.179 of 2011 :-20-: findings of the court below and according to me, the prosecution has succeeded in proving the case against the appellant/accused beyond all reasonable doubts and accordingly, I confirm the finding and conviction recorded by the trial court against the appellant. Learned counsel for the appellant submitted that the sentence imposed against the appellant is disproportionate to the allegation raised against him and also submitted that the appellant is the only bread winner of the family consisting of his wife and children and therefore, a lenient view may be taken in the matter of sentence. I have considered the above submission of the learned counsel for the appellant. It appears that at the time of the incident, the accused was only at the age of 42 years and he was a coolie. The contraband article which was found in possession of the petitioner would come only 6 litres, though the same is a Karnataka made arrack. In the light of the above mitigating circumstances, according to me, the sentence awarded against the ## Crl.A.No.179 of 2011 :-21-: appellant requires reconsideration and liable to be modified. Having regard to the facts and circumstances involved in the case and in the light of the facts indicated above, two years rigorous imprisonment is sufficient to meet the ends of justice. While confirming the sentence of fine, the default sentence can be reduced to three months simple imprisonment. Accordingly, while confirming the conviction of the appellant for the offence under Sections 8(1) and (2) of the Kerala Abkari Act, in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh, in default, he is sentenced to undergo simple imprisonment for three months. The appellant is entitled to get set off under Section 428 of the Cr.P.C. for the period which he had undergone imprisonment as a pre-trial prisoner. In the result, this appeal is dismissed confirming the conviction of the appellant under Sections 8(1) and (2) of the Kerala Abkari Act, but subject to the modification with respect to Crl.A.No.179 of 2011 :-22-: the sentence as indicated above. In the light of the above modification with respect to the sentence, the Registry is directed to forward a gist of this judgment to the **Superintendent of Central Prison, Kannur** for appropriate action. **V.K.MOHANAN, Judge** MBS/ Crl.A.No.179 of 2011 :-23-: **V.K.MOHANAN, J** . CRL.A.No. 796 OF 2003 **JUDGMENT** Dated:4.10.2011 Crl.A.No.179 of 2011 :-24-: