Kaisu s/o Abdullla Bandichal & Sheriff @ German Sherif v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **THURSDAY, THE 7TH DAY OF MARCH 2013/16TH PHALGUNA 1934** ## **CRL.A.No. 1635 of 2004 ( )** **---------------------------** **(AGAINST THE JUDGMENT IN SC.NO.229/2004 of ADDL.SESSION JUDGE (ADHOC-II) KASARAGOD DATED 24-09-2004)** ## **APPELLANT(S)/ACCUSED 1 & 2:** **----------------------------------------------** **1. KAISU,S/O.ABDULLA BANDICHAL, THEKKIL VILLAGE.** **2. SHERIFF @ GERMAN SHERIF, S/O. MOIDEEN, PUTHARIYADUKAM, CHATTANCHAL.** **BY ADV. SRI.AMRIT RAJ BABY (STATE BRIEF)** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **STATE REP BY S.H.O.BEDAKAM POLICE STATION, REP. BY THE PUBLIC PROSECUTOR ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **V.K.MOHANAN, J.** ------------------------------ ## Crl.A.No.1635 of 2004 -----------------------------Dated this the 7[th] day of March, 2013 ## JUDGMENT The appellants are accused Nos.1 and 2 in S.C.No. 229 of 2004 of the Court of Additional Sessions Judge (Adhoc) II, Kasaragod, and in this appeal they are challenging the conviction and sentence imposed on them for the offence under Section 55 (a)of Abkari Act by judgment dated 24.09.2004 in the above Sessions case. 2. The prosecution case is that on 10.45 PM on 16.04.04 the accused three in numbers were found transporting 800 packets of Karnataka made arrack containing 100ml each in an autorickshaw bearing registration number KL.14-A-276 at Perlaka-Munthan Bazar in Kolathur village and thereby the accused are alleged to have committed the offence punishable under Section 55 (a) of the Abkari Act. Based upon the above allegation Cr.No 82 of 2002 was registered in the Bedakam police station for the said offence. On completing the investigation charge was laid in the Judicial First Class Magistrate Court, Kazaragod, and thus C.P.No.11/04 was instituted and 2 Crl.A.No.1635 of 2004 subsequently by order dated 30.01.04 the learned Magistrate in the above proceedings committed the case to the Sessions Court where the same received as S.C.No.229 of 2004 and, thereafter, the case made over to the present trial court for disposal. Thus A1 was produced before the trial court and A2 and A3 appeared through their counsel. After hearing the prosecution as well as the defence a formal charge was framed against the accused 3 in numbers for the offence punishable under Section 55(a) of the Abkari Act which when read over and explained to the accused they pleaded not guilty which resulted in the further trial of the case during which PWs.1 to 4 were examined and Exts.P1 to P7 were produced from the side of the prosecution. Mos.1 and 2 were identified and marked as material objects. No evidence either oral or documentary adduced from the side of the defence. After considering the evidence on materials and recored the trial court has found that A3 is entitled to get benefit of doubt and accordingly he is acquitted but the appellants who are A1 and A2 are found guilty and convicted them under Section 55(a) of Abkari Act and accordingly each of them are sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of 3 Crl.A.No.1635 of 2004 Rs.1,00,000/- each and in default of payment of fine each of them are directed to undergo rigorous imprisonment for a further period of 6 months. Set of is allowed under Section 428 of Cr.P.C. It is the above finding order of conviction and sentence that are challenged at the instance of accused No.1 and 2 in the above appeal. 3. I have heard Sri.Amrit Raj Baby learned counsel who is appointed as State Brief to prosecute the matter on behalf of the appellant and the learned Public Prosecutor. 4. The prosecution case reveals through the evidence of PW3 and PW4 among which PW3 is the officer who detected the crime and PW4 is the officer who continued the investigation and laid the charge sheet. According to PW3 himself and party were on night patrolling duty at 10.35 p.m on 16.04.2002 and while they were conducting the vehicle inspection at Perladkam he heard a whistling sound from the western side and seen an autorickshaw turning back. According to him on suspicion himself and party chased the autorickshaw at a distance of half kilometre and when the autorickshaw reached at the quarry junction the same was stopped and three persons alighted from the 4 Crl.A.No.1635 of 2004 autorickshaw and ran away. According to PW3, though the party followed the accused, they could not catch hold of the persons. It is the further case of PW3 that thereafter they returned near to the autorickshaw and on inspection the same seized two plastic sacks from the back seat of the autorickshaw and on further inspection found the same contained 800 packets of arrack containing 100ml each. According to PW3, samples were drawn in the presence of independent witness. He had further deposed that the proceedings adopted by him towards the seizure of the contraband article and sample. Ext.P1 seizure mahazar also identified by him. According to PW3 after seizure of the contraband article and the autorickshaw the same were taken to the police station and he prepared Ext.P3 FIR. When PW3 was examined, he had deposed that on identifying the third accused his name was incorporated in the array of accused by filing a report dated 18.04.2002 and Ext.P4 is the said report. PW3 has also deposed that he had prepared Ext.P5 property list and Ext.P6 forwarding note which send to the court. He had also identified MOI and MOII series. PW3 has also stated that he had prepared Ext.P2 seen mahazar during the investigation 5 Crl.A.No.1635 of 2004 undertaken by him. According to the prosecution, the further investigation was conducted by PW4 the then Sub Inspector of police Bedakam police station, who eventually laid the charge during the examination of PW4, Ext.P7 chemical analysis report was marked through him. 5. In this juncture, it is relevant to note that though prosecution has cited and examined PW1 and 2, two independent witness, they turned hostile to the prosecution and Ext.P1 seizure mahazar marked through PW1, where as, through PW2, Ext.P2 scene mahazar was marked. These are the evidence and materials referred to by the learned Judge in support of his finding and to convict the appellants/accused. 6. The learned counsel for the appellants vehemently submitted that the prosecution case is quite unbelievable and unacceptable for the reason that the prosecution has miserably failed to prove the identity of the accused. It is also the submission of the counsel for the appellant that the court below has miserably failed to note the delay occurred in reaching the FIR in the committal court and also the unexplained delay of 13 days that are occurred in reaching the property mainly the 6 Crl.A.No.1635 of 2004 contraband articles and samples in the court below. Therefore, according to the learned counsel the judgment of the trial court and the findings thereon are without any basis and available evidence are insufficient to justify the findings of the court below. On the other hand the learned Public Prosecutor submitted that Ext.P1 seizure mahazar and Ext.P3 FIR which are contemporary documents reached in the court without any delay and the evidence of PWs.3 and 4 can be safely acted upon as the same are free of any serious contradiction or infirmities. Thus the trial court has mainly depends upon the evidence of PWs.3 and 4 supported by the contemporary documents arrived into the conclusion and convicted the appellants and, therefore, no interference is warranted. 7. I have carefully considered the arguments advanced by the counsel for the appellants and the leaned Public Prosecutor and I have gone through the judgment of the trial court and scrutinized the evidence and materials on record. 8. In the light of the rival contentions and the evidence of materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellants 7 Crl.A.No.1635 of 2004 and whether the prosecution has succeeded in proving its case against the appellant/accused beyond reasonable doubt. 9. At the out set it is to be noted that to prove the prosecution allegation against the appellants the prosecution constrained to depend upon the evidence of PW3, the then Sub Inspector of Bedakam police station who detected the crime, since the independent witness cited by prosecution and examined as PWs,1 and 2 were turned hostile. PW4 was not a party to the patrolling party and the main part of investigation was undertaken by PW3 himself and the role of PW4 is only in laid the charge on completing the investigation. Therefore, the question to be considered is how far the evidence of PW3 is helpful for the prosecution to prove its case against the appellant/accused. In this case it is relevant to note that the the incident was at about 10.45 pm. on 16.04.2002. According to the version of PW3 when himself and party were engaged in the vehicle inspection they saw an autorickshaw returning from the point near to him where PW3 and party were conducting the vehicle inspection and on entertaining suspicion himself and party chased the auto rickshaw. Then according to PW3 after one kilometre the Auto 8 Crl.A.No.1635 of 2004 rickshaw stop near a quarry and at that time three persons got alighted from the autorickshaw and ran away. According to PW3 he identified A1 and A2, as the persons who alighted from the autorickshaw, with the help of the headlight of the police jeep. As rightly pointed out by the counsel for the appellant PW3 has no case that A1 and A2 were running in the opposite direction of the jeep of PW3. It is specific that according to PW3 he saw the accused 1 and 2 while they were ran away from the autorickshaw and PW3 has no case that they have overtaken the autorickshaw. If that be so, according to me absolutely there is no chance for PW3 to see the persons and to identify them as the person who ran away from the autorickshaw. In this juncture, it is relevant to note that accused 1 and 2 were not arrested either by PW3 or by PW4 and during the investigation of the case PW3 has not identified the accused persons. Suffice to say though PW3 has examined he never deposed before the court that he had identified A1 and A2, so, absolutely there is no evidence to prove the identity of the accused as the person who ran away from the autorickshaw. 10. Besides the above, it is relevant to note that though 9 Crl.A.No.1635 of 2004 the FIR is dated 17.04.2002 connected with the incident alleged taken place on 16.04.2002, the same reached in the court only on 18.04.2002 and there is two days delay in reaching the FIR in the court. Another defect in the prosecution case is that the property alleged and seized by PW3 on 16.04.2002, reached in the court only on 29.04.2002 and there is a delay of 13 days which delay is not properly explained by the prosecution. Absolutely there is no evidence as to who was the custodian of MO1 and MO2 after its seizure on 16.04.2002 and till the same produced before the court on 29.04.2002. A Division Bench of this Court in the decision reported in **Ravi v. State of Kerala (2011 (3) KLT 353)** has held that what is enjoined by the statute is only that the seizure of the property should be reported forthwith to the court but the Bench has observed that the production of the property before court, wherever it is practicable, may be without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. But in the present case absolutely there is no explanation from the side of the prosecution for the delayed production of the property. Only if an explanation is offered, the 10 Crl.A.No.1635 of 2004 court can appreciate the explanation as to whether the same is sufficient or satisfied. If absolutely, there is no explanation, there is no question of appreciation of such delay. So according to me, the prosecution has also failed to withstand the test laid down by the Division Bench in the very same decision that the prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of the chemical examiner in a fool proof condition. For the above reasons also according to me the findings of court below cannot be proved, 11. In the light of the above discussion and the evidence on materials referred to above according to me the prosecution has miserably failed to proved its allegation against the accused/appellants beyond reasonable doubt but the trial court miserably failed to extent the benefit of doubt in favour of the appellants. Therefore I am unable to approve the conviction recorded by the trial court and according the same is set aside. In the result, this appeal is allowed setting aside the judgment dated 24.09.2004 in Sessions Case No. 229 of 2004 of the court of Additional Sessions Judge(Adhoc) -II, Kazaragod and Crl.A.No.1635 of 2004 11 the appellants are acquitted of all the charges levelled against him and the bail bond if any executed by them stand cancelled and they are set at liberty. Appeal is allowed accordingly. **V.K.MOHANAN JUDGE** mns