KUMAR @ MOHANAN PILLAI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **CRL.A.No.1175 OF 2007** **AGAINST THE JUDGMENT DATED 21.06.2007 IN SC NO. 1790/2002 OF III ADDITIONAL SESSIONS COURT, KOLLAM** **CP NO. 20/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT -I, KOLLAM IN CRIME NO. 770/2000 OF KUNDARA POLICE STATION** ## **APPELLANT/ACCUSED:** **KUMAR @ MOHANAN PILLAI, S/O.PEETHAMBARAN, MELOOTTU VADAKKATHIL VEEDU, PALLIMON VILLAGE, PULIYILA CHERRY, KOLLAM.** **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. D. CHANDRASEKHAR, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-10-2020, THE COURT ON 21-10-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1175 OF 2007 2 ## **JUDGMENT** The appellant is the convict in S.C. No. 1790/2002 of the III Additional Sessions Court, Kollam. The case had originated on a final report laid by the Additional Sub Inspector, Kundara police station in Crime No. 770/2000 of that police station. The prosecution allegation against the appellant is that on 22.12.2000, at 4.30 P.M., he was found in illegal possession of 70 litres of wash and other paraphernalia for manufacturing arrack in a place by name Koovarakkavu, a grove in Puliyila desom in Nedumbana panchayat within the limits of Kundara police station. It is stated that while the Additional Sub Inspector, Kundara police station and party were engaged in investigation of a crime, they happened to come across a discreet information about the acts of the appellant in making preparations for manufacturing arrack in the said place, which is adjacent to his place of residence. When the police party proceeded to the place, the appellant took to his heels so that he could not be apprehended. The incident had happened at 4.30 Crl.A.No.1175 OF 2007 3 P.M., on 22.12.2000. After preparing a mahazar and taking sample from the wash, remaining quantity was destroyed at the place itself; the utensils and other implements were seized under Ext.P1 mahazar. Then the police party returned to the station and registered the crime. The appellant was arrested on 25.12.2000 and remanded to judicial custody. On completion of investigation, the charge sheet was laid before the Judicial First Class Magistrate Court - I, Kollam, where C.P. No.20/2001 was taken on file. After completing the procedural formalities, the case was committed to the Court of Session, Kollam from where the matter was made over to the trial Court. 2. The appellant was on bail. He was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty. 3. The prosecution examined four witnesses to prove the allegations. Exts.P1 to P7 were also marked. After closing the evidence, when examined under Section 313 of the Criminal Procedure Code (for short, 'the Cr.P.C.'), he reiterated his innocence and submitted that the case was the offshoot of Crl.A.No.1175 OF 2007 4 enmity of one Thulaseedharan Pillai, member of the panchayat with whom he had a civil dispute. According to the appellant, the police was foisting a false case against him at the instance of the said Thulaseedharan Pillai. As it was not a fit case for acquittal under Section 232 of the Cr.P.C, he was called upon to enter on his defence but there was no evidence in defence. 4. After hearing counsel on both sides, repelling the plea of innocence, the learned Additional Sessions Judge found him guilty under Section 55(g) of the Abkari Act, convicted and sentenced to undergo rigorous imprisonment for two years and to pay the fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for three months. He was also allowed to enjoy the benefit of set off for the period he underwent judicial custody from 25.12.2000 to 09.02.2001. 5. I heard the learned counsel for the appellant and also the learned Public Prosecutor. The learned counsel for the appellant urged three fold contentions in support of the appeal. According to him, even though the alleged incident had happened on 22.12.2000 at 4.30 P.M., the appellant was arrested on 25.12.2000, the material objects were produced before the Crl.A.No.1175 OF 2007 5 Court only on 29.12.2000, after a delay of seven days. Even though PW4 the Additional Sub Inspector had claimed that meanwhile, the material objects including the sample were kept in his safe custody, supporting evidence is not forthcoming. That means, such a delay alone is sufficient to doubt the genuineness of the prosecution case. Secondly, he contended that the forwarding note by which the sample was sent for chemical examination report is wanting in the case. Similarly, he pointed out that there is only the oral testimony of PWs 3 and 4, the police officials, that the independent witnesses have turned hostile to the prosecution. According to him, these aspects are fatal to doubt the credibility of the prosecution case. The learned Public Prosecutor could not bring-in justifying reasons to rebut the arguments of the learned counsel for the appellant. 6. As adverted to earlier, the crime was detected by PW4, the Additional Sub Inspector. It is stated that while himself and party were engaged in the investigation of some crime, they came across a secret information about illicit acts of the appellant who was engaged in manufacturing arrack in a grove on the eastern side of his house. On getting the Crl.A.No.1175 OF 2007 6 information, the party proceeded to the place by foot. At 4.30 P.M., appellant was seen remaining on the south western side of the Koovarakkavu; seeing the police party he ran away towards west; even though the party had chased him at some length, he could not be caught. Party returned to the grove and found incriminating materials. There were three big aluminum pots containing wash, admeasuring about 70 litres. There were other implements also, all suggestive of preparations for arrack in the making. After collecting sample, the entire quantity of wash was destroyed and the party returned to the police station with the implements and registered the crime. On 25.12.2000, on the third day, the appellant was arrested and was remanded to judicial custody. These facts are evident from the records. 7. PWs 1 and 2 were independent witnesses, who had reportedly attested the Ext. P1 seizure mahazar. They are neighbhours of the appellant. But both of them turned hostile to the prosecution and pleaded ignorant about the incident. According to them, the police had obtained their signatures on a blank paper, they did not witness the police seizing wash or the appellant fleeing from the site. PW3 M. Sasikumar who was a Crl.A.No.1175 OF 2007 7 police constable and PW4 K. Radhakrishna Pillai, Additional Sub Inspector, who detected the crime have fully supported the prosecution case. The case was investigated by PW4 himself, who proved Exts.P1 to P7 documents and also identified the material objects. That means, while both the independent witnesses turned hostile to the prosecution, the police officials supported the case. Basing on the oral testimony of PWs 3 and 4 and supporting materials, the learned Additional Sessions Judge found the appellant guilty of the offence and entered a conviction as afore-stated. 8. Now turning to the contentions raised by the learned counsel for the appellant, I am of the view that the first two arguments raised by the learned counsel are really formidable and cannot simply be brushed aside. It is evident that the crime was registered on 22.12.2000, whereas the Ext.P4 property list indicates that the material objects were taken to court only on 29.12.2000, i.e., after seven days of the commission of the crime. Meanwhile, it has come out that, the appellant was arrested on 25.12.2000 and was produced before Court on 26.12.2000, along with Ext.P5 custody memo and Ext.P6 Crl.A.No.1175 OF 2007 8 remand report. Even on that day, the material objects including the sample were not produced before the Court. In order to foreclose the arguments that may be urged by the defence, PW4 Additional Sub Inspector claimed that, in the meantime, the items were kept in his safe custody. Apart from such a bald statement, no material is forthcoming to buttress the claim that the item was kept in his safe custody. It is difficult to believe that, for about seven days, it was kept in the safe custody of the Additional Sub Inspector. It is quite patent that he was only an Additional Sub Inspector of the police station, where in all probability, there may be a Principal Sub Inspector and other officials. In the nature of the administration of a police station, even assuming that the material objects are kept in the upkeep of the Station House Officer, it is not probable that PW4 had acted as the Station House Officer throughout. Moreover, his claim that it was kept in his safe custody lacks particulars also. Again, reason for the delay in producing the item before the Court is not at all stated by the prosecution. The FIR and connected records had reached the Court on the following day, on 23.12.2000 itself. It is not explained as to why the material Crl.A.No.1175 OF 2007 9 objects including the sample also were not forwarded post-haste. That means, the only irresistible conclusion is that proper explanation is not forthcoming for the delay in producing the items before the Court. There is also no satisfactory material to say that in the meantime, the item was kept in safe custody. This view has been reiterated by this Court in a catena of cases (See: _Ravi v. State of Kerala [2011(3) KLT 353], Joseph v. State of Kerala [2009(4) KHC 537], Vikraman v. State of Kerala [2018(1) KLT 822] and Sukumaran v. State of Kerala [2019(3) KLT 920]_ etc.) 9. The contention that forwarding note is not produced or marked also it is discernible from the materials produced before the Court. The importance of a forwarding note in the given circumstances, need not be overemphasised. Even assuming that the entire allegations of the prosecution are true, the prosecution can stand upon only if it is proved that the sample collected from the spot was wash, which was arranged for the making of arrack. That could be possible only if the sample was upkept properly and sent for chemical examination report in a tamper free condition. There should be a forwarding Crl.A.No.1175 OF 2007 10 note bearing the seal of the detecting officer, countersigned by the Magistrate who forwarded the sample. Here such an important document is not available at all. On that score also, the prosecution is bound to fail. 10. Even though PWs 3 and 4 have uniformly spoken about the seizure of the item and identified the appellant as the person who vanished from the place of detection, the most important piece of evidence connecting his culpability is the sample of the liquid collected from the spot. Of course Ext.P7 report of the Chemical Examiner has been relied upon to convict the appellant. But there must be correlation between the sample collected from the spot and the report. But unfortunately, owing to the fact that the sample was not produced before court immediately after seizure, since there is no explanation for the delay and since there is no evidence of its upkeep, the genuineness of the sample is liable to be doubted, as rightly contended by the learned counsel. Added to this, there is no forwarding note also, which is fatal to the prosecution case. 11. Even though it was contended that since PWs 1 and 2 independent witnesses have turned hostile, the prosecution is Crl.A.No.1175 OF 2007 11 bound to fail, the argument does not inspire confidence. If the prosecution had explained the other two drawbacks crept in their evidence, no doubt, oral testimony of PWs 3 and 4, official witnesses would have given flesh and blood to the case. The learned Sessions Judge did not consider these aspects. Benefit of such lacuna in the prosecution case should necessarily be given to the appellant. Therefore, the appellant is entitled to get the benefit of doubt. 12. To sum up, giving the benefit of doubt and in reversal of the conviction and sentence imposed on him, the appeal is allowed. The appellant is found not guilty under Section 386(b)(i) of the Cr.P.C and set at liberty. The fine amount, if any, collected shall be refunded. The Criminal Appeal is allowed as above. **SD/-** ## **K.HARIPAL** **JUDGE** **DCS/20.10.2020**