Mani v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935 CRL.A.No. 713 of 2004 ( ) -------------------------- SC 452/2002 of III ADDITIONAL SESSIONS COURT (ADHOC-I), THRISSUR APPELLANT(S)/ACCUSED.: --------------------------------------- MANI, AGED 45, S/O.KUNJAYYAPPAN, PERUMBADATHI HOUSE, KUTHUCHIRA VILLAGE KUTHUCHIRA VILLAGE, VAILATHARA DESOM THRISSUR DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S)/COMPLAINANT/ STATE OF KERALA.: ------------------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VELLIKULANGARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.713 of 2004** **-------------------------------------Dated this the 19[th] day of March, 2014.** ## **JUDGMENT** Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. Aggrieved by the conviction and sentence under Section 58 of the Abkari Act (for short, “Act”) the appellant has come up in appeal. Short prosecution case is that on 24.06.2001, PW1, the Circle Inspector of Police, Pudukkad found the appellant possessing 750 ml. of illicit arrack in his house. The bottle containing illicit arrack was kept in a vessel in the kitchen. After arresting the appellant and taking three bottles as samples, each having a volume of 180 ml., and preparing Ext.P1 search memo and Ext.P2 search list, the appellant and the contraband articles were taken to the Police Station. On the next day, appellant and the contraband articles along with property list and forwarding note were produced before court. 3. Learned Additional Sessions Judge examined four witnesses and marked nine documents on the side of the prosecution. MOs 1 and 2 are the material objects. There was no defence evidence. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 2 Crl.Appeal No.713/2004 5. PW1 was working as the Circle Inspector of Police, Pudukkad at the material time. PW1 on 24.06.2001, while engaged in patrol duty along with other Police Officers, got a reliable information that the appellant was keeping arrack in his house. He prepared Ext.P1 search memo and went to the house of the appellant. PW1 found out a bottle containing 750 ml. of arrack kept in a vessel in the kitchen of the appellant's house. Appellant was arrested and material records were prepared. PW1 also deposed that without any delay the accused, material documents and the contraband articles were produced before the Magistrate. PW2 was the Assistant Sub Inspector, who accompanied PW1 at the time of search and seizure. He also testified in tune with the evidence adduced by PW1. In spite of cross-examination of these two witnesses, nothing could be elicited to discredit their version. PW3 was the Secretary in-charge of Kodassery Grama Panchayat. House of the appellant was within the limits of Kodassery Grama Panchayat. He proved Ext.P7 ownership certificate. According to PW3's testimony, he prepared Ext.P7 after referring to the building tax assessment register. It is pertinent to note that PW3 was not cross-examined by the defence counsel. PW4 after conducting investigation, laid the charge against the appellant. 6. Learned counsel for the appellant contended that the prosecution case is unbelievable because there are conflicting versions in 3 Crl.Appeal No.713/2004 the records produced by the prosecution regarding the number of the house from where allegedly the contraband was recovered. Learned counsel for the appellant also contended that as per Ext.P8 scene mahazar, number of the house is IX/249, whereas in Ext.P7 ownership certificate, the house number is X/249. Even though PW3 was not subjected to cross-examination, there is no evidence elicited from him to show that these numbers relate to the same house. Merely for the reason that no cross-examination was done on PW3, it cannot be stated that the prosecution has discharged its burden to identify the house from which the contraband was recovered, contended the learned counsel. 7. Learned counsel for the appellant further contended that Ext.P7 is hit by Section 162 Cr.P.C.. According to him, Ext.P7 is a statement issued by a witness to the Police at the time of investigation. It is also contended by the learned counsel for the appellant that Ext.P7 is not a statutory document. It is only an information culled out from one of the registers maintained by the Grama Panchayat as per the provisions under the Kerala Panchayat Raj Act and given in the form of a certificate. Even if that be so, learned counsel for the appellant contended that this will amount to a statement falling within the rigour of Section 162 Cr.P.C. Relevant portion of Section 162 Cr.P.C. reads as follows: ## _“_ _**162.- Statements to police not to be**_ 4 Crl.Appeal No.713/2004 _**signed - Use of statements in evidence.** - (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:_ _Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may by used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1 of 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.”_ To reinforce this contention, a decision rendered by the Apex Court in **Kali Ram v. State of H.P. (AIR 1973 SC 2773)** is relied on by the learned 5 Crl.Appeal No.713/2004 counsel for the appellant. Facts in that case would show that a letter addressed by one of the witnesses to the Station House Officer investigating a murder trial was sought to be proved against the accused. The letter contained statements made to a Police Officer during the course of investigation and the Supreme Court found that it is hit by Section 162 Cr.P.C. even though certain facts were sought to be introduced in the form of a letter to circumvent the restrictions in the provision. Relevant part of the decision reads as follows: _“Bare perusal of the provision reproduced above makes it plain that the statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except for the purpose of contradicting a witness, as mentioned in the proviso to sub-section (1), or for the purposes mentioned in sub-section (2) with which we are not concerned in the present case. The prohibition contained in the section relates to all statements made during the course of an investigation. Letter PEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused. Such a letter, in our opinion, would constitute statement for the purpose of Section 162 of the Code of Criminal Procedure. The prohibition relating to the use of a statement_ 6 Crl.Appeal No.713/2004 _made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in Section 162 the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in section 162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement.”_ 8. In this case, I am not impressed by this contention of the appellant for the following reasons. Ext.P7 is said to be an entry taken out from a register maintained in the Panchayat Office as per the provisions of a statute. Apart from production of this document, PW3 testified about the genuineness of the contents of the document, which can be treated as primary evidence in this case. Further, there is no crossexamination of PW3 to challenge the version. Even if Ext.P7 is not found to be a prescribed document, it cannot be eschewed from consideration saying that it is hit by Section 162 Cr.P.C.. However, the discrepancy in the 7 Crl.Appeal No.713/2004 recitals Exts.P7 and P8 has not been properly explained by the prosecution. This assumes importance especially when the appellant in the cross-examination of PWs 1 and 2 had raised a contention that the alleged recovery of contraband was not from his house. 9. Learned Public Prosecutor submitted that there is no other vitiating circumstances established in this case. The samples were produced in court without any delay. The records would show that the samples were produced in court on the next day of detection. Even though the learned counsel for the appellant contended that there is no satisfactory explanation for one day's delay in producing the sample, I find no effective challenge made to the testimony of PWs 1 and 2 to infer that there would have been manipulation, tampering or meddling with the samples before production in the court. Therefore, in that score, the appellant cannot take any advantage. However, the discrepancy in the identity of the house is to be established by reliable evidence. I am of the view that, in the absence of any definiteness regarding the exact number of the house from where the detection was effected and it belonged to the appellant or rather he was in possession of the same, the prosecution cannot succeed. Therefore, I feel that it is just and proper to remand the matter so that both parties can adduce evidence to establish their case in relation to the ownership of the house. 8 Crl.Appeal No.713/2004 In the result, the appeal is allowed. Conviction of the appellant under Section 58 of the Abkari Act in S.C.No.452 of 2002 on the file of III Additional Sessions Court (Adhoc-I), Thrissur is hereby set aside. The matter is remitted back to the trial court for the purpose of establishing the identity of the house. Rest of the aspects have been concluded as shown above. Both the parties are free to produce documents or adduce evidence to substantiate their contention regarding the said aspect. Considering the fact that this is an old case, learned Additional Sessions Judge shall dispose of the matter within a period of three months. Parties are directed to appear before the trial court on 11.04.2014. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**