Murali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934** ## **CRL.A.No. 1924 of 2003 ( )** **------------------------SC.102/2001 of ADDITIONAL DISTRICT COURT-1 (ADHOC), PATHANAMTHITTA APPELLANT(S)/ACCUSED : -------------------------------------** **MURALI, AGED 43 YEARS, S/O.KUNJU PILLAI SOBHA VILASOM VEEDU, VATTAVILA MURI MEZHUVELI VILLAGE, KOZHENCHERRY TALUK.** **BY ADVS.SRI.M.T.SURESHKUMAR SRI.V.V.RAJA** **RESPONDENT(S)/COMPLAINANT :** **-----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **V.K.MOHANAN, J.** ------------------------------- Crl.A.No.1924 of 2003 --------------------------------Dated this the 14[th] day of March, 2013 ## JUDGMENT The sole accused in S.C No. 102 of 2001 of the court of the Additional District and Sessions Judge(AD-HOC)Court-1, Pathanamthitta is the appellant as he is aggrieved by the judgment dated 23.10.2003 in the above sessions case by which he stands convicted and sentenced for the offence under Section 58 of the Abkari Act. 2. Prosecution case is that at about 8.30 am on 29.11.1997 he was found carrying a can having a capacity of 10 litres which contained three litres of spirit and thereby committed the offence punishable under Section 58 of the Abkari Act. On the basis of the above allegation Cr.No.79 of 1997 was registered in the Excise Range Office Pathanamthitta for the said offence and on completing the investigation charge was laid for the offence under Section 8(1) and (2) of Kerala Abkari Act based upon which C.P.No.45/2000 was instituted in the Judicial First Class magistrate Court-I, Pathanamthitta and finally by order dated 28.10.2000 the learned Magistrate committed the case to the Crl.A.No.1924 of 2003 2 Sessions Court where S.C.No.102 of 2001 was instituted and finally transferred the same to the above trial court for disposal. When the accused appeared, a formal charge was framed for the offence punishable under Section 58 of the Abkari Act, after hearing the prosecution as well as the accused and when the said charge was read over to the accused, he denied the same and pleaded not guilty. Therefore, the prosecution adduced its evidence consisting of the oral testimony of PWs.1 to 5 and documents Exts.P1 to P9. MO1 material object is also identified and marked. No defence exhibit is marked. But DW1 was examined. Trial court finally found that the prosecution had succeeded in establishing its case beyond reasonable doubt and the accused was found keeping possession of 3 litres of rectified spirit in MO1 can. Accordingly, the accused is found guilty and convicted for the offence under Section 58 of the Abkari Act. On such conviction he is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,00,000/and in default to undergo simple imprisonment for one year for the offence punishable under Section 58 of the Abkari Act. Set off is allowed. It is the above finding and order of conviction and 3 Crl.A.No.1924 of 2003 sentence that are challenged in this appeal. 3. I have heard Sri.M.T.Suresh Kumar, learned counsel for the appellant and the learned Public Prosecutor. 4. To prove the case, prosecution mainly depends upon the evidence of Pws.1, 4 and 5. PW1 is the then Preventive Officer of Pathanamthirra Excise Office. According to him, he was one among the Excise party who detected the case and according to PW4 the then Excise Inspector, Pathanmthitta, he conducted part of the investigation. PW5 is also working as Excise Inspector,Pathanamthitta Excise Range at that time and he was also one among the Excise party who conducted patrol duty. Thus when PWs.1 and 5 were examined they deposed that when they reached near Gurumandiram they found one person walking through the nearby lane carrying a can and on seeing the Excise party the said man got perplexed and attempted to return and thus the Excise party intercepted and in the presence of independent witnesses the can was taken and opened which contained three litres of liquid and on tasting and smelling the same, it was found to be rectified spirit. When Pws.1 and 5 were examined they identified the accused as the person they have Crl.A.No.1924 of 2003 4 seen walking with 10 litres capacity can with three litres of rectified spirit. According to PWs.1 and 5 the accused was arrested then and there and the contraband article was seized and samples were brought. PWs.1 and 5 further deposed about the steps taken by them towards the arrest of the accused and the seizure of the contraband article. When PW1 was examined, Ext.P1 mahazar was marked through him and when PW4 was examined Ext.P2, portion of 161 statement of PW2 and P4, portion of 161 statement of PW3 were marked. Ext.P3 chemical analysis report was also marked thorough PW4. When PW5 the Excise Inspector who participated in the detection was examined, Ext.P5 the crime and occurrence report, Ext.P6 arrest memo. Ext.P7 forwarding note, P8 remand report and P9 property list were marked through him. Though Pws.2 and 3 the independent witnesses were examined, they turned hostile. On the basis of the above stated prosecution evidence, the trial court has found that the accused is guilty. 5. The learned counsel for the appellant submitted that the trial court went wrong in convicting the appellant on the basis of the interested testimony and evidence of the prosecution 5 Crl.A.No.1924 of 2003 witnesses and particularly when there is no independent evidence to corroborate the evidence of those official witnesses. It is also pointed out by learned counsel for the appellant that there is no evidence to prove the content of MO1 and the quantity that is alleged to have seized from the possession of the accused/appellant. It is also the submission of the learned counsel for the appellant that the prosecution has not furnished sample seal to the court. So the above facts rendered the prosecution case as unbelievable and unacceptable. Therefore, according to the learned counsel, the appellant is entitled to get an acquittal and in the alternative, it is submitted that as the sentence imposed on the appellant is exorbitant and excessive the appellant is entitled to get a lenient approach in the matter of sentence. On the other hand, the learned the Public Prosecutor submitted that the evidence of prosecution is intact and there is no contradiction or infirmities in the evidence of the prosecution witnesses. Therefore, there is no illegality in acting upon the evidence of the official witnesses even in the absence of corroboration from the independent witnesses. The learned Public Prosecutor has also pointed out that the non-measurement Crl.A.No.1924 of 2003 6 of the quantity that is contained in MO1 is no way affecting the core of the prosecution case. According to the learned Public Prosecutor, even Ext.P3 chemical analysis report shows that sample seal was provided and therefore even if PW5 omitted to state about the furnishing of sample seal to the court, it will not affect the prosecution case and there is no scope for any interference. 6. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor. I have also perused the judgment of the trial court and evidence and materials on record. In the light of the arguments advanced by the counsel for the appellant and the counter arguments and in the light of the evidence and materials on record the question to be considered is whether the trial court is justified in its finding and convicting the appellant under Section 58 of the Abkari Act. As I indicated earlier the main contention advanced by the counsel for the appellant is that the trial court went wrong in convicting the appellant relying upon the evidence of the prosecution witnesses who are Excise official. I have carefully perused the evidence of Pws.1, 4 and 5 particularly the evidence Crl.A.No.1924 of 2003 7 of PWs.1 and 5 with respect to the seizure of the contraband article and the arrest of the accused. Though Pws.1 and 5 were subjected to lengthy cross examination nothing was brought on recored to discredit their version and their evidence. It is true that there is no independent evidence to corroborate the evidence of PWs.1 and 5. In this juncture, it is relevant to note that it is not a case were the prosecution has not cited and not examined any independent witness. Though PWs.2 and 3 were cited and examined as independent witnesses, they turned hostile. In the decision in **Abdul Rasheed v. State of Kerala (2008 (3) KLT 150)** this Court has held that if the testimony of official witnesses is blemishless and free from suspicion and inspired confidence, hostility shown by ill-motivated independent witness is of no consequence. Another decision reported in **Vikraman v. State of Kerala (2007(1) KLT 1010),** this Court has also held that when the evidence of the detecting officer is credible, hostility of independent witness is not fatal in Abkari Act. In the present case as I indicated earlier, the appellant has miserably failed to bring to the notice of this Court any discrepancies or infirmities in the evidence of PWs.1 and 5 who 8 Crl.A.No.1924 of 2003 are the officials involved in the detection of the crime and arrest of the accused. If that be so, according to me the above decision is squarely applicable in the present case and, therefore, the contention raised by the counsel for the appellant is liable to be rejected. 7. It is also relevant to note that as rightly pointed out by the learned Public Prosecutor the laches of the prosecution to measure the quantity found in MO1 can will not affect the prosecution. As I indicated earlier, the factum of seizure of contraband article from the possession of the accused and his arrest along with the contraband article are proved beyond reasonable doubt and therefore the failure on the part of PW1 or PW5 in weighing or measuring the quantity found in MO1 can at the time when the accused was arrested is not sufficient to shake the core of the prosecution case. Similarly in Ext.P3 chemical analysis report it is reported by the examiner that the samples were intact and seal affixture is tallying with the sample seal. The said fact presupposes that sample seal was forwarded by the Investigating Officer to the court. Therefore, omission on the part of PW5 in deposing before the court below positively or his 9 Crl.A.No.1924 of 2003 evidence to the effect that he was not remembering whether sample seal was given to the court will in no way adversely affect the prosecution case as such. 8. In this juncture, it is relevant to note that the accused has got a case that he was not arrested from the place of occurrence and at the time mentioned by the prosecution, but he was arrested from his house. To prove the above fact DW1 was examined. The learned judge of the trial court was not prepared to accept the evidence of DW1. I find no illegality with the above approach of the learned Judge of the trial court. In this juncture, it is also pertinent to note that though the accused put forward a contention to that effect during his examination, no complaint was raised before the committal Magistrate when he was produced on his arrest on 29.11.1997. So the accused had got a better opportunity on an earlier occasion to place his grievance before a competent court but at that time the accused was not having such a case. If that be so, the subsequent case that he was arrested from his house, raised at the time of 313 statement and during the time of defence evidence cannot be believed in the absence of any other independent evidence or 10 Crl.A.No.1924 of 2003 material. 9. From the above discussion and the evidence on materials referred to it can be seen that the findings of the court below that the prosecution has succeeded in establishing its case beyond reasonable doubt that the accused was found keeping possession of 3 litres of rectified spirit in MO1 can is correct and no interference is warranted with respect to the above finding. Therefore, I have no hesitation to confirm the conviction recorded by the trial court against the appellant for the offence punishable under Section 58 of the Abkari Act. 10. As this court not inclined to interfere with the conviction and confirmed the same, the learned counsel for the appellant submitted that in the matter of sentence a lenient view may be taken as the appellant is first offender and considering the other mitigating circumstances. According to me the above submission of the learned counsel requires positive consideration. In the present case the allegation is that the appellant is found in possession of rectified spirit of three litres. From the judgment of the trial court it appears that according to the appellant he had three daughters who were unmarried at the time of the trial. It is Crl.A.No.1924 of 2003 11 also discernible from the record that he was only at the age of 36 at the time of the occurrence. Thus in the light of the entire facts and circumstances involved in the case and the above mentioned mitigating circumstances, according to me the sentence requires modification and according to me while retaining the sentence of fine, the substantial sentence and the default sentence can be modified and reduced respectively to one year rigorous imprisonment and 15 days simple imprisonment. Accordingly, in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo one year rigorous imprisonment and to pay fine of Rs.1,00,000/- in default he is directed to undergo simple imprisonment for a period of 15 days for the offence under Section 58 of the Kerala Abkari Act. Set off is allowed under Section 428 Cr.P.C In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under Section 58 of the Abkari Act as recorded by the trial court as per judgment dated 23.10.2003 in S.CNo.102/2001 of the court of Additional District and Sessions Judge(AD-HOC) Court-1, Pathanamthitta but subject to the modification with respect to the sentence to the 12 Crl.A.No.1924 of 2003 extent indicated above. The learned counsel for the appellant submitted that the appellant is subsequently arrested on 17.02.2012 and thereafter till this time he is undergoing the imprisonment. The above submission is confirmed by the learned Public Prosecutor after verification with the Jail records and on instructions received. If that be so, according to me in the light of the fact that the petitioner is given the benefit of under Section 428 of Cr.P.C., he had already completed the substantial sentence and also the default sentence and hence the appellant is entitled to get released from the jail forthwith if he is not required in any other case. **V.K.MOHANAN JUDGE** mns