Philosh, S/o Joseph; Shaji, S/o Sebastian; Benny @ Thomas, S/o Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **THURSDAY, THE 22ND DAY OF NOVEMBER 2012/1ST AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1664 of 2002 ( ) -------------------------------CRA.27/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD SC.40/1998 of SESSIONS COURT, KASARAGO DIVISION, HOSDRUG** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED NO.3 TO 5:: ----------------------------------------------------** **1. PHILOSH, S/O. JOSEPH, VATTAKATTIL HOUSE, KARA, CHITTARIKKAL VILLAGE. 2. SHAJI, S/O. SEBASTIAN, NATHILAKAM HOUSE, CHITTARIKKAL VILLAGE.** **3. BENNY @ THOMAS, S/O. VARGHESE, ODAKKAL HOUSE, CHATTAMALA, CHITTARIKKAL VILLAGE. BY ADVS.SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.T.K.VIPINDAS RESPONDENT/RESPONDENT/COMPLAINANT:: ---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE CIRCLE INSPECTOR OF POLICE CHITTARICKAL. R, BY ADV. PSRI. BIJU MEENATTOOR -PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.1664 of 2002 ---------------------------------------------Dated this the 22[tnd] day of November, 2012 ## **ORDER** The petitioners are accused Nos. 3 to 5 in Sessions Case No.40 of 1998 before the Assistant Sessions Judge, Hosdurg. They were prosecuted along with accused Nos. 1 and 2 for offence punishable under Section 55 (a) of the Abkari Act. 2. The prosecution case as available in paragraph 3 of the judgment of the Assistant Sessions Judge, is as follows: “The prosecution case, in short, is that the Sub Inspector of Police along with Police Constables as about 10 p.m. on 13.6.1997 on receiving reliable information that liquor was being transported in a jeep No.KL-14A-6461, proceeded at a junction where Kadumeni Chittarikkal road and Kamballoor Chittarikkal road join and waited and that at about 10.15 p.m. & jeep bearing the aforestated number driven by accused No.2 came from Kamballoor road, and that inspite of the signal to stop the vehicle given by the police party, the jeep was driven towards Pavel and that the police party chased the same and ultimately the aforestated jeep was found as abandoned in the rubber garden of one Soopi Haji at Pavel and the Police party have seen four persons including the driver running away to the darkness of the night and that on examining the jeep, two cases Crl. R.P.No.1664/02 2 each containing 60 bottles of Indian made foreign liquor were found and therefore the accused are liable to be punished on the above charge. The specific case alleged against accused No.1 is that he is the owner of the jeep which is used for transporting the contraband article and that without his connivance the accused could not have committed the offence.” The prosecution examined PWs 1 to 7 and marked Exts.P1 to P9 documents and MOs 1 to 3. The defence marked Exts.D1 and D2. The Assistant Sessions Judge convicted the accused Nos. 2 to 5 including the petitioners and sentenced them to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.1 lakh with a default sentence of simple imprisonment for a further period of one year each. In Criminal Appeal No.27 of 1999 filed by the petitioners before the Additional Sessions Court, (Adhoc-I) Kasaragod, the conviction and sentence were confirmed, dismissing the appeal. The petitioners are challenging the judgments of the courts below. 3. The learned counsel for the petitioners raises several contentions. The primary contention is that there was no proper identification of the petitioners as the persons involved in the crime, even going by the prosecution case. The Crl. R.P.No.1664/02 3 incident occurred during night. On information received, the Police party was waiting by the side of the road with the lights of their jeep turned off. Although they signalled the offending jeep to stop, the jeep was not stopped and it sped away. After starting the Police jeep, the police chased them. The persons in the jeep stopped in a private property and they ran away into the darkness. Although there is some evidence to show that the Police had identified the 2[nd] accused in the light of their jeep, they have no case that any of the Police party had seen the petitioners as the persons travelling in the offending jeep. The petitioners were arrayed as accused only on the basis of a confession stated to have been made by the 2[nd] accused. Apart from such confession, there is no evidence whatsoever to link the petitioners with the offence charged, is the contention raised. Since I am impressed by the above ground, I am not going into the other grounds raised by the petitioners. 4. I have heard the learned Public Prosecutor also on the question. 5. I am satisfied that the petitioners are entitled to Crl. R.P.No.1664/02 4 succeed on the ground raised. As rightly pointed out by the learned counsel for the petitioners, at no time was there any positive identification of the petitioners as passengers of the jeep from which the contraband was seized. Admittedly, the incident occurred at 10.p.m. in the night. The Police party, who intercepted the vehicle, was waiting by the side of the road on getting information, with the headlights of their jeep turned off. There is no evidence to show that the petitioners could have been identified by street lights or any other light for that matter. Of course, there is some evidence to the effect that in the headlight of the Police jeep, the Police party had identified the 2[nd] accused. After stopping the vehicle in a private property, the occupants of the vehicle had ran away into the night. There is no proper identification of the petitioners as the persons, who ran away from the vehicle also. As such, the only material on record available for connecting the petitioners with the offence alleged is the alleged confession of the 2[nd] accused. 6. It is settled law that the confession of a co-accused cannot be the sole evidence for conviction, unless corroborated 5 Crl. R.P.No.1664/02 by the some other reliable evidence. (See the decisions in _**Kashmira Singh**_ v. _**The State of Madhya Pradesh**_ , [AIR 1952 SC 159], _**Bhuboni Sahu**_ v. _**The King**_ [AIR (36) 1949 Privy Council 257], _**Roy K.A.**_ v. _**State of Kerala**_ [2012 (2) KHC 768], _**Lizy Kurian**_ v. _**State of Kerala**_ [2004(3) KLT 442], _**Bhavsingh D. Rathod**_ v. _**Asst. Collector of Customs**_ [2005(3) KLT 210] and _**Sasi and another**_ v. _**State of Kerala**_ [(2000) 10 SCC 360]) Here, the only evidence available to connect the petitioners with the offence alleged is the confession allegedly made by the 2[nd] accused. In view of the decisions quoted above, in the absence of corroborative evidence, the confession of the co-accused cannot be a ground for conviction. Therefore, on that ground, the judgments of the courts below are set aside and the petitioners are acquitted. Their bail bonds are cancelled. They shall be set at liberty. The Crl. R.P. is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd Crl. R.P.No.1664/02 6 Crl. R.P.No.1664/02 7