Radhakrishnan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 11[TH] DAY OF JUNE 2021 / 21ST JYAISHTA, 1943** **CRL.A NO. 103 OF 2011** **AGAINST THE JUDGMENT IN SC 369/2008 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, KOLLAM, KOLLAM** ## **APPELLANT/1ST ACCUSED:** **RADHAKRISHNAN,** **S/O VASUDEVAN VISHNU BHAVANAM, ADINADU THEKKU, ADINADU VILLAGE,** **KARUNAGAPALLY.** **BY ADVS. SRI.K.G.ANIL BABU SRI.R.RAJESHPULLIKADA** ## **RESPONDENT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,** **HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SR.PP - SRI. M.S.BREEZ** **THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 31.03.2021, THE COURT ON 11.06.2021 DELIVERED THE FOLLOWING:** CRL.A.No.103 of 2011 2 ## **JUDGMENT** In this appeal preferred under Section 374 of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C., the first accused in S.C.369/2008 of Additional Sessions Judge (Ad hoc-II), Kollam challenges his conviction in an abkari case. The case had originated on the basis of the final report laid by the Excise Inspector, Karunagappally, in Crime 86/2006 of that Range. The alleged incident had happened on 28.04.2006 at 10:15 a.m. 2. The prosecution allegation is that, that day while the Excise Inspector and party were engaged in routine patrol duty at Karunagappally taluk in Adinadu South muri, when they reached the area near the shop room of one Gopinathan, they got reliable information about the illicit activities of one Maniyamma of Mandanathu Thekkathil residing in house No.KSP VIII/211. After preparing and sending a search memo, they proceeded to the said house and when reached in front of the house, they saw one person coming out of the house through the front door, carrying a black CRL.A.No.103 of 2011 3 can of about ten litres capacity. Seeing the Excise party, he scooted towards south. They chased him and was apprehended and brought back to the house. The can was opened, its content was tested and tasted, they realised that it is spirit. Then they entered the house and found two white cans and one black can having been concealed below a slab on the northern side of the kitchen, situated on the north-eastern side of the house. When opened and tested by smelling and tasting, the white cans contained diluted arrack made from spirit and the black can contained spirit. The items were seized after collecting samples from all the bottles, in the presence of independent witnesses and the said Radhakrishnan, who came out of the said house. After arresting the said Radhakrishnan, the items were seized and the contraband were taken to the Karunagappally Excise Range Office and on that basis Crime 86/2006 was registered. The accused along with the contraband were produced before the court on the same day. It is further stated that, knowing about the imminent search of the house, Maniyamma the house owner, the second accused, ran away from the place through the eastern door of the kitchen. She could not be nabbed at that time. CRL.A.No.103 of 2011 4 Later, on 31.04.2006, she surrendered before the court and she also was remanded to judicial custody. After investigation and getting chemical examination report and confirming that the items were spirit and arrack, the final report was laid before the Judicial First Class Magistrate Court, Karnunagappally, where the case was taken on file as C.P.No.72/2007. After completing the procedural formalities, the Magistrate committed the case to the Sessions Court, Kollam, from where it was made over to the trial court. 3. Before the trial court, the accused were defended by a counsel of their choice. After hearing counsel on both sides, when the charges were framed, read over and explained, both of them pleaded not guilty. They were on bail. Then the prosecution examined four witnesses on their side. Exts.P1 to P14 were marked. After closing prosecution evidence, when examined under Section 313(1)(b)Cr.P.C., both the accused denied the incriminating materials and reiterated their innocence. The court, after hearing counsel both sides, found that the accused cannot be acquitted under Section 232 of the Cr.P.C., then both were called upon to enter on their evidence in defence. But no evidence was adduced from their CRL.A.No.103 of 2011 5 side. After hearing counsel on both sides, by the impugned judgment dated 14.01.2011, the learned Additional Sessions Judge found the appellant, who is the first accused, guilty of the offence under Section 55(a)(i) and 8(1) and (2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for four years and also fined Rs.1,00,000/-, in default to undergo rigorous imprisonment for three months. The second accused, who is the sister of the appellant, was found not guilty and acquitted under Section 235 of the Cr.P.C. The finding of guilt and sentence imposed on the first accused are now challenged in this appeal. 4. The learned counsel for the appellant submitted that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. According to him, there is only the oral testimony of PWs 1 and 2 official witnesses to support the allegation against the witnesses, which is not sufficient. Even though independent witnesses were cited in the charge sheet, they were summoned and after attending the court, were given up. The reason for their non examination is not made known. It is suspicious also. In this connection, the learned counsel relied on the decision CRL.A.No.103 of 2011 6 reported in **Parminder Kaur @ P.P.Kaur @ Soni v. State of Punjab [AIR 2020 SC 3815]** . According to him, omission to examine the material independent witnesses is fatal to the prosecution and in that case, the testimony of official witnesses should not have been relied upon. According to the learned counsel, the official witnesses have their own interest. Therefore, the trial court should have given the benefit of doubt to the appellant. 5. On the other hand, the learned Senior Public Prosecutor strongly supported the judgment under attack. According to him, even though independent witnesses were not examined for the case, PWs 1 and 2 the official witnesses have given a cogent and convincing testimony in support of the allegations, that there is absolutely no reason to disbelieve them. 6. I have summoned and examined the trial court records. There were four witnesses examined on the side of the prosecution. PWs 1 and 2 are the witnesses who supported the prosecution case, who had witnessed the transaction. PW1 R. Rajesh is the Excise Inspector, who led the Excise party. According to him, that day while he was doing patrol duty, near the Chenisserry junction, when CRL.A.No.103 of 2011 7 they reached the shop room of one Vanolil Gopinathan, he got reliable information about the illegal transactions taken place in the house of the second accused Maniyamma. Thus after sending a search memo, marked as Ext.P1, the party proceeded to the said house. When they reached in front of the house, he could see Radhakrishnan, the first accused coming out from the house through the front door, carrying a black can of ten litres capacity. Seeing the Excise party, he took to his heels towards south. After about 15 mtrs chase, he was apprehended and brought back to the front side of the house. According to the Inspector, in the presence of independent witnesses, the can was opened and its content was tested and he found that it is spirit. Thereafter, they entered the house, which remained open. There was no one else in the house. All the rooms in the house were searched. In the kitchen, that is on the north-eastern side of the house, below a slab on the northern side, three cans were found, two white and one black. The white cans were having 35 litres of capacity each and both contained diluted arrack from spirit. Similarly, the black can of five litres capacity contained spirit, thus samples were collected from all the CRL.A.No.103 of 2011 8 four cans, the can carried by the appellant and three cans upkept on the northern side of the kitchen. After seizing the contraband under Ext.P3 mahazar and arresting the appellant, the party returned to the Excise Office with the accused, the contraband and the samples and the case was registered. 7. PW2 G.Vasudeva Kurup is the Preventive Officer who accompanied the PW1. He also gave a similar version supporting the prosecution case. In fact, both PWs 1 and 2 were examined thoroughly by the defence counsel, but their testimony could not be shaken in cross examination. Both PWs 1 and 2 have given testimony in conformity with the Ext.P3 mahazar prepared by PW1 at the place of occurrence. It is true that the mahazar is shown attested by two independent witnesses but they were not examined. The reason for non-examination cannot be discerned at this stage. Merely for the reason that those two witnesses were not examined for the case, testimony of PWs 1 and 2 cannot be disregarded or neglected. Even the appellant had no case that both PWs 1 and 2, who are officials, have any reason for animosity against him. It is also not known whether they were having previous acquaintance, CRL.A.No.103 of 2011 9 even though some of the documents indicate that the appellant had criminal antecedents, that some abkari cases were registered against them. But for that reason, it cannot be thought that a false case, that to a serious criminal case will be foisted against him without any reason. In my assessment, both PWs 1 and 2 inspire confidence. Their testimony corroborate each other. The materials produced by the prosecution also support the case that the Ext.P3 mahazar was prepared contemporaneously after seizing the contraband from the possession of the appellant and also arresting him. The arrest memo, arrest notice etc., also support the contention of the prosecution that he was arrested as alleged by the prosecution. 8. There is no proposition of law that official witnesses shall not be believed. In umpteen number of cases this Court as well as the Hon’ble Apex Court has held that if official witnesses can be believed, if their testimony is genuine and trustworthy, there is no hazard in basing on their evidence for convicting the culprit. In **Sumit Tomar v. State of Punjab [(2013) 1 SCC 395]** the Hon'ble Supreme Court held that in the absence of any such independent witness, if the statements of Police Officers are reliable, when there CRL.A.No.103 of 2011 10 is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. Here as noticed earlier, PWs 1 and 2 have no access to grind against the appellant. They have no reason to give a false, concocted testimony against him or to register a baseless case against a layman. On that consideration and on the basis of the supporting materials, it can be concluded that, the PWs 1 and 2 have been correctly believed by the learned Additional Sessions Judge. 9. As noticed earlier, non examination of the independent witnesses cannot be highlighted as a big issue. It is the prerogative of the prosecution to pick and choose their witnesses. Merely for the reason that name of some witnesses appeared in the witness list, it cannot be insisted that they need be examined for the prosecution. May be the Prosecutor had reason to think that they would not support the prosecution. It is the discretion of the Prosecutor to decide who all are to be examined on his side. The fact that attestors to the mahazar were given up, is not a valid reason to throw the entire case overboard. 10. I do not think that the decision on **Parminder Kaur** ’s CRL.A.No.103 of 2011 11 case, quoted supra, can be applied to the facts of this case. There the Hon’ble Supreme Court was considering an allegation under Section 366(a) and 509 of the IPC, in which the crime was registered after five days and the reason for delay in registering the crime and the reason for non-examination of independent witnesses were not shown by the prosecution. In my assessment, the facts of the case are different and cannot be applied and therefore, the proposition laid down in that decision cannot be applied here. 11. On close evaluation of evidence of PWs 1 and 2 and other material documents, I do not find any reason to hold that the learned Additional Sessions Judge should have acquitted the appellant disbelieving the genuine and credit worthy evidence of PWs 1 and 2. PWs 3 and 4 do not have positive roles in the proof of charge. PW3 Sugandhi is a woman police constable who had arrested the second accused along with the Excise Inspector. Similarly PW4 B. Suresh, is the Excise Inspector who registered the crime, conducted investigation and laid the charge. He had arrested the second accused also, had sent the forwarding note to the learned Magistrate and also proved the other documents regarding the possession of the CRL.A.No.103 of 2011 12 building by the second accused etc. 12. In this connection the Ext.P14 chemical examination report requires special consideration. The items were sent through the Ext.P9 forwarding note which were received in the laboratory intact. After examination of the four samples, the Assistant Chemical Examiner has reported that the samples contained 32.51, 33.94 and 80.58 and 77.53 percent by volume of Ethyl Alcohol respectively. It is evident that the first two results are in respect of samples taken from the white cans found in the kitchen of the second accused. The third sample, that is in respect of 80.58%, was taken from the cans carried by the appellant which has tested and it is stated that it is a colourless liquid smelling spirit contained 80.58% by volume of Ethyl Alcohol. That means the allegation against the appellant stands confirmed by the chemical examination report, which indicates that he was carrying spirit illegally, which attracts offence punishable under Section 55(a) of the Abkari Act. 13. After revisiting the evidence, I do not find any reason to interfere with the finding under attack. Therefore, the order of conviction imposed on the appellant is liable to be confirmed. CRL.A.No.103 of 2011 13 14. Turning to the sentence, it seems that the sentence is bit harsh. The learned counsel said that the appellant is suffering from serious disease of total liver failure. At the same time, no document is forthcoming to support the contention. Any how, that is not a reason for exonerating him. Having regard to the circumstances and also the delay in taking up the appeal which should be attributed towards institutional lapses, I feel that interest of justice can be met by reducing the sentence to rigorous imprisonment for one year, but maintaining the statutory minimum fine of Rs.1,00,000/- (Rupees One lakh only) in default, to undergo rigorous imprisonment for three months. Thus, modifying the substantive sentence and maintaining the fine, the appeal is dismissed. **Sd/-** **K.HARIPAL JUDGE** Jms/18.04 //True Copy// P.A to Judge