Rajan S/o Ponnayyan Nadar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946** **CRL.A NO. 2088 OF 2006** **AGAINST THE JUDGMENT DATED 27.09.2006 IN SC NO.1308 OF 2001** **ON THE FILE OF COURT OF SESSION, THIRUVANANTHAPURAM APPELLANT/2ND ACCUSED:** **RAJAN** **S/O PONNAYYAN NADAR,PALLELI MEKKUMKARA PUTHEN VEEDU, DALUMUGHOM, KARIKKAMMOKODU, VELLARADA VILLAGE.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SANAL P.RAJ, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 31.7.2024, THE COURT ON 02.08.2024, DELIVERED THE FOLLOWING:** 2 ## **Crl.Appeal No.2088 of 2006** ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal No.2088 of 2006 --------------------------------------------Dated this the 2nd day of August 2024** ## **J U D G M E N T** This appeal under Section 374(4) Cr.P.C. has been filed by the second accused aggrieved by the judgment dated 27/09/2006 in S.C.No.1308/2001 on the file of the Court of Session, Thiruvananthapuram, convicting and sentencing him to three years rigorous imprisonment and to a fine of ₹1 lakh for the offence punishable under Section 58 of the Abkari Act, 1077 (the Act). The appellant will be referred to in this appeal as the accused. 2. The prosecution case is that on 06/12/1999 PW4, the then Sub Inspector of police, Vellarada, was on patrol duty. While so, by about 06:00 p.m., when he reached the place by name Perambrakonam, he received reliable information that arrack was being sold by two persons, namely, Thankappan and Rajan, that is, 3 ## **Crl.Appeal No.2088 of 2006** accused 1 and 2. The information received was that the sale was being conducted in a rubber plantation owned by one Valiya Vattakuzhi Unni. PW4 along with his team proceeded to the place of occurrence and on reaching there, found the accused persons in possession of two jerrycans and a glass tumbler. One of the jerrycans having a capacity of 10 ltrs, was held by the first accused, which on examination was found to contain 8 ltrs of arrack. Another jerrycan having a capacity of 10 ltrs held by the second accused was found to contain 9 ltrs of arrack. The glass tumbler had 100 ml capacity. On seeing the police team, the accused tried to run away. However, PW4 and his team apprehended them. PW4 seized the contraband articles as per Ext.P2 mahazar in the presence of independent witnesses, that is, PW1 and PW2. On the basis of the incident, PW4 registered Ext.P3 FIR. After completing the investigation, the final report was submitted by PW4 himself against both the accused persons before the jurisdictional Magistrate. 4 ## **Crl.Appeal No.2088 of 2006** 3. The jurisdictional Magistrate after complying with the necessary formalities committed the case to the Court of Session, Thiruvananthapuram. The case was thereafter made over to the Assistant Sessions Court, Neyyattinkara, for trial and disposal. In the final report submitted, the first accused was reported to be no more. 4. On receipt of summons, the accused appeared before the trial court. After hearing the prosecution as well as the accused, the trial court framed a charge for the offence punishable under Section 58 of the Act against the accused, which was read over and explained to him to which he pleaded not guilty. 5. PW1 to PW5 were examined and Exts.P1 to P7 and MO.1 series and MO.2 were marked on the side of the prosecution. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and 5 ## **Crl.Appeal No.2088 of 2006** maintained his innocence. 6. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on their defence and adduce evidence in support thereof. The accused examined himself as DW1 and got marked Ext.D1 to Ext.D3. 7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 58 of the Act and hence convicted and sentenced him to imprisonment hereinabove stated. Aggrieved, the accused has come up in appeal. 8. The only point that arises for consideration in this appeal is whether there is any infirmity, illegality or irregularity in the findings of the trial court calling for a interference by this Court. 9. On 07/01/2021, the advocate appearing for the 6 ## **Crl.Appeal No.2088 of 2006** accused/appellant was reported to be no more. As per order dated 24/11/2021, the registry was directed to issue notice to the appellant with a direction to appear before the court on 23/12/2021 at 10:15 a.m. Pursuant to the same, the SHO, Vellarada police station, Thiruvananthapuram, has filed a report stating that the accused left his home years back ; that his whereabouts are not known ; his photographs have been widely circulated and that he would be produced as and when traced out. In such circumstances, this Court relying on the dictum in **Bani Singh v. State of U.P., (1996)4 SCC 720** , is proceeding to hear the appeal on merits after examining the entire records in this case. 10. Heard Adv.Sanal P.Raj, the learned Public Prosecutor for the respondent/State. 11. I have perused the entire records and gone through the deposition of both the prosecution and defence witnesses. PW4, the detecting officer testified in support of the prosecution case. According to him, MO.1 series are the jerrycans which were found 7 ## **Crl.Appeal No.2088 of 2006** in the possession of the accused which on inspection was found to contain arrack. MO.2 is stated to be the glass tumbler in the possession of the accused. PW4 also deposed that he prepared Ext.P2 mahazar when MO.1 and MO.2 articles were seized. Ext.P3 is the FIR registered by him. According to him, the material objects were produced before the court as per Ext.P5 property list on the very next day itself, that is, on 07/12/1999. He had submitted a forwarding note to the court requesting for sending a sample to be drawn from the contraband seized to the chemical examiner for examination. Ext.P6 is the chemical analysis report. He completed the investigation and submitted the charge sheet before the court. PW4 also identified the accused in the dock. 11.1. PW3, a police constable, who is stated to have accompanied PW4 on the relevant date to the scene of occurrence ably supports the case of the prosecution. PW1 and PW2, the independent witnesses turned hostile and denied having seen the seizure or arrest. PW1 though initially denied his signature in 8 ## **Crl.Appeal No.2088 of 2006** Ext.P2 mahazar, on further questioning admitted his signature in the same. PW5, the thondi section clerk, JFCM Court-III, Neyyattinkara, deposed that on 07/12/1999 she had received the material objects as per Ext.P5 property list and an entry has been made in page 236 of the register maintained in the office of the court. The relevant entry in page 236 of the thondi register was identified by PW5 and the same was marked as Ext.P7. PW5 deposed that as directed by the Magistrate, she had taken a sample from the contraband seized and that the same had been sent for chemical analysis. Necessary entry to the said effect was also made in Ext.P7. 12. It is true that PW1 and PW2, the independent witnesses turned hostile and do not support the prosecution case. But merely because the independent witnesses have turned hostile and that there is only the testimony of official witnesses to support the prosecution case, is no ground to discard or disbelieve the prosecution case. The testimony of the official witnesses if found 9 ## **Crl.Appeal No.2088 of 2006** to be creditworthy and if it inspires confidence in the mind of the court, can be relied on for arriving at a finding of guilt of the accused. PW3 and PW4, the official witnesses were extensively cross examined. However, nothing was brought out to disbelieve or discredit their testimony. 13. The accused examined himself as DW1 in support of his defence that the present case is a false one foisted on him by PW4. However a reading of the testimony of DW1 and on going through the records produced by the accused in support of his case, it is clear that both the cases, that is, the present case as well as the case referred to in the documents are two different cases. In fact DW1 in cross examination admitted that the incident in the present case took place on 06/12/1999 whereas the incident in Ext.D1 case took place on 08/07/2000. There is no material or ground to believe the defence version that PW4 had deliberately foisted a false case against the accused merely because the accused was successful in getting bail from this Court within a short span of time relating to 10 ## **Crl.Appeal No.2088 of 2006** an earlier case registered against him. I do not find any infirmity or illegality in the findings of the trial court calling for an interference by this Court. Hence this appeal is liable to be dismissed. In the result, the appeal is dismissed accordingly. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/