Somanathan @ Soman S/O Raman v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934 CRL.A.No. 236 of 2011 (D ) ------------------------- SC.954/2003 of ADDL.DISTRICT & SESSIONS COURT FAST TRACK (ADHOC)-IV, TRIVANDRUM CP.114/2002 of J.M.F.C.-III,NEYYATTINKARA APPELLANT:ACCUSED: -------------------- SOMANATHAN @ SOMAN S/O.RAMAN, KAVUVILA PUTHEN VEEDU , MUDAVOORPARA PALLICHAL DESOM, PALLICHAL VILLAGE, NEYYATTINKARA THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.G.SUDHEER SMT.N.P.ASHA RESPONDENT: -------------- STATE OF KERALA, S.I.OF POLICE, BALARAMAPURAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.S.HYMA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J. ---------------------------------------Crl.A.No.236 of 2011** ## **---------------------------------------Dated this the 20[th] day of September, 2012** ## **JUDGMENT** The sole accused in S.C.No.954 of 2003 of the court of the Additional District and Sessions Judge, Fast Track (ADHOC No.IV), Thiruvananthapuram is the appellant as he is aggrieved by the conviction and sentence imposed against him by the judgment dated 31/01/2011 in the above case. 2. The case of the prosecution is that on 11/09/2001 at about 6 p.m. the accused was found in possession of about 4 litres of spirit in a plastic can having the capacity of 5 litres along with a glass tumbler on the ridge of a stream situated about 150 meters south-east from the MudavorrparaVettuvelikulam in Pallichal Village and thus the accused has committed the offence punishable under Section 55 (a) & (h) of the Abkari Act. With the above allegation Crl.A.No.236/2011 2 Crime No.309 of 2001 was registered in the Balaramapuram Police Station for the said offence. On completing the investigation, police has prepared a report, on the basis of which S.C.No.954 of 2003 is instituted. During the trial of the case, Pws.1 to 5 were examined and Exts.P1 to P8 were recorded. Mos.1 and 2 were also identified and marked as material objects. No evidence is adduced from the side of the defence. The trial court finally found that the prosecution has succeeded in proving its case against the accused and accordingly found that the accused has committed the offence punishable under Section 55 (a) of Abkari Act and thus he is held guilty thereunder. On such conviction, the trial court sentenced the appellant to undergo rigorous imprisonment for six months and a fine of `1,00,000/- and in default of payment of fine to undergo simple imprisonment for six months more for the offence punishable under Section 55(a) of the Abkari Act. Set off is allowed under Section 428 of the Cr.P.C. It is the above Crl.A.No.236/2011 3 finding order of conviction and sentence are challenged in this appeal. 3. I have heard Sri.Sudheer, learned counsel for the appellant and Smt.S.Hyma, learned Public Prosecutor for the State. 4. The learned counsel for the appellant submitted that as the appellant has already undergone the substantial period of sentence, the only request is that the default sentence may be reduced. 5. Even though the counsel made such a request I have gone through the judgment of the trial court and the evidence and materials on record. In the trial court the main contention taken by the accused is that the evidence of the official witnesses of the prosecution is not corroborated by any independent witness and therefore the entire prosecution case cannot be believed and accepted. The defence has also taken a contention to the effect that the case was registered against him falsely at the instance of an Crl.A.No.236/2011 4 interested abkari shop contractor. The learned counsel has also submitted that the prosecution witnesses claimed that what they have recovered from the possession of the accused/appellant is spirit but Ext.P3 chemical analysis report shows that the sample contains 49.7% ethyl alcohol. Thus the counsel submitted that the prosecution case is false to the effect that spirit was found in the possession of the appellant. It is also the contention of the counsel that even Ext.P3 cannot be believed since there is no cogent evidence to show that samples drawn from the contraband article allegedly seized from the accused and the same reached in the hands of the examiner. Therefore the counsel submits that the finding of the court below and conviction and sentence imposed on the appellant are liable to be set aside. 6. The learned Public Prosecutor vehemently submitted that the evidence of PWs.2, 3 and 5, who are police officials, involved in the detection of the crime are Crl.A.No.236/2011 5 intact and nothing brought on record to discard their evidence. Therefore the trial court is fully justified in its finding and convicting the appellant. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and in the light of the arguments advanced, the question that emerges for consideration is whether the trial court is justified in its finding and convicting the appellant on the basis of the available evidence and materials on record. The learned Judge of the trial court has already referred to the memorandum of evidence available in this case. So I am not proposed to repeat the same. Among the prosecution witnesses PWs.2 and 3 are the then police constables and PW.5 is the then Sub Inspector of Plice attached to Balaramapuram Police Station, who involved in the detection of the crime. According to them, on 11/09/2001 at about 5.45 p.m., while they were conducting patrol duty and reached at a place Crl.A.No.236/2011 6 known as Mudavoorpara-Vettuvelikulam they saw the accused standing there by holding a plastic can and a glass tumbler in his hand. According to these witnesses, they examined the contents of the plastic can and they realised the same as arrack and according to them the accused were arrested then and there and the articles were seized as per Ext.P4 mahazar and thereafter proceeded to the Police Station with the accused and the properties. According to PW.5, he had registered Ext.P5 F.I.R. and the accused was arrested as per Ext.P6 arrest memo. Ext.P7 inspection memo was also produced through P.W.5. 8. On going by the judgment of the trial court it can be seen that there is serious omission from the part of the learned Judge in examining the case of the defence in its correct perspective and I find that the reasoning given by the learned Judge in support of his finding which in favour of the prosecution is not correct. As correctly pointed out by the learned counsel for the appellant, the F.I.R. in the Crl.A.No.236/2011 7 present case was registered alleging that 4 litres of spirit was seized from the possession of the appellant. As per the prosecution documents the sample produced before the court is also spirit and what received in the chemical lab is also spirit. But to the surprise it is noticed that in Ext.P3 chemical analysis report the findings of the chemical examiner is that the sample received by the chemical examiner is only ethyl alcohol since the sample of the victim is of 49.7 % by vloume of ethyl alcohol. The above report of chemical examiner is against the very basis of the prosecution case and against the charge framed by the court below, against the accused. The said fact according to me creates a reasonable doubt with respect to the prosecution case and about the article allegedly seized from the possession of the appellant. 9. It is also relevant to note that regarding the drawing of sample the prosecution has no consistant case. When the prosecution witnesses especially PWs.2, 3 and 5 Crl.A.No.236/2011 8 the police officials involved in the detection of the crime deposed that the samples were drawn from the spot itself, the thondi clerk who examined as PW.1 deposed before the court that the sample was drawn by him and it is the said sample sent to the chemical examiner. If that be so, it cannot be said that the samples drawn from the contraband articles are allegedly seized from the possession of the appellant reached in the chemical examination lab. A Division Bench of this Court in the decision reported in **Ravi** v. **State of Kerala** [2011(3) KLT 353], has held that prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached in the hands of the chemical examiner in a full proof condition. On examinaton of the facts and circumstances involved in the case in the light of evidence and materials on record it can be held without any hesitation that the prosecution has miserably failed to prove that the sample taken by PWs.2, 3 and 5 from the spot Crl.A.No.236/2011 9 reached in the hands of the chemical examiner, since the thondi clerk says that the sample send for chemical examination is on the basis of the sample taken by him and Ext.P3 is on the basis of such samples. The above reason alone is sufficient to set aside the judgment of the trial court and the conviction imposed on the appellant. 10. Thus, on a careful consideration of the entire facts and circumstance involved and the prosecution case as such and in the light of the evidence and materials on record, it can be seen that the prosecution has miserably failed to prove the charge as framed against the appellant and also failed to prove beyond reasonable doubt that the accused/appellant was found in possession of spirit as alleged by the prosecution. Therefore, according to me, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. Consequently, extending the benefit of doubt in favour of the appellant, he is entitled to get an acquittal after setting aside the Crl.A.No.236/2011 10 conviction recorded by the trial court. 11. In the result, this appeal is allowed setting aside the judgment dated 31/01/2011 in Sessions Case No.954/2003 of the Court of Additional District & Sessions Judge, Fast Track (ADHOC)No.IV, Thiruvananthapuram and the conviction and sentence imposed on him are also set aside and he is acquitted of all the charges levelled against him. As this Court allowed the appeal acquitting the accused, he is entitled to get released from jail, forthwith, if he is not required in any other case. Therefore, there will be a direction to the Registry to forward the gist of this judgment to the Superintendent of Central Prison, Thiruvananthapuram for appropriate action in this regard. The Criminal appeal is allowed accordingly. **V.K.MOHANAN, Judge** skj/