Vijayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **CRL.A.No.680 OF 2006** **AGAINST THE JUDGMENT IN SC 668/2003 DATED 10-03-2006 OF ADDITIONAL DISTRICT COURT (ADHOC), ALAPPUZHA** ## **APPELLANT/ACCUSED:** **VIJAYAKUMAR AGED 40 YEARS S/O.THANKAPPAN, AMRUTHA BHAVAN, EREZHA THEKKUM MURI, PERINGALA, MAVELIKKARA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.S.SANAL KUMAR SRI.M.R.ARUNKUMAR SMT.BHAVANA VELAYUDHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY GOVT.PLEADER SMT.M.N.MAYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2020, THE COURT ON 30-09-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No. 680/2006 :2: ## **JUDGMENT** This is an appeal filed under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as the Code, challenging the legality and correctness of the judgment of the Additional Sessions Court, Alappuzha in SC 668/2003. The prosecution allegation is that on 02.04.2002, at about 8 A.M., while CW1 Preventive Officer and party were on usual patrol duty, on the Laha Chettikulangara road, while they were moving towards west through the road, about 100 meters east of the railway gate, the appellant was found proceeding to the opposite direction, carrying a jute bag. Seeing the Excise party, he tried to get away from the place and thus getting suspicion, he was intercepted and the bag containing a 750 ml bottle was examined. It was full of some coloured liquid. The cap of the bottle was opened and its content was tested by tasting and smelling and the party realised that it was colored arrack and on the road, in front of the house of Hareesh Kumar of Crl.Appeal No. 680/2006 :3: Vavelimuriyil, the appellant was arrested, the contraband was seized under a mahazar. Then the party returned to the Excise Office where a crime was registered under Sections 8(1) and (2) and 55(a) of the Abkari Act. After investigation the Excise Inspector laid the final report before the Judicial First Class Magistrate's Court, Kayamkulam, where the case was taken on file as C.P.No. 72/2003. After completing the procedural formalities, after serving prosecution records, etc. since it was a matter triable exclusively by a Court of Session, the case was committed to the Sessions Court, Alappuzha under Section 209 of the Code. The Sessions Judge took the case on file as S.C. No.668/2003 and then made over to the then Additional District Court Fast Track – I, Alappuzha, where the appellant appeared on summons. 2. After hearing counsel on both sides, when the charge was framed, read over and explained in Malayalam, the appellant pleaded not guilty. He was on bail. He was defended by a counsel of his choice. 3. On the side of the prosecution, four witnesses were examined. They are two Preventive Officers who were in the team of Crl.Appeal No. 680/2006 :4: Excise officials who detected the crime, independent witness Hareesh Kumar whose house was reportedly in the vicinity of the place of occurrence and the Excise Inspector who conducted the investigation and laid the charge sheet. Exts.P1 to P5 were also marked and the material objects were identified and marked as MOs 1 to 4. After closing the prosecution evidence, the appellant was questioned under Section 313 of the Code; he denied all the incriminating materials. To the penultimate question he said that he is a native of Thiruvananthapuram; that day he had come to his wife's house at Mavelikkara, then Excise officials wanted him to show the house of one Sasi. When he pleaded ignorant, an altercation followed and out of that animosity, he was called to the Excise office and a false case was foisted on him. Since this was not a fit case for acquittal under Section 232 of the Code, the appellant was called upon to enter on his evidence in defence. Thereafter, one witness was examined as DW1. After hearing counsel on both sides, the learned Sessions Judge found the appellant guilty under Section 8(1) and (2) of the Abkari Act. After Crl.Appeal No. 680/2006 :5: hearing him on sentence he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo simple imprisonment for six months. He was also allowed to enjoy benefit of Section 428 of the Code. That finding of guilt and sentence are called in question in this appeal. 4. I heard counsel on both sides. 5. The learned counsel for the appellant submitted that only 750 ml of arrack was allegedly seized from the possession of the appellant. According to the learned counsel, Pws1 and 2, two Preventive Officers alone had supported the case. But there is no consistency in their version. Both of them claimed that they had detected the offence. There was no independent occurrence witness to the transaction. Therefore, it is most unsafe to proceed against the appellant basing on the evidence of the interested testimony of PWs1 and 2, Excise officials. PW3 the independent witness turned hostile to the prosecution. She also invited my attention to the statement of the appellant during Section 313 examination and submitted that the Crl.Appeal No. 680/2006 :6: appellant was arrested from the house of his wife and such a case was falsely imposed on him. The learned counsel also pointed out that no forwarding note has been proved on behalf of the prosecution and on both these considerations the prosecution could not bring home the guilt of the appellant. 6. The learned Public Prosecutor on the other hand submitted that the prosecution has succeeded in proving the guilt of the appellant. The appellant was arrested from the spot and the material objects were seized from his possession in the presence of independent witnesses, the items were produced before court on the same day itself, sampling was done from the spot and the chemical examination report also supports the prosecution case. According to the learned Public Prosecutor, there is absolutely nothing to disbelieve PWs 1 and 2, who have no reasons for animosity against the appellant. She also pointed out that a requisition letter was sent along with the sample and that the chemical examination report also suggests that it was arrack which was seized from the Crl.Appeal No. 680/2006 :7: possession of the appellant. According to her, there is no reason to interfere with the finding of the learned Sessions Judge. 7. PWs 1 and 2 are Preventive Officers. PW1 R. Chandrasekharan Unnithan said that, that day while himself and the Excise party were moving on patrol duty from Laha to Chettikulangara, on the road in front of the house of Hareesh Kumar, the appellant was found moving in the opposite direction carrying a jute bag. He was intercepted; the bag contained 750 ml bottle containing coloured liquid. When examined, it was found containing coloured arrack which was seized under the Ext.P1 mahazar. The appellant was arrested by Preventive Officer P.N. Sudhakaran Nair and then produced before the Excise Inspector on the same day, on the basis of which the crime was registered. PW2 is P.N. Sudhakaran Nair, the other Preventive Officer. It was under his leadership the Excise party was proceeding from Laha junction to Chettikulangara and near the railway gate, the appellant was found moving in the opposite direction. He has given a statement Crl.Appeal No. 680/2006 :8: identical with that of the statement of PW1. Though both PWs 1 and 2 were cross-examined by the counsel for the appellant, nothing could be brought out to discredit their testimony. PW3 is the said Hareesh Kumar. But he denied having witnessed the occurrence and also his signature shown on the Ext.P1 seizure mahazar. PW4 P. Kesavankutty Nair is the then Excise Inspector who has proved the Exts.P2 to P5 documents. According to him, that day the Preventive Officers had brought to his office the accused along with contrabands, on the basis of which an occurrence report as O.R.80/2002 of the Excise Range Office, Mavelikkara was registered by him. On the same day, he had sent the material objects along with the accused before the Magistrate. Later, he produced the Ext.P4 requisition before the Magistrate along with the forwarding note for sending the samples for chemical examination report. He also proved the Ext.P5 chemical examination report. After completing the investigation he himself laid the charge sheet before the Judicial First Class Magistrate's Crl.Appeal No. 680/2006 :9: ## Court, Kayamkulam. 8. As pointed out by the learned Public Prosecutor, the oral testimony of PWs 1 and 2 give a uniform and consistent version supporting the allegations in the final report. It shows that while PWs 1 and 2 along with the party were moving through the Laha - Chettikulangara public road as part of patrol duty, they came across the appellant who was moving in the opposite direction, carrying a jute bag. Growing suspicion, when he was intercepted and the 750 ml bottle containing some liquid was opened, tested and tasted, it was found to be coloured arrack, on the basis of which he was arrested; Ext.P1 seizure mahazar was prepared, the contrabands were seized and the appellant along with the contraband was produced before the Excise Range Office and handed over to the Range Inspector. Thus the crime was registered and the appellant was remanded in judicial custody. 9. It is true that the independent occurrence witness i.e., PW3 Hareesh Kumar turned hostile to the prosecution. But both Crl.Appeal No. 680/2006 :10: PWs 1 and 2 have given a uniform version. The learned Sessions Judge has rightly believed their version and proceeded to convict the appellant. After going through the oral testimony of PWs 1 and 2, I also do not find overwhelming reasons to differ from the opinion formed by the learned Sessions Judge. It is true that the independent witness had turned hostile to the prosecution. But for that reason, the otherwise believable version of PWs 1 and 2 cannot be discarded or thrown over board. 10. In fact there is no inflexible rule that testimony of police officials or excise officials should not be taken for convicting an accused. PWs 1 and 2 were engaged in their official discharge of functions. Even the appellant has no case that they had any previous acquaintance with the appellant, so that there is no reason for any malice or ill will for them for foisting a false case against him. Therefore, such a suggestion can easily be ruled out. Even otherwise, it is the consistent stand of the courts that parole evidence given by officials, if it is trustworthy and credible, Crl.Appeal No. 680/2006 :11: can be based upon to proceed and to convict the accused. In the decision reported in **Kochan Velayudhan v. State of Kerala [1960 KLT 753 FB]** , a Full Bench of this Court held that it would be open for the court to convict the accused on the evidence tendered by police officers alone, if after examining that evidence carefully, the court feels satisfied that it is true. In fact Excise officials stand on a better footing and the decision is squarely applicable to the facts of this case. The Ext.P1 seizure mahazar is a contemporaneous document. Even though PW3 had turned hostile to the prosecution, that is not a reason to disbelieve the entire prosecution version and discard the otherwise credible version of the prosecution. Therefore, the testimony of PWs 1 and 2 has been rightly believed and acted upon by the learned Sessions Judge and the case cannot be discarded on that ground. 11. Two grounds urged by the learned counsel for the appellant also cannot be accepted. In fact there is no divergent version by PWs 1 and 2. PW2 Preventive Officer P.N. Sudhakaran Crl.Appeal No. 680/2006 :12: Nair was the head of the Excise team, who detected the crime and arrested the appellant after seizing the material objects and preparing Ext.P1 mahazar. It is certain that PW1 R. Chandrasekharan Unnithan the other Preventive Officer was just assisting PW2. The contention of the learned counsel that both PWs 1 and 2 had claimed having detected the offence does not go in tune with the evidence given before court. From the testimony of these material witnesses it is very obvious that PW2 was the leader of the team, it was he who intercepted the appellant; similarly, it was PW2 who prepared Ext.P1. These materials leave no ambiguity on this aspect. 12. The learned counsel also submitted that there is no forwarding note produced before court. But Ext.P4 document which is the forwarding note produced by PW4 is very much before the court. It contains the sample seal. It is on the basis of the forwarding note that the sample was examined by the chemical examiner which is the basis of the prosecution case. Ext.P5 Crl.Appeal No. 680/2006 :13: chemical examination report shows that the sample produced in Crime No.80/2002 of Excise Range Office, Mavelikkara had reached the laboratory in an intact condition; the seal on the bottle was intact and found tallying with the sample seal provided. As already stated, Ext.P4 forwarding note contains the seal of the officer which was found tallying with the seal found on the sample collected and sent for examination. Similarly, after examination the Assistant Chemical Examiner has reported that what was contained in the sample was ethyl alcohol, containing 41.28% by volume of ethyl alcohol. That means, as alleged by the prosecution, it was coloured arrack and therefore, the prosecution is justified in alleging offence under Section 8(1) and (2) of the Abkari Act. 13. I have already noticed that the testimony of PWs 1 and 2 is credible and trustworthy. The allegation that it was a falsely foisted case cannot be believed at all. The appellant also wanted to make the court believe that he was arrested after an altercation with the excise officials; but it does not stand to reason. On the face of Crl.Appeal No. 680/2006 :14: the statement, it cannot be believed that the excise officials had fabricated a case against an ordinary layman like the appellant and imposed a serious Abkari case against him. In fact, he had stated to the penultimate question that he was arrested from his residence by the excise officials. It may be with that intention that DW1 was examined on his side. But DW1, who claimed to be an autorikshaw driver has stated that the appellant was arrested by the excise officials from near the railway gate, after he had dropped him near the railway gate, in his autorikshaw. That means there is no uniform case for the appellant. What has been stated during examination under Section 313 of the Code does not go in conformity with the statement of DW1. It also seems that DW1 is a created witness, who is a crony of the appellant, who has been brought-in to give the version of the appellant. But it seems that DW1 has failed in his mission. 14. After evaluating the entire circumstances and evidence, it is certain that the prosecution has proved the guilt of the appellant Crl.Appeal No. 680/2006 :15: beyond reasonable doubt. He was arrested with 750 ml of arrack and was immediately produced before the Excise Inspector and the crime was registered. On the same day he was produced before the Magistrate and was remanded to judicial custody. The material objects including the sample were also produced along with the appellant on the same day. After completing the investigation, without much delay, the charge sheet was also laid before court. The grounds urged by the learned counsel for the appellant are not in conformity with the material documents available in the case records. Therefore, there is no reason to interfere with the conviction imposed on the appellant. 15. At the same time, it seems that in the matter of sentence, some leniency can be shown. The incident had happened on 02.04.2002. Taking into consideration the time lag, therefore the sentence imposed on the appellant can be reduced to rigorous imprisonment for six months, maintaining the fine imposed, which is the statutory minimum. In other words, confirming the Crl.Appeal No. 680/2006 :16: conviction, the sentence is modified and reduced to rigorous imprisonment for six months. Fine imposed shall be maintained, subject to the modification that, in default, he shall suffer rigorous imprisonment for four months. Thus modifying the sentence imposed on the appellant, the appeal is dismissed. Sd/- **K.HARIPAL JUDGE** okb/26.09.2020 //True copy// P.S. to Judge