Vinod s/o Narayanan @ Kunjan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934 CRL.A.No. 296 of 2012 (B) ------------------------[AGAINST THE JUDGMENT DTD.17.9.2011 IN SC.249/2007 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA] APPELLANT(S): ------------ VINOD,S/O.NARAYANAN @ KUNJAN,C.NO.9895,CENTRAL PRISON,KANNUR BY ADV. SRI.S.KANNAN (STATE BREIF) RESPONDENT(S): -------------- STATE OF KERALA BY PUBLIC PROSECUTOR SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.A.No. 296 of 2012** **----------------------------------------** Dated this the 13[th] day of September, 2012 ## **JUDGMENT** The above appeal is preferred from jail by the sole accused in S.C.No.249 of 2007 of the court of Additional Sessions Judge (ADHOC)-II, Kalpetta challenging his conviction and sentence for the offences under Sections 8(1) and (2) of the Abkari Act (for short 'the Act'). 2. The prosecution case is that on 1.1.2007 at about 2.15 p.m., the accused was found in possession of and transporting 5 litres of arrack in MO1 can and thereby, he had committed the offences punishable under Sections 8(1) and (2) of the Act. On the basis of the above allegation, Crime No.1/2007 was registered in the Kalpetta Excise Range and on completing the investigation, a report was filed in the court of the Chief Judicial Magistrate, Kalpetta wherein the same was accepted and instituted C.P.No.66 of 2007. Subsequently, the learned Magistrate committed the case Crl.ANo.296 of 2012 :-2-: by his proceedings dated 25.9.2007 in C.P.No.66 of 2007 and accordingly, S.C.No.249 of 2007 was instituted in the trial court. When the accused appeared, after hearing the prosecution as well as the defence, a formal charge was framed against the accused for the offences punishable under Sections 8(1) and (2) of the Act and when the same was read over to him, he denied the charge and pleaded not guilty and consequently, the prosecution adduced its evidence by examining Pws.1 to 4 and produced Exts.P1 to P7 documents. MO1 jerry can was also identified and marked. The trial court finally found that the prosecution has proved, beyond reasonable doubt, the guilt of the accused for the offences punishable under Sections 8(1) and (2) of the Act and accordingly, he is found guilty and convicted thereunder. On such conviction, he is sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.1 lakh and in default, to undergo imprisonment for six months more. It is the Crl.ANo.296 of 2012 :-3-: above finding, order of conviction and sentence challenged in this appeal. 3. As the appeal was preferred from the jail, as ordered by this Court, the Registry has appointed State Brief Sri.S.Kannan to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Adv.Sri.S.Kannan and Smt.S.Hyma, learned Public Prosecutor for the State. 4. To substantiate the prosecution allegation, the prosecution has adduced evidence of Pws.1 to 4 and also certain documentary evidence. Among the four prosecution witnesses, PW3 alone is the independent witness, but he turned hostile towards the prosecution. PW4 is the investigating officer. To buttress the main case of the prosecution, it heavily depends upon the evidence of Pws.1 and 2 since PW1 is the officer, who detected the crime and PW2 is the officer, who accompanied PW1 at the time of the seizure and arrest of the accused. When Pws.1 Crl.ANo.296 of 2012 :-4-: and 2 were examined, they have deposed in terms of the prosecution allegation. According to Pws.1 and 2, while they were on patrol duty on 1.1.2007 and while they were proceeding through Nathamkuni-Malayachamkolly road, they found a road deviating to Eyyampara 15 metres away from the said road junction and they saw the accused coming from the opposite direction with a jerry can in his hand. According to Pws.1 and 2, on seeing them, the accused was found perplexed and attempted to escape from the spot. Therefore, according to Pws.1 and 2, the above conduct of the accused generated doubt in their minds and consequently, they approached the accused in the presence of independent witnesses and apprehended the accused along with the jerry can. According to Pws.1 and 2, on inspection of the jerry can, it was found in black colour, and the same was fully filled up with liquid, which on tasting and smelling, identified as arrack. Thus, according to Pws.1 and 2, after appraising the accused of Crl.ANo.296 of 2012 :-5-: the offence that he had committed, he was arrested by preparing Ext.P1 arrest memo from the place of occurrence. PWs.1 and 2 have also deposed with respect to the steps taken by them towards drawing of the samples and the seizure of the contraband articles. Pws.1 and 2 have unanimously deposed regarding the preparation of Ext.P2 seizure mahazar connected with the proceedings adopted by them for the arrest of the accused, seizure of the contraband article and drawing of samples. 5. PW4 is another official witness who undertook the investigation. When PW4 was examined, he had deposed about the receipt of the accused, the contraband article and samples and other connected documents and thus, according to him, he had prepared Ext.P3 crime and occurrence report, Ext.P4 property list, Ext.P5 forwarding note and Ext.P6 scene mahazar. Ext.P7 chemical analysis report was also marked through PW4. When PW4 was examined, he had also deposed about the steps taken by Crl.ANo.296 of 2012 :-6-: him towards the investigation including the preparation of Ext.P6 scene mahazar and also questioning the witnesses etc. 6. As I indicated earlier, the sole independent witness cited and examined by the prosecution i.e., PW3 turned hostile towards the prosecution. But, he had admitted his signature in Ext.P2 seizure mahazar. These are the main evidence and materials referred to by the learned Judge in the impugned judgment in support of his finding and for convicting the appellant. 7. Sri.S.Kannan, learned counsel for the appellant vehemently submitted that the findings of the court below and the conviction and sentence imposed against the appellant/accused are not legal and factually sustainable and therefore, liable to be interfered with. In support of the above contention, it is pointed out that the trial court is wrong in accepting and acting upon the evidence of official witnesses and there is no independent ## Crl.ANo.296 of 2012 :-7-: evidence to corroborate the evidence of those official witnesses, since, according to the counsel, PW3, the independent witness in the present case, turned hostile. It is also the contention of the counsel that there is serious contradiction between the evidence of Pws.1 and 2 and the prosecution's documents i.e., Exts.P1 and P2 and hence, the same are not believable since the same are against the evidence of the loyal witnesses of the prosecution i.e., Pws.1 and 2. It is contended on the strength of the decision of this court reported in **Sivadasan** v. **State of Kerala** [2007(3) KLJ 328] that the learned Judge failed to properly question the accused under Section 313 of the Cr.P.C. with specific reference to Ext.P7 chemical analysis report, and such failure caused great prejudice to the accused and therefore, the appellant is entitled to get an acquittal on that count. Because of the contradiction in the evidence between Pws.1 and 2 and the documents relied on by the prosecution, the counsel submitted that the prosecution has Crl.ANo.296 of 2012 :-8-: miserably failed to prove its allegation against the appellant beyond reasonable doubt and therefore, the trial court is wrong in convicting the appellant. Hence, the learned counsel submitted that the appellant is entitled to get a clear acquittal. 8. On the other hand, the learned Public Prosecutor submitted that when PW1 was examined, he had deposed before the court that Ext.P1 arrest memo was served on the mother of the accused after his arrival in the Excise Range Office on completing the proceedings including the arrest of the accused and seizure of the article and the preparation of Ext.P2 seizure mahazar. Therefore, according to the learned Public Prosecutor, even though in Ext.P2, it is stated that the arrest memo was served on the mother of the accused, that is not a ground to disbelieve the case of the prosecution, especially when the prosecution evidence and materials in all respects are intact. Therefore, the learned Public Prosecutor submitted that the trial court is fully correct and Crl.ANo.296 of 2012 :-9-: justified in its finding and no interference is warranted. 9. I have carefully considered the arguments advanced by the counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court and also the evidence and materials on record. 10. In the light of the contentions advanced from both sides, the question that emerges for consideration is whether the trial court is justified in its finding and convicting the appellant for the offence punishable under Sections 8(1) and (2) of the Act. 11. The prosecution case is that the accused was found in possession of 5 litres of arrack at about 2.15 pm on 1.1.2007. As I indicated earlier to prove its allegation, the prosecution mainly depends upon the evidence of Pws.1 and 2, who are involved in the alleged detection of the crime. I have already referred to the evidence of Pws.1 and 2. But in the evidence of PW2, as rightly pointed out by the learned counsel for the appellant, during his Crl.ANo.296 of 2012 :-10-: ## cross-examination in the following words:- “Arrest Notice നടത�ന പ��യ സമയ� ഞ�ന ആ jeep-ല പ��യ�ര�ന�. Notice (7[th] page) 1-ം� സ�ക� നടത�. മഹസര�ഴ�ത�കഴ�ഞ�ണ" Arrest അറ�യ�ക�ന പ��യത" . മഹസര �ഴ�ത�ന സമയ� പ�ത�യ�ടട അമടയ Arrest അറ�യ�ച�ട�ല മഹസര �ഴ�ത�ന സമയ� Arrest അറ�യ�ച� �ന" �റഞ�ല ശര�യല.” He had also stated that the house of the accused is situated about ¾ Kms, away from the place of occurrence. It is also relevant to note that during the cross-examination of PW2, the defence has brought up the omission that contained in the 161 statement of PW2 with respect to the sampling and sealing etc. But, no explanation is given by PW2. In Ext.P2 seizure mahazar, on the second page of the same, it is recorded by PW1 that 'പ�ത�യ�ടട അറസ"-�-ര� പന�ട.സ" മ�പ/ന ട�യ�ട0 അമടയ അറ�യ�ച�.' The above endorsement in Ext.P2 seizure mahazar is in conflict with the deposition of PW2. If that be so, according to me, no legal sanctity can be attached to Ext.P2 since the claim of Pws.1 and 2 Crl.ANo.296 of 2012 **==> picture [28 x 9] intentionally omitted <==** is that Ext.P2 was prepared at the spot itself. Though PW1, as pointed out by the learned Public Prosecutor, gave an explanation, the time at which arrest intimation was given to the mother of the accused, that can be treated only as a lame excuse to circumvent the situation. Suffice to say, no arrest intimation is produced and marked by the prosecution in this case. The above contradiction between the evidence of Pws.1 and 2, especially Ext.P2 contemporary document shows that the arrest intimation was given to the mother of the accused and hence, the same goes against the root of the prosecution case. The entire prosecution case cannot be believed unless there is corroboration from the evidence of some independent witnesses. In the present case, as I indicated earlier, the only independent witness examined by the prosecution turned hostile and therefore, the contradictory evidence of Pws.1 and 2 and the unbelievable document Ext.P2 remain as such and there is no guarantee for the prosecution case Crl.ANo.296 of 2012 :-12-: that the accused was found in possession of the contraband article at the place of occurrence as claimed by them on 1.1.2007. Thus, I am of the view that it is unsafe to convict the appellant on the basis of the above unbelievable and unacceptable evidence of prosecution. Hence, according to me, it cannot be said that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt. 12. In the light of the above discussion and the evidence and materials referred to above, I am of the view that the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt and therefore, the appellant is entitled to get the benefit of doubt. Consequently, I am unable to confirm the conviction recorded by the trial court against the accused and thus, the same is set aside. In the result, this appeal is allowed setting aside the judgment dated 17.9.2011 in Sessions Case No.249/2007 of the Crl.ANo.296 of 2012 **==> picture [28 x 9] intentionally omitted <==** Court of Additional Sessions Judge (ADHOC) II, Kalpetta and the appellant/accused is acquitted of all the charges levelled against him. As the conviction and sentence awarded against the appellant is set aside and he is acquitted of all the charges levelled against him, he is entitled to get release from jail, forthwith, if he is not required in any other case. Therefore, the Registry is directed to send a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. The Criminal appeal is allowed accordingly. **V.K.MOHANAN, Judge** MBS/ Crl.ANo.296 of 2012 :-14-: **V.K.MOHANAN, J** . CRL.A.No. OF 2003 **JUDGMENT** Crl.ANo.296 of 2012 :-15-: Dated:.2012 **V.K.MOHANAN,** Crl.ANo.296 of 2012 :-16-: **Judge** MBS/ Crl.ANo.296 of 2012 :-17-: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No. 1796 of 2011** **----------------------------------------** Dated this the 22[nd] day of August, 2012 ## GIST OF JUDGMENT Regarding the sentence, learned counsel for the appellant submitted that the same is exorbitant and illegal and a lenient view may be taken in the matter. It is also the submission of the learned counsel that the mother of appellant is undergoing mental treatment and there are no other persons to attend her. I have carefully considered the submissions of the learned counsel for the appellant. It is true that a huge quantity of spirit is involved in the present case, but the prosecution has no Crl.ANo.296 of 2012 **==> picture [28 x 9] intentionally omitted <==** case that he is a habitual offender or he had been involved in similar offence previously. It is also relevant to note that the appellant is a young man aged 28 years and he is unmarried also. It is also beyond dispute that the mother of the appellant is a mental patient. It is relevant to note that from the date of his arrest, i.e., on the date of occurrence on 11.12.2009 onwards, the appellant is under custody. Considering all the facts indicated above and the mitigating circumstances pointed out, I am of the view that the substantial sentence can be reduced from four years to two years and while confirming the sentence of fine, the default sentence can be reduced into six months. Accordingly, in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for two years and also sentenced to pay fine of `1 lakh and in default of payment of fine, he is directed to undergo rigorous imprisonment for six months under Section 55(a) of the Abkari Act and he is Crl.ANo.296 of 2012 :-19-: entitled to get set off under Section 428 of the Cr.P.C. In the result, this appeal is dismissed confirming the conviction of the appellant under Section 55(a) of the Abkari Act, but subject to modification with respect to the sentence to the extent indicated above. In the light of the above modification with respect to the sentence, the appellant is entitled to get release from the jail forthwith if he is not required in any other case since he is undergoing imprisonment right from 11.12.2009 and he is granted benefit under Section 428 of Cr.P.C. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Viyyur. ## **V.K.MOHANAN, Judge** MBS/ ## Crl.ANo.296 of 2012 :-20-: Crl.ANo.296 of 2012 :-21-: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A.No.1398 of 2011** **----------------------------------------** Dated this the 17[th] day of August, 2012 ## GIST OF JUDGMENT In the result,this appeal is allowed setting aside the judgment dated 27.7.2011in S.C.No.222 of 2006 in the court of Additional Sessions Judge (Fast Track Court-II- ADHOC), Thrissur and the appellant/accused are acquitted of all the charges levelled against them. Though the appellants, on previous occasion, approached this Court to suspend the execution of sentence imposed against them, the said request was rejected by this Court Crl.ANo.296 of 2012 :-22-: by order dated 9.8.2011 in Crl.M.A.No.6954 of 2011 in this appeal . It is also relevant to note that against the above order, the first appellant has approached the Honourable Apex Court and by order dated 11.10.2011, the petition for Special Leave to Appeal (Crl) No.7134 of 2011 was dismissed subject to observation contained therein. It was in the above circumstances, the above appeal is heard out of turn and disposed of. In the light of the above order of acquittal, the second appellant/the second accused is set at liberty and the bail bond, if any, executed by him will stand cancelled and the first appellant, who is undergoing imprisonment in pursuance of the judgment impugned in this appeal, is entitled to get released from the jail forthwith if he is not required in any other case. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Viyyur for appropriate action. Crl.ANo.296 of 2012 :-23-: **V.K.MOHANAN, Judge** MBS/ Crl.ANo.296 of 2012 :-24-: **V.K.MOHANAN, J. ---------------------------------------Crl.A.No.1326 of 2011** **----------------------------------------** Dated this the 8[th] day of August, 2012 ## GIST OF JUDGMENT Learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence since there is nobody to look after his family. From the available materials, it appears that the appellant was at the age of 30 when the alleged incident has taken place and thereafter, seven years are over. From the judgment of the trial court, it appears that his plea was to the effect that he is the only person to look after his family. The offence now proved against the accused is a very serious one and Crl.ANo.296 of 2012 **==> picture [28 x 9] intentionally omitted <==** it is also beyond dispute that the appellant has been involved in similar offence on previous occasion. Having regard to the facts and circumstances involved in the case and in the light of the above mitigating circumstances, according to me, two years rigorous imprisonment will be sufficient to meet the ends of justice. While retaining the sentence of fine, the default sentence can be reduced into six months rigorous imprisonment. Thus, accordingly, while confirming the conviction of the appellant under Section 8(2) of the Abkari Act, the accused is sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1 lakh and in default, he is directed to undergo rigorous imprisonment for six months. Set off is allowed under Section 428 of the Cr.P.C. In the result, this Criminal Appeal is dismissed confirming the conviction of the appellant under Section 8(2) of the Abkari Act, but subject to modification with respect to the Crl.ANo.296 of 2012 :-26-: sentence to the extent indicated above. In the light of the modification with respect to the sentence, as indicated above, according to me, the appellant is entitled to get released from jail if he is not required in any other case and therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Central Prison, Kannur for appropriate action. **V.K.MOHANAN, Judge** MBS/ Crl.ANo.296 of 2012 :-27-: In the light of the above finding, while sustaining the conviction of the son of the revision petitioner as ordered by the Sessions Court, Kollam, the sentence awarded against the son of the revision petitioner, who is the second accused in the above sessions case, is quashed and there will be a direction to the Superintendent, Crl.R.P.No.1837 of 2010 :-2-: Central Prison, Thiruvananthapuram to release the son of the Crl.ANo.296 of 2012 :-28-: revision petitioner, who is the second accused in S.C.No.97/1988 forthwith, if he is not required in any other case. In the result, this Criminal Revision Petition is allowed. The Registry is directed to forward a copy of the gist of order to the Central Prison, Thiruvananthapuram forthwith. **V.K.MOHANAN, Judge.** MBS/ Crl.ANo.296 of 2012 :-29-: **V.K.Mohanan, Judge** MBS/ **V.K.MOHANAN, J.** -------------------------------------------- Crl.ANo.296 of 2012 **==> picture [28 x 9] intentionally omitted <==** In the result, this appeal is allowed setting aside the judgment dated 28.10.2008 in Sessions Case No.107/07 of the Court of Sessions Judge, Kottayam Division and the appellant/accused is acquitted of all the charges levelled against him. As the conviction and sentence awarded against the appellant is set aside and he is acquitted of all the charges levelled against him, he is entitled to get release from jail, forthwith, if he is not required in any other case. The Criminal appeal is allowed accordingly. Crl.A.NO. OF 200 ------------------------------------ **==> picture [186 x 17] intentionally omitted <==** Crl.ANo.296 of 2012 :-31-: DATED: -2-2010 ## Crl.ANo.296 of 2012 :-32-: