Vinod v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 23RD DAY OF OCTOBER 2020 / 1ST KARTHIKA, 1942** **CRL.A.No.2437 OF 2007** **AGAINST THE JUDGMENT IN S.C.No. 139/2006 DATED 27-11-2007 OF THE ADDITIONAL SESSIONS COURT, THRISSUR** ## **APPELLANT/ACCUSED:** **VINOD, S/O. PUSHPAKARAN, AGED 25 YEARS KOTTAYIL HOUSE, THEKKUMKARA VILLAGE, DESAM, THALAPPILLY TALUK.** **BY ADVS. SRI.V.JOHN SEBASTIAN RALPH DR.ELIZABETH VARKEY SMT.PREETHY KARUNAKARAN SRI.K.J.SAJI ISAAC** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. D. CHANDRASEKHAR, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2020, THE COURT ON 23-10-2020 DELIVERED THE FOLLOWING:** Crl.A.No.2437 OF 2007 2 ## **JUDGMENT** This appeal is preferred under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as 'the Code', challenging the correctness of the judgment of the Additional Sessions Court, Thrissur dated 27.11.2007 in Sessions Case No.139/2006. That case had arisen from the final report laid by the Excise Inspector, Wadakkanchery in Crime No.7/2004 of Wadakkanchery Excise Range. The precise allegation against the appellant is that on 05.02.2004 at 6.P.M., while the Excise Inspector and party were conducting patrol duty through the Harijan colony road in Thekkumkara village in Talappilly taluk, when they were moving from east to west, a person was found emerging to the road from the northern bylane carrying a 10 litre can; seeing the Excise party he ran towards north, after abandoning the can on the road. Even though two Excise officials had chased him, he could not be apprehended. When the can was opened in the presence of independent witnesses, it contained about 8 litres of liquid which was tested in the presence of witnesses and found to be illicit arrack. Thus the contraband was seized under a mahazar, the party returned to the Crl.A.No.2437 OF 2007 3 office and registered Crime No.7/2004 of Excise Range, Wadakkanchery. After investigation, the charge sheet was laid before the Judicial First Class Magistrate Court, Wadakkanchery where the case was taken on file as C.P. No. 84/2005. The learned Magistrate after completing the procedural formalities, committed the case to the Sessions Court, Thrissur from where the case was made over to the trial court. 2. It is stated that the accused was later arrested and then released on bail. When appeared pursuant to the summons before the trial court, after hearing counsel on both sides, the charge was framed, read over and explained, he pleaded not guilty. He was being defended by a counsel of his choice. 3. The prosecution examined six witnesses to prove the allegations. Exts.P1 to P9 were also marked. After closing the evidence, when questioned under Section 313(1)(b) of the Code, the appellant denied the incriminating materials tendered against him. He maintained that he has no connection whatsoever with the contraband. As the learned Judge found it not a fit case to give an acquittal under Section 232 of the Code, he was called upon to enter on his evidence in defence. But there was no oral Crl.A.No.2437 OF 2007 4 evidence for him. A document produced by the prosecution as a sketch by mistake was marked as Ext.D1 for the defence. After hearing counsel on both sides, repelling the plea of innocence, the learned Additional Sessions Judge found the appellant guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for three years and to pay fine of Rs.1,00,000/-, in default to undergo simple imprisonment for one more year. That conviction and sentence are the subject matter of this appeal. 4. I heard counsel on both sides. The learned counsel for the appellant submitted that the prosecution has failed in proving the identity of the culprit. The appellant had definitely pleaded that he has no connection with the contraband. He was not arrested from the spot. There is no material on record to show that the officials had previous acquaintance with the appellant. There is also no record to show that the appellant was identified as the culprit, during the course of investigation. Therefore, the alleged identification made before the Court for the first time is illegal and cannot be acted upon. He also relied on the decisions reported in **Rameshwar Singh v. State of** Crl.A.No.2437 OF 2007 5 **Jammu and Kashmir [(1971) 2 SCC 715]** , **State of Maharashtra and Others v. Sukhdeo Singh and Others [(1992) 3 SCC 700]** and **Vadi Velu and Others v. State of Kerala [ILR 2016(1) Kerala 361]** . Secondly, the counsel urged that the Ext.P8 report of the chemical examiner cannot be acted upon since there is no definite finding that it is arrack. Mere marking of the document cannot serve the purpose. Referring to Section 3(6A) of the Abkari Act, he argued that it may be either Indian made spirit or foreign liquor for which there was no charge from the Court. Since there is no definite finding by the trial court, conviction under Section 8(2) cannot sustain. He also pointed out that even though the chemical examination report was marked through the investigating officer, his opinion has not been sought. 5. I heard the learned Public Prosecutor also. The incident had happened on 05.02.2004 at 6.P.M., while the Excise Inspector and party were engaged in routine patrol duty. PW1 Excise Inspector and PW2 Excise Guard have fully supported the prosecution case, whereas the evidence of PW3, independent witness shows that he had signed Ext.P1 mahazar at the spot, in Crl.A.No.2437 OF 2007 6 the presence of Excise officials. Evidence tendered by PWs 1 and 2 suggest that the place of occurrence is on the Harijan colony road in Thekkumkara village in Talappilly taluk. That day while the Excise Inspector and party were moving in the official vehicle from east to west, the appellant emerged from the northern bylane to the road in front of them, carrying a 10 litre jerry can containing some liquid. It is the allegation that seeing the Excise party he made a quick retreat towards north itself, abandoning the can carried by him, though two Excise Guards had chased him, that was in vain. PW1 stood guard to the abandoned can; when it was opened and the content was tested it was found out to be illicit arrack and thus under the Ext.P1 mahazar, the item was seized in the presence of independent witnesses and the case was originated. After gathering the name and address of the person who had abandoned the item, his name was incorporated in the mahazar itself. Ext.P2 occurrence report also contains the name. Both PWs 1 and 2 have stated that they had seen the appellant abandoning and running away from the place, seeing the Excise party. The sample collected from the item was sent for chemical Crl.A.No.2437 OF 2007 7 examination report and it contained 48.61% by volume of ethyl alcohol. Ext.P8 report was marked through the Investigating Officer. 6. The learned counsel pointed out that there is no definite finding by the Court that it is arrack. But two aspects cannot be ignored in this context. Firstly, it is a report given under Section 293 of the Code. When it was marked, nothing was asked in cross examination regarding the finding noted in Ext.P8. In the circumstance, there is no point in arguing that there is no definite opinion by the Court regarding the finding arrived at under Section 8(2) of the Abkari Act. It is also noticeable that such a contention has not been incorporated among the grounds in the memorandum of appeal. Therefore, I do not find any weight in this argument. 7. At the same time, the contention with regard to the identity of the culprit is really grave. It is the definite case of the appellant, put up through ground B that the appellant was not identified as the culprit, he was seen by PWs 1 and 2 for the first time before the Court which affects the prosecution case. Of course PWs 1 and 2 have stated in a passive manner that it Crl.A.No.2437 OF 2007 8 was the appellant who had abandoned the material object at the place and ran away, seeing the Excise party. But there is absolutely no material to show that both Pws 1 and 2 have any previous acquaintance with him. It is the admitted position that he was not arrested from the place and seeing the Excise party he had run away towards north and could not be caught. He was arrested on a subsequent occasion; materials are wanting as to when the arrest was done, who had effected the arrest, how long he was in custody etc. Anyhow, there is no material at all to say that the investigating officer had shown the appellant to the material witnesses and got them identified as the person who had possessed and abandoned the material object and ran away from the place. This is a serious matter which goes to the very root of the case. What is material is the identification made by witnesses before the Court which alone is the substantive evidence. Even though the name of the appellant finds place in the Ext.P1 mahazar, Ext.P2 occurrence report etc., as indicated earlier, there is no material to say that the Excise Inspector or party had any previous acquaintance with him. He was not shown or got identified during the course of investigation. That Crl.A.No.2437 OF 2007 9 means, he was identified for the first time before the Court, during trial. As rightly pointed out by the learned counsel for the appellant, the alleged statement of the witnesses that it was he who had run away from the place does not provide substantive evidence proving the identity of culprit. Identifying the culprit for the first time before the Court is not valid, especially when there is no previous acquaintance between the witnesses and the culprit. Thus there is a clear identity crisis in the case. 8. In that view of the matter, the prosecution could not prove the guilt of the appellant beyond doubt. He is entitled to be acquitted, granting benefit under doubt. In the result, in reversal of the finding of guilt, the appellant is found not guilty and acquitted under Section 386(b) (i) of the Code. He shall be set at liberty, cancelling the bail bond. Fine amount, if any, realised shall be refunded. **SD/-** ## **K.HARIPAL** **JUDGE** **DCS/22.10.2020**