Yesudas s/o Joseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.401 OF 2008** **AGAINST THE JUDGMENT IN SC 404/2006 DATED 28-01-2008 OF IVADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** **YESUDAS S/O.JOSEPH, PUTHENVEETTIL HOUSE, AYYAPPANCOIL VILLAGE, CHAPPATHU KARA,, K.PUTHUVAL.** **BY ADVS. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **SUB INSPECTOR OF POLICE, UPPUTHARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. D. CHANDRASENAN (SR.PP)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 02-12-2020 DELIVERED THE FOLLOWING:** Crl.A.401/2008 :2: ## **JUDGMENT** This is an appeal preferred under Section 374(2) of the Criminal Procedure Code, hereinafter referred to as 'the Cr.P.C', challenging the correctness of the judgment of the IV Additional Sessions Judge (Ad hoc)-II, Thodupuzha in SC No.404/2006. By the judgment dated 28[th] January, 2008, the accused stands convicted for offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh, in default to undergo rigorous imprisonment for three months. 2. The case had arisen from the charge sheet laid by the Sub Inspector of police, Upputhara in Crime No.115/2003 of that police station. The precise allegation against the accused/appellant was that on 21.08.2003 at 8.20 p.m. he was found on the walkway situated through the boundary of the Pookkulam division of Rohit tea estate leading to Panthrant Puthuval area, in Chappathu kara in Ayyappankoil village. According to the prosecution, that day, the Crl.A.401/2008 :3: Sub Inspector and party found the appellant engaged in the sale of arrack. He was intercepted and found possessing 1½ litres of arrack with him about 30 metres north east of his house. He was arrested in the presence of independent witnesses and Crime No.115/2003 was registered. After completion of the investigation, the charge sheet was laid before the Judicial First Class Magistrate, Kattappana, where the case was taken on file as C.P.31/2006. After serving copies of records and also completing other formalities, the learned Magistrate committed the case to the Sessions Court under Section 209 Cr.P.C. The Sessions Judge took the case on file as S.C.404/2006 and thereafter made over to the trial court for trial. 3. After hearing counsel on both sides and perusing the records, the learned Additional Sessions Judge, framed charge alleging offence under Sections 55(i) and 8(2) of the Abkari Act, read over and explained to the appellant, to which he pleaded not guilty. He was on bail. He was defended by a counsel engaged by him. 4. Three witnesses were examined on the side of the Crl.A.401/2008 :4: prosecution as PWs 1 to 3. Exts.P1 to P6 were also marked. On completion of investigation, when questioned under Section 313(1) (b) Cr.P.C., he denied all the material evidence spoken and rendered against him. As this was not a fit case for acquittal under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence. Thereafter one witness was examined as DW1. After hearing counsel on both sides, repelling the plea of innocence, the learned Additional Sessions Judge found him guilty of offence punishable under Section 8(2) of the Abkari Act and sentenced as aforestated. That finding is the subject matter of this appeal. 5. I heard the learned counsel for the appellant and also the learned senior Public Prosecutor. Trial court records were perused. 6. According to the learned counsel, the conviction and sentences imposed on the appellant cannot be sustained in law. He pointed out that though the incident had happened on 21.08.2003, the material objects were produced before court only on 23.08.2003, but there is no explanation either for the delay or for retaining the material objects in the police station. It is also not stated whether the Crl.A.401/2008 :5: items were in the safe custody or were kept properly secured. Secondly, he said that there is only the solitary evidence of PW3 which is not convincing, and that, in the absence of other circumstances and corroborative piece of evidence, the appellant ought not to have been convicted. He also pointed out that there is a defect in the charge in the sense that, going by the court charge, the incident had happened on 21.08.2007, whereas the records do indicate that it was on 21.08.2003. The counsel also said that the sentence imposed is exorbitant and, if at all the court finds that the conviction is sustainable, sentence may be reduced. 7. PW1 Ramanan and PW2 T.K.Rameshan are the independent occurrence witnesses. Even though both of them admitted having signed the Ext.P1 seizure mahazar, denied having witnessed the occurrence. According to them, they signed the document on the following morning while they were taking tea in the nearby teashop. Both of them were declared hostile to the prosecution and were cross-examined by the Public Prosecutor. 8. PW3 T.K. Dinesan is the then Sub Inspector who Crl.A.401/2008 :6: detected the offence, investigated the matter and laid the charge sheet before the court. According to the learned counsel, this witness should not be placed implicit reliance since he is the only person who supported the prosecution case and from the testimony of PWs 1 and 2 as also DW1, it is clear that the accused was taken into custody from his residence. DW1 Kunjukutty is a neighbour who claims to be the president of the colony residents and, according to him, that day, when the Sub Inspector and party had reached the house of the appellant and tried to remove him from his house, his mother approached him and told him about the incident. According to the learned counsel, both PWs 1 and 2 and DW1 have spoken uniformly about what had actually happened and that would go against the version given by the prosecution. He pleaded that there is no hazard in relying on the testimony of PWs 1 and 2 and DW1, which would go in tune with the version given by the defence. 9. PW3 the Sub Inspector has given a version supporting the prosecution case. He proved Exts.P2 to P6 documents and identified MO1 series material objects allegedly seized from the Crl.A.401/2008 :7: possession of the appellant. According to him, he had proceeded to the place of occurrence on getting reliable information about the illegal activities of the appellant. The appellant had criminal antecedents of this nature to his credit; they had stopped the vehicle at some distance and proceeded to the place of occurrence by foot and, in the light of the torch carried by him, he found the appellant remaining on the bye-lane, carrying a can with a glass, which are marked as MOs 1 and 2 respectively, and seeing identifying by the police, he tried to drift away from the place; but he was intercepted and the MOs were seized from his possession. The contrabands were seized under Ext.P1 mahazar; the appellant was arrested under the Ext.P2 arrest memo and then he went back to the police station along with the appellant and the contrabands and registered the crime. He produced the MOs before court along with the forwarding note; also proved the chemical examination report, which is marked as Ext.P6, conducted investigation and laid the charge sheet. Even though the learned counsel said that PW3 himself, who is the detecting officer, conducted the investigation is Crl.A.401/2008 :8: bad in law, in the recent decision of the Hon'ble Supreme Court in **Mukesh Singh v. State (Narcotic Branch of Delhi) [2020 (5) KHC 1 (SC)]** it is held that there is no statutory prohibition in the detecting officer or the informant himself conducting investigation and laying the charge sheet. That will become fatal only if it is proved that bias or prejudice is caused to the appellant. Here, the appellant could not make out any bias or prejudice. Therefore, such an argument of the learned counsel cannot be upheld. The other statement is that the charge framed against the appellant is erroneous. For the mere reason that there is some mistake in the date shown in the court charge, the entire case cannot be thrown overboard. 10. In my assessment, the other two arguments raised by the learned counsel for the appellant cannot be overlooked. The first argument that there is delay in producing the material objects which is not explained, has substance. It is true that there is only two days' delay in producing the material objects before the court. The incident had occurred on 21.08.2003, whereas the items were Crl.A.401/2008 :9: produced before court on 23.08.2003. In normal circumstance, this delay cannot be highlighted at all. But it is the statutory mandate that the material objects shall be produced before court without undue delay. All the same, the prosecution must be able to explain the delay. In the nature of the case, the material object is sacrosanct and its importance and early production cannot be under-estimated. Immediately after seizure of the same, the Investigating Officer is expected to produce it before court. That has not been done. Even though the delay is only for two days, the investigating agency is expected to say that during the period it was kept under the safe custody of a responsible officer or the investigating officer, properly secured. Here no explanation is forthcoming. That is a very important lacuna found on the part of the prosecution. 11. The argument of the learned counsel that the solitary evidence of PW3 cannot be relied upon also has force. Generally speaking, there is no hazard in relying upon the solitary evidence of a witness. But it must be convincing and satisfactory to satisfy the conscience of the court. Here, the said solitary testimony is that of Crl.A.401/2008 :10: the police officer who himself detected the offence, conducted investigation and laid the charge sheet. Therefore, on the face of it, it cannot be thought that he has no interest in the matter. Moreover, there is a statutory distrust against a police officer, in believing his solitary eye witness. That is why there is a statutory taboo reflected under Section 25 of the Evidence Act in relying on a confession statement given to a police officer. This aspect has to be weighed while reading the evidence of a police officer also. The witness list appended to the charge sheet indicates that there were four other police officers who had accompanied PW3. But none of them was examined. Even though there is no difficulty in proceeding against an offender on the uncorroborated evidence of a solitary witness, if his testimony is trustworthy, here, it is not the case that no other witness was available for the prosecution. The prosecution has cited four other witnesses, but none of them was examined and the reason for their non-examination is not known. If one or two police officers, who had accompanied PW3, were also examined, the defence would have been able to drive wedge in their case. In that Crl.A.401/2008 :11: case the prosecution also could say that the testimony of these witnesses stand corroborated with that of PW3. But such an opportunity has been missed by the prosecution. 12. It is stated that there are three types of witnesses. One is wholly reliable, the other is wholly unreliable and the third type is neither wholly reliable nor wholly unreliable. We can put PW3 in the third category. In such type of cases, the testimony needs to be corroborated through other sources. Here, even though other witnesses were cited by the prosecution, they were not examined and thus the court could not weigh the evidence tendered by PW3 through the touch stone of corroboration. In that view of the matter, I feel that it was not at all safe on the side of the prosecution to proceed against the appellant. This vital aspect should have been considered by the learned Additional Sessions Judge when he proceeded to convict the appellant. 13. On an overall assessment of the evidence, this Court feels that it is not in the fitness of things to proceed against the appellant, especially when the incident had happened in the odd Crl.A.401/2008 :12: hours, without corroborative pieces of materials. In my reading, even though evidence tendered by PWs 1, 2 and DW1 cannot be taken as gospel truth, the oral testimony of PW3 alone should not have been acted upon to convict the appellant. 14. To sum up, for the aforestated two reasons, the appellant ought not to have been convicted. He is entitled to get the benefit of doubt and, therefore, in reversal of the finding of guilt, he is found not guilty and acquitted under Section 386(b)(i) of the Cr.P.C. His bail bond shall stand cancelled. Fine amount, if any, realised shall be refunded. Appeal is allowed as above. Sd/- **K.HARIPAL JUDGE** okb/28.11.2020 //True copy// P.S. to Judge