IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 CRL.A.No. 2292 of 2009() -------------------------------------- SC.84/2009 of ADDL. SESSIONS COURT (FAST TRACK-1), KOZHIKODE ...................................... APPELLANT(S): ---------------------- MURALEEDHARAN, S/O. KANNAN NAIR, C.NO. 7770, CENTRAL PRISON, KANNUR. BY ADV. SRI.AJITHKUMAR.D.(STATE BRIEF) RESPONDENT(S): -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. K. HEMA, J ---------------------- Crl.Appeal.No.2292 OF 2009 ----------------------------------- Dated this the 10th day of November, 2010 J U D G M E N T This appeal arises from the conviction and sentence passed by additional Sessions Court against appellant u/s.8 (1) and (2) of Abkari Act to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for a further period of six months. Set off was also allowed. 2. According to prosecution, on 8.11.2008 at about 1pm while PW1, the preventive officer and party were proceeding on patrol duty, the accused was found in possession and transporting 10 litres of arrack in a black can. He was arrested from he spot and articles were seized from his possession under Ext.P2 Mahazar. A case was registered as Ext.P3. After investigation the Excise Inspector filed final report. 3. To prove prosecution case PW1 to 5 were examined and Ext.P1 to P7 and MO1 were marked. Accused did not adduce any evidence but only pleaded innocence. According to him, he was working in an Oil mill and he was asked to go to Excise Office. He Crl.A. No.2292/09 2 went there, while a false case was foisted against him. 4. The trial court, on an analysis of evidence in detail, found that prosecution succeeded in proving beyond reasonable doubt that appellant was in possession and transporting 10 litres of arrack in a can and he was convicted for offence u/s.8(1) of Abkari Act. 5. The appellant is undefended and the appeal was filed from jail. Hence, Sri. D. Ajith Kumar was appointed as State Brief. 6. Heard both sides. Learned counsel for appellant argued that there is delay in producing the article before the court. The incident happened on 8.11.2008, but the articles were produced only on 10.11.2008. So also, there is material contradiction between evidence of PW1 and PW2 official witnesses, regarding the manner in which, they proceeded to the spot. 7. PW1 stated that, they were walking, during patrolling, where as, PW2 stated that they went in a vehicle for patrolling. It is also argued that there is no evidence that articles were preserved safely, before those were produced in court. The independent witnesses were turned hostile and the evidence is too insufficient to convict the accused, it is submitted. Learned public prosecutor submitted that there is no reason to reject the evidence of official witnesses PW1 and 2 and there is evidence to Crl.A. No.2292/09 3 show that the articles were preserved. 8. On hearing both sides and on going through the records and impugned judgment, I do not find any reason to interfere with the conviction or sentence. PW1 and 2 are the official witnesses and the trial court has analysed their evidence in detail and believed their version. It is true that PW1 in chief examination stated that he was walking while patrolling, but in cross examination, he also stated that they had gone for patrolling in a vehicle. PW2 deposed that they have gone for patrol in a vehicle. So, it may be a case where they used vehicle for patrolling and at the place where the crime was detected, they would have walked also. Therefore, it cannot be said that there is any material contradiction, so as to discard their evidence as a whole. There is nothing on record to show that official witnesses are motivated against appellant to foist a false case against him. 9. A reading of evidence of PW1 itself show that contraband articles were kept in his custody, in his room, from 8.11.2008 till 10.11.1008. According to him, there was intervening second Saturday and Sunday and it is not correct to say that there was tampering. These facts are stated in the cross examination. 10. Another argument raised is that independent witness turned hostile and there is no satisfactory evidence before the Crl.A. No.2292/09 4 court to hold the accused guilty. On a reading of evidence of PW3 and 4, independent witness, it can be seen that both of them admitted their signature in Ext.P2. There is no cross examination on this aspect. The evidence of PW3 and 4 therefore corroborates the evidence of PW1 and 2, the officials to the extent that mahazar was prepared and it was signed by PW3 and 4. Any way there is no rule that there must be independent corroboration to believe the version of this official witnesses. This is not a case where there must be corroboration from independent source to act upon the evidence of official witnesses. 11. In the above circumstances, I find that conviction and sentence passed against appellant are only sustainable. Learned public prosecutor pointed out that he was an under trial prisoner for a period of eight months and he was convicted on 26.9.2009 and he would have already suffered the sentence in such circumstances, there is no ground to interfere with the sentence. This appeal is dismissed. K. HEMA, JUDGE. Sou.