IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 CRL.A.No. 1592 of 2003(A) ----------------------------------- (AGAINST THE JUDGMENT DTD.26.8.2003 IN SC.NO.144/2001 of ADDL.SESSIONS COURT, FAST TRACK (ADHOC-I), ALAPPUZHA) .................... APPELLANT(S)/ACCUSED: --------------------- JACOB, S/O.VINAMSI, ERESSERIVEEDU, THUMPOLY MURI, ARYAD THEKKU VILLAGE, AMBALAPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S)/COMPLAINANT: ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1592 of 2003 ---------------------------------------- Dated this the 28th day of September, 2011 J U D G M E N T This appeal is filed by the appellant/accused, who stands convicted and sentenced for the offence under Section 8 of the Abkari Act by the Additional Sessions Court, Fast Track (ADHOC-I), Alappuzha in S.C.No.144 of 2001, on the allegation that he was found in possession of 5 litres of illicit arrack at about 9 a.m. on 15.12.1999. It is the above conviction and sentence challenged in this appeal. 2. Based upon the above allegation, Ext.P4 crime and occurrence report was registered in the Excise Range, Alappuzha for the offence under Section 8 of the Abkari Act. On completing the investigation, a report was filed in the Judicial Magistrate of First Class Court-I, Alappuzha based upon which cognizance was taken for the said offence and instituted C.P.No.4 of 2001 and the learned Magistrate subsequently committed the case to the Sessions Court CRL.A.NO.1592 of 2003 :-2-: wherein the case is received and numbered as S.C.No.144 of 2001 and initially, the case was made over to the Principal Assistant Sessions Court, Alappuzha, but subsequently, the same was withdrawn and made over to the trial court for disposal. On the appearance of the accused, after hearing the prosecution as well as the defence, a formal charge was framed for the offence under Section 8 of the Abkari Act, which, when, read over and explained to the accused, he denied the same and pleaded not guilty. Consequently, the trial was further proceeded during which the prosecution adduced its evidence consisting of the testimonies of PWs.1 to 6 and the documentary evidence such as Exts.P1 to P6. MO1 can is also identified and marked as material object. No evidence, either oral or documentary, is adduced from the side of the defence. Towards the conclusion of the trial, the learned Judge of the trial court has found that the prosecution has proved the offence charged against the accused and accordingly, he is convicted under Section 8 of the Abkari Act and consequently, he is sentenced to undergo rigorous imprisonment for CRL.A.NO.1592 of 2003 :-3-: two years and also sentenced to pay fine of Rs.1 lakh, in default, he is directed to undergo rigorous imprisonment for a period of six months. Set off is allowed under Section 428 of the Cr.P.C. It is the above finding and order of conviction and sentence are challenged in this appeal. 3. I have heard Sri.S.Sanalkumar, learned counsel appearing for the appellant and Sri.P.A.Salim, learned Public Prosecutor. 4. The crux of the prosecution allegation is that the accused was found in possession of 5 litres of arrack at about 9 a.m. on 15.12.1999 and thereby, committed the offence under Section 8 of the Abkari Act. In order to substantiate the above allegation, the prosecution mainly depends upon the evidence of PW1, the Excise Inspector, who detected the crime and PW4, the Preventive Officer, who accompanied PW1 at the time of the seizure. Though PWs.2 and 3, who are independent witnesses, are cited to prove the seizure and arrest of the accused, they turned hostile. PW5 is the Assistant Excise Inspector, who registered the crime and prepared the property CRL.A.NO.1592 of 2003 :-4-: list. PW6 is the then Excise Range Inspector, who undertook the investigation and finally laid the charge. It is the above evidence and materials, relied on by the trial court in support of its finding and conviction of the appellant/accused. 5. Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt. In support of the above submission, it is pointed out that though in Ext.P3 mahazar, the house name of the accused is shown as “Eeresseri”, in the chargesheet laid down by the Excise, the house name of the accused is shown as “Edassery” and therefore, according to the learned counsel for the appellant, the appellant is not the person from whom the contraband article is allegedly seized by the prosecution. Another ground pointed out by the learned counsel in assailing the prosecution case is that the arrest itself is under cloud of doubt since when PW1 says that the wife of the accused came to the spot upon her personal knowledge regarding the arrest of the accused, PW4 says that PW1, on detention CRL.A.NO.1592 of 2003 :-5-: of the accused, took him to the house of the accused and from where PW1 obtained the signature of the wife of the accused from their house. Therefore, according to the counsel, regarding the arrest memo and arrest itself, there is no believable evidence for the prosecution. It is also pointed out by the learned counsel that PW6, who undertook the investigation, did not question any witness from the locality in spite of the fact that though there were several shops and houses near the place of occurrence. Thus, according to the counsel for the appellant, the evidence of prosecution is not sufficient to hold that the accused has committed the offence as alleged by the prosecution and therefore, the finding of the trial court and the conviction recorded by it against the appellant are liable to be set aside. 6. On the other hand, learned Public Prosecutor submitted that the evidence of PW1, the Excise Inspector and PW4 with respect to the seizure and arrest of the appellant/accused are intact and immediately, after the arrest of the accused, the accused was produced before the court and the contraband articles were also produced before CRL.A.NO.1592 of 2003 :-6-: the court without any lapse and the investigation was conducted without any failure and therefore, according to the learned Public Prosecutor, the trial court is fully justified in its finding and in convicting the appellant on the basis of the charge laid down by the prosecution. 7. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor and I have perused the judgment of the trial court and I have also gone through the deposition of witnesses and materials on record. 8. As I indicated earlier, in order to substantiate the allegation of the prosecution against the appellant that he had committed the offence under Section 8 of the Abkari Act and to prove the alleged fact that the accused was found in possession of 5 litres of arrack on 15.12.1999, the prosecution has adduced the above referred evidence and materials. In the light of the contentions advanced by the learned counsel for the appellant as well as the learned Public CRL.A.NO.1592 of 2003 :-7-: Prosecutor and in view of the materials and evidence on record, the question to be considered is whether the trial court is justified in its finding that the accused has committed the offence under Section 8 of the Abkari Act. 9. At the outset, it is to be noted that except the points raised by the counsel for the appellant which I indicated earlier, even during the trial of the case, there was no serious challenge against the evidence of prosecution, particularly with respect to the evidence adduced by the prosecution through the deposition of PWs.1 and 4 with respect to the seizure and arrest of the accused. When PW1 was examined, he had deposed that while himself and party were on patrol duty, they met the accused at the place of occurrence and on seeing the party, the accused tried to escape from the spot, but he was intercepted and on further examination of MO1 can, which was held by the appellant, it was realised that the liquid contained therein is illicit arrack. According to PW1, he had seized the contraband article after drawing sample and the entire proceedings of seizure and CRL.A.NO.1592 of 2003 :-8-: drawing of samples were elaborately mentioned in Ext.P3 seizure mahazar. Ext.P1 is the arrest memo and Ext.P2 is the arrest notice proved through PW1. Though PW1 was subject to lengthy cross- examination, nothing brought on record to disbelieve his version. When PW4 was examined, he had also deposed in tune with the deposition of PW1 supporting the prosecution allegation. 10. According to the prosecution, PW4 - the Preventive Officer, after the seizure of the contraband article handed over the materials and accused to PW5, who in turn registered Ext.P4 crime and occurrence report and Ext.P5 property list and thereafter, produced the contraband article as well as the accused before the court on the very same date of the arrest of the accused and seizure of the contraband article. Further investigation was undertaken by PW6, who questioned the prosecution witnesses and thereafter laid the charge and Ext.P6 chemical analysis report was marked through PW6. As I indicated earlier, regarding the seizure and arrest of the accused, there is not much objection from the part of the accused. CRL.A.NO.1592 of 2003 :-9-: Consequently, the investigation was carried out without any lapse and finally, the charge was laid down. It is also relevant to note that as I indicated earlier, without any room for tampering of evidence including samples, material objects were produced before the court as per Ext.P5 , which was prepared on the date of occurrence itself. 11. It is true that when PWs.2 and 3 were examined, who are independent witnesses, they turned hostile. According to PWs.2 and 3, their signature was obtained in a blank paper and they had no occasion to see the contents of Ext.P1 mahazar. They have also disputed the signature that contained in Ext.P1 arrest memo and Ext.P2 arrest notice. Even though the independent witnesses turned hostile, as long as the evidence of other witnesses remained intact, their evidence can be acted upon, especially when no ground is made out to disbelieve the same. In the present case, the evidence with respect to the seizure and arrest particularly the deposition of PWs.1 and 4, there is serious challenge and the prosecution has succeeded in proving the seizure of the contraband article from the physical CRL.A.NO.1592 of 2003 :-10-: possession of the accused and consequently, the articles and accused were produced before the court without any delay. So, even though PWs.2 and 3 turned hostile, that is not a ground to reject the prosecution case or disbelieve the same. 12. It is true in Ext.P1, though the house name of the accused is shown as Eerassery, in the final charge, the same is shown as Edassery. As rightly found by the learned Sessions Judge, the above discrepancies or mistakes are not sufficient to disbelieve the entire prosecution case, especially when the other evidence positively proves the prosecution allegation against the appellant. So also with respect to the discrepancies that occurred in the deposition of PWs.1 and 4, with respect to the signature of the wife of the accused in the arrest memo, has no much consequence. According to me, as rightly observed by the learned Sessions Judge, those minor discrepancies, defects or mistakes have no bearing upon the genuineness of the prosecution case and the same are in no way helpful for the defence. 13. In the light of the above discussion and in view of the CRL.A.NO.1592 of 2003 :-11-: evidence and materials referred above, I am of the view that the prosecution has succeeded in establishing the allegation against the appellant beyond reasonable doubt and the findings and conviction recorded by the trial court are approved. 14. Learned counsel for the appellant submitted that though the quantity involved is only 5 litres, the sentence imposed against the accused is two years rigorous imprisonment, which is disproportionate to the allegation against the accused, and hence, a lenient view may be taken in the matter of sentence. It is also the submission of the learned counsel that the accused is now at the age of 61 and he had also undergone a major operation for cerebral abscess. In the light of the above submission, according to me, the sentence imposed against the appellant requires reconsideration. Having regard to the facts and circumstances involved in the case and in view of the mitigating circumstances indicated above, I am of the view that six months simple imprisonment is sufficient to meet the ends of justice and while confirming the sentence to pay fine, the default sentence CRL.A.NO.1592 of 2003 :-12-: can be modified and fixed as three months simple imprisonment. In the result, this appeal is dismissed, confirming the conviction of the appellant for the offence under Section 8 of the Abkari Act and the sentence of imprisonment is modified and accordingly, the appellant is sentenced to undergo simple imprisonment for six months and he is also sentenced to pay a fine of Rs.1 lakh, in default, he is directed to undergo simple imprisonment for a further period of three months. Set off is allowed. Subject to the above modification, with respect to the sentence, confirming the conviction, this appeal is dismissed. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1592 of 2003 :-13-: V.K.MOHANAN, J. CRL.A.No. OF 20 CRL.A.NO.1592 of 2003 :-14-: JUDGMENT Dated:2. ..2011