IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 CRL.A.No.1333 of 2006 (C) ------------------------------- SC.1574/2004 of ADDL. SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM. .................... APPELLANT: -------------- SUBHADRA, D/O.APPI AMMA, PANGUVILAKATHU VEEDU,KATHAJIKONAM, AIROOPARA VILLAGE, TRIVANDRUM DISTRICT. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS: ------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. EXCISE INSPECTOR, KAZHAKKOOTTAM EXCISE RANGE, THIRUVANANTHAPURAM DISTRICT. BY PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. Appeal No.1333 of 2006 ------------------------------------------------ Dated this the 24th day of January, 2008 JUDGMENT The accused convicted for offence under Section 55(a) read with Section 8(1) and (2) of the Abkari Act vide judgment of the Additional Sessions Judge (Fast Track Court- I), Thiruvananthapuram dt.20/06/06 in S.C. 1574/04 is the appellant. She challenges in this appeal the correctness and sustainability of the conviction and sentence passed against her by the Additional Sessions Judge. 2. The prosecution case is that at 4.00 p.m on 29/01/03, the accused was found in possession of 1½ litres of arrack in MO1 plastic bottle having a capacity of 1½ litres keeping the same in MO1 plastic cover and proceeding along the southern side of Vetturoad-Kattikonam road in front of the house of one Bhadran of Vijayavilasom house about 500 metres west of Kattaikonam junction Crl. Appeal No.1333 of 2006 -2- and thereby she committed offences punishable as aforesaid. 3. The case was committed to the Sessions Division, Thiruvananthapuram by the Judicial First Class Magistrate-II, Attingal vide Committal Proceedings No.19/04. In the Sessions Court the case was registered as S.C.1574/04 and was made over initially to the Assistant Sessions Court, Attingal and subsequently, it was transferred to the Additional Sessions Court (Fast Track Court- I), Thiruvananthapuram. 4. On appearance of the appellant in the court below pursuant to issuance of summons she engaged her own lawyer to defend the case on her behalf. Thereafter, preliminary arguments in the case were heard; charge was framed against the appellant for offence under Section 55(a) read with Section 8(1) and (2) of the Abkari Act; was read over and explained to her and she was questioned. Thereupon, she Crl. Appeal No.1333 of 2006 -3- pleaded not guilty and consequently, a trial of the case was conducted. 5. Prosecution examined PWs.1 to 5; got marked Exts.P1 to P5 and got identified MOs.1 and 2. On the prosecution closing their evidence, the appellant was questioned by the court below under Section 313 Cr.P.C. Thereupon, she generally denied all incri- minating circumstances appearing in evidence against her and maintained that she is innocent. However, she did not adduce any evidence in defence. The court below heard arguments of the prosecution and the defence; found the appellant guilty of offence punishable under Section 55(a) read with Section 8(1) and (2) of the Abkari Act, convicted her thereunder; heard her on the question of sentence and sentenced her to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a further Crl. Appeal No.1333 of 2006 -4- term of six months. Hence, this appeal by the aggrieved appellant. 6. It is vehemently contended before me by the learned counsel for the appellant that the appellant came to know of the fact of her being implicated in such an offence only on receipt of summons from court; that she had not been intercepted by the excise officials as alleged with arrack in MO1 bottle kept in MO2 cover; and that the case is one registered so as to cause panic in the locality as sale of illicit arrack in the locality was much on the high side and there was hue and cry that the excise officials were not rising up to the occasion to meet the situation and that in that process the appellant was being made a victim when she has not committed any offence. 7. It is the further contention that if at all there was seizure of arrack as alleged, certainly the appellant would have been arrested getting down the assistance of other Crl. Appeal No.1333 of 2006 -5- lady police constables or lady guards in the excise and the fact that no such course was adopted in the instant case disables even identification of the appellant as the real offender. 8. It is also the contention of the counsel for the appellant that only one witness to the mahazar was examined and that witness has not supported the prosecution case and therefore, if at all the conviction can rest only on the testimony of PWs.2 and 3 who are respectively a preventive officer and a guard of the Excise Department; and that this has caused prejudice inasmuch as the appellant is rendered to a position of answering a false charge foisted against her. 9. It is also contended that the labels which are stated to be signed by the appellant are not got marked or forwarded for examination to a handwriting expert to ascertain the authenticity of the appellant as Crl. Appeal No.1333 of 2006 -6- the person who has affixed those signatures in the labels on the bottles which are only three vertical lines each, which in the circum- stances of the case was highly essential as the appellant had not been arrested and her finger print had not been taken. It is also pointed out that the appellant had not been questioned by the investigating officer and no effort at all is made by the investigating officer who is an Excise Inspector to trace out the accused; question her and ascertain as to whether the case of PWs.2 and 3 having intercepted her and effected seizure of arrack from her is true or not. 10. It is further vehemently urged by the counsel for the appellant that the appellant is an illiterate lady aged 75 years and had she been questioned under Section 313 Cr.P.C putting to her each and every incriminating circumstance she would have been able to answer the question properly whereas in the Crl. Appeal No.1333 of 2006 -7- instant case evidence of each witness was being summarised and was being put to her resulting in injustice to her inasmuch as she was not able to understand as to what aspect was she expected to answer and the very purpose of questioning an accused under Section 313 Cr.P.C stands defeated in the instant case. 11. PW1 is the one and only independent witness in this case. He has deposed that he had not seen the accused in the dock and that when he was summoned he was locating the accused going over to her house; that he is member of Desabhimani Sports and Arts Club at Kattaikonam; that there was distilling of illicit arrack as a cottage industry in the locality where the appellant was residing and therefore, the club gave complaint to the excise office Mangalapuram requesting them to cause the menace of illicit distilling in the locality abated that consequently, the excise Crl. Appeal No.1333 of 2006 -8- authorities telephoned to the club and informed them that they have conducted raid and effected arrest of a person and knowing about it himself and two others went over to the excise office and thereupon, they were made to sign in one or two papers and accordingly, they signed in those papers. He further, deposed that on receipt of summons he enquired at the excise office and he was informed that the case is one taken against Subhadra under the Abkari Act. He has identified his signature in Ext.P1 mahazar as also his signatures found on the labels affixed on the bottle and on the plastic cover but he has stated that he has not seen seizure of arrack. He asserted that he has not seen any occurrence as alleged. He was declared hostile and cross examined by the Prosecutor. He has categorically stated that he was not signing on the labels seen on the bottle, plastic cover etc. but he was signing in blank Crl. Appeal No.1333 of 2006 -9- papers only. According to him, the appellant is residing 1½ - 2 kms. from his residence and that at the excise office, along with himself, Shaji was also there though he has not seen Shaji affixing signatures. According to him, he was signing in the papers as he was interested to see that illicit distilling of arrack in the locality is abated. However, he has admitted that he is not one who would sign in blank papers on demand by excise. Shaji the other witness to Ext.P1 mahazar is not examined. Consequently, therefore, the evidence is only that of PW2 the detecting officer who is a preventive officer of excise and that of PW3 an Excise Guard who accompanied PW2 in the detection. 12. PW3 has however, given evidence corroborating the testimony of PW2 as regards the detection and seizure. According to PW2, the appellant was not arrested as woman police constable was not available. In cross Crl. Appeal No.1333 of 2006 -10- examination PW2 has stated that assistance of lady police constable was requested for over telephone from the Kazhakkoottam police station but they expressed difficulty to render assistance of woman police constable at that time. There is absolutely no evidence to show that any request was made at the Kazhakkoottam police station over telephone. PW2 has admitted however, that other than at Kazhakkoottam police station he has not made any request anywhere else to have assistance of lady police constable rendered. All the same, there is no whisper in his testimony as to whether there was no woman excise guard available at the excise office. Though PW2 swears that ever so many members of the public assembled at the scene of occurrence and two persons affixed their signatures, in a case of this nature where the accused was not being taken into custody it was only appropriate that more witnesses who are reliable are made Crl. Appeal No.1333 of 2006 -11- witnesses to the seizure. 13. In the examination there is no specific question put to PWs.2 and 3 as to who was the accused in the case from whom seizure of the contraband was effected and has not got the appellant; who was then in the dock to be got identified. On the other hand they have made only a casual reference that at the scene of occurrence they found the accused carrying a plastic cover making reference to the accused as “------------”. It is very doubtful as to whether while making reference as “------------” there was any application of mind so as to identify the accused in the dock as the offender. It is true that as rightly pointed out by the Public Prosecutor there is no reason to suspect PWs.2 and 3 that they are giving false evidence especially when it is evidenced from the documents produced as also the deposition of PW4 that the seized material objects were produced before PW4 the Assistant Crl. Appeal No.1333 of 2006 -12- Excise Inspector on the very day of the occurrence and those were produced before court on the very next day. But all the same, PW4 cannot and has not given any evidence as regards the complicity of the appellant. PW5 the Excise Inspector is the Investigating Officer in the case. He has admitted in cross examination that he had not seen the appellant in person. But according to him, the house of PW1 is on the east of the house of the accused. It would appear from his evidence that the house of the appellant and house of PW1 are located in adjacent compounds. But the evidence of PW1 is to the effect that his residence is 1½ - 2 kms. away from the house of the appellant/accused. The distance from the house of the appellant to the house of PW1 so deposed is not at all assailed. It is doubtful in the circumstances as to whether PW5 the investigating officer actually located the house of the appellant. He has however, Crl. Appeal No.1333 of 2006 -13- not questioned the appellant/accused. Thus, the investigation conducted by PW5 the Excise Inspector is limited to questioning of PWs.2, 3 and 1 and at best Shaji also who is the other attestor to Ext.P1 and not anyone else as could be understood from his testimony. But the testimony of PW1 does not support the case of PW5 that he had been questioned by PW5. 14. As rightly pointed out by the counsel for the appellant, the labels affixed on MO1 bottle, MO2 cover and on the bottle in which the sample was taken had not been subjected to examination by any handwriting expert to show that the signature in vertical lines seen thereon are the signatures of the appellant/ accused. 15. It is true, as contended by the Public Prosecutor there is no material to suggest that there is any animosity between PWs.2 and 3 and the appellant but all the same, that by itself cannot be taken as a Crl. Appeal No.1333 of 2006 -14- ground to accept their testimony when it is not corroborated by any independent evidence especially when the appellant had not been arrested from the scene and she has totally denied the incident. 16. I am on agreement with the counsel for the appellant that under such circum- stances, it is not safe to enter into a conviction of the appellant/accused for offence of such a grievous nature as an offence under Section 55(a) and Section 8(1) and (2) of the Abkari Act which entails very serious punishment of substantive imprisonment as also a minimum fine of Rs.1 lakh. 17. Over and above all the insufficient evidence in the case discussed above, it is seen that the evidence tendered by each witness was being formulated into one question and put to the appellant/accused so as to get down her explanation. She is a woman aged 75 years then and it is submitted that she is Crl. Appeal No.1333 of 2006 -15- illiterate. There is no reason to disbelieve the submission that she is illiterate as her signature even according to the prosecution were vertical lines. Such an illiterate old lady cannot be expected to give cogent replies to such complex questions in examination under Section 313 Cr.P.C and that has highly prejudiced the appellant. In fact, incri- minating circumstances in evidence of each witness should have been culled out separately and put to her to get down from her answers which will have bearing on what she has got to say in respect of each such incriminating circumstance. However, for reason of the insufficiency and impropriety of the questioning under Section 313 Cr.P.C, I do not propose to remit the matter back to the court below as there is no convincing evidence so as to fix the identity of the appellant as the real culprit for the reasons already discussed. The appellant in the circumstances Crl. Appeal No.1333 of 2006 -16- is entitled to an acquittal at least on benefit of doubt. 18. In the result, I set aside the conviction and sentence passed by the court below against the appellant and acquit the appellant of the offence under Section 55(a) read with Sections 8(1) and (2) of the Abkari Act with which she stood charged. K.P.BALACHANDRAN, JUDGE kns/-