IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 CRL.A.No. 498 of 2011(B) ------------------------ SC.1757/2009 OF THE ADDL.SESSIONS JUDGE, (ABKARI CASES), KOTTARAKKARA) .................... APPELLANT ---------------- BINU KUMAR, CONVICT NO.5280, CENTRAL PRINSON, THIRUVANANTHAPURAM. BY ADV. ADV PRATAP ABRAHAM VARGHESE(STATE BRIEF) RESPONDENT --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LOWSY A. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No.498 of 2011 ---------------------------------------- Dated the 18th day of November , 2011 JUDGMENT Appellant is the 2nd accused in S.C.No.1757 of 2009 of the court of the Additional Sessions Judge (Abkari Cases), Kottarakkara. By judgment dated 20.7.2010 in S.C.No.1757/2009, the learned Judge convicted the accused/appellant for the offence under section 55(g) of the Abkari Act and accordingly, he is sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.1,00,000/- (Rs.one lakh only), in default, he is directed to undergo simple imprisonment for a period of three months. It is the above conviction and sentence challenged in this appeal. 2. The prosecution case is that the accused, two in numbers, were found in possession of 925 litres of wash on 19.10.2001 at 3.25 p.m at Piravanthoor village, Karavoor muri, Alimukku beat, and thus the accused have committed the offence punishable under section 55(g) of the Abkari Act. On the basis of the above allegation, crime No.387/2001 was registered in Pathanapuram police station for the said offence and on completing the investigation, report was filed in the court of CRL.A.NO.498/11 2 Judicial First Class Magistrate-III, Punalur. Subsequently, the case was committed to the Sessions Court wherein S.C.No.1757/2009 is instituted and subsequently, the case is made over to the trial court for disposal. As A1 was no more, and when the 2nd accused was produced, after hearing the prosecution as well as the 2nd accused, a formal charge was framed for the offence under section 55(g) of the Abkari Act and when the charge read over and explained to the 2nd accused, he denied the same and pleaded not guilty. During the further trial, PWs 1 to 5 were examined from the side of the prosecution and marked Exts.P1 to P5. Finally, the trial court has found that the accused is guilty of the charge levelled against him and accordingly, he is convicted and imposed the above sentence. 3. As the appellant is undergoing imprisonment in pursuance of the judgment impugned, he preferred this appeal from the jail and when the same received, as directed by this court, the Registry has appointed Sri Pratap Abraham Varghese, an Advocate from the panel of State Brief, to prosecute the appeal , for and on behalf of the appellant. Thus CRL.A.NO.498/11 3 I have heard Sri Pratap Abraham Varghese, the learned counsel appearing for the appellant and Smt. Lowsy A, the learned Public Prosecutor appearing for the State. 4. In order to prove the case of the prosecution, as I indicated earlier, the prosecution has examined PWs 1 to 5, among which, the main prosecution witnesses are PWs 2, 3 and 5. PW2 is the then S.I. Of Plice, Pathanapuram Police station who detected the crime. PW5 is the Police Constable attached to the same police station who accompanied PW2 at the time of the raid. PW3 is the then S.I of Police, Pathanapuram Police Station who completed the investigation and laid the charge. Though PWs 1 and 4, cited and examined as independent witness, they turned hostile towards the prosecution. During the examination of PW2 - the detecting inspector, the prosecution has got marked Ext.P1 mahazar, Ext.P2 custody memo, Ext.P3 FIR and Ext.P4 property list. Ext.P5 Chemical Analysis marked through PW3 who completed the investigation. It is the above evidence which form basis for the finding and conviction recorded by the learned Judge of the trial court against the appellant/accused. CRL.A.NO.498/11 4 5. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove the case against the appellant beyond doubt and according to the learned counsel, though the learned Judge of the trial court has found that the appellant has miserably failed to prove the defence contention raised, absolutely there is no finding by the learned Judge that the prosecution has succeeded in proving its case against the appellant beyond reasonable doubt. The learned counsel pointed out that the two independent witnesses, cited and examined by the prosecution, turned hostile and as such the evidence of the official witnesses could not be corroborated through any independent source. Therefore, according to the learned counsel, a duty is cast upon the trial court to have a close scrutiny of the prosecution evidence to find out as to whether the prosecution has succeeded in proving the case beyond reasonable doubt, but the learned Judge has not examined the prosecution evidence in its true perspective. The learned counsel pointed out that regarding the seizure and arrest of the accused, absolutely, there is no evidence since there is no legal evidence to show as CRL.A.NO.498/11 5 to who prepared Ext.P1 mahazar and the evidence of the prosecution on this point is not contradicted. According to the learned counsel, the absence of any positive evidence regarding the seizure and arrest of the accused, probablise the case of the defence that the accused was arrested from the police station when the appellant and the other accused went to the police station in connection with a complaint given by PW4. So according to the learned counsel, the finding of the court below and the conviction recorded thereon are liable to be set aside. 6. On the other hand, the learned Public Prosecutor submitted that all the contemporary documents positively proved the involvement of the accused. According to the learned Public Prosecutor, PW2 has not disowned his signature in Ext.P1 and what he had stated is that he does not remember as to who wrote in Ext.P1 mahazar. It is pointed out by the learned Public Prosecutor that PW5 has clarified that Ext.P1 mahazar was written by PW2 and there is no ambiguity or contradiction. Therefore, according to the learned Public Prosecutor, no interference is warranted. CRL.A.NO.498/11 6 7. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the judgment of the trial court and the evidence and materials on record. In the light of the rival arguments and in the light of the evidence and materials on record, the question to be considered is whether the trial court is correct and justified in its finding that the appellant has committed the offence punishable under section 55(g) of the Abkari Act. The specific case of the prosecution is that the accused, two in numbers, were found in possession of 925 litress of wash at about 3.25 p.m on 19.10.2001 which was detected by PW2. When PW2 was examined, he had deposed in terms of the prosecution allegation and, according to the prosecution, his evidence is further corroborated through the evidence of PW5 who is the Police Constable attached to Pathanapuram Police station and who accompanied PW2 at the time of detection of the crime. It is relevant to note that though PWs 1 and 4 were cited by the prosecution and examined as independent witness, they turned hostile. Therefore, the evidence of PWs 2 and 5 are not supported by any CRL.A.NO.498/11 7 independent evidence. Therefore, the rule of caution and prudence demands that the evidence of official witnesses shall be scrutinized very carefully. On such scrutiny of the evidence of PWs 1, 2 and 5, according to me, it can be seen that the prosecution evidence, on a very vital point, is seen contradicting each other. As far as an Abkari offence is concerned, the main part of the investigation will be over by the seizure and arrest of the accused and in order to substantiate the investigation, the persecution has to prove the facts connected with the detection, seizure and arrest of the accused. Thus the crucial evidence, that can be pressed into service by the prosecution in such situation, is that of the evidence of the witness who involved in the detection and seizure of the contraband article and arrest of the accused. In the present case, according to the prosecution, the crime was detected by PW2 and the contraband article was seized as per Ext.P1, but PW2, the then S.I of Police who detected the crime, when examined he had deposed that he does not know the handwriting that contained in Ext.P1 mahazar and the authorship of such a vital document. He has not claimed that CRL.A.NO.498/11 8 it was prepared by himself. He has not suggested or admitted any person's name as the author of the same. The failure on the part of PW2 to realise and depose the authority of Ext.P1, according to me, is fatal to the prosecution. It is relevant to note that PW2 has no claim that Ext.P1 is prepared in his hand writing. The evidence of PW5 that, Ext.P1 was prepared by PW2, has no evidentiary value since PW2 himself has no such claim. According to me, the above failure on the part of the prosecution has to be appreciated in the backdrops of the defence set up by the accused. According to the accused, PW4 who is conducting a tea shop has the business of selling arrack in his tea shop at Valuthundil. The appellant herein, who is the 2nd accused, was an auto driver at Valuthundil, and as the drunkards who were customers of PW4, refused to give the autorickshaw fare, he declined to take them in his autorickshaw and according to the accused, this infuriated PW4 to file false complaint against A2 in the police station. Thus according to the appellant, when himself and A1 went to the police station to enquire about the complaint, both the accused were detained by the police alleging that they were involved in the CRL.A.NO.498/11 9 manufacture of arrack and according to the defence, PW4 went along with the Police and brought wash and this case was foisted against the accused. So the inability of PW2 to prove the handwriting in Ext.P1 will go against the prosecution and in favour of the defence because the failure on the part of PW2 to prove the handwriting in Ext.P1 and its legal consequences is in consistent with defence case. Because of the failure on the part of the prosecution to prove the authorship of Ext.P1, especially, when PW2 who signed in Ext.P1 denied the handwriting therein, and particularly, when the prosecution has failed to prove as to who prepared Ext.P1, it cannot be said that the prosecution has succeeded in proving its allegation against the appellant beyond reasonable doubt. Considering the vigor and rigor of penal provisions contained in the Abkari Act, the nature of evidence expected to be adduced from the side of the prosecution in an abkari case demands strict and high quality. But in the present case, the evidence adduced is not up to the expected standard in a prosecution for the offence under the provisions of the Abkari Act. 8. In the light of the above facts, circumstances and the CRL.A.NO.498/11 10 discussion and the evidence and materials referred to above, I am of the view that the learned Judge of the trial court is not correct in holding that the prosecution has succeeded in proving the case against the appellant/accused, and therefore, the same cannot be approved. For the reasons stated above, according to me, the prosecution has miserably failed to prove the case against the appellant beyond reasonable doubt and consequently, the appellant is entitled to get the benefit of doubt and granting such benefit, the conviction recorded by the trial court against the appellant is set aside. 9. In the result, this Crl.Appeal is allowed setting aside the judgment dated 20.7.2010 in S.C.No.1757/2009 of the court of Addl.Sessions Judge, (Abkari Cases), Kottarakara and acquitting the appellant/accused of all the charges levelled against him and, accordingly, he is set at liberty. 10. As this court has set aside the conviction and sentence imposed against the appellant/accused and he is acquitted of all the charges levelled against him, he is entitled to get released from jail forthwith if he is not required in any other case. Accordingly, the registry is directed to forward the gist of CRL.A.NO.498/11 11 this judgment to the Superintendent, Central Prison, Thiruvananthapauram forthwith for appropriate action in the matter. V.K.MOHANAN, JUDGE KVM/-