IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 CRA.No. 301 of 2004 (A) SC.313/1998 of ADDL. DISTRICT COURT (ADHOC), KOLLAM APPELLANT/ACCUSED 1 SATHYABHAMA D/O. DIVAKAR, PARAMBILAYYATH VEEDU PANDIJATTOM KIZHEKKU, SURANAD, KOLLAM DISTRICT. BY ADV.SRI.M.A.RASHID RESPONDENT/COMPLAINANT 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA FOR SUB INSPECTOR OF POLICE, SURANAD, KOLLAM. BY PUBLIC PROSECUTOR, SMT.S.HYMA. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------ Crl.A. No.301 OF 2004 -------------------------------- Dated this the 21st day of December, 2011 J U D G M E N T ~~~~~~~~~~~ Additional Sessions Judge (Adhoc-I), Kollam in Sessions Case No.313/1998 convicted the appellant for offence under Section 55(a) of the Abkari Act and sentenced to rigorous imprisonment for five years and a fine of Rs.One lakh. Assailing the above conviction and sentence, this appeal is filed. 2. The prosecution case in brief is that at 6 p.m., on 21.6.1992, while PW4, the Sub Inspector of Police, Sooranadu Police Station, moving on patrol duty found the appellant standing at the courtyard of 'Parambilayyathu' house bearing door No.IV/143 of Sooranadu Panchayat with MO1 jerry can in her hand. Seeing PW4 and party, the appellant dropped MO1 and took to her heels. Though PW1 and party chased her she could not be apprehended. Returning to the courtyard the contents in MO1 was tested by smell and taste and convinced that it contained three litres of arrack. It was seized for which Ext.P1 seizure mahazar was prepared wherein, PWs 1 and 2 are Crl.A.No.301/2004 2 attestors. Returning to the Police Station, a case as Crime No.143/1998 was registered for which, Ext.P2 First Information Report was prepared. From the liquid contained in MO1, 180 ml was taken in two sample bottles. It was sealed then and there. The material objects and samples were produced before the local Magistrate along with Ext.P3 property list. The investigation was conducted by PW4. After completing the investigation, the chargesheet was submitted before the Judicial Magistrate of the 1st Class, Sasthamcotta. 3. The learned Magistrate on finding that the offence alleged is triable by a court of session, the case was committed to the court of session by order dated 30.7.1998. The case was subsequently made over to the Additional Sessions Judge. Responding to the process issued, the appellant entered appearance. When the charge was framed and read over, the appellant pleaded not guilty. Therefore, she was sent for trial. PWs 1 to 4 were examined. Exts.P1 to P4 and MO1 were marked. After closing the evidence for the prosecution, the appellant was questioned under Section 313(1)(b) of the Code of Criminal Procedure. She denied the incriminating evidence. No defence Crl.A.No.301/2004 3 evidence was let in. The learned Additional Sessions Judge on appraisal of the evidence arrived at a finding of guilt, consequent to which the impugned conviction and sentence. 4. I have heard Adv. Sri.S.M.Althaf, the learned counsel appearing for the appellant and Smt.S.Hyma, the learned Government Pleader. Perused the judgment and the evidence on record. 5. PWs 1 and 2, though admitted their signature in Ext.P1 seizure Mahazar, denied witnessing the arrest and seizure. PW3 is a Police Constable accompanying PW4. PWs 3 and 4 had given evidence supporting the prosecution case. Since PWs 1 and 2 didn't support the prosecution case the question then arises is whether PWs 3 and 4 are credible witnesses. Going by the evidence of PWs 3 and 4 supported by Ext.P1, I find little reason to disbelieve them regarding the seizure of MO1 on the strength of Ext.P1. But the issue is regarding the identity of the appellant. PW3 had deposed that he didn't enquire the identity of the person who ran away after leaving MO1. According to PW4, the identity of the appellant Crl.A.No.301/2004 4 was ascertained through the witnesses. But there is no whisper in his evidence as to who identified the appellant. No person who identified the appellant was examined. Admittedly, the appellant was not arrested by PW4. Neither she was identified at any time during the course of the investigation. Therefore, regarding the identity of the appellant, there is no proof. In that circumstance, I find that the conviction and sentence under challenge are not sustainable. 6. In the result, the appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted. She is set at liberty. She is directed to appear before the trial court within one month and to execute a bail bond for Rs.20,000/- (Rupees Twenty thousand only) with two solvent sureties each for the like sum to the satisfaction of the trial Judge under Section 437A of the Code of Criminal Procedure. (P.S.GOPINATHAN, JUDGE) ps/22/12