IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 CRL.A.No. 1891 of 2003() -------------------------------------- SC.NO. 31/2001 of ADDL.SESSIONS COURT (ADHOC-1), KASARAGOD .................... APPELLANT(S)/ ACCUSED ---------------------------------------- RAVI, OTTAKUNNIL VEEDU, THURUTHI, VAYAKARA VILLAGE, KANNUR DISTRICT BY ADV. SRI.C.K.SREEJITH SRI.C.MURALIKRISHNAN RESPONDENT(S)/ COMPLAINANT ------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts N.K.BALAKRISHNAN, J. -------------------------------- Crl.A.No.1891 of 2003 ------------------------------- Dated this the 23rd day of August 2011 J U D G M E N T The accused who was convicted by Addl. Sessions Judge (Adhoc-I), Kasaragod for offence punishable under Sec.55(g) of the Abkari Act is the appellant. He was sentenced to undergo R.I. for 31/2 years and to pay Rs.1 lakh as fine and in default he was directed to undergo R.I. for three months. This appeal is directed against that conviction and sentence. 2. The case of the prosecution is that on 19.2.2000 at about 11.25 AM while PW4, the S.I. and PW1, Head Constable and others were on patrol duty the S.I. received reliable information to the effect that including this appellant 5 persons were found in possession of wash for the purpose of manufacturing illicit liquor at a place near the bank of a river at Chemmaramkkayam somewhere near Crl.A.No.1891 of 2003 -: 2 :- Chittarikkal. They went to that place in a private jeep. After getting down from the jeep they walked for a while. They saw 5 persons on the bank of the river. There were 5 plastic containers containing wash intended for manufacturing illicit arrack. All those 5 persons sped away from the scene through the forest area and thereafter jumped into the river and left that place. They could not be apprehended by the police officials. Five seizure mahazars were prepared for the seizure of each plastic container containing wash. After investigation charge sheet was laid against the accused. 3. PWs.1 to 4 were examined and Exts.P1 to P5 were marked. On the side of the accused Exts.D1 to D13 were marked. 4. The learned trial Judge after analysing the evidence found that the prosecution could prove that the accused was in possession of wash in a container measuring 70 liters. Sample bottles were sent for chemical Crl.A.No.1891 of 2003 -: 3 :- examination. Ext.P5 chemical examination report shows that the sample contained 6.80 and 7.01% by volume of ethyl alcohol. The learned Addl. Sessions Judge found the accused guilty, convicted and sentenced as mentioned above. 5. The learned counsel for the appellant would submit that even according to PWs.1 and 4 they could not apprehend any of the persons who were stated to have been seen by PWs.1 and 4 at the spot nor could those persons been chased and apprehended by the police officials. The learned counsel for the appellant would submit that even according to PWs.1 and 4 those persons were stated to have run through the forest area and thereafter jumped into the river and crossed to the other side. Therefore, according to the learned counsel it was not possible for PW1 or other police officials to identify the accused as one of the persons who sped away from the scene. Their evidence is only to the effect that they could see those offenders running away Crl.A.No.1891 of 2003 -: 4 :- from the scene. Therefore, the learned counsel submits that such a vague and imprecise statement cannot be acted upon to hold that they could identify the accused as one of the persons who ran away from the scene. It is also pointed out that there is no case for the prosecution that soon thereafter the accused was arrested in connection with this case. 6. It is also argued by the learned counsel for the appellant that other cases filed against other 4 persons who were stated to have been present along with this accused at the bank of the river and who were also stated to have been in possession of one plastic container each containing wash were tried separately and they were acquitted in separate proceedings. But the copies of the judgments in those cases were not produced. It is true that even if those accused persons were acquitted that will not be a reason for this appellant to contend that he is also entitled to be acquitted if there is evidence to hold that his complicity has been Crl.A.No.1891 of 2003 -: 5 :- proved to the hilt. 7. As stated earlier PWs.1 and 4 could not intercept or apprehend the accused from the very spot. It was admitted by PWs.1 and 4 and it can be discerned from the seizure mahazar also that there were 4 other persons and all the 5 persons ran away from the bank of the river leaving the plastic containers containing wash. It is not the case of PW1 or PW4 that this accused/appellant was holding any particular container containing wash. Even if it is accepted that the accused was seen running at a distance of about 10 or 15 meters away from those plastic containers it cannot be found with certainty that this appellant was keeping possession of any of the plastic containers or that the plastic container which was seized as per Ext.P1 seizure mahazar was of this accused. Those five plastic containers could have been kept by any of the other persons who ran away from the scene or could have been kept by somebody else as well, the learned counsel for the appellant submits. Crl.A.No.1891 of 2003 -: 6 :- That possibility also cannot be totally ruled out. As there is no evidence to show that the appellant was holding or keeping possession of the plastic container containing wash it is difficult to accept the prosecution case that the accused was found in possession of 'wash' as alleged. So much so, the accused is entitled to get the benefit of reasonable doubt. Conviction of the appellant is hence liable to be interfered with. In the result, this appeal is allowed. The conviction and sentence passed against the appellant are set aside. The accused/appellant is acquitted of the offence with which he stood charged. He is set at liberty. The bail bond executed by him will stand discharged. N.K.BALAKRISHNAN, JUDGE. Jvt