IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 Crl.Rev.Pet.No. 1021 of 2002() ------------------------------ CRA.58/1999 of SESSIONS COURT, THODUPUZHA CC.127/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IDUKKI .................... REVN. PETITIONERS: ACCUSED/APPELLANT -------------------------------------- KUTTAN, AGED 43 YEARS, S/O.KUNJUKUTTAN, PULLUKALAYIL HOUSE, METHOTIKARA, VELIYAMATTOM VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENTS: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------ Crl.R.P 1021 of of 2002 ---------------------------------------- Dated the 6th April Day of April, 2011 ORDER The sole accused, in C.C.No.127 of 1996 of the Judicial First Class Magistrate, Idukki, who is found guilty for the offence under section 55(a) of the Abkari Act, is the revision petitioner. 2. The prosecution case is that the revision petitioner was found in possession of illicit arrack at the courtyard of his house at about 8 p.m. on 23.10.95 and thereby he had committed the offence punishable under section 55(a) of the Abkari Act. According to the prosecution, while PW5, the Sub Inspector of Police at Kanjar Police station, was on law and order duty on 23.10.95, along with other police constables, got information about the sale of illicit liquor and thus he along with the police party went to the house of the revision petitioner and on reaching there, they saw one person standing on the north western side of the courtyard of the house of the revision petitioner in a suspicious circumstances and on questioning and on examination, it was found that he was in possession of two bottles of illicit liquor. Accordingly, the contraband article and CRRP 1021/02 2 the material objects were taken into custody as per Ext.P1 mahazar and thereafter the accused as well as the articles were removed to the police station and a case was registered as crime No.189/95/TR at Kanjar police station for the offence punishable under section 55(a) of the Abkari Act and subsequently the accused and the thondi articles were handed over to the Excise Range Inspector , Idukki Range. After investigation, a report was filed in Cr. No.65/95 of Idukki Range upon which the learned Magistrate took cognizance of the offence punishable under section 55(a) of the Act. During the trial, PWs 1 to 5 were examined and Exts.P1 to P3 were marked from the side of the prosecution. No witness was examined from the side of the defence. Material objects were marked as M.O1 series. Finally, the trial court found that the revision petitioner is guilty of the offence under section 55(a) of the Abkari Act and accordingly, he is convicted under section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for one year and also sentenced to pay a fine of Rs.25,000/- and the default sentence is fixed as simple imprisonment for six months. CRRP 1021/02 3 Challenging the above conviction and sentence, though the revision petitioner had preferred an appeal, by judgment dated 14.12.2001 in Crl.A.No.58/2009, the Court of Sessions Judge, Thodupuzha disposed of the appeal confirming the conviction of the revision petitioner under section 55(a) of the Abkari Act , but while confirming the sentence of imprisonment, the sentence to pay fine was modified and reduced into Rs.5000/- and in default he is directed to undergo simple imprisonment for three months. It is the above conviction and sentence challenged in this Crl.R.P. 3. I have heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. 4. The learned counsel for the revision petitioner vehemently argued that the prosecution has not proved its case beyond reasonable doubt and the evidence available on record are sufficient to acquit the revision petitioner. It is also the argument of the learned counsel that except the interested versions of the official witness, there are no independent witnesses to support the prosecution case and therefore the revision petitioner is entitled to get an acquittal. CRRP 1021/02 4 5. On the other hand, the learned Public Prosecutor submitted that the evidence of official witnesses are beyond any infirmities and doubt and therefore there is nothing wrong in acting upon such evidence of the official witnesses. It is also pointed out by the Public Prosecutor that though PWs 1 and 2 turned hostile, they have admitted that they put the signature in Ext.P1 at the place of occurrence and they have admitted the signature as correct also. According to the learned Public Prosecutor, the independent witnesses turned hostile only to help the accused. 6. I have carefully considered the arguments of the learned counsel for the petitioner as well as the learned Public Prosecutor and I have also perused the judgments of the courts below and carefully gone through the evidence and materials on record. 7. PW5 and PW2 are unanimous in their deposition that when they were on law and order duty on 23.10.95, PW5 got information regarding the sales of illicit arrack in the house of the revision petitioner and accordingly, they went to the house of CRRP 1021/02 5 the revision petitioner at about 8 p.m on 23.10.95 and detected the crime. PWs 2 and 5 in their evidence deposed the details of the seizure effected through Ext.P1 mahazar. Ext.P1 mahazar as well as material objects etc. were proved through the above witnesses. PW4 is the Excise Inspector, Idukki Range who sent the sample for chemical analysis and through whom Ext.P2 chemical analysis is proved. As per Ext.P2, the sample contains 23.84% by volume of ethyl alcohol. Though the official witnesses were subjected to lengthy cross examination , nothing brought on record to discredit their version. It is true that PWs 1 and 3 turned hostile to the prosecution, and they deposed before the court that they did not witness the seizure of the contraband article. In this juncture, it is also relevant to note that, the evidence of PWs 2 and 5 regarding the seizure and the arrest of the accused remains in tact which is supported by a contemporary document Ext.P1. In this juncture it is relevant to note that this is not a case where the prosecution failed to cite and examine any independent witness to prove the prosecution case. In the present case, PWs 1 and 3 were cited and CRRP 1021/02 6 examined to prove the prosecution case. Simply because a witness has been declared as hostile, the entire deposition or evidence, such witness need not be discarded. In the present case, though PWs 1 and 3 have stated that they did not witness the seizure, they have categorically deposed that they put their signature in Ext.P1 at the place of occurrence from where Ext.P1 was prepared as per the evidence of PWs 5 and 2. Therefore, according to me, even though PWs 1 and 3 turned hostile, the above part of their deposition, render assurance of the correctness of the prosecution case. Therefore though PWs 1 and 3 turned hostile, it will not affect the prosecution case. In the light of the above facts and circumstances and the evidence on record, I find no reason to interfere with the concurrent findings of the trial court as well as the appellate court and accordingly, the conviction recorded by the courts below against the revision is confirmed. 8. The learned counsel for the revision petitioner submitted that the sentence imposed against the revision petitioner is unreasonable and exorbitant and therefore, a lenient view may CRRP 1021/02 7 be taken in the matter of sentence. According to me, the above submission requires positive consideration. In this juncture, it is relevant to note that though the minimum sentence of fine as per the statute is Rs.25,000/- as awarded by the trial court, the appellate court reduced the fine amount to Rs.5000/-. But the prosecution has not filed any appeal or revision against the above reduction of the fine amount. So according to me, no interference is warranted with respect to the sentence of fine and default sentence. As per the prosecution case, the date of occurrence was during the year 1995 and the quantity involved in the present case is only 500 ml only. At the time of the incident, the accused was at the age of 40 years. Having regard to the facts and circumstances indicated above, I am of the view that the sentence of six months simple imp[imprisonment will be sufficient to meet the ends of justice. Accordingly, the sentence of imprisonment ordered by the trial court and confirmed by the appellate court is modified and reduced into six months simple imprisonment and the sentence of fine as modified and fixed by the appellate court and the default sentence are confirmed. CRRP 1021/02 8 In the result, this Crl.R.P is dismissed confirming the conviction of the revision petitioner under section 55(a) of the Act but subject to the above modification with respect to the sentence. The bail bond if any executed by the petitioner is cancelled and he is directed to appear before the trial court within three months from today to receive the modified sentence and to pay the fine amount fixed by the court below. V.K.MOHANAN, JUDGE kvm/- CRRP 1021/02 9 V.K. MOHANAN, J. CRRP NO. 1021 / 2002 ORDER 6.4.2011.