IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : HON'BLE MR. JUSTICE, R. BASANT THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 CRL.A.No. 1354 of 2007() ------------------------ SC.616/2006 of SESSIONS COURT, PALAKKAD .................... APPELLANT: ----------- VENKITESH, S/O NEELA GOUDA, C.NO.5044, CENTRAL PRISON, KANNUR. BY ADV. V.P.JOLY[STATE BRIEF] RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJAD ALI. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008, ALONG WITH RC NO. 1 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ----------------------------------------------- Crl.A. No. 1354 OF 2007 and R.C. No. 1 OF 2008 ----------------------------------------------- Dated this the 12th day of June, 2008 JUDGMENT The appellant who is suffering the sentence of imprisonment has preferred this appeal through prison authorities. He has been found guilty, convicted and sentenced in a prosecution under Section 55 (a) of the Abkari Act. He faces sentence of RI for 2 years and have a fine of Rs.1 lakh. In fault, he has to undergo SI for a further period of six months. The charge against the appellant is that he along with two others was engaged in transportation of illicit spirit when the vehicle in which the spirit was being transported was detected, chased and intercepted at 10 a.m. on 12.01.06. 2. The Excise party of which PW3 was the leader and PW4 a member had detected the crime. Investigation was conducted by PW5 and cognizance was taken on the basis of the final report submitted by PW5. 3. The accused denied the offences alleged against him and Crl.A. No. 1354 OF 2007 and RC 1 of 2008 2 thereupon the prosecution examined PWs 1 to 5 and proved Exts.P1 to P11. PWs 1 and 2 are the independent witnesses who had signed as witnesses in Ext.P1 seizure mahazar. Both of them turned hostile to the prosecution but they admitted their signatures in Ext.P1. They did not subscribe to the contentions of Ext.P1. According to them, they had signed the mahazar not at the scene of the crime but at the Excise office. PWs 3 and 4, as stated earlier, are the detecting officer and the officer who accompanied the detecting officer. Intelligence report was received. The vehicle was intercepted. When the vehicle sped away, the Excise party followed them. Ultimately the three persons in the jeep, abandoned the jeep and ran away. They were chased, but only one of them, i.e., the appellant herein, could be apprehended. Ext.P3 is the arrest memo. Ext.P4 is the arrest intimation card. Ext.P5 is the occurrence report and Ext.P6 is the property list under which the articles were submitted to court. PW5 is the investigating officer. Ext.P7 is the forwarding note. Exts.P8 and P10 are the requisition for preparation of inventory to the Crl.A. No. 1354 OF 2007 and RC 1 of 2008 3 Magistrate and the order passed by the learned Magistrate thereon. Ext.P9 is the site plan and Ext.P11 is the chemical examiners report. 4. The appellant in the course of cross examination of the prosecution witnesses and when examined under Section 313 Cr.P.C denied all circumstances which appeared in evidence against him. According to the appellant, he was absolutely innocent and false allegations are raised against him. He had nothing to do with the jeep or other passengers in the jeep. He was apprehended purely on suspicion. In his presence the jeep was not intercepted at all. No defence evidence was adduced. 5. The learned Sessions Judge came to the conclusion that notwithstanding the hostility of PWs 1 and 2, the oral evidence of PWs 3 and 4 can safely be accepted and acted upon. Their evidence along with other materials available established the culpability of the appellant clearly and convincingly, it was held. Accordingly, the learned Judge proceeded to pass the impugned verdict of guilty, conviction and sentence. Crl.A. No. 1354 OF 2007 and RC 1 of 2008 4 6. When the matter came up before this Court, another Bench of this Court felt that suo motu referred case must be registered against the (inadequacy of the) sentence imposed. Accordingly, RC No.1 of 2208 was also registered. I am proceeding to dispose of both these petitions by this common order/judgment. Learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on various grounds. First of all, the counsel contends that no reliance should have been placed on the oral evidence of interested officials, i.e., PWs 3 and 4. PWs 1 and 2 had turned hostile. There was no independent evidence to support the oral evidence of PWs 3 and 4. In these circumstances the learned Judge should not have accepted and acted upon the oral evidence of PWs 3 and 4, it is submitted. 7. I find no merit in this contention. PWs 3 and 4 cannot be condemned as interested witnesses. Interest which they even allegedly have is only legitimate interest in the successful prosecution of the offenders. They are not even alleged to have Crl.A. No. 1354 OF 2007 and RC 1 of 2008 5 any interest against the appellant. There is no motive ill will or malice even suggested against PWs 3 and 4 in the course of cross examination. It is the sublime public duty of public officers that they must detect offences and bring offenders to book. This legitimate interest in the successful prosecution of the offenders cannot bring such officials within the sweep of interested witnesses whose evidence must be viewed with caution, suspicion and reservation and for whose evidence, independent corroboration must be insisted. I do not, in these circumstances, find any reason to approach the oral evidence of PWs 3 and 4 with any underserved doubt, distrust or suspicion. PWs 1 and 2 had turned hostile. Their hostility does not at all impress me as a sufficient reason to approach the prosecution case with any amount of reservation. A reading of the oral evidences of PWs1 and 2 clearly show that they are not speaking the truth and are only attempting to support the appellant. They have admitted their signatures in Ext.P1 and no convincing or satisfactory explanation is offered for the presence of their signatures in Ext.P1. The Crl.A. No. 1354 OF 2007 and RC 1 of 2008 6 contents of the contemporary seizure mahazar Ext.P1 do also eminently support the oral evidence of PWs 3 and 4. The other contemporaneous documents like Ext.P3 arrest memo, Ext.P4 arrest intimation and Ext.P5 occurrence report do also support the oral evidence of PWs 3 and 4. 8. I do note that the interrogation of the appellant had not led the investigator to any other safe conclusion about the names and details of the other persons who were available in the jeep nor has the investigator made any serious attempts to identify the destination or the origin of the contra band liquor. Huge quantities of 14 X 32 liters of spirit were seized from the vehicle. The least that could have been expected from PW5 is to make serious and earnest effort not only to prosecute the appellant but also to ascertain the complicity of others involved. The prosecution appears to be complacent by lodging the prosecution against the appellant herein but no worth while attempts appear to have been made to trace the higher links or other persons responsible for the commission of the offence. This is indeed unsatisfactory and Crl.A. No. 1354 OF 2007 and RC 1 of 2008 7 uninspiring. The investigator does not appear to have done his duty completely and satisfactorily. But that inadequacy in the investigation cannot by itself persuade this Court to discard the evidence adduced showing the complicity of the appellant herein. Though thoroughly and totally dissatisfied with the absence of a serious investigation to ascertain the complicity of the others and the higher links by engaging themselves in such illicit activity, I am unable to agree that the appellant herein is entitled for any undeserved advantage on the basis of such inadequacy in investigation. As against the appellant, the evidence is satisfactory and inspiring though the absence of a serious attempt to ascertain further vital details does generate dissatisfaction in the mind of this Court. 9. 14 X 32 liters of spirit were seized. PWs 3 and 4 have stated that the contra band article was spirit. The report of the chemical examiner Ext.P11 confirms the same. I am unable to agree that innocuous, incongruities and innocent inaccuracy in the oral evidence of PWs 3 and 4 should persuade this Court to Crl.A. No. 1354 OF 2007 and RC 1 of 2008 8 concede any benefit of doubt to the appellant herein. 10. No other contentions are raised. I am in these circumstances satisfied that the verdict of guilty and conviction of the appellant is absolutely justified and the same does not warrant appellate interference at the hands of this Court. 11. Coming to the question of sentence, the counsel contends that the sentence is excessive and may be reduced. RC 1 of 2008 has been registered, on the impression of the Court that the sentence imposed is inadequate, I shall consider RC 1 of 2008 first of all. The contra band article is spirit. Substantial quantity is also recovered. Even going by the case of prosecution, the appellant was only the driver of the said jeep. Through him the investigator has not even been able to ascertain the details of the co-accused or the source of the contra band article or its destination. This must realistically convey to the Court the nature and extent of involvement of the appellant in the culpable activity. I find merit in the contention that even if the entire allegations were accepted, the role or extent of culpability of the appellant is Crl.A. No. 1354 OF 2007 and RC 1 of 2008 9 minimal. In these circumstances, I am persuaded to agree that it is not necessary to invoke the powers of this Court suo motu to enhance the sentence imposed on the appellant. RC 1 of 2008 must, in these circumstances, must fail. 11. Coming to the contention regarding the excess severity of the punishment, there can be no doubt that the appellant had involved himself in the transportation of illicit spirit. The nature and quantity of the contra band article must also be borne in mind. I am satisfied, in these circumstances that the sentence imposed by the court below is eminently reasonable and just and the same does not warrant interference. 12. In the result, this appeal is dismissed. The impugned verdict of guilty, conviction and sentence are upheld. R. BASANT, JUDGE ttb Crl.A. No. 1354 OF 2007 and RC 1 of 2008 10 Crl.A. No. 1354 OF 2007 and RC 1 of 2008 11 Crl.A. No. 1354 OF 2007 and RC 1 of 2008 12