IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 CRL.A.No. 5 of 2009() --------------------- SC.579/2007 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CP.18/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... APPELLANT(S): ---------------------- 1. MADHU, S/O. RAJAN, PLAKKIL HOUSE, MAYANOOR DESOM, VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. CHANDRAN, S/O. RAMAN, PADINJARATHIL HOUSE, CHEPPAMKUNNU COLONY, MAYANOOR, THRISSUR. 3. MOHANAN, S/O. RAMAN, PADINJARATHIL HOUSE, CHEPPAMKUNNU COLONY, MAYANOOR, THRISSUR. 4. THANKAPPAN, S/O. RAMAN, KOTTUVEETIL HOUSE, CHEPPAMKUNNU COLONY, MAYANNOOR, THRISSUR. BY ADV. SRI.SHOBY K.FRANCIS RESPONDENT(S): ---------------------- STATE OF KERALA/SUB INSPECTOR OF POLICE, CHELAKKARA POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.VENUGOPAL.M.R THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2010, ALONG WITH CRA NO. 151 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------------------- Crl.A.Nos.5 OF 2009 & 151 OF 2010 ---------------------------------------------- Dated this the 29th day of July, 2010. JUDGMENT As these appeals are arising out of a common judgment dated 16.12.2008 in S.C.No.579 of 2002 of the Court of Additional Sessions Judge, Thrissur and the question of facts and laws involved are identical, these two appeals are heard together and are being disposed by this common judgment. 2. Crl.Appeal No.5 of 2009, though filed by the appellants 4 in numbers and the execution of sentence imposed against them were suspended, only appellants 1 to 3 were executed the bond and thus they were released on bail. Whereas the 4th accused is concerned though he was also ordered to release on bail, he did not execute the bond and hence he is undergoing imprisonment in pursuance of the above judgment and thus the 4th accused has preferred separate Criminal Appeal No.151 of 2010 from jail. On receipt of the jail appeal, as directed by this Court the Registry of this Court appointed Adv.Thomastine. K. Augustine from the panel of state brief to prosecute the appeal on behalf of the appellant herein who is the 4th accused. 3. Thus, I have heard Adv.Shoby K.Francis learned counsel Crl.A.Nos.5/ 2009 & 151/2010 2 appearing for the appellants 1 to 3 in Criminal Appeal No. 5 of 2009 and Mr. Thomas K. Augustine learned counsel appearing for the appellant in Criminal Appeal No.151 of 2010 and also the learned Public Prosecutor. 4. The prosecution case is that the accused were found in possession of 2.700 litres of arrack at the time of detention and they were also found engaged in distilling illicit arrack. On the basis of the said allegation Crime No.56 of 2005 was registered in the Chelakkara police station for the offences punishable under Section 8 (1) and (2) and 55(b)(g) of Abkari Act. On completing the investigation, the police filed a report in the Judicial First Class Magistrate Court, Wadakkancherry upon which C.P.No.18 of 2006 was instituted and the learned Magistrate by his proceedings dated 25.4.2006 in C.P.No.18 of 2006 committed the case to the Sessions Court and thus instituted S.C.No.579 of 2002 and on the appearance of the accused a formal charge was framed after hearing them and the prosecution and when the charge read over to the accused they denied the same and pleaded not guilty and accordingly, the prosecution adduced its evidence which consists of oral evidence of PWs. 1 to 4 and documentary evidence such as Ext.P1 to P14. Material objects MO1 to 6 were identified and marked. No evidence is adduced Crl.A.Nos.5/ 2009 & 151/2010 3 from the side of the defence. On the basis of the evidence and materials which referred above, the trial court held that the accused has committed the offence and accordingly they were convicted and on such conviction each of the accused has been sentenced to undergo simple imprisonment for 3 years and a fine of Rs. 1,00,000/ each and in default they were further directed to undergo simple imprisonment for 6 months each. Set off was also allowed. It is the above conviction and sentence, are challenged by the appellants in these two appeals. 5. Both the counsel appearing for the appellants vehemently submitted that the prosecution has miserably failed to establish the identity of the accused who allegedly engaged in the illicit distillation of arrack and the evidence of prosecution are insufficient to prove its case beyond reasonable doubt. It is also the contention of the counsels appearing for the appellants that the absence of independent evidence create more doubt regarding the veracity of the evidence adduced by prosecution, when the main prosecution witness namely PWs.2 and 3 are contradicting on several material particular aspects of the case. Therefore, according to the learned counsel the conviction and sentence are liable to be set aside. 6. On the other hand learned Public Prosecution submitted Crl.A.Nos.5/ 2009 & 151/2010 4 that the evidence of PW2 alone is sufficient to canvass a conviction against the accused. The learned Public Prosecutor pointed out that PW2 accompanied by PW3 went to the spot as guided by PW4 who furnished the names of the accused as the person engaged in the distillation of the illicit arrack and the accused ran away from the spot, on seeing the police party and thus PWs.2 and 3 have occasion to see the accused on the date of occurrence and they have identified the accused in the court also during the trial. Therefore, the learned Public Prosecutor submitted that the findings arrived at by the court below is absolutely correct and no interference is warranted. 7. I have carefully considered the arguments advanced by counsel for the appellants and also the learned Public Prosecutor and I have gone through the evidence and materials on record. 8. The prosecution mainly depends upon the evidence of PW2 and PW3 to substantiate their allegation against the accused. According to the prosecution PW2 and PW3 accompanied in the party went to the place of occurrence on getting information and on their way to the place of occurrence they met PW4 and as guided by PW4 the police party went to the place of occurrence and it was PW4 who located the accused and identified them and gave their further details. From the evidence Crl.A.Nos.5/ 2009 & 151/2010 5 of PWs. 1 and 2, it appears that though they have tried to arrest the accused they ran away from the spot and escaped in to the forest. It is true that the prosecution has produced Ext.P1 to P14 documents during the trial with a view to substantiate the allegation of the accused. 9. Going by the evidence of the of the prosecution it can be seen that no accused was arrested from the spot from where Mos. 1 to 6 were seized by the police. The prosecution witnesses namely PWs.2 and 3 have any case that they have any prior acquaintance with the accused. Though the date of occurrence was on 23.2.2005, PW2 was examined in the court on 20.11.2008, on which date, he claimed to have identified the persons, those who were in the box, were the person who ran away from the spot on 23.2.2005, when himself and party proceeded to the spot. I am enable to accept the above version of PW2 to establish the identity of the accused. In this regard, it is relevant to not that though PW2 and 3 have claimed that they have got the details of the accused from PW4, no attempt is seen to have made by them to arrest the accused. On the other hand what PW2 said is that the accused surrendered in the police station and accordingly their arrest were recorded. Regarding the identity of the accused, if the above evidence of PW2 and 3 are excluded, there is no Crl.A.Nos.5/ 2009 & 151/2010 6 independent evidence to connect the appellant/accused with the alleged crime. 10. The contradictions pointed out by the learned counsel for the appellants with respect to the distance from where PWs. 2 and 3 saw the accused running, on their way to the place of incident assumes importance. According to PW2 when they were proceeding to the place of occurrence as guided by PW4, they saw the accused from a distance of 14 metres, whereas PW3 says that they had seen the accused from a distance of 100 metres. In this junction it is pertinent to note that PW2 and 3 have no prior acquaintance. Before meeting the accused in the court, PW2 and PW3 had no previous occasion to get acquaintance with the accused. Hence, in the absence of any corroboration of their evidence from an independent source, the first time identification in the court after a long from the date of occurrence can not be accepted. 11. According to prosecution it was PW4 who located the place and identified the accused. But during the examination of PW4 he had stated that he never made any statements to the police as claimed by the police. Even though I have repeatedly gone through the evidence, I am failed to understand the exact location of the accused when PWs.2 and 3 claimed to have seen Crl.A.Nos.5/ 2009 & 151/2010 7 them in forest areas. The seizure of MOs.1 to 6 materials are not sufficient to fix liability on the accused who were not arrested from the spot and who were not seen near and about the place of occurrence, since illicit distillation of illicit arrack inside the forest by other persons can not be ruled out. Therefore, I am of the view that the evidence adduced by the prosecution are not sufficient to hold that the accused/appellant were the persons who engaged in the distillation of illicit arrack as claimed by the prosecution. As such the prosecution has miserably failed to establish the charge beyond reasonable doubt and certainly the benefit of doubt will go in favour of the accused. Therefore, the conviction recorded by trial court is liable to be set aside and I do so. In the result, these appeals are allowed setting aside the conviction and sentence imposed by the impugned judgment against the appellants/accused and they are acquitted of all the charges levelled against them. Accordingly, the accused are set at liberty. As the appellant in Crl.Appeal No.151 of 2010/the 4th accused is acquitted of all the charges levelled against him, he is entitled to get released from jail forthwith if he is not required any other case. The Registry is directed to send the gist of this judgment to Crl.A.Nos.5/ 2009 & 151/2010 8 the Central Prison, Kannur where the 4th accused/the appellant in Crl.Appeal No.151 of 2010 is undergoing imprisonment. This Criminal appeals are allowed accordingly. V.K.MOHANAN, JUDGE. mns