IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 CRL.A.No. 1100 of 2002(D) ------------------------ SC.476/1999 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD .................... APPELLANT(S)ACCUSED: ------------------------------- BIJU,S/O.THRESIAMMA, PARAKKAYAM,KALLAR VILLAGE. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S)/COMPLAINANT: -------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.I.OF POLICE,RAJAPURAM POLICE STATION. PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 1100 OF 2002 = = = = = = = = = = = = = = = Dated this the 25th day of August, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. Sessions Judge,Adhoc-I, Kasaragod in S.C.476/99. Accused was charge sheeted for offence u/s 55(a) of the Abkari Act and was convicted thereunder and sentenced to undergo rigorous imprisonment for a period of three years and a fine of Rs.1,00,000/- with default sentence. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are: (1)Whether the materials are sufficient to connect the accused with the crime? (2)Whether the accused is guilty of the offence u/s 55(a) of the Abkari Act? (3) Is there anything to interfere with the decision of the trial court? Crl. Appeal NO. 1100 OF 2002 -:2:- Points 1 to 3: 3. For the sake of convenience all these points are answered together. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant had very strongly contended before me that there are no materials to connect the accused with the crime and therefore the finding of the court below is liable to be interfered with. It is the case of the prosecution that on 23.8.98 at about 7.35 p.m. the accused was found in possession of 200 packets of arrack produced in Karnataka on the public road and thereafter he has been proceeded against. It is the case of the prosecution that on seeing the jeep the accused left the place and though the police party followed him he could not be apprehended and therefore they came with one Simon and examined him what is contained in the bag and it was found to be illicit arrack. It was found on taste and smell and thereafter sample was taken. 4. At the out set it has to be stated that the accused was not apprehended with the material objects from the place. The evidence in this matter consists of the evidence of the Crl. Appeal NO. 1100 OF 2002 -:3:- official witnesses PWs.1 and 5 and the independent witnesses, PWs.3 and 4. PWs.1 and 5 would depose while they were travelling in the jeep they were able to see the accused from a distance of about 15 mts. and on seeing them he left the articles and ran away. According to them they were following the accused at an earlier point of time. On the contra PW3 who is the uncle of the accused who had been cited by the prosecution to prove the seizure would depose before court that the accused was not identified by him or he had nothing to do with the seizure of the material objects. PW4 an independent witness also had not supported the case of the prosecution. 5. Now the allegation against the accused is that in and around 8 p.m. the accused had ran away. There were more than two police officials at the time of the incident. If the story of the official witnesses PWs.1 and 5 are acceptable one has to remember that they were not able to trace the man who was just 10 mts. ahead of them. It shows that their evidence that accused was at a distance of 10 mts. as submitted to by them cannot be accepted. One can Crl. Appeal NO. 1100 OF 2002 -:4:- understand that persons may be familiar to a police constable or a Sub Inspector of Police. But even in the seizure mahazar he is described as the 'S/o of so and so' by giving the name of mother. It has to be remembered along with Simon they had came to the spot. So necessarily it is certain that the information is furnished by somebody else and was not on the personal knowledge of the police officials. One cannot expect the police official to know the name of the parents of all the persons in the locality. The accused ultimately surrendered before Court after two months and even thereafter no attempt is made by the investigating agency to point out the accused to the persons and identify him. Identification of the accused is done for the first time while he was in the box. Time and again the Apex Court has held that such an identification is very dangerous and it shall not form the basis for any conviction in a case involving major offences. It is true that when the independent witnesses turn hostile the evidence of the official witnesses can be acceptable as reported in the decision reported in Sivaraman v. State of Kerala (1981 KLT S.N. Case No.17 page 9). But the Court should be Crl. Appeal NO. 1100 OF 2002 -:5:- equally conscious while analyzing the evidence. The Court has to do meticulous scrutiny regarding the acceptability of their evidence to find out whether it is intrinsically reliable and inherently probable. Almost during the night time they are said to have located a person and he has surrendered before Court after two months and there is nothing to show how these police officials were personally acquainted with the accused so as to identify him from a distance of 10 mts. I am not prepared to accept this evidence to connect the accused with the crime. Therefore the inevitable conclusion is that the benefit has to go to the accused. Therefore the conviction and sentence passed by the Court below is set aside and the appeal is allowed. The accused is found not guilty of the offence alleged against him and is found not guilty and acquitted and set at liberty. The Crl.Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 1100 OF 2002 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 1100 OF 2002 = = = = = = = = = = = J U D G M E N T 25th August, 2009