IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 CRL.A.No. 1513 of 2008() ------------------------ SC.1459/2006 of Additional Sessions Court, Kottarakkara. CP.345/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... APPELLANT: ----------- YESODHARAN, C.NO.2841, CENTRAL PRISON, TRIVANDRUM. BY PUBLIC PROSECUTOR RESPONDENTS: ------------- STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY ADV. ADV.K.P.HARISH[STATE BRIEF] PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.A.No.1513 of 2008 ---------------------------------------- Dated this the 29th day of August 2008 JUDGMENT The appellant has preferred this appeal through prison authorities to assail the verdict of guilty, conviction and sentence imposed on him by the learned Sessions Judge in a prosecution under Section 55(a) and (i) and Section 8 of the Kerala Abkari Act. 2. The crux of the charge levelled against the petitioner is that he was found to be in possession of 4 litres of arrack and a tumbler engaging himself in the Act of selling arrack at 4.15 a.m on 17/5/2004. He allegedly had MO1 container with arrack and MO2 tumbler in his possession when he was intercepted. Investigation was completed and the final report was filed by the police. Cognizance was taken by the learned Magistrate. The case was committed to the court of Session. The appellant denied the offences alleged against him and thereupon the prosecution examined PWs 1 and 2 and proved Exts.P1 to P7. MOs 1 and 2 were also marked. The accused took up a defence of total denial. According to him, on account of prior animosity Crl.A.No.1513/2008 2 which arose from an incident which had taken place long earlier wherein the appellant had occasions to have disputes with the police, the present false allegations have been raised against him after he returned to his native place after spending a long time in distant places. No defence evidence was adduced. 3. PW1 is the Sub Inspector of Police who detected the offence, effected seizure of MOs 1 and 2 and arrested the accused. PW2 is a Police Constable who accompanied him. No other witnesses were examined. Ext.P1 is the seizure mahazer. Ext.P2 is the custody memo. Ext.P3 is the inspection memo. Ext.P4 is the F.I.R. Ext.P5 is the list of properties sent to court. Ext.P6 is the forwarding letter and Ext.P7 is the report of chemical examinations submitted by the Chemical Examiner. 4. The learned Sessions Judge came to the conclusion that it is safe to place reliance on the oral evidence of PWs 1 and 2 which is supported by contemporaneous Ext.P1 seizure mahazer as also Ext.P4 F.I.R. The learned Judge in these circumstances sailed to the conclusion that it was safe to rely on the oral evidence of PWs 1 and 2 and found the appellant guilty. The appeal has been preferred through prison authorities. The appellant was unable to engage a counsel on his own. Service of a State Brief Counsel was made available to the appellant. Crl.A.No.1513/2008 3 Arguments were advanced by the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on the following grounds: i) The learned Judge should not, at any rate, have placed reliance on the oral evidence of interested PWs 1 and 2. ii) At any rate, the conviction under Section 55(a) of the Kerala Abkari Act is totally unjustified. iii) In any view, the sentence imposed is excessive. 5. The crucial question raised is whether the court below went wrong in placing reliance on PWs 1 and 2. Both PWs 1 and 2 are police officials. PW1 is the superior official who detected the offence. PW2 is the Police Constable who works with PW1. Significantly, though admittedly there were many witnesses at the scene of the crime, the two witnesses cited as CWs 1 and 2 have not been examined by the prosecution. No other witnesses were cited at all. The accused had taken up a very definite and specific stand that he has been proceeded against on account of animosity entertained by officials in the police department against him. According to him, there was an earlier incident at the stone quarry where he was working as an employee. He had occasions to tread on the toes of the police officials. Crl.A.No.1513/2008 4 Apprehending harm to him, he had migrated to some other place and assuming that everything was safe, he had allegedly returned long later to his native place. It is at that juncture that the petitioner was allegedly taken into custody and this false case foisted against him, contends the accused. 6. In the nature of the stand taken up by the accused, it is only reasonable that a prudent person must insist on independent corroboration for the oral evidence of PWs 1 and 2. It is true that PWs 1 and 2 are police officials and in such capacity as public officials, they have the burden to detect offence and bring the offenders to book. They are bound to have sublime interest in favour of the prosecution to bring offenders to book and to detect offences. This interest which they have is by itself insufficient, I agree, to reckon PWs 1 and 2 as interested witnesses whose testimony must be approached by the adjudicator with any doubt, suspicion or distrust. But in this case specific allegations are raised against the police officials though the said contention is not substantiated with tangible data. But in this context, I cannot afford to ignore the fact that there is discrepancy and incongruity between the evidence of PWs 1 and 2 about PWs 1's prior acquaintance with the appellant. While PW2 admitted that PW1 knew that the accused Crl.A.No.1513/2008 5 was involved in earlier crimes, PW1 feigned ignorance and pleaded that he has no such knowledge. Essentially this circumstance must persuade a court to seek assurance for the versions of PWs 1 and 2. The learned counsel has taken me through the materials available in the case to highlight the incongruity between the testimony of PW1 and PW2 which according to him must notify the court of the need to be cautious. It is in this context that I take note of the crucial circumstance that independent witnesses have not been examined at all. Though it is said that CWs 1 and 2 were not available to be examined, it is crucial and significant that no other witnesses whatsoever were even cited by the prosecution. 7. I do not intend to castigate PWs 1 and 2 as witnesses unworthy of credit; but I must say that the totality of materials available does not afford assurance to this court that the oral evidence of PWs 1 and 2, both police officials can be accepted and acted upon safely without any corroboration. Insistence on corroboration cannot be a fetish; but in the totality of circumstances, I am certainly persuaded to agree that, at any rate, the appellant is entitled to the benefit of doubt which arises from the totality of unsatisfactory circumstance which is placed before court. Crl.A.No.1513/2008 6 8. I am satisfied, in these circumstances, that it would have been more prudent, safe and just to concede to the appellant the benefit of doubt which is aroused on the basis of the totality of circumstances. I unhesitatingly concede to the accused the benefit of such doubt. 9. In the result, a) This appeal is allowed. b) The impugned verdict of guilty, conviction and sentence imposed on the appellant under the Kerala Abkari Act is set aside. The appellant is found to be entitled to the benefit of doubt. He is found not guilty and acquitted. Communicate this judgment to the court below straight away. Communicate this judgment to the prison authorities also. If further detention of the appellant is not required in connection with any other case, he shall forthwith be released from custody. (R.BASANT, JUDGE) jsr Crl.A.No.1513/2008 7