IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 Crl.Rev.Pet.No. 131 of 2008() ----------------------------- CRL.A.NO.24/06 OF SESSIONS COURT, KOZHIKODE SC.NO.213/03 OF PRL.ASST.SESSIONS COURT, KOZHIKODE REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ------------------------------------------------------- P.T.MOOTHORAN, S/O.KEERAN, POOLAMPOYIL THAZHAM VEEDU, CHEVERAMBALAM, CHEVAYOOR AMSOM DESOM, KOZHIKODE. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: STATE AND COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.I. OF POLICE, MEDICAL COLLEGE POLICE STATION. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P.No.131 of 2008 ------------------------------------- Dated this the 22nd day of January, 2008 ORDER This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 55(a) and (g) of the Kerala Abkari Act. The petitioner faces a concurrent sentence of imprisonment for a period of one year under Sections 55(a) & (g) of the Kerala Abkari Act. He is also sentenced to pay a fine of Rs.1 lakh and in default to undergo S.I for a period of 3 months under Section 55(g) of the Kerala Abkari Act. 2. The crux of the allegations against the petitioner is that on 09.04.01 at 4.20 p.m when the police team headed by PW7, of which PW1 was a member, reached the scene of the crime, the petitioner was found distilling arrack. 50 litres of wash, 3 ½ litres of arrack and implements for distillation were seized under Ext.P1 seizure mahazar by PW7. Investigation was conducted by PW6, who filed the final report. Cognizance was taken by the learned Magistrate and the case was committed to the Court of Session. 3. The accused denied the charges levelled against him and thereupon the prosecution examined Pws 1 to 7 and proved Exts.P1 to P7. M.Os 1 to 6 were also marked. Accused took up a Crl.R.P.No.131 of 2008 2 defence of total denial. According to him, he was absolutely innocent. He examined a witness as DW1. DW1 is the son of the accused and he was examined to assert in support of the case of the accused that he was called to the police station and a totally false case was registered against him. 4. PW1 is the police constable who accompanied PW7. PW7, as stated earlier, is the officer who led the detecting police party. Pws 2 and 3 are attestors to Ext.P1 seizure mahazer. They admitted their signatures in Ext.P1, but turned hostile and did not support the case of the prosecution about the seizure. PW4 is an attestor to Ext.P2 scene mahazer. PW5 is the village officer who prepared Ext.P3 scene sketch. Ext.P4 is the list of property sent to court. Ext.P7 is the F.I.R registered. Exts.P5 and P6 are the forwarding note and the report of the Chemical Examiner. M.Os 1 to 6 are the articles seized. 5. The courts below concurrently came to the conclusion that safe reliance can be placed on the oral evidence of Pws 1 and 7 and such evidence when accepted clearly establishes the guilt of the accused. Accordingly they proceeded to pass the impugned concurrent judgments. 6. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of Crl.R.P.No.131 of 2008 3 challenge, which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner raises various contentions. 7. First of all the learned counsel for the petitioner contends that reliance should not have been placed on the oral evidence of Pws 1 and 7 who are police officials and hence interested witnesses. Their evidence must have been viewed with reservation and suspicion for the reason that Pws 2 and 3, independent attestors to Ext.P1 seizure mahazer, had turned hostile. Their evidence must also have been viewed with caution and reservation in as much as the investigation was conducted by PW6, a subordinate of PW7. In these circumstances, the oral evidence of Pws 1 and 7 must have been discarded, it is contended. 8. I find no merit in this contention. I must alertly remind myself of the nature, quality and contours of the revisional jurisdiction of superintendence and correction vested in this Court. Discretions exercised by subordinate courts in the matter of appreciation of evidence and in choosing to accept one set evidence will not normally be interfered with lightly by this Court exercising the correctional jurisdiction in revision. The evidence of Pws 1 and 7 have been considered by the courts below in detail. The copies of the deposition have been placed before me. Crl.R.P.No.131 of 2008 4 I find absolutely no incongruity, inconsistency or contradiction which can persuade any prudent mind to throw overboard the evidence of Pws 1 and 7 on the basis of such alleged vice. 9. The fact that Pws 2 and 3 have turned hostile cannot in any way weigh with this Court while considering the acceptability of the evidence of Pws 1 and 7 as the contents of the contemporaneous Ext.P1 seizure mahazer, signature in which is unambiguously admitted by Pws 2 and 3 eminently support the oral evidence of Pws 1 and 7. Indian Courts do often come across independent attestors turning hostile with impunity and such hostility of such allegedly independent witnesses, it is by now trite, cannot by itself deliver to the indictee any undeserved advantage. 10. PW6 is the Additional Sub Inspector of Police, whereas PW7 is his superior in the local police station. It is not the law that such investigation deserves to be rejected and any benefit can be conferred on the indictee on that score. The crucial question is whether such investigation has resulted in any prejudice or unfairness against the accused. Pws 1, 6 and 7 are not shown to have any motive whatsoever to falsely implicate the petitioner and in these circumstances, the mere fact that it was PW6 who conducted the investigation into this crime registered on the basis Crl.R.P.No.131 of 2008 5 of the detection effected by the party led by PW7 is no reason to concede to the petitioner any advantage or benefit. 11. The learned counsel for the petitioner then submits that there is no satisfactory evidence to show that the contraband articles seized and the material objections had reached the court promptly. I have been taken through the evidence of PW7. I have seen Ext.P4 property list. This clearly shows that the seized properties were delivered to the court through the Investigating Officer on the very next day ie. 10.04.01, the detection having taken place on 09.04.01. It is not thus shown that there has been any delay in the material objects reaching the court. That the forwarding note was issued only on 05.05.01 to get the Chemical Examination done or the fact that the Chemical Examiner's report bears the date 20.07.03 is again no reason for this Court to concede to the petitioner any undeserved advantage or benefit. The evidence of interested witness DW1-the son of the petitioner was also, according to me, rightly not accepted and acted upon by the courts below. 12. The above discussions lead me to the conclusion that the verdict of guilty and conviction are absolutely justified and do not, at any rate, warrant any interference. The challenge on merits must hence fail. Crl.R.P.No.131 of 2008 6 13. Lastly and finally the learned counsel for the petitioner prays that leniency may be shown on the question of sentence. The learned counsel for the petitioner relying on the earlier documents in this case argues that the petitioner was aged 65 years on the date of detection and he must hence be more than 72 years at the moment. Leniency may be shown on the question of sentence, submits the learned counsel for the petitioner. Long lapse of time, the advanced age of the accused etc. may all be taken into account, it is submitted. 14. The petitioner now faces a substantive sentence of imprisonment for a period of one year and a default sentence of imprisonment for 3 months. I am satisfied that leniency can be shown on the question of substantive sentence of imprisonment imposed on the petitioner. There is a statutory minimum fine prescribed and appropriate modification of the default sentence can also be resorted considering the totality of circumstances in this case, particularly the advanced age of the petitioner. 15. In the result: a) This Crl.R.P is allowed in part; b) The impugned verdict of guilty and conviction of the petitioner under Sections 55(a) & 55(g) of the Abkari Act are upheld; Crl.R.P.No.131 of 2008 7 c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo S.I for a period of 2 months each under Section 55(a) & (g) of the Kerala Abkari Act. The sentences shall run concurrently, it is directed specifically. Needless to say that the petitioner shall be entitled for set off also in accordance with law. Sentence of fine of Rs.1,00,000/- is upheld, but the default sentence is reduced to S.I for a period of 2 months. 16. The petitioner shall appear before the learned Sessions Judge on or before 01.03.2008 for execution of the modified sentence hereby imposed. (R.BASANT, JUDGE) rtr/-