IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 CRL.A.No. 855 of 2003() --------------------------------- SC.493/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD .................... APPELLANT/ACCUSED --------------------------------- T.K. CHANDRIKA, AGED 45 YEARS, W/O. RAGHAVAN, ANIKKUZHIYIL VEEDU, KOLAPPURAM, PANATHADY VILLAGE. BY ADV. MR.M.THAMBAN SMT.T.SUDHAMANI RESPONDENTS/COMPLAINANT AND STATE --------------------------------------------------------------- 1. THE STATION HOUSE OFFICER, RAJAPURAM POLICE STATION. 2. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 & R2 BY PUBLIC PROSECUTOR MR.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 855 OF 2003 = = = = = = = = = = = = = = = Dated this the 5th day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence in S.C.493/99 of the Addl. Sessions Judge, Adhoc-I, Kasaragod. The accused was charged u/s 55(g) of the Abkari Act and was found guilty and convicted and sentenced thereunder. She was imprisoned for a period of three years and to pay a fine of Rs.1,00,000/-. It is against that decision the accused has come up in appeal. The brief facts necessary for the disposal of the appeal is that on 16.8.98 at 6.30 a.m. the accused was found in possession of 20 liters of wash at her residential house bearing Door No.7/343, Kolappuram of Panathady village. The defence was of a total denial. PWs.1 to 3 were examined and Exts.P1 to P8 and MO1 were marked. By a short judgment the learned Sessions Judge found the accused guilty and sentenced her to undergo imprisonment. It is against that decision the present appeal is preferred. The Crl.A. 855 OF 2003 -2- points that arise for determination are, (1)Whether there are sufficient materials to hold that the accused has committed the offence u/s 55(g)? (2) Whether the decision of the lower Court requires interference? Points 1 and 2: 2. It is the case of the prosecution that 20 liters of wash was recovered from the possession of the accused from her residential house bearing Door No.VII/343. Learned counsel for the appellant would contend that the prosecution case is totally suspicious and that an innocent person had been booked. She had taken me through the relevant documents as well as the evidence. Ext.P1 is the sketch. Ext.P2 is the seizure mahazar in which it is described that on searching the premises of the house 20 liters of wash contained in aluminium pot was recovered. It is specifically stated therein the house number as PP/VII/343. Ext.P3 is the scene mahazar wherein also the number of the house is given as VII/343. Ext.P4 is the First Information Report. Ext.P5 is a Crl.A. 855 OF 2003 -3- petition filed on 13.7.99 after the appearance of the accused to correct the number of the house from VII/343 to VII/353. It is stated in the report that the number shown in the plate fixed on the door frame was entered into in the mahazar. Ext.P7 is the forwarding note and Ext.P8 would show that one sample contained 0.46% by volume of ethyl alcohol and in the other sample 5.43%. 3. Ext.P6 is the extract of the building assessment register which shows that the house number as 353 occupied by Chandrika. It is very interesting to note that the detecting officer got sufficient information in advance regarding the storage of wash in the house of the accused and he has proceeded to conduct a search and raid in the house. No search memo is prepared or posted and when confronted with that situation it is stated that he did not enter the house but only searched the premises of the house. Secondly, it has to be stated that noting that the accused being a lady is to be searched and reported he goes without the aid of a lady constable and records a reason in the First Information Crl.A. 855 OF 2003 -4- Statement that the absence of a lady constable prevented him from arresting the accused. It is also specifically stated that the house No. is 7/343. Suppose the house number is different the whole thing changes. Therefore when Ext.P5 was filed and what is averred therein is to the effect that he had noted the number from the door frame of the house. Certainly if it is true it would have been a previous number or some altered number. But when Ext.P6 is produced before the Court no such details are forthcoming and only the number 353 is found therein. Unless there is some thing to show before the Court that the house No.353 which is actually the residence of the accused has at any point of time a number of 343, the attempted explanation tendered by the Sub Inspector cannot be accepted. So there is lot of suspicion in the matter, (1) He goes to the place to search a house without a search memo being posted (2) He goes to arrest a lady without having a lady constable and lastly he does not find the correct number of the house at all. To crown all these, it is to be stated that a solitary witness for the prosecution is examined who is none Crl.A. 855 OF 2003 -5- other than the detecting officer. When a person is detecting an offence and he is examined as the prosecution witness there is certain amount of interestedness for him in the case. I am conscious of the fact that the mere interestedness is not sufficient to discard his evidence. But the Courts have cautioned that the evidence of such witness should be put in meticulous scanning. In this case when you scan the evidence of PW1 lot of unnaturality exists therein and he does not speak one sentence regarding the name of the persons who accompanied him at the time of the alleged search and seizure. Then the changing of the number of the house and the absence of a lady constable etc. only makes the Court to be careful in accepting his evidence and therefore I find his evidence cannot be totally relied upon in the back drop of the above failures on his part and therefore a conviction on that basis of evidence of PW1 alone cannot be sustained. Therefore I find that the learned Sessions Judge had erred in convicting the accused u/s 55(g) of the Abkari Act. The conviction and sentence are set aside. In the result the Crl. Crl.A. 855 OF 2003 -6- Appeal is allowed and the conviction and sentence passed by the Sessions Judge are set aside, accused is found not guilty of the offence u/s 55(g) of the Abkari Act and therefore is acquitted and she is set at liberty. M.N. KRISHNAN, JUDGE. ul/- Crl.A. 855 OF 2003 -7- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 855 OF 2003 = = = = = = = = = = = J U D G M E N T 5th June, 2009