IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Crl.Rev.Pet.No. 3828 OF 2007() ------------------------------ CRA.93/2004 of ADDL. SESSIONS COURT (ADHOC)-II, KASARAGOD SC.429/2000 of ASSISTANT SESSIONS COURT, HOSDURG .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- CHERAMMAL KUNHIPPENNU, AGED 54 YEARS, W/O.LATE BALAN, KAIKKANDAM HOUSE, CHEMMAMKARA, NILESHWAR VILLAGE. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3828 OF 2007 ------------------------------------------ Dated this the 18th day of November, 2008 O R D E R Revision petitioner was convicted and sentenced for the offence under section 55(a) of Abkari Act by Assistant Sessions Judge, Hosdurg in S.C.429 of 2000. Conviction was confirmed by Additional Sessions Judge, Kasaragod in Crl.Appeal 93 of 2004. Revision is filed challenging the conviction and sentence. 2. Prosecution case was that PW4, the Sub Inspector of Nileswar Police Station, on 9.11.1999 early morning got information that petitioner was distilling illicit arrack and along with PW5, the Constable, he proceeded to the house of the revision petitioner. On reaching house No:VI/609 of Neeleswar Panchayat, PW4 found petitioner coming out of the house with MO1 Can. Finding the police she cried. Getting suspicious PW4 examined MO1 Can and found that it contained arrack. PW4 in the presence of PW2, a neighbour, and another neighbour, prepared Ext.P1 seizure mahazar and seized MO1 Can. Petitioner was arrested. A sample was also prepared and sealed from the arrack found in MO1 Can. Along with revision CRRP3828/07 2 petitioner and PW5, PW4 reached the police station and prepared Ext.P5 FIR and registered the crime. On the same day PW4 prepared Ext.P3 scene mahazar. Ext.P1 site plan was got prepared by PW1, the Village Officer. The sample and MO1 were produced before the Court. Sample was forwarded on submitting Ext.P7 forwarding note to the Magistrate, to Chemical Laboratory and obtained Ext.P8 report. After completing the investigation, charge was laid. Petitioner pleaded not guilty. Prosecution examined 5 witnesses and marked 8 exhibits and identified MO1. On the side of the defence, when called upon to enter on her defence and adduce evidence, DW1 was examined and Exts.D1 and D2 were marked. Learned Assistant Sessions Judge on the evidence convicted the petitioner. Learned Sessions Judge on reappreciation of evidence confirmed the same. The question is whether prosecution has conclusively proved that petitioner was possessing MO1 containing arrack as alleged. 3. Ext.P2 seizure mahazar is seen attested by PW2 and another witness by name Karunakaran. PW2 though admitted his signature, denied the case that he was a witness to the seizure. Courts below accepted the case of PWs 4 and 5 to find CRRP3828/07 3 that MO1 was in the possession of the revision petitioner. The question is whether the evidence of PWs 4 and 5 could be believed. 4. True, there is no rule or law that evidence of police officers cannot be believed or that it is to be viewed with suspicion. It is also true that fact that witness to seizure mahazar turned hostile does not mean that the case of seizure is to be disbelieved. But, if the evidence adduced by the prosecution is not believable, the fact that the witness to the seizure mahazar turned hostile to prosecution is definitely a relevant fact to be considered while appreciating the evidence. 5. If we are to believe the evidence of PWs 4 and 5, PW4 got information that revision petitioner is distilling arrack from her house and he proceeded to that house at 6.10 a.m. along with PW5 and reached near to her house by 6.20 a.m. If that be the case one would expect PWs 4 and 5 to search the house to find out whether revision petitioner was distilling arrack. Even if the case of PWs 4 and 5 is believed and revision petitioner was found holding MO1 Can, as they reached the house on the information that revision petitioner is distilling arrack, one would definitely expect PWs 4 and 5 to search the house to find CRRP3828/07 4 out whether the apparatus or wash used for distilling is there in the house. Evidence of PWs 4 and 5 is to the effect that they did not even search the house. That itself casts serious doubt on the genuineness of the case spoken to by them as well as the seizure. 6. Revision petitioner has the specific that she was not residing in that house and instead is residing in house No.XII/563 with the old house No.VI/676A. DW1, the Secretary of the Panchayat, was examined to prove that aspect. Ext.D1 and D2 with the evidence of DW1 establish that revision petitioner was residing at that time in house No.VI/676A and not in house No.VI/609, which was the house from where the revision petitioner allegedly came out with MO1 Can. In the nature of the case prosecution has the duty to prove that house No.VI/609 belongs to the revision petitioner or at least that she was residing there at that time. There is no evidence. In fact evidence of PW4, the investigating officer, establish that he did not conduct any investigation to find out the ownership of the house. The evidence of PWs 4 and 5 show that they found revision petitioner coming out of a house which was facing east. The evidence of PW1 the Village Officer who prepared Ext.P1 CRRP3828/07 5 site plan establishes that the house No.VI/609 marked as H1 in Ext.P1 site plan is facing south. If that be so, there is force in the submission of the defence that PWs 4 and 5 in fact did not reach that house at all. The very fact that at about 6.20 a.m. when PWs 4 and 5 reached near the house, revision petitioner came out exactly at the correct time with MO1 Can itself is unbelievable. 7. Ext.P2 seizure mahazar does not disclose that the sample was sealed and signature of the accused or the witnesses were obtained at the time of seizure. Even when PW2 was examined, he has no case that he or the accused or witnesses affixed their signature in any of the labels used for sealing. PW5 has also no such case. Therefore even if it is taken that MO1 Can was seized from revision petitioner, there no guarantee that the sample which was sent for chemical analysis is a sample prepared from the liquor found in MO1 Can. Unfortunately these relevant aspects were omitted to be taken into consideration by the learned Assistant Sessions Judge and Sessions Judge and believing the evidence of PWs 4 and 5 revision petitioner was convicted. When there is no evidence to prove that house No.VI/609 either belongs to revision petitioner CRRP3828/07 6 or that revision petitioner was residing in that house at the relevant time and Ext.P1 with the evidence of PW1 village officer shows that house No.VI/609 is facing south and evidence of PWs 4 and 5 is to the effect that revision petitioner was coming of a house facing east, Courts below should not have accepted the evidence of PWs 4 and 5 that they seized MO1 from the revision petitioner while she was coming out of the house on the early morning. As it is highly improbable that PWs 4 and 5 will not have failed to search the house, if they reached there on getting information that revision petitioner was distilling arrack in her house and petitioner holding MO1 Can containing arrack the case should not have been believed. In the light of the evidence conviction of the petitioner is not sustainable. Revision is allowed. Conviction of the petitioner for the offence under section 55(a) of Abkari Act is set aside. Revision petitioner is acquitted of the offence charged. The bail bond executed by her stands cancelled. She is set at liberty. M. SASIDHARAN NAMBIAR, JUDGE Okb/-