IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 CRL.A.No. 232 of 2010(D) ------------------------ SC.145/2009 of ADDL. SESSIONS COURT (ADHOC-1), KOZHIKODE .................... APPELLANT(S): -------------- SASIKUMAR, S/O.KRISHNAN NAIR, CENTRAL PRISON, KANNUR. BY ADV. SRI.LUIZ GODWIN D'COUTH [STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADVS.SRI.JAYASURYA B., PUBLIC PROSECUTOR SRI.LUIZ GODWIN D'COUTH [STATE BRIEF] THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. A.No.232 of 2010 ------------------------------- Dated this the 25th day of June, 2010. J U D G M E N T The above appeal is preferred by the sole accused in S.C.No.145/09 of the Court of Addl. District and Sessions Judge, Fast Track (Ad hoc) Court-I, Kozhikode, challenging his conviction and sentence u/s.55(a) of Abkari Act. 2. The prosecution case is that on 11.7.2008 at about 7p.m., while PW1 and party were on patrol duty reached at the road in front of Koodaranji Panchayat office and found the appellant/accused in possession of 10 ltrs. of illicit arrack in a can. Thus he was intercepted, arrested and seized the contraband article. On the basis of the above incident, Crime No.225/08 of the Koodaranji Police Station, has registered the offence punishable u/s.55(a) of Abkari Act. After the investigation, a report was filed in the Court of Judicial First Class Magistrate-II, Thamarassery, upon which cognizance was taken and C.P.No.41/08 was instituted and thereafter by the order dated 13.3.2009, the learned Magistrate committed the Crl. A.No.232 of 2010 2 case to the Dist. Sessions court where the above sessions case was instituted and from where the case is made over to the trial court. On the appearance of the accused, after hearing him and the prosecution, a formal charge was framed u/s.55(a) of Abkari Act, which was read over and explained to the accused and he denied the same. Consequently, the trial was proceeded further, during which the prosecution adduced its evidence consists of oral testimony of Pws.1 to 5 and documentary evidence consists of Exts.P1 to P9. Material objects were marked as M.O.(1) and (2). When the accused was questioned u/s.313 he took a stand of total denial. Finally the trial court on the basis of the available materials and evidence found that the accused is guilty u/s.55(a) of Abkari Act and accordingly sentenced him to undergo rigorous imprisonment for a period of 1 year and to pay fine of Rs.1 lakh and in default he is ordered to undergo rigorous imprisonment for a further period of 6 months and set off was allowed. It is the above conviction and sentence challenged in this appeal. 3. As the appellant is undergoing imprisonment and he Crl. A.No.232 of 2010 3 preferred this appeal from jail, this court engaged Adv.Sri.Luiz Godwin D'couth, State Brief to prosecute the appeal. I have heard the counsel for the appellant and also the Public Prosecutor. 4. The learned counsel for the appellant submitted that, regarding the place of occurrence, there is a serious contradiction between the evidence of Pws.1 and 2 and though the prosecution has produced Ext.P8 sketch, regarding the place of occurrence, there is no mention about the panchayat office in Ext.P8, as deposed by PW1. Thus according to the learned counsel, the prosecution has miserably failed to establish the case beyond reasonable doubt and hence the appellant is entitled to get an acquittal. 5. On the other hand, the learned Public Prosecutor submitted that the accused was arrested by PW1 and party, near from the panchayat office and that too was done when PW1 and party were on patrol duty. The learned Public Prosecutor further submitted that, apart from the evidence of Crl. A.No.232 of 2010 4 Pws.1 to 5, there are contemporary documentary evidence to substantiate the case of the prosecution and thus the trial court after properly considering the evidence and materials on record found that the appellant is guilty and on finding of such guilt and convicting, the court imposed only a reasonable sentence on the appellant. Thus according to the learned Public Prosecutor, no interference of this court is warranted. 6. To establish allegation against the appellant, the prosecution mainly depends upon the evidence of Pws.1 to 3 and PW5. PW1 is the Sub Inspector of Police attached to Koodaranji Police Station at the relevant time, he had deposed, when he was examined in the court, in terms of the prosecution case. Exts.P1 to P7 and P9 documents were produced through him. Ext.P1 is the mahazar and P5 is the property list, P6 is the forwarding list. These documents are connected with the seizure of the contraband article and the same produced before the courts below in time. Ext.P2 is the arrest memo and Ext.P3 is the inspection memo, Ext.P4 is the FIR. During his Crl. A.No.232 of 2010 5 examination he had stated about the incident. Though PW1 was subject to a lengthy cross examination, the only point which brought on record in favour of the defence is that, according to him, the crime was detected and the accused was arrested from the front of the panchayat office building. PW2 also deposed in terms of the prosecution case but regarding the place of occurrence, according to PW2, it was in front of the Koodaranji bus stand. Except the difference in the depositions of Pws.1 and 2 about the actual place of occurrence and arrest of the accused, the prosecution evidence in all other aspects are intact. 7. The learned counsel for the appellant vehemently argued that the two official witnesses of the prosecution, in their deposition expressed the difference regarding the place of occurrence, which will sufficient to hold that the prosecution has miserably failed to establish the case beyond reasonable doubt. I am quite unable to accept the above contention in the light of the facts and circumstances involved in the case. As I indicated earlier, except difference or contradiction regarding the place of Crl. A.No.232 of 2010 6 occurrence mentioned in the deposition of Pws.1 and 2, in all other aspects the prosecution evidence is stand proved and nothing brought against the prosecution to disbelieve its case. Now let us examine how far this contradiction is helpful for the defence to substantiate its contention, as the prosecution has not established their case beyond reasonable doubt. In this juncture, it is relevant to note that PW1 is the Sub Inspector of police, Koodaranji Police station at the time of the incident and it is he who lead the police party during his patrol duty. Ofcourse PW2, the Head Constable was one among the patrolling party, merely because PW2 has given a different place of occurrence, whether the same is sufficient to disbelieve the prosecution case, especially in the light of the other evidence and materials on record. The trial court in its judgment, particularly in para 13 has observed that it is proved by Exts.P1 to P3 documents, that the accused was arrested from the place of occurrence, as stated by Pws.1 and 2. Even if we exclude the evidence of PW2 regarding the place of occurrence, the evidence given by PW1 Crl. A.No.232 of 2010 7 about the place of occurrence find a place in Ext.P8 sketch and Ext.P9 seen mahazar, which is a contemporary document prepared by PW5. There is no dispute against Ext.P9 seen mahazar. Thus the trial court concluded that from the evidence of Pws.1 to 3 and Exts.P1 to P3 and Exts.P8 and P9 clearly shows that the accused was arrested and M.O.1 and 2 were seized from the place of occurrence stated by Pws.1 and 2. One of the points raised by the learned counsel is that, in Ext.P8 sketch there is no mention regarding the panchayat office. According to me, the absence of any reference or mention about the panchayat office in Ext.P8 sketch, is not sufficient to throw away the prosecution case. As I had already pointed out that Exts.P8 sketch and P9 seen mahazar and Ext.P1 seizure mahazar mutually corroborate one point, especially regarding the place of occurrence. The said contemporary documents taken together with the evidence of PW1 is sufficient to hold that there is no glaring contradiction or mistake about place of occurrence, even though there is a slight difference in the Crl. A.No.232 of 2010 8 deposition of PW2, the same will not sufficient or will help the defence in any way to get an order of acquittal. In the light of the above facts and circumstances involved in the case, I am of the view that the prosecution has established the case beyond reasonable doubt and accordingly the conviction recorded by the trial court is approved. 8. The learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence. It has to be noted that the allegation against the appellant is that, he was found in possession of 10 ltrs. of arrack. Having regard to the facts and circumstances involved in the case, especially the young age of the appellant, I am of the view that some modifications can be effected with respect to the sentence. Accordingly, the sentence of 1 year rigorous imprisonment awarded against the appellant is reduced to 6 months rigorous imprisonment and while maintaining the sentence of fine ordered against the appellant, the default sentence is modified and reduced to 3 months rigorous imprisonment and set off is Crl. A.No.232 of 2010 9 allowed u/s.428 of Cr.P.C. In the result, this appeal is dismissed confirming the conviction recorded by the trial court u/s.55(a) of Abkari Act against the appellant but subject to the modifications with respect to the sentence to the extent indicated above. In view of the modifications effected with respect to the sentence the appellant is entitled to get released from jail with effect from 26.6.2010, if he is not required for in any other case. The Registry is directed to forward the Gist of this judgment to the Central Prison, Kannur, for appropriate action. V.K.MOHANAN, Judge. ami/