IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 2130 of 2003() ----------------------------------- SC.237/2000 of ADDL. DISTRICT & SESSIONS COURT FST TRACK (ADHOC-I), KOZHIKODE .................... APPELLANT/ACCUSED --------------------------------- JAGADEESAN, SON OF GANGADHARAN, THAMARASSERIKUNI, KOZHIKODE DISTRICT. BY ADV. MR.R.BINDU (SASTHAMANGALAM) RESPONDENT/COMPAINANT ----------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSUECTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... CRL.A.NO.2130 OF 2003 ............................................. Dated this the 18th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track (Adhoc-I), Kozhikode in S.C.No.237/2000. The accused was charged for the offences under Sections 55(a) and 58 of the Abkari Act. He was found guilty and sentenced to undergo R.I for a period of 3 years and to pay a fine of Rs. One lakh and in default to undergo imprisonment for 9 months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are whether it is proper to hold that the accused has committed the crime (2) is the identity proper (3) whether there is anything to interfere with the decision of the court below. 3. Points: Heard the learned counsel for the appellant as well as the Prosecutor. It is the case of the prosecution that on : 2 : CRL.A.NO.2130 OF 2003 getting a reliable information that one Jagatheesh was selling illicit arrack behind hospital Adhithya, the police party proceeded to the place and on seeing them, the accused left the Can and the glass and ran away and therefore material objects were seized, sample was taken in the presence of the witnesses and further proceedings were done. 4. The learned counsel for the appellant very strongly contends before me regarding the absence of evidence to connect the accused with the crime. Admittedly, the accused has not been apprehended and arrested from the spot. He had surrendered before the police subsequently. The way of identification in the case is that the police officials say that they know the accused previously and they had seen him there and therefore he is the person who had thrown it away. It is also their version that he is involved in other cases as well. 5. The Sub Inspector of Police is examined as PW1. He had deposed before the court that he has taken charge in that police station about 2 to 3 months back only. I do not : 3 : CRL.A.NO.2130 OF 2003 know how he became very familiar with the accused who is supposed to be dealing with illicit arrack. Though the police officials say that he is involved in other crimes, not even an iota of evidence is produced before the court to show it is so. 6. I feel, all the more the suspicion is on the ground that in the first information statement lodged there is an averment that on getting reliable information that Jagatheesh was selling illicit arrack, the police party had proceeded to the place. The police party had never apprehended him from there. None of the persons who is cited as independent witnesses had supported the case of the prosecution regarding the identity of the accused. It has also not come out in evidence that at any point of time identification was done at the stage of investigation. Nobody has questioned PW1 or others with respect to the identity of the accused. The police had filed a case against one Jagatheesh, who surrenders after two months and the police officer who had detected the crime says that the accused in the dock is Jagatheesh. I feel such type of identity may be very : 4 : CRL.A.NO.2130 OF 2003 dangerous to connect the accused with the crime. Therefore, the evidence tendered in this case regarding the identity of the accused is not satisfactory to the conscience of the court. Even the trial judge was aware of that but he would say that why should he disbelieve PWs 1 and 2 who says that they know the accused previously. In the absence of evidence to show that he has been involved in other criminal cases it may not be possible to merely rely upon the oral submission of these witnesses on that regard. 7. So, I feel that the benefit of doubt has to go to the accused in this case. Since identity is not established the other materials are not relevant because there cannot be any conviction on that basis. Therefore, the criminal appeal is allowed. Conviction and sentence passed under Sections 55(a) and 58 of the Abkari Act is set aside and the accused is found not guilty of the offences alleged. He is acquitted and set at liberty forthwith. M.N.KRISHNAN, JUDGE cl : 5 : CRL.A.NO.2130 OF 2003 M.N.KRISHNAN, JUDGE cl : 6 : CRL.A.NO.2130 OF 2003