IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 CRL.A.No. 1605 of 2010(A) ----------------------------------- (SC.405/2008 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC),FAST TRACK COURT-I, PATHANAMTHITTA) .................... APPELLANT(S): --------------------- OMANAKUTTAN NAKIR,C.NO.5007, CENTRAL PRISON, THIRUVANANTHAPURAM-12 BY ADV. THOMSTINE.K.AUGUSTINE(STATE BRIEF) RESPONDENT(S): ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1605 of 2010 ---------------------------------------- Dated this the 29th day of August, 2011 J U D G M E N T This appeal is preferred by the appellant/accused who is undergoing imprisonment in pursuance of the judgment dated 22.4.2010 in S.C.No.405 of 2008 of the court of the Additional District and Sessions Judge (ADHOC), Fast Track Court-I, Pathanamthitta by which he is convicted and sentenced for the offence under Sections 8(1) and (2) and 55(g) of the Abkari Act. 2. The prosecution case is that on 13.9.2005 at 2 p.m., the accused was seen distilling arrack on the window of house No.464 A in Ward No.VIII of Cherukole Panchayath at Kacheripadi and was seen in possession of 750 ml. bottle containing 400 ml. Of arrack and thereby, committed the offence. On the basis of the above allegation, Crime No.351 of 2005 was registered in the Aranmula Police Station for the said offence. 3. On completing the investigation, a final report was filed before the Judicial First Class Magistrate Court-I, Pathanamthitta whereupon Crl.A.NO.1605 of 2010 :-2-: cognisance was taken for the said offence and instituted C.P.No.148 of 2007 and the learned Magistrate as per his proceedings dated 21.1.2008 therein committed the case to the Sessions Court wherein the same is received as S.C.No.405 of 2008. When the accused was arrested and produced, the prosecution as well as counsel appointed by the Legal Services Authority to defend the accused were heard and a formal charge was framed for the offence punishable under Section 8(1) read with (2) and 55(g) of the Abkari Act and when the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Thus, thereafter, the prosecution adduced its evidence consisting of the deposition of Pws.1 to 6 and the documentary evidence Exts.P1 to P10. The material objects were identified and marked as Mos.1 to 5. The court witness is examined as CW1 and marked C1 and C2 court exhibits. The accused was questioned under Section 313 of the Cr.P.C. but he did not produce any evidence either oral or documentary. Finally, the learned Judge has found that the accused was seen in possession of MO1 bottle containing arrack and he was distilling arrack. Thus, he is convicted under Crl.A.NO.1605 of 2010 :-3-: Section 8(1) read with 8(2) and 55(g) of the Abkari Act. On such conviction, the appellant/accused is sentenced to undergo rigorous imprisonment for one year each and to pay fine of Rs.1 lakh each and in default, he is directed to undergo rigorous imprisonment for six months each for the offence under Section 8(1) read with 8(2) and 55(g) of the Abkari Act. It is also ordered that the substantive sentence would run concurrently. Set off was allowed. 4. It is the above conviction and sentence challenged in this jail appeal and on receiving the appeal as directed by this Court, the Registry has appointed Advocate Sri.Thomstine.K.Augustine as State Brief to proceed with the appeal for and on behalf of the appellant. Thus, I have heard Advocate Sri.Thomstine.K.Augustine, learned counsel for the appellant and Mr.K.S.Sivakumar, learned Public Prosecutor. 5. At the outset, it is to be noted that though one year sentence is imposed each under Section 8(1) r/w 8(2) and 55(g) of the Abkari Act, the court has already ordered to run the substantive sentence concurrently and set off was allowed for the period from 14.9.2005 to 30.11.2005 and from Crl.A.NO.1605 of 2010 :-4-: 9.7.2009 till date during which accused was in custody and thus, it can be seen that virtually, the appeal became infructuous as far as the sentence is concerned. 6. The crux of the prosecution allegation is that the accused was found distilling arrack on the window of house No.464 A in Ward No.VIII of Cherukole Panchayath at Kacheripadi and was seen in possession of 750 ml. bottle containing 400 ml. of arrack and thereby, committed the offence. In order to prove the said allegation, the prosecution mainly depends upon the testimony of Pws.5 and 6 and the documentary evidence such as Exts.P1 to P10. 7. Among the prosecution witnesses, Pws.1 and 2 were cited as independent eye witnesses to prove the allegation that the accused was found engaged in distillation of arrack. But the above two independent eye witnesses were turned hostile to the prosecution. PW3 is the mother of the accused who is the owner of the building in question and Ext.P2 ownership certificate with respect to the house in question was proved through PW3. PW4 is the Secretary of the Grama Panchayath who issued Crl.A.NO.1605 of 2010 :-5-: Ext.P2. Thus, it can be seen that Pws.3 and 4 are examined not for the purpose to prove the allegation against the accused. 8. PW5 is the Police Constable attached at that time to the Aranmula Police Station who accompanied PW6/the S.I. Of Police when he detected the offence. When PW5 was examined, he had categorically stated each and every step taken by PW6 towards the detection of the offence. Besides PW5, the main evidence adduced by the prosecution is through PW6, the then S.I. Of Police, Aranmula Police Station who is the officer who detected the offence. During the examination of PW6, Ext.P1 search list and seizure mahazar, Ext.P3 search memorandum, Ext.P4 arrest memo, Ext.P5 inspection memo, Ext.P6 F.I.R., Ext.P7 remand application, Ext.P8 property list, Ext.P9 report showing the correct house number and Ext.P10 chemical analysis report were marked and proved. As I stated earlier, besides the above evidence, the evidence of CW1 and Exts.C1 and C2 court exhibits are also available as evidence. It is on the basis of the above evidence and materials, the trial court entered into its finding and convicted the appellant/accused for the said offences and imposed the Crl.A.NO.1605 of 2010 :-6-: sentence. 9. Learned counsel for the appellant submitted that the prosecution has not succeeded in establishing the case against the appellant/accused beyond reasonable doubt. In support of the above submission, the learned counsel has pointed out that though a policeman accompanying PW6 was questioned and cited as charge witness No.6, he is not examined and thereby, the prosecution has suppressed the evidence from the scrutiny of the court. The next point taken by the counsel for the appellant is that no independent witness from the locality is examined by the prosecution. According to the learned counsel, as evident from the deposition of Pws.5 and 6 that there are houses within 10 metres vicinity of the house in question, none of the inmates of those houses in the locality were examined by the Police and in order to facilitate their false allegation, they have chosen two witnesses viz., Pws.1 and 2 far away from the place of occurrence. Another contention raised by the learned counsel is that though as per Ext.P1 seizure mahazar, PW6 has seized 15 litres of wash, the same is not produced before the court. Thus, according to the learned Crl.A.NO.1605 of 2010 :-7-: counsel, the prosecution has miserably failed to establish the case against the accused beyond reasonable doubt. 10. On the other hand, the learned Public Prosecutor submitted that though Pws.1 and 2 turned hostile, the evidence of Pws.5 and 6 remained intact and in the absence of any allegation against Pws.5 and 6 that the accused is implicated in the crime due to personal animosity or extraneous consideration, there is no illegality in accepting the evidence of Pws.5 and 6 as rightly done by the learned Sessions Judge. It is also the submission of the learned Public Prosecutor that the non-examination of independent witnesses from the locality is not a ground to interfere with the order of conviction, especially in the present case, the prosecution has examined two independent witnesses, but they turned hostile. Therefore, according to the prosecution, since the independent witnesses cited and examined by the prosecution turned hostile, there is no meaning in arguing that no local independent witness was examined. It is the further submission of the learned Public Prosecutor that when PW6 was examined, he deposed before the court that after drawing sample from the seized wash, he had Crl.A.NO.1605 of 2010 :-8-: emptied the same at the spot itself and thereby destroyed it. Hence, according to the learned Public Prosecutor, non-production of wash would not improve the case of the defence. Thus, according to the learned Public Prosecutor, no interference is warranted. 11. I have considered the contention advanced by the learned counsel for the appellant as well as the learned Public Prosecutor in detail and I have perused the deposition of the witnesses and the judgment of the trial court. 12. As I indicated earlier, though Pws.1 and 2 were cited and examined by the prosecution as independent witnesses to prove its allegation that the accused was found engaged in the distillation of arrack, those witnesses were turned hostile. Pws.3 and 4 are examined for the purpose mentioned earlier and their evidence has not much relevance with respect to the allegation against the appellant, except for the purpose of proving the house belonged to the mother of the accused. 13. When PW5 was examined, he had deposed strictly in accordance with the prosecution allegations and he had given a detailed account from Crl.A.NO.1605 of 2010 :-9-: the very beginning of the receipt of the information by PW6. Ext.P2 search memorandum is marked. He had also deposed that he himself and another Police Constable as directed by PW6 stood in front door of the house and when the S.I. called them, they went to the kitchen room of the backside of the house, where he had seen distillation and one person was restrained by the S.I. He had also given the details of apparatus and implements used for the purpose of manufacturing the arrack. PW1 has further stated that 15 litres of liquid was found in the aluminium pot and he had also deposed the procedures adopted by PW6 to identify the liquid. He stated that sample of wash was taken in 375 ml bottle and sample of arrack was taken in 180 ml bottle and all those bottles were sealed safely. According to PW5, the wash and water in the Aluminium pot was destroyed. He had also deposed that as per Ext.P1 search list, the sample bottles, implements and the arrack bottle etc. were labelled which contained the signature of the witnesses. According to PW5, he is the person, who wrote the search list as directed by the S.I. PW5 has also identified Mos.1 to 5. Though PW5 was cross-examined, nothing brought Crl.A.NO.1605 of 2010 :-10-: on record to disbelieve his version. 14. As I stated earlier, PW6 is the then Sub Inspector of Police, Aranmula Police Station, who detected the offence. According to PW6, when he was engaged in the enquiry, connected with an unnatural death in crime No.349 of 2005, at Poyyanil, he received an information at about 1.30 p.m. that the accused was distilling arrack in Puthuparambil House at Cherukole and accordingly, he proceeded to the spot after preparing Ext.P3 search memorandum sending the same to the court. He had also given a detailed account regarding the steps taken by himself towards the detection of the offence. According to PW6, he entered into the kitchen room with witnesses after deputing Police Constables to guard the house. When he entered into the kitchen room, there was fire in the oven and aluminium pot was seen on the oven and a curry pot above it. According to him, some liquid was flowing to a bottle through a tube and the accused was seen near the oven. PW6 has stated that the accused was restrained and he called the police men to the kitchen room. According to PW6, the liquid in the bottle was identified as arrack by smelling and tasting. He Crl.A.NO.1605 of 2010 :-11-: had also deposed about the drawing of sample from the arrack as well as wash. He had also stated that the sample of arrack was sealed and labelled and wash was destroyed from the spot itself. According to him, labels were pasted on the material objects and the same was taken under Ext.P1 search list. PW1 further stated that the accused was arrested then and there. Ext.P4 is the arrest memo and Ext.P5 is the inspection memo which was signed by the witnesses. The witnesses have signed the arrest memo. According to PW6, thereafter, he returned to the Police Station along with MOs. and accused and had registered Ext.P6 F.I.R. Thereafter, the accused was produced before the court along with Ext.P7 remand application. Mos. were also produced before the court as per Ext.P8 property list. According to PW6, MOs. were received in the court on 14.9.2005. He had also stated that he had preferred Ext.P9 report to show the correct door number of the house and the contraband articles were seized. MOs.1 to 5 were also identified by PW6. Though PW6 was subjected to lengthy cross-examination, nothing brought on record to disbelieve his version. Crl.A.NO.1605 of 2010 :-12-: 15. It is true that CW6 was not examined though he was cited as a charge witness. The prosecution, during the trial cited and examined independent witnesses and besides that PWs.5 and 6 were also examined to prove the allegation against the appellant. Though the learned counsel for the appellant submitted that CW6 was not examined, nothing brought on record to show that because of the non-examination of CW6, any prejudice is caused to the accused. Minor variations with respect to the time stated by PW5 and PW6 particularly with respect to the departure time do not in any way affect the prosecution case because the contemporary documents produced by the prosecution assure the correctness of the prosecution case . It is true, PWs.1 and 2, who were examined by the prosecution as independent witnesses, to prove the allegation against the accused, are not from the locality, but they were taken by PW6 from the public, the way while proceeding to the place of occurrence. It is also relevant to note that even though they are not from the locality, those witnesses turned hostile to the prosecution. Therefore, the non-examination of independent witnesses from the locality is not a ground to disbelieve the prosecution Crl.A.NO.1605 of 2010 :-13-: evidence. According to me, said contention of the defence may have some relevance, if the prosecution case is based upon the evidence of PWs.1 and 2. It is also relevant to note that there is no rule that the evidence of official witnesses cannot be accepted unless their evidence are supported by independent evidence. The insistence for the corroboration of evidence of the official witnesses, requires only when their evidence is not free of some doubt and infirmities or inconsistencies. In the present case, the evidence of PWs.5 and 6 is intact and nothing brought on record to discredit their version or any infirmities or contradiction are pointed out. Therefore, the non-examination of independent witnesses either from the locality or otherwise will not affect the prosecution case. Another contention taken by counsel for the appellant is that the contraband article viz., the wash, which was seized as per Ext.P1 search mahazar, has not been produced before the court. The above contention, according to me, has no relevance in the light of the facts and circumstances involved in the case. In the present case, on the basis of the evidence of PWs.5 and 6, it can be seen that 15 litres of wash was seized from the possession of the Crl.A.NO.1605 of 2010 :-14-: accused when he was engaged in distilling the same as per Ext.P1 seizure mahazar. Ext.P1 siezure mahazar as well as the deposition of PWs.5 and 6 would show that 375 ml. of wash was drawn as sample from the bulk quantity and the said sample reached in the court on the next date i.e., on 14.9.2005 as per Ext.P8 property list. The evidence of CW1 and Exts.C1 and C2 would ensure that the samples were reached in the court in foolproof. PWs.5 and 6 have categorically deposed before the court that after drawing sample of wash, the remaining were destroyed then and there. That being the position, in the light of the above facts and circumstances, the above contention of the learned counsel also fails. 16. In the light of the facts and circumstances, it can be seen that the prosecution has succeeded in establishing its allegation against the accused with satisfactory and cogent evidence and therefore, the trial court is fully justified in its finding and the conviction recorded by it. Therefore, there is no scope for any interference with the conviction recorded by the trial court against the accused and accordingly, the same is confirmed. 17. As the sentence imposed is only one year simple imprisonment Crl.A.NO.1605 of 2010 :-15-: each under the above two counts and imposed only the minimum amount of fine, no interference is warranted with the sentence as well. In the result, there is no merit in the appeal and accordingly, the same is dismissed. (V.K.MOHANAN) Judge MBS/