IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA FRIDAY, THE 4TH DAY OF FEBRUARY 2011/15TH MAGHA 1932 CRL.A.No. 548 of 2003 ( ) ------------------------- AGAINST THE JUDGMENT IN SC.196/2000 of ADDL.SESSN.COURT (ADHOC-II)KASARAGODE DATED 19-03-2003 APPELLANT(S):ACCUSED -------------------- DINESAN, S/O KITTAN, AMEY COLONY, KASARAGOD. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S):COMPLAINANT & STATE --------------------------------- 1. STATION HOUSE OFFICER, KASARAGOD POLICE STATION. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.A SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J ---------------------- Crl.Appeal.No.548 OF 2003 ----------------------------------- Dated 4th February, 2011 J U D G M E N T This appeal arise from the conviction and sentence passed against appellant under section 55(a) of Abkari Act to undergo rigorous imprisonment for one year and to pay fine of rupees one lakh. In default, rigorous imprisonment for three months more. 2. According to prosecution,on 23.7.1999 PW1 was on patrol duty along with PW2, a police constable and others. While so at about 6 am when they reached near NA tourist home they found the accused standing in the road carrying a plastic can. On seeing the police jeep he attempted to ran away. He was apprehended. On examination the can was found containing five litres of arrack. Samples were taken accused was arrested, mahazar was prepared, and an FIR was registered. Articles were seized and after investigation a case was registered against appellant for offence under section 55(a) of Abkari Act. 3. To prove prosecution case, prosecution examined PW1 to Crl.A. No.548/03 2 5 marked Ext.P1 to P7 and MO1. Accused did not adduce evidence but stated while questioned under section 313 of Code of Criminal Procedure, that he was taken from his house in the morning and he was taken to the police station in a jeep which was parked near NA Tourist home. On an analysis of the evidence, trial court found that prosecution succeeded in proving the guilt of the accused that he was found in possession of arrack. 4. Heard both sides and perused the records. PW1 is the detecting officer. PW2 is the police constable, who was present along with PW1 at the time of detection of the crime. Both of them gave evidence that accused was found carrying can having a capacity of ten litres and on seeing them he tried to ran away and he was apprehended and on examination of the can it was found containing five litres of arrack. PW1 and 2 are official witnesses. Necessarily they will be interested in the success of the prosecution. That is why even as per section 36 of Abkari Act, the presence of an independent witness is insisted as a witness to search and seizure. The independent witness examined in this case is PW3. 5. On a reading of evidence of PW1 to 3 a doubt is cast on the circumstances under which appellant was arrested. PW1 to 3 Crl.A. No.548/03 3 gave evidence in support of prosecution case. Prosecution has no case that PW3 is owned by prosecution or that he is treated as hostile. According to evidence of PW1 and 2, accused was found on the Amey Colony road. The place of occurrence is 10 meters away from the main road, on the “ Amey Colony Road” as per evidence of PW1. According to PW2 the said road is having a width of six meters and it is a motorable road. According to PW1 and 2 it is on seeing the police party that accused ran away. So this must be on the Amey colony road. 6. It is only probable that if police party who is patrolling in a jeep on the main road and arrested the person in suspicious circumstances in the said road, which is also motorable they will go to the place in the jeep itself. Instead, it appears that they were running to apprehend the accused. The accused has a case that he was taken into custody from his house and was taken in a jeep, which was parked on the main road near NA Tourist home. 7. In this context, evidence of PW3 is relevant. He has given evidence that he had seen police jeep in front of N.A.Tourist home. At that time he had not seen any article in the jeep. He has no case that accused was apprehended by police and arrack was seized from his possession. According to him he did not see Crl.A. No.548/03 4 the accused and did not know whether he was inside the jeep. He also did not see the samples being taken. He only said that he had signed in Ext.P1 when he was told that arrack was seized and request was made for signing. 8. Though the evidence of PW3 is contrary to the evidence of PW1 and 2, the prosecution has not chosen to declare him as hostile. No request was made to declare him as hostile. His evidence stands undiscredited. In this circumstances, his evidence cannot be discarded. When the evidence of official witness is read as against evidence of PW1 and 3, certainly a serious doubt is cast, as to whether arrack was seized from the possession of accused in the manner stated by PW1 and 2. 9. Appellant has a case that he was taken into custody from his house. He was taken in a jeep, which was parked near N.A tourist home. This appears to be supported by evidence of PW3. PW1 and 2 did not say that jeep was stopped in front of NA Tourist home. According to them, on seeing the accused with the can and his turning back to ran away on seeing the police jeep, the jeep was stopped and he was caught. Though this version is accepted, going by normal human conduct, the jeep would be on the Amey Colony road and not parked in front of NA Tourist home. Crl.A. No.548/03 5 This particularly shows that since Amey Colony road is having six meter width, the jeep can be driven on the road. 10. But PW3 has given evidence that jeep was found parked on the road going to the Press Club near NA Tourist Home. According to PW2, the road going to Amey Colony is situated on the western side of NA Tourist Home. As per scene mahazar, Amey Colony road is situated on the southern side of NA Tourist home. Regarding the direction of Amey Colony road also there is contradiction between the evidence of PW1 and PW2. While PW1 would say the road is lying east – west, PW2 would say that the road is lying north-south as pointed out by learned defence counsel. 11. In the above circumstances, on the evidence of PW1 to 3, especially since PW3 is not declared as hostile, I do not find any reason to reject his evidence. Prosecution has not proved its case beyond reasonable doubt by examining PW1 to 3 in this case, to prove prosecution case. I am not inclined to reject the evidence of PW3 only for the reason that he has not given evidence proving the occurrence, arrest and seizure. Only because he has given evidence not corroborating the evidence of PW1 and PW2, regarding the occurrence his evidence cannot be rejected. On the Crl.A. No.548/03 6 other hand, inconsistency between the evidence of official witnesses and independent witnesses must persuade me to reject the prosecution case as a whole. 12. In this context, it is also relevant to note that there is some discrepancy in the evidence regarding the identity of MO1, which is alleged to have been seized from possession of accused. The question whether those articles were labelled or not is not clear from evidence. It is not known PW1 could identify MO1 from the court. MO1 is not identified by PW2. The evidence of PW1 is that MO1 is the article seized from the possession of accused. PW1 has given evidence that after the seizure of MO1 from the possession of accused, label was affixed on MO1 and it was seen by witnesses as well as accused. 13. PW2 has no such case. PW2 did not say any label was affixed on the can seized from the possession of accused. So it cannot be concluded whether MO1 was labelled from the place of occurrence or not and hence the evidence of PW1 is contradictory to the evidence of PW2 regarding affixure of label. In such circumstances, it is not clear whether the sample which was sent for analysis, was taken from the can which was seized from the possession of accused. Crl.A. No.548/03 7 14. Taking all these facts into consideration, I do not find it safe to convict the accused on the basis of the evidence of official witnesses, which runs contradictory to the evidence of independent witness, who is not declared as hostile or whose evidence is not discredited by prosecution. Hence the conviction and sentence passed against appellant are unsustainable and hence the following order is passed: (i) The conviction and sentence passed against appellant under sections 55(a) of Abkari Act are set aside. (ii) The appellant is found not guilty and he is acquitted of offences under sections 55(a) of Abkari Act. (iii) The appellant is set at liberty forthwith. This appeal is allowed. Sd/- K. HEMA, JUDGE. Sou. // True copy //