IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 CRL.A.No. 921 of 2003() ----------------------- SC.371/2000 of ASSISTANT SESSIONS COURT, ALAPPUZHA .................... APPELLANT(S): -------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. K.S SIVAKUMAR RESPONDENT/ACCUSED: -------------------------- GOPI, S/O. CHERUKKAN, KORATHAM VADAKKETHIL, WARD NO.VIII, PALLIPAD PANCHAYATH, THEKKEKARAKIZHAKKUM MURI, PALLIPPAD VILLAGE. ADV. SRI.G.BHAGAVAT SINGH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. ------------------------- Crl.A No. 921 of 2003 -------------------------- Dated this the 28th June, 2011 J U D G M E N T This appeal arises from an order of acquittal. The State has filed this appeal 2. Accused was charge-sheeted for offences under Section 55 (a), (b) and (g) of Kerala Abkari Act and he was acquitted of all the said offences, after trial by Principal Assistant Sessions Judge. 3. According to prosecution,PW1, the Sub Inspector of Police, Haripad, got reliable information on 22.11.1999 at about 2.30 p.m that illicit distillation of arrack was going on in the house of Kannadamthara Kunjamma and he proceeded to the house along with police party including PW2. On reaching the road situated on the northern side of the said house and while PW1 and the party were proceeded to the said house, accused was found going to the southern side of the house with a can. He was apprehended and on examination of the contents of can, it was found to be 1½ litres of arrack. Crl.A No. 921 of 2003 2 4. On questioning the accused it was revealed that he had concealed the utensils which are used for distillation in the paddy field situated on the southern side of the house of Kunjamma and on search of the said place, MO2 to 5 utensils were seized on the same day. Accused was arrested and the articles were seized under a mahazar. Sample was taken from the arrack in two bottles and sent for chemical analysis. After investigation, charge was laid against the accused. 5. Accused put forward a case that he has nothing to do with Kannadamthara Kunjamma. He had consumed arrack and he was talking to somebody when the Assistant Sub Inspector taken into custody and put him in the vehicle. Sub Inspector was not present at that time. He had not distilled any arrack. 6. On an analysis of the evidence of PWs 1 and 2, the officials and the independent witnesses PWs 3 and 4 who turned hostile to the prosecution, the trial court found that it may not be proper to enter a conviction based on the uncorroborated testimony of PWs 1 and 2. Crl.A No. 921 of 2003 3 7. Learned Public Prosecutor argued that the evidence of PW1 and PW2 is corroborated to certain extent by the evidence of PWs 3 and 4 who deposed that accused was found in a Jeep on the date of occurrence and time and that they had signed in the mahazar. It is also submitted that the information which PWs 3 and 4 received at that time was that accused was caught in a arrack case. Reading evidence of PW3 and PW4 along with that of PWs 1 and 2, it cannot be said that their evidence is not corroborated by independent evidence, it is submitted. 8. On going through the evidence, I find that the evidence of PWs 3 and 4 has, to certain extent, corroborated the evidence of PWs 1 and 2 to the effect that they found the accused in the vehicle and they were told that he was caught in a arrack case. But, they denied having found accused being arrested or the articles being seized from his possession. Therefore, the evidence given by PW 3 and PW4 will not help the prosecution to prove the case set up by the prosecution. 9. It is also relevant to note that the definite case of Crl.A No. 921 of 2003 4 the prosecution is that PWs 1 and 2 received information that illicit distillation of arrack was going in the house of Kannadamtharta Kunjamma and he proceeded to the said house. If as a matter of fact, PW1 was proceeding for detection of offence as disclosed from the information he received, one would normally expect from him to prepare a search memo and conduct a search in the house of said Kunjamma. But curiously enough, he has no case that he prepared a search memo. 10. None of the documents produced in this case would show that any search was conducted in the house of Kunjamma. No search list was prepared. There is no case that any material objects were seized from the house of Kunjamma. It has also come out from the evidence of PW2 , the Assistant Sub Inspector that in his presence, no search was conducted in the house of Kunjamma. Prosecution has no explanation why no search was conducted in the house. 11. In this context, the defence version is to be looked into. The definite case of the accused is that he was not arrested from the house of Kunjamma and police had Crl.A No. 921 of 2003 5 not gone there at all, but the police had come near the house of one Janardhanan. According to him, he was residing on the northern side of the Janardhanan's house. When the police came there, accused was found drunk and hence he was caught by the Assistant Sub Inspector, is the contention. 12. It has come out from the evidence of PWs 1 to 4 the official witnesses as well as the independent witnesses that police jeep was parked near the house of Janardhanan. It is stated by PW2 in the cross-examination that the house of Kunjamma was not anywhere near the house of Janardhanan. It lies at a considerable distance from the house of Janardhanan. But there is no explanation forthcoming why the jeep was parked near the house of Janardhanan and not near the house of Kunjamma if PW1 and PW2 had proceeded on the information received to detect the offence at Kunjamma's house. 13. In this context, it is also relevant to note that as per the evidence of PW1, the information was that distillation of arrack was going on in the house of Kunjamma in Crl.A No. 921 of 2003 6 “Kizhakkethara muri”. In the cross-examination he stated that distillation was going on in “Kannadamthara” Kunjamma. PW2 gave evidence that the information was that arrack was distilled in the house of “Kannadamparambu” house. Evidence of PW1 shows that the accused allegedly disclosed to him that he had distilled the arrack in his family house namely “Kannadamthara” house. Thus there is some inconsistency in the name of the house stated in the evidence. 14. Evidence of PW1 itself refers to different names of the house where the distillation was allegedly conducted. In the above circumstances, a reasonable doubt is cast on the entire prosecution regarding alleged search and seizure. It is doubtful whether search was conducted in the circumstances stated by the prosecution. It is also relevant to note that the evidence of PWs 1 and 2 will reveal that the Assistant Sub Inspector and other police party had gone to the premises of the house of Janardhanan on the same day at more or less the same time and they were not present when the seizure was effected from the possession of Crl.A No. 921 of 2003 7 appellant. 15. Putting all these facts together, I find that the evidence of PWs 1 and 2 coupled with that of PWs 3 and 4 is not sufficient to enter a conviction, as rightly held by the trial court. Though the case was posted on two consecutive days for hearing of this appeal, there was no representation for the accused/respondent. Nobody argued on his behalf. However, there is no reason to interfere with the order of acquittal. This appeal is dismissed. (Sd/- K.HEMA, JUDGE) ma /True copy/ P.A to Judge