IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 CRL.A.No. 196 of 2003() ---------------------------------- SC.150/2000 of SESSIONS JUDGE (AD HOC-II) KASARAGOD ..................................................... APPELLANT(S): ACCUSED ------------------------------------- AITHAPPA NAIK, S/O. APPU NAIK, KARIAPPADY, NEERCHAL VILLAGE, KASARAGOD TALUK. BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KEALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV.SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.196 OF 2003 -------------------------- Dated this the 13th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence passed by the Addl. Sessions Judge, Ad hoc – II, Kasaragod in S.C.150/00. The accused was charge sheeted for an offence u/s.55(a) of Abkari Act and was found guilty thereunder and convicted to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh and in default to undergo further imprisonment for 6 months. It is against that decision the accused has come up in appeal. The points that arise for determination are, 1.Whether there are materials to connect the accused with the crime and also to convict him u/s.55(a) of Abkari Act ? 2.In case of guilt, whether the sentence awarded is excessive ? 2. Points 1 and 2:- It is the case of the prosecution that, 2 CRL.A.No.196 OF 2003 while the officials were on patrol duty on 23.10.98 and when they reached near the Padippira bridge, they found the accused carrying a 5 ltr. can at a distance of 20 mtrs. The accused was apprehended and the can was examined and on smell and taste, it was found to be illicit arrack. Thereafter 300 ml. was taken as sample in a 375 ml. bottle and sealed with all necessary particulars. Pws.1, 2 and 5 are the official witnesses. The evidence of PW1 would show that, while he was on patrol duty and when they reached near the bridge, they found the accused carrying a can and that he was apprehended, arrested, liquid seized and sample taken and was produced before the court. PW2 also supports the case of the PW1 on the very same line and nothing seriously is brought out in cross examination, to disbelieve their evidence. The only conflict is regarding the place of occurrence. One may say it is on the eastern side of the road and the other will say it is on the northern side of the road. One thing is definite that, it can not be on the eastern side, for the reason that the road is lying on 3 CRL.A.No.196 OF 2003 east-west direction and so it can only be either on the northern side or on the southern side of the road. As discussed by me earlier, it is near the bridge, they pin point as the place of occurrence. They had apprehended the accused, red-handedly from the place of incident. So, whether it was on the southern or northern side, will not be of much consequence so as to nullify the proper investigation and trial. It has to be stated in this case that the accused was produced on the very next day, so also the material objects, in proper sealed condition and it was received by the court on the same day and thereafter it was sent for chemical analysis. So it would show that the search, seizure, sampling etc. had been done properly and it had also been handed over to the court at the earliest point of time and that does not create any confusion. The evidence of Pws.1 and 2 coupled with that of PW5, would indicate that the prosecution has succeeded in proving the case. It has been argued before the court below that independent witnesses have turned hostile and therefore a conviction can not be had on the 4 CRL.A.No.196 OF 2003 basis of the evidence of the official witnesses alone. It has been decided by the then court in a decision reported in (1981 KLT Short Notes, page No.9, Case No.17) reported in Sivaraman V. State of Kerala, that when the independent witnesses turned hostile, the only caution which the court has to take is to meticulously scrutinise the evidence of the official witnesses, to find its intrinsic reliability and then rely upon it for the purpose of deciding the case. A reading of the evidence of Pws.1 and 2 coupled with that of PW5, inspire confidence as they are trust worthy. Therefore, I do not find any ground to interfere with the conviction u/s.55(a) of Abkari Act. 3. Now turning to the question of sentence. The court below convicted him to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.1 lakh and in default to undergo 6 months further imprisonment. The court below was also specified that, the social background of the accused was not satisfactory. He is aged 40 years and necessarily has to look after his family and his imprisonment for a long term would 5 CRL.A.No.196 OF 2003 affect the family as well. So in order to have a real social balance, I feel the sentence can be reduced to that of a 3 months imprisonment and to pay a fine of Rs.1 lakh and in default to undergo imprisonment of 1 more month. In the result the criminal appeal disposed of as follows :- 1.The finding of guilt u/s.55(a) of Abkari Act is sustained. 2.The sentence is modified and the accused is sentenced to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.1 lakh and in default he shall undergo further simple imprisonment for 1 month. He is entitled to set off as contemplated u/s.428 of Cr.P.C. The lower court shall execute the sentence. M.N.KRISHNAN, JUDGE ami.