IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 CRL.A.No. 297 of 2008() ----------------------- SC.491/2006 of ADDL.SESSIONS JUDGE (ADHOC)FAST TRACK COURT NO.II, PATHANAMTHITTA .................... APPELLANT: ACCUSED ------------------ SUNDARESAN, AGED 45 YEARS, S/O. RAGHAVAN, MUKALUTHEKKETHIL VEEDU, ENATHU KARA, ENATHU VILLAGE, ADOOR TALUK, PATHANAMTHITTA DIST. BY ADV. SRI.V.SETHUNATH RESPONDENTS: COMPLAINANT/STATE ------------------------------ THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.A.No.297 of 2008 ---------------------------------------- Dated this the 18th day of July 2008 JUDGMENT The appellant was found guilty, convicted and sentenced in a prosecution under Section 8(1) and (2) of the Kerala Abkari Act. The crux of the allegations against him is that he was found to carry 5 litres of arrack when he was intercepted by an excise party consisting of PWs 1 and 3 on 14/5/2004 at about 11.45 a.m. 2. PWs 1 and 4 allegedly apprehended the appellant. Seizure was effected under Ext.P3 seizure mahazer. PWs 2 and 4 are allegedly attestors to that seizure mahazer. Ext.P1 is the memo of arrest and Ext.P2 is the intimation of arrest. PW5 is the official before whom the accused was produced. Ext.P4 is the crime and occurrence report. Ext.P5 is the remand report. Ext.P6 is the property list. Ext.P7 is the requisition submitted by the excise officials to the court and Ext.P8 is the chemical examiner's report obtained after inspection of the article by the chemical examiner and PW9 is the report under which the articles were forwarded to the Sessions Court by the Committal court. Crl.A.No.297/08 2 3. Cognizance was taken by the learned Magistrate on receipt of the final report. Order of committal was passed. Accused appeared before the Sessions Court. He denied the offence alleged against him whereupon the prosecution examined PWs 1 to 5 and proved Exts.P1 to P9. The alleged independent attestors to Ext.P3 mahazer that is PWs 2 and 4 turned completely hostile to the prosecution. They did not admit their signatures in Ext.P3 nor did they subscribe to the contents of Ext.P3. 4. After the close of the prosecution evidence when the accused was examined under Section 313 Cr.P.C the accused took up a defence of blanket denial. One defence witness was examined. He was examined for the purpose of speaking about the geographical details at the scene of the occurrence. 5. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that the oral evidence of PWs 1 and 3 can be safely accepted, notwithstanding the hostility of PWs 2 and 4. The learned Judge took the view that the totality of circumstances is sufficient to drive home the guilty of the petitioner. Accordingly the learned Crl.A.No.297/08 3 Judge proceeded to pass the impugned judgment. 6. The learned counsel for the appellant has advanced his arguments. The learned Public Prosecutor was also heard. The learned counsel for the petitioner contends that the oral evidence of PWs 1 and 3 which is not supported by any independent corroboration is not worthy of acceptance. Evidence of PWs 1 and 3 may be discarded. It may be noted that PWs 2 and 4 have not supported the case of PWs 1 and 3. The learned counsel for the petitioner further contends that there is discrepancy and incongruity in the evidence regarding the direction in which the excise party was proceeding - north to south or south to north. There is also incongruity inter se in the testimony of witnesses about the precise distance from the scene of the crime to Enathu junction. The learned counsel further points out that there has been an omission to comply with the relevant stipulation in the Kerala Criminal Rules of Practice that in a sessions case the investigator must make available to the court the scene plan showing the scene of the crime. The learned counsel for the petitioner further contends that the chemical examiner's report would show that though the covering Crl.A.No.297/08 4 letter of the Magistrate bore the date 26/5/2004 the article in question was received by the chemical examiner only on 10/6/2004. The cumulative effect of all these circumstances must arouse reasonable doubt in the mind of the court about the acceptability of the oral evidence of PWs 1 and 3 and consequently the benefit of doubt must be conceded to the accused. 7. The learned counsel for the appellant in the course of arguments advances a contention that as a matter of fact the excise party had come to the house of the petitioner in search of his brother one Sudhakaran by name. He is a habitual offender and he was the target of the excise party when they came to the house of the appellant. But he was not available. The appellant, the brother of the said Sudhakaran, was directed to make available the said Sudhakaran within three hours. He could not do the same. Hence as a measure of retaliation and victimisation this false case has been initiated against the appellant. In support of this theory the counsel relies on certain overwriting and corrections which are seen in Ext.P3 scene mahazer. Crl.A.No.297/08 5 8. I must alertly note that PWs 1 and 3 are excise officials. They were responsible for detection of the crime. If they are honest and sincere officers conscious of their duty, they must have an interest in the prosecution. But this interest which every conscientious public official is expected to have and bound to have in the successful prosecution of the offender cannot by any stretch of imagination bring him within the sweep of interested witnesses whose evidence is approached, assessed and evaluated by courts traditionally with doubt, caution and reservation. It is significant that the cross-examination of PWs 1 and 3 do not at all reveal or even suggest that they or any other excise official had any interest, malice or oblique motive against the appellant herein. Though the theory is laboriously advanced now, that the excise officials had gone in search of the brother of the appellant and that when they could not apprehend the brother of the appellant, their ire was turned against the appellant, there is significantly not a semblance of evidence, nay even consistent suggestion in the course of cross-examination, to suggest probabilities or to prove that version of the accused. Even in 313 Cr.P.C examination such a version is not advanced Crl.A.No.297/08 6 at all. In these circumstances inherently and on broad probabilities there is not a trace of doubt aroused in my mind about the disinterested nature of the testimony of PWs 1 and 3. 9. PWs 2 and 4 have of course turned hostile. Their hostility does not signify much. They went to the extent of denying their signatures in Ext.P3 seizure mahazer. There is no theory even to suggest why the public officials PWs 1 and 3 should have chosen to bear on their shoulders the responsibility for foisting such a false case on the appellant and enlist the service of PWs 2 and 4, the local witnesses in such a despicable game on their part. It is not infrequently that courts in India come across witnesses - alleged independent witnesses, turning hostile to the prosecution with impunity. Such hostility by itself cannot carry conviction. Their hostility does not in any way influence me in the appreciation of the testimony of PWs 1 and 3. The innocuous incongruity and the innocent inaccuracies in the testimony of PWs 1 and 3 inter se about the direction in which the excise party was moving and the distance from the Enathu junction do not also impress me at all to interfere with the discretion exercised by the trial court which had occasions to see Crl.A.No.297/08 7 PWs 1 and 3 tender evidence in its presence. That no scene plan has been produced may amount to non-compliance of the provisions of the Kerala Criminal Rules of Practice; but that innocuous non-compliance does not at all generate any reasonable doubt in my mind. The contraband article had reached the court on 14/6/2004. Ext.P8 chemical examiner's report shows that the letter of the learned Magistrate was dated 26/5/2004. But the contraband article had reached the examiner only on 10/6/2004. The learned counsel for the petitioner argues that the gap of time between 26/5/2004 and 10/6/2004 is not explained satisfactorily at all. I must however note that when PWs 1, 3 and 5 were in the witness stand there was no attempt whatsoever to bring to their notice this fact and solicit their explanation. It cannot lightly be assumed that the sample for examination by the chemical examiner must have been handed over by the court to the messenger/carrier on 26/5/2004 itself and that there was unexplained delay in conveying that sample to the chemical examiner by such messenger/carrier. The fact that this circumstance was not put to PW5 the excise inspector does go a long way while assessing the significance or Crl.A.No.297/08 8 importance of that alleged delay. In any case I am satisfied that such lapse cannot be reckoned as sufficient to generate any reasonable doubt in the mind of the court. 10. The above discussions lead me to the conclusion that the court below was eminently justified in accepting and acting upon the evidence of PWs 1 and 3 and in holding that their evidence is sufficient to drive home the guilt of the accused. It is significant in this context that Exts.P1 to P4 do support the oral evidence of PWs 1 and 3. I have gone through the alleged alterations/corrections in Ext.P3 seizure mahazer and Exts.P1 and P2. In the total absence of a consistent case about the involvement of the brother of the appellant Sudhakaran, the innocuous alterations/corrections in these documents do not also impress me as sufficient to generate any reasonable doubt. I do in these circumstances uphold the verdict of guilty and conviction on the appellant under Section 8 of the Kerala Abkari Act. 11. Lastly and finally the learned counsel for the appellant submits that the sentence imposed is excessive. The appellant has no criminal antecedents, it is pointed out. The appellant may Crl.A.No.297/08 9 be saved of the trauma of continued incarceration. Leniency may be shown and the sentence may be reduced, it is prayed. It is further prayed that the default sentence may also be reduced. The appellant has no means to pay the minimum fine of Rs.1,00,000/- and in these circumstances the default sentence may be leniently modified, it is prayed. 12. I have considered this last limb of the submission of the learned counsel for the appellant. I am satisfied that leniency can be shown to the appellant on the question of the substantive sentence as also the default sentence. 13. In the result, a) This appeal is allowed in part. b) The verdict of guilty and conviction of the appellant under Section 8 of the Kerala Abkari Act are upheld. c) Sentence imposed on the appellant is modified and reduced. In supersession of the sentence imposed on the appellant by the court below, he is sentenced to undergo R.I for a period of six months. Sentence of fine is upheld; but the default sentence is modified and reduced to R.I for a period of two months. Needless to say, set off to which the appellant is Crl.A.No.297/08 10 entitled under Section 428 Cr.P.C shall be granted to him. 14. Communicate this judgment to the court below forthwith. The court below shall issue revised warrant of commitment. Communicate the order to the prison authorities and to the appellant through the prison authorities. (R.BASANT, JUDGE) jsr