IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 CRL.A.No. 425 of 2003() ---------------------------------- SC.60/2001 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------- KRISHNAN AGED 52 YEARS, S/O. NEELAKANDAN, VEBOOTHANATHU HOUSE, KONNATHADI VILLAGE, CHEMPAKAPPARA KARA. BY ADV. MR.FRANCIS J.VATTAKUZHI RESPONDENT(S): ---------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 425 OF 2003 = = = = = = = = = = = = = = = Dated this the 22nd day of June, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Addl. District and Sessions Judge, Thodupuzha in S.C.60/01. It is the case of the prosecution that the accused was found in possession of 750 ml. liters of arrack for sale on 22.6.98 at 9.30 p.m. at the bank of Chinnar river near Chempakapara junction. He was apprehended, arrested and contraband articles seized and produced before Court. The Court after trial found him guilty u/s 55(a) of the Abkari Act and sentenced him to undergo imprisonment for three months and to pay a fine of Rs.1,00,000/- in default of which to undergo further imprisonment for a period of one month. It is against that decision the accused has come up in appeal. 2. Perused the records and heard the learned Public Prosecutor. The points that arise for determination are; Crl. Appeal NO. 425 OF 2003 -:2:- 1.Whether there is any sufficient evidence to hold that the accused has committed the offence alleged u/s 55 (a) of the Abkari Act. 1.Is there anything to interfere with the decision of the Court below? Points 1 and 2: 3. It is the case of the prosecution that the accused was found on the bank of Chinnar river holding a bottle containing 750 ml. of arrack. According to the police he was apprehended searched, the contraband liquor seized and arrested. PWS.1 to 5 are the independent witnesses examined in the case. All of them turned hostile to the prosecution and they had stated that they had not seen the appellants seizing arrack from the accused. So the independent evidence adduced in this case is totally against the prosecution. The evidence available is that of PW6 and PW7. PW6 was the driver who was driving the jeep on the relevant date. He had deposed before court that the accused was found on the back of a shop and he attempted to runaway but the Sub Inspector Crl. Appeal NO. 425 OF 2003 -:3:- prevented him. He would also depose he had seen the empty bottle and a can and a glass besides a torch. He speaks about the search and seizure and sealing. In the cross examination he would assert that the accused was seen on the back of a shop but according to him the accused ran to a distance of 10 mt. before he was apprehended. He would further speak that there was a torch in the possession of the accused. Then comes the evidence of PW7. He is the Sub Inspector of Police. He would depose before Court that the accused was caught hold of. According to him the scene of apprehending the accused is on the bank of river. It is also his definite case that the accused was seen on the bank of river which is at least 10 feet lower in level of the pathway. According to him there was no light but the Sub Inspector had a torch with him. He would further depose that the accused did not run at all and he was not chased. Then he speaks about the sampling etc. 4. It is a well settled proposition that in Abkari cases even if eye witnesses turn hostile depending upon the evidence of official witnesses the accused can be convicted. Crl. Appeal NO. 425 OF 2003 -:4:- But the Courts have given a caution that one should meticulously scrutinize that evidence before making it a basis for conviction. I will try to analyze the evidence of PW6 and PW7 in that angle. 5. The place of occurrence spoken to by PW6 and 7 are different. PW6 would say that it was behind the shop of one Mathew whereas the Sub Inspector would depose that it was on the bank of a river. PW6 would say that the accused ran away and he would not have run more than 10 mts. whereas PW7 would say he did not run at all. Thereafter PW6 would say that there was torch in the possession of accused whereas PW7 would say that he was having a torch with him. The incident has taken place in the night and it is a hilly area which the place of occurrence. The light which the accused was seen etc. are very important in such type of cases. The evidence of PW6 and 7 are mutually conflicting with respect to the same. On that point if it is only a minor contradiction it will not cut at the root of the case and one can ignore it and proceed on the basis of the evidence of PW6. I find they are Crl. Appeal NO. 425 OF 2003 -:5:- contradictory in nature so far as it relates to the main points are concerned. Therefore acting on the evidence of PWs.6 and 7 it cannot be safe for a Court of law to convict the accused. Under such circumstances the accused is entitled to the benefit of doubt. So I find the Court below has erred in finding the accused guilty on the basis of the evidence of PWs.6 and 7. Therefore the conviction and sentence passed by the Court below is set aside and the accused is set at liberty. In the result the Crl.Appeal is allowed and the conviction and sentence passed u/s 55(a) of the Abkari Act is set aside. Accused is found not guilty under the section and he is acquitted and set at liberty. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 425 OF 2003 -:6:- M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 425 OF 2003 = = = = = = = = = = = J U D G M E N T 22nd June, 2009