IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 Crl.Rev.Pet.No. 120 of 2008() ----------------------------- CRA.98/2007 of ADDL. SESSIONS COURT (ADHOC)-II, ALAPPUZHA SC.787/2005 of ASSISTANT SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER: PETITIONER/APPELLANT/ACCUSED ---------------------------------------------- UTHAMAN, S/O. RAGHAVAN, SANTHABHAVANAM, KARUVATTA VADAKKUM MURI, KARUVATTA VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.P.S.KRISHNA PILLAI RESPONDENTS: RESPONDENT/COMPLAINANT ----------------------------------- STATE OF KERALA, REPRESENTED BY THE DIRECTOR OF PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.120 of 2008 ---------------------------------------- Dated this the 21st day of January 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 8 of the Kerala Abkari Act. The prosecution alleged that on 11/8/2004 at 3.45 p.m when the police party consisting of PW4 and PW1 reached the house of the petitioner, he was found to keep in his possession two litres of arrack. The petitioner was arrested at the spot. Final report was filed. Cognizance was taken. The petitioner denied the charges levelled against him. Thereupon the prosecution examined PWs 1 to 4 and proved Exts.P1 to P6. PW4 is the officer who led the police party which detected the crime. PW1 is the probationary Sub Inspector of Police who also constituted the party. PW2 is an independent eye witness who had allegedly witnessed the occurrence and attested the seizure mahazer Ext.P1. PW3 is the Village Officer who issued Ext.P3 ownership certificate which shows that the house belongs to the petitioner herein. Exts.P4 to P10 are documents like search memo, arrest memo etc. Ext.P11 is the report of the chemical examiner. Ext.P9 is the F.I.R. Crl.R.P.No.120/08 2 2. The accused took up a defence of total denial. No defence evidence was adduced. The courts below concurrently came to the conclusion that the complainant has succeeded in establishing all the ingredients of the offence alleged against the petitioner. Accordingly they proceeded to pass the impugned concurrent judgments. The petitioner faces substantive sentence of R.I for a period of four months. There is a further direction to pay a minimum fine of Rs.1,00,000/- and in default to undergo S.I for a period of three months. 3. PW1 is the probationary Sub Inspector of Police. He speaks about the detection. He is an official witness who had attested Ext.P1 seizure mahazer. PW2 admitted his signature in the seizure mahazer; but turned hostile to the prosecution in that he did not speak about the incident proper. He did however unambiguously admitted his signature in Ext.P1. PW3, Village officer proved the ownership certificate Ext.P3 to confirm that the house wherein the search was effected belongs to the petitioner herein. PW4 gave details of the seizure and the official acts done by him in connection with the seizure. 4. The petitioner claims to be aggrieved by the impugned concurrent judgments. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel Crl.R.P.No.120/08 3 for the petitioner assails the impugned order on various grounds. First of all, it is contended that there is interse, contradictions, incongruity and inconsistency in the oral evidence of PWs 1 and 4. The learned counsel for the petitioner next contends that even though PWs 2 and 3 were two independent attestors to the seizure mahazer Ext.P1, PW2 alone was examined though he had turned hostile. Finally it is contended that the sentence imposed is excessive and the learned counsel for the petitioner prays for a lenient and humane reconsideration on the sentence imposed considering the totality of the circumstances. 5. PW2 had turned hostile to the prosecution. It is not infrequently that courts in India come across independent witnesses turning hostile to the prosecution with impunity. Much cannot be read into that hostility of the independent attestors. To me what appears to be crucial is that PW2 had unambiguously made an admission that the signature in Ext.P1 seizure mahazer is affixed by him. The contents of the contemporaneous seizure mahazer Ext.P1 does go for a long way to offer assurance to the court about the oral evidence of PWs 1 and 4. Interse, contradictions, incongruity and inconsistency between the evidence of PWs 1 and 4 is heavily relied on by the learned counsel for the petitioner. I must say that these innocent and innocuous inconsistencies and incongruities do not Crl.R.P.No.120/08 4 appear to me to be sufficient to shake the core of the testimony of PWs 1 and 4 which is eminently supported by the contemporaneous Ext.P1 seizure mahazer as also Ext.P9 F.I.R. PWs 1 and 4 are public officials charged with the duty of detecting offences and bringing offenders to book. They cannot be reckoned as ordinary interested witnesses. The interest which they have is only in favour of discharging their duties properly and there is no semblance of a suggestion even that PWs 1 and 4 or any other excise officials or any other person in whom they are interested have any animus, prejudice or reason to falsely implicate the petitioner herein. In these circumstances, I am of the opinion that the reliance placed on the testimony of PWs 1 and 4 by the court below which testimony, as stated earlier, is eminently supported by the contents of Ext.P1 seizure mahazer and Ext.P6 F.I.R does not at all warrant revisional interference. No other contentions are raised on merits. I am satisfied that the verdict of guilty and conviction do not warrant interference. 6. The learned counsel for the petitioner finally submits that there is no case that the petitioner has any criminal antecedents. Total quantity of contraband liquor seized from the possession of the petitioner is only two litres. . Even though minimum amount of fine is fixed by statute, leniency may be Crl.R.P.No.120/08 5 shown in so far as default sentence is concerned. Substantive sentence of imprisonment is also excessive, submits the learned counsel for the petitioner. The alleged incident took place in 2004. The petitioner has endured the trauma of this prosecution all these years. Leniency may be shown on the question of sentence, prays the learned counsel for the petitioner. 7. Having considered all the relevant inputs, I find merit in the prayer for leniency. I am satisfied that the sentence imposed can be modified. 8. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner are upheld. c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo R.I for a period of three months and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default, to undergo S.I for a period of one month. Needless to say, the petitioner shall be entitled for set off in accordance with law. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.R.P.No.120/08 6 Crl.R.P.No.120/08 7 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008