IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRL.A.No. 1377 of 2010() ------------------------------ SC.290/2005 of ADDL. SESSIONS COURT (ADHOC), KALPETTA .................... APPELLANT(S): ------------------ JAYAN @ JAMES,S/O.GEORGE, C.NO.8476, CENTRAL PRISON, KANNUR. BY ADV. SRI.VIJAI MATHEWS (STATE BRIEF) RESPONDENT(S): -------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs V.K. MOHANAN, J. ----------------------------------------------------- Crl. A No. 1377 OF 2010 ----------------------------------------------------- DATED THIS THE 11th DAY OF OCTOBER, 2011 JUDGMENT The sole accused in S.C No.290 of 2005 on the court of the Additional Sessions Judge (Adhoc-I), Kalpetta is the appellant. and he is challenging his conviction and sentence imposed against him by judgment dated 22-05-2010 in the above case for the offence under Section 8 (1), (2) and 55 (g) of the Abkari Act. 2. The prosecution case is that the appellant/accused was found engaged in distilling arrack and he was found in possession of distilled arrack as well as wash prepared and stored for illicit distillation, on 01-09-2003 at about 1 p.m., when PWs 1, 2 and other Excise officers inspected the house of PW7 where the accused is residing. On the basis of the above allegation, Crime No.63 of 2003 was registered in the Sulthanbathery Excise Range office for the offence under Section 55 (a), (b) and (g) of the Abkari Act. On completing the investigation, the report was filed before the Judicial First Class Magistrate's Court, Sulthanbathery, where the cognizance was taken for the said offences and accordingly, CP No.46 of 2005 was instituted and subsequently, the case was commited to the Crl.A No.1377 of 2010 -2- Sessions Court by order dated 17-06-2005 in C.P No.46 of 2005. When the accused was produced before the trial court, as requested by him, a counsel as State Brief was appointed to defend the case and accordingly the learned Judge of the trial court, after hearing the prosecution as well as the defence framed a formal charge against the accused for the offences punishable under Section 8 (1),(2) and 55 (g) of the Abkari Act and when the said charge was read over to the accused, he denied the same and pleaded not guilty. Consequently, the prosecution adduced its evidence which consists of the testimony of PWs 1 to 7 and the documentary evidence Ext.P1 to P8. Besides the above, MOs 1 to 5 were also identified and marked as material objects. The accused was subsequently questioned under Section 313 of Cr.P.C and the circumstances and evidence that emerged during the prosecution evidence were denied by him and he maintained the plea of innocence. Finally, the trial court has found that the prosecution successfully proved the charge beyond reasonable doubt and the accused found guilty of the offence under Section 8 (1) and (2) and 55 (g) of the Abkari Act and accordingly the appellant/accused was convicted thereunder. On such conviction, the trial court sentenced the appellant to undergo simple imprisonment for 4 years each and Crl.A No.1377 of 2010 -3- to pay a fine of Rs.1,00,000/- each, in default he is further directed to suffer simple imprisonment for one year each, for each of the offences for which he is convicted. It is the above conviction and sentence are challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance of the judgment impugned, he preferred this appeal from the jail and on receiving of appeal, as directed by this Court, the registry has appointed Adv. Vijai Mathews as State brief to prosecute the appeal for and on behalf of the appellant/accused. Thus, I have heard Adv. Vijai Mathews, counsel for the appellant and K.S. Sivakumar, learned public prosecutor appearing for the State. 4. The case of the prosecution is that accused was found engaging distilling illicit arrack and found in possession of distilled arrack as well as wash prepared and stored for illicit distribution and on 01-09-2003 at about 1 p.m. in the house of PW7 where the appellant is residing as the son-in-law of PW7. According to the prosecution, the above offence was detected by PWs 1 and 2 on the basis of the information received by them from the Excise control room. When PWs 1 and 2 were examined, they deposed in terms of the prosecution allegation against the accused. According to PWs 1 and 2, on their arrival Crl.A No.1377 of 2010 -4- at the house of the accused, they found accused engaged distilling arrack activities using MO1 to MO5. According to PWs 1 and 2, the independent witnesses, namely PWs 5 and 6 were also present at the time of their inspection. According to the prosecution witnesses, MO3 contained boiling turbid volatile liquid which, on taste and smell was found the same as wash. They also found distilled arrack dripping into M.O 4 and the liquid collection in M.O.4 on smell and taste identified as arrack. They have also found M.O.5 cement jar which was found filled with molasses for preparing wash. According to PW1 and 2, they prepared Ext.P1 mahazar at the spot and the accused was arrested from the spot after preparing Ext.P2 memo and according to PWs 1 and 2, the factum of arrest of the accused was intimated to the wife of the accused. According to the prosecution, as per Ext.P1, samples were collected from M.O.3, M.O.5 and also from M.O.4. Further, investigation was undertaken by PW4 who prepared Ext.P21 scene mahazar and questioned the witnesses and finally laid the final report. Besides the above document, through PW4, the prosecution has also got marked Ext.P5 property list, P6 forwarding note, P7 crime occurrence report. Though PWs 5 and 6 turned hostile, they have admitted their signature in Ext.P1. It is the above evidence and Crl.A No.1377 of 2010 -5- materials relied on by the Judge of the trial court in support of his finding and conviction of the appellant/accused. 5. The counsel for the appellant vehementally submitted that prosecution has failed to establish the case against the appellant beyond reasonable doubt. In support of the above submission, it is pointed out that the evidence of PWs 1 and 2 are contradictory in nature particularly with respect to the time at which they have reached at the place of occurrence. The counsel has further pointed out that even, according to the prosecution witnesses, their claim that they have reached at 1 o'clock at the place, cannot be believed. Since they have received information from the Excise control room only at 12.45 p.m. on 01-09-2003, it was practically impossible for them to reach at the site within 15 minutes and therefore the entire case of the prosecution is under shadow of doubt and thus the benefit of doubt ought to have extended in favour of the appellant but the learned Judge of the trial court erroneously found that the prosecution proved the allegation against appellant beyond reasonable doubt. Therefore, according to the learned counsel, the appellant is entitled to get an acquittal. 6. On the other hand, learned Public Prosecutor has vehementally submitted that there is no infirmities and Crl.A No.1377 of 2010 -6- discrepancies in the deposition of PWs 1 and 2 and the evidence of PWs 1 and 2 are fully supported by the contemporary document namely Ext.P1 mahazar. According to the learned Public Prosecutor, in the absence of any allegation against the prosecution with respect to the investigation and especially when there is no delay in producing material objects before the court below and the accused minor variations with respect to the time that occurred in the deposition of PWs 1 and 2, are immaterial and the same is not a ground for disbelieving the prosecution case. According to the learned Public Prosecutor, the findings of the trial court warrant no interference and accordingly the appeal has to be dismissed. 7. I have carefully considered the argument advanced by the counsel for the appellant as well as the learned Public Prosecutor. I have carefully considered the judgment of the trial court and perused the deposition of the witnesses and other materials in the court. 8. In the nature of the rival pleadings advanced by the counsel for the appellant as well as the learned Public Prosecutor and in the light of the evidence and materials on record, the question to be considered is whether the judge of the trial court is justified in his finding that the prosecution has Crl.A No.1377 of 2010 -7- succeeded in proving the case against the accused/appellant beyond reasonable doubt. As I indicated earlier, in order to substantiate the prosecution allegation against the appellant, they heavily relied upon the evidence of PWs 1 and 2, who detected the offence pursuant to the information received by them from the Excise control room. PWs 1 and 2, when examined, deposed strictly in accordance with the prosecution allegation and according to them, on their arrival at the house of PW7, who is father in law of the accused, where the accused is residing, they saw the accused engaged in the distillation of illicit arrack. The evidence of PWs 1 and 2 further reveals the facts which lead to their detection of the offence. Their evidence shows entire proceedings adopted by them for the seizure of contraband articles and arrest of the accused. I find no reason to reject the evidence of PWs 1 and 2, especially when there is no serious challenge against the evidence of PWs 1 and 2. It is true that the appellant has got a case that it was practically impossible to reach at the place of occurrence at 1 p.m. on getting information at 12.45 p.m. from the Excise control room. But, no materials or evidence were adduced by the defence to substantiate such arguments and the appellant failed to elicit any facts from the evidence of PWs 1 and 2 or any other Crl.A No.1377 of 2010 -8- witnesses in support of the above version of the accused. So, according to me, the evidence of PWs 1 and 2 are intact which would positively prove the prosecution allegation against the accused. 9. It is relevant to note that besides PWs 1 and 2, the prosecution has cited and examined PWs 5 and 6, who are the independent witnesses to prove the case of the prosecution against the appellant/accused, though, PWs 5 and 6 turned hostile to the prosecution. They have admitted the signature in Ext.P1 mahazar prepared by PWs 1 and 2. On the basis of the above hostile approach of PWs 5 and 6, counsel for the appellant submitted that there is no independent witness to substantiate the prosecution allegation. I am unable to sustain the above contentions. There is no rule that official prosecution witness cannot be relied unless their evidence are supported by independent evidence. If the evidence of PWs 1 and 2, who are official witnesses, are reliable and trustworthy there is no legal bar in accepting their evidence and acting upon the same. Of course, if the evidence of official witnesses are not free from doubt or any infirmities, corroboration from independent source may be insisted. But, in the present case, the evidence of PWs 1 and 2 are intact and nothing brought on record to discredit their Crl.A No.1377 of 2010 -9- version. Thus, on a scanning of evidence on record it can be seen that even though PWs 5 and 6 turned hostile, the other evidence of prosecution positively proves the allegation against the accused. 10. It is also relevant to note that the evidence of PWs 1 and 2, which are supported by the documentary evidence namely Ext.P1 scene mahazar, P5 property list, P6 forwarding note etc, would show that without any delay the property and the material objects were produced before the court and the samples were sent to chemical analysis based upon which Ext.P8 chemical analysis report was obtained. So, after the seizure of the material objects and the samples, the material objects as well as the samples were reached in the court without delay and there is chance for tampering the same. It is also relevant to note that the defence has no contra allegation. 11. In the light of the above facts and circumstances and the evidence and materials referred and for the foregoing discussion I am of the view that the learned Judge of the trial court is fully justified in his finding that the prosecution has succeeded in proving the case against the accused beyond reasonable doubt and convicting the appellant. Therefore, the conviction recorded by the trial court is confirmed. Crl.A No.1377 of 2010 -10- 12. With respect to the sentence, the learned counsel for the appellant submitted that a lenient view may be taken since the accused is the sole bread winner of the family and the appellant/accused involved for the first time in an offence like the present one. 13. I have carefully considered the above submission of the learned counsel for the appellant and according to me, the said submission requires positive consideration. From the facts available on record, it appears that at the time of occurrence the accused was only at the age of 32 years and he is a coolie. The prosecution has no case that he was involved in any other case similar in nature. Having regard to the above mitigating circumstances, according to me, the sentence can be modified and reduced into two years simple imprisonment under each count and while confirming the sentence of fine for the above offences, the default sentence can be reduced into one month simple imprisonment for each of the offence. Accordingly when confirming the conviction of appellant under Section 8 (1) , (2) and 55 (g) of the Abkari Act the sentence is modified and reduced into two years and accordingly he is sentenced to undergo simple imprisonment for 2 years for each offence and to pay fine of Rs.1,00,000/- for each offence and in default he is Crl.A No.1377 of 2010 -11- directed to suffer simple imprisonment for one month each, for the offence he is convicted and the substantial sentence shall run concurrently and set off is allowed under Section 428 of Cr.PC. In the result this appeal is dismissed, confirming the conviction of the appellant but subject to the above modification with respect to the sentence as indicated above. The registry is directed to forward a gist of this judgment to the Superintendent, Central Prison, Kannur for appropriate action. Sd/- V.K. MOHANAN, JUDGE. AMG True copy P.A to Judge