IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 CRL.A.No. 484 of 2003() ------------------------------------- SC.63/1999 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA .................... APPELLANT(S): ACCUSED: ---------------------- SREDHARAN, S/O. VELU, PUTHEN VEEDU, KALANJOOR MURI, KALANJOOR VILLAGE. BY ADV. MR.LIJU.V.STEPHEN RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.484 OF 2003 ------------------------------ Dated this the 17th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed in S.C.No.63/1999 of the Additional Sessions Judge, (Adhoc), Court-I, Pathanamthitta. The accused was charge sheeted for the offence under Section 55(a) of the Abkari Act and the court below convicted and sentenced him to undergo R.I for one year and to pay a fine of Rs.One lakh and in default, to undergo further imprisonment for a period of six months. It is against that decision, the accused has come up in appeal. The points that arise for determination are (1) whether the court below was right in arriving at the conclusion that the accused had committed the guilt under Section 55(a) of the Abkari Act and (2) If it is so, what is the proper quantum of punishment. 2. Point No.1: It is the case of the prosecution that on 7.6.1998 at about 4.30 p.m while the Sub Inspector of Police, Koodal police station 2 CRL.A.NO.484/03 was on patrol duty, he received a reliable information that the accused was selling illicit arrack at Ponnamoodu Rajagiri Estate. It is further alleged that the Sub Inspector of Police and his police party went in that direction and found the accused sitting under a rubber tree with a can and a glass tumbler in his hand. On seeing these people, he attempted to get away from the place. But he was prevented and thereafter from the can available with him, the police officials found 1 ½ liters of liquor which when tasted, had the taste of alcohol. Thereafter, other formalities were complied with and the matter reached the court for trial. In the trial court PWs 1 to 4 were examined, Exts.P1 to P8 and MOS 1 and 2 were marked. 3. Learned counsel for the appellant strongly contends before me that the evidence available is not sufficient at all. He has specifically pointed out with respect to the alleged scene of occurrence as well as the contradictions in the statement of the main witnesses namely PWs 3 and 4. PW3 is a police constable who was accompanying PW4, the Sub Inspector of Police. In the chief examination, he had detailed how the accused was found and according to him the accused was found about 10 3 CRL.A.NO.484/03 meters away sitting under a rubber tree and there was a can and glass with him and when he attempted to escape, the police officials arrested him. In the cross examination, he had stated that there are other inhabitants and a church near the place of the incident. He would reiterate that the accused was seen sitting 10 meters away from the side of the road. He deposed that the accused has attempted to run away, but did not. He has also spoken about the recovery of MOs 1 and 2 and the sample being taken. PW4 is the Sub Inspector of Police, who had detected the offence. It is deposed by him that the accused was found beneath a rubber tree situated on the western side of the estate. According to him, the accused wanted to go away from the place after placing the can in the place where he stood. He also speaks about the seizure, recovery etc. Learned counsel for the appellant contends before me that there is contradiction between PWs 3 and 4 regarding the place of incident. Both PWs 3 and 4 had stated that the place of incident is 10 meters away from the road and it was under a rubber tree. when questions are put regarding the directions etc, wherein some contradictions have 4 CRL.A.NO.484/03 come. The pivotal point was whether the accused was available in that place where the prosecution alleges. Both the witnesses had given crystal clear version that they had seen the accused 10 meters away from the road under a rubber tree. It has to be remembered that the offence is of the year 1998 and the witnesses re-examined in the year 2003. So, there will be necessarily contradictions or forgetfulness of the witnesses. If they give a parrot line version, it can be classified as tutored. It has also to be stated that though PWs 1 and 2 did not support the prosecution, at least would say that they had seen the accused being arrested by the police. When it is so, the learned counsel for the appellant would contend that it is the case of the accused that he was arrested from the house. No court of law can compel the accused in a criminal case to give evidence or commend upon the evidence which is not tendered. So, from the materials, what has to be analysed is the evidence of PWs 3 and 4. So far as the question of law on that point is considered, time and again courts have held that the evidence of the official witness could not be simply brushed aside. The only caution the court has 5 CRL.A.NO.484/03 to apply is to appreciate the evidence of the official witnesses only after meticulously scrutinising the same and finding whether its is intrinsically reliable. So far as the present case is concerned, PWs 3 and 4 had given clear versions that how they proceeded on getting information, where they got down and how they found out the accused and further of the seizure and taking of the sample of the contraband liquor. So, I find that the evidence of PWs 3 and 4 are sufficient to establish the guilt of the accused in this case. It has also to be stated that the chemical analysis report would indicate that all the samples contained 31.50% by volume of ethyle alcohol. Therefore, from these materials, I do not find anything to interfere with the conviction passed by the learned Sessions Judge. 4. Now, let me consider about the sentence. The court below has convicted and sentenced the accused to undergo R.I for one year and to pay a fine of Rs. One lakh and in default, to undergo further imprisonment for a period of 6 months. When questioned under Section 313, he had stated about his helplessness and necessity to look after his wife and 6 CRL.A.NO.484/03 parents. The quantum involved is about 1 ½ liters. So, taking into consideration all these facts, I am inclined to reduce the sentence to one of 3 months S.I and a fine of Rs.One lakh and in default of which, a further imprisonment for a period of one month. 5. In the result the criminal appeal is disposed of as follows: 1. The finding of guilt under Section 55 (a) of the Abkari Act is confirmed. 2. The sentence is modified and the accused is sentenced to undergo S.I for 3 months and to pay a fine of Rs. One lakh. In case of default of payment of fine, he shall further undergo imprisonment for a period of one month. He is also entitled to set of available under Section 428 of the Cr.P.C. M.N. KRISHNAN, JUDGE cl 7 CRL.A.NO.484/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.484 OF 2003 ------------------------------ 17th day of June, 2009 JUDGMENT 8 CRL.A.NO.484/03