Kerala High Court
Sunilkumar vs State Of Kerala on 5 March, 2005
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 26TH DAYOF SEPTEMBER 2013/4TH ASWINA, 1935
CRL.A.No. 507 of 2005 (C)
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AGAINST THE JUDGMENT IN SC 65/2000 of ADDITIONAL DISTRICT & SESSIONS
COURT (ADHOC)-II, KOLLAM DATED 05-03-2005
APPELLANT/ACCUSED NO.2::
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SUNILKUMAR, S/O. RAJAN,
KANJIRATHUMMOODU VEEDU,
ALUVILA NADAKKAL CHERRY
KALLUVATHUKKAL VILLAGE,
KOLLAM.
BY ADV.SRI.C.RAJENDRAN
RESPONDENT/COMPLAINANT::
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STATE OF KERALA,
REPRESENTED BY THE S.I. OF POLICE
PARIPPALLY POLICE STATION (CRIME NO.187/98)
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
ERNAKULAM.
R BY PUBLIC PROSECUTOR SRI.E.M.ABDUL KHADIR
THIS CRIMINAL APPEAL HAVING BEEN FINALLYHEARD ON 26-09-2013,
ALONG WITH CRL.A. 508/2005, THE COURT ON THE SAME DAYDELIVERED THE
FOLLOWING:
AV
V.K.MOHANAN, J
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Crl.A.Nos. 507 & 508 of 2005
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Dated this the 26th day of September, 2013
C O M M O N J U D G M E N T
As the above two appeals are arose out of one and same judgment and the above appeals are preferred at the instance of the different accused in the very same sessions case, and particularly when the question of facts and law are identical, those appeals are heard together and being disposed of by this common judgment.
2. The prosecution case is that on 27.08.1998 by 9 a.m. PW4 got telephonic information about the possession of spirit in two cannases and carrying it through the road leading to Nadackal Elam, Nadackal Cherri, Kalluvathukkal village and pursuant to such information, PW4 and party proceeded to the spot and on seeing them the accused two in numbers took heels by leaving the two cannases, which on inspection the content was identified as spirit which taken into custody as per mahazar and thus the accused two in numbers have committed the offence punishable under Section 55(a) of the Abkari Act. With the above allegation, Crime No.187/1998 was registered in the Parippally Police Crl.A.No. 507 & 508 of 2005 2 Station for the offence punishable under Section 55(a) of the Abkari Act.
3. On completing the investigation in the above crime, the police preferred report in the Judicial First Class Magistrate's Court, Paravoor and instituted C.P.No.77/1998. When the second accused appeared, the case was committed to the Sessions Court and accordingly, S.C.No.65/2000 was instituted, which was made over to the court of Additional District & Sessions Court (Adhoc) II, Kollam for trial. Subsequently the same was withdrawn and sent over to the present trial court for disposal. When the first accused subsequently surrendered and produced, C.P.No.50/1999 was instituted in the same committal court, and thus S.C.No.280/2000 was instituted in the Sessions Court. Thereafter, the same made over to the Additional District & Sessions Court and then to the present trial court. Thus when the first and second accused in the above crime appeared S.C.No.280/2000 instituted with respect to the first accused was clubbed with the original case as S.C.No.65/2000 and S.C.No.280/2000 strucked off. Thus Crl.A.No. 507 & 508 of 2005 3 S.C.No.65/2000 was proceeded upon which a formal charge for the offence punishable under Section 8(1) of the Abkari Act was framed against the accused and when the same read over and explained to the accused they denied it and pleaded not guilty. Consequently, the prosecution adduced their evidence by examining PWs.1 to 4 and producing Exts.P1 to P5. MOs.1, 2, 5, 3 and 4, which were respectively three sample bottles and two cannases were identified and marked as material objects. The trial court finally found that the evidence of PWs.2 to 4 established that both the accused abandoned the contraband and escaped on seeing the police party. Thus the accused have nexus with the contraband and they were in actual possession of the contraband at the time of detection and thus held that prosecution has succeeded in establishing its case and showed that accused numbers one and two were in actual possession of the contraband and thus they have committed the offence under Section 8(1) of the Abkari Act and accordingly they were convicted for the same. On such conviction, each of them are sentenced to undergo rigorous Crl.A.No. 507 & 508 of 2005 4 imprisonment for 4 years each and to pay a fine of `1,00,000/- each under Section 8(2) of the Abkari Act and in default of payment of fine, both the accused were directed to undergo simple imprisonment for one year each. Set off is allowed under Section 428 of the Code of Criminal Procedure. The above finding, order of conviction and sentence, challenged by the accused by filing separate appeals against the above judgment of the sessions case.
4. Heard Sri.C.Rajendran, learned counsel for the appellants and learned Public Prosecutor for the State.
5. To prove the above allegation, though PWs.1 to 4 were examined, among which PW1 is an independent witness who is the attestor to Ext.P1 mahazar, turned hostile to the prosecution. Therefore, the prosecution pressed into service the evidences of PWs.2 to 4 and the documents to substantiate the allegation against the accused. PWs.2 and 3 are police constables at the relevant point of time attached to Parippally Police Station, who accompanied PW4, the then Sub Inspector of Police of the very same police station, who detected the crime. Through Crl.A.No. 507 & 508 of 2005 5 PW4, Ext.P1 mahazar, Ext.P2 FIR, Ext.P3 property list, Ext.P4 report furnishing the current name and address of accused, and Ext.P5 chemical analysis report are identified and marked.
6. When PWs.2 to 4 were examined, they have deposed in terms of the prosecution allegation though there were some variations and contradictions about the time by which PW4 received information and the distance at which the police party could seen the accused. In other aspect the evidence of PWs.2 and 3 are in uniform. They have stated that in pursuant to the information received by PW4, they along with PW4 proceeded to the spot and when they reached at the place of occurrence they have seen the accused going through the same road in the same direction. But on seeing the police party after abandoning the two cannasas, they ran away from the spot. According to PWs.2 and 3, PW4 prepared Ext.P1 mahazar and seized the MOs.3 and 4 cannases. PW4, the detecting officer has also deposed before the court about the incident fully in terms of the prosecution allegation. According to PW4, while he Crl.A.No. 507 & 508 of 2005 6 was in the police station, he received an information at about 8.40 a.m and based upon such information, himself and party accompanied by PW2 and 3 proceeded to the spot and when reached at the spot they had seen the accused two in numbers going along with the same punchayath road from Nadackal to Nadackal Elam and on seeing them the accused ran away from the spot after abandoning the cannases. According to PW4, he prepared Ext.P1 mahazar from the spot and drawn sample in four bottles from the above two cannases on his satisfaction that the content of two cannasses are rectified spirit. According to him, after preparing Ext.P1 mahazar and seizure of the contraband article, himself and party returned to the police station where he had registered Ext.P2 FIR. It is his further case that he had produced the contraband article and the documents before the court. As I indicated earlier, the sole independent witness cited and examined by the prosecution turned hostile. These are the evidence referred to and considered by the learned Judge in support of his findings to convict the appellants.
Crl.A.No. 507 & 508 of 2005 7
7. Learned counsel for the appellants vehemently submitted that even according to the prosecution, they have no claim that the accused were arrested from the spot. So the learned counsel submitted that the identity of the accused has not properly proved. In order to substantiate the above contention, the learned counsel submitted that A1 was never arrested before the lying of the charge and A2 was arrested connected with another crime and whose custody was subsequently obtained and the arrest in the present case was recorded. According to the learned counsel, the three official witnesses were identified the accused for the first time in the court and therefore no evidential value can be attached for the same. Another contention advanced by the learned counsel is that there was delay of four days in producing the property list as well as the contraband article in the court below and such delay was not properly explained. Thus according to the learned counsel, the trial court has miserably failed to consider the above serious lapse and defect in the prosecution case, but simply proceeded to accept the Crl.A.No. 507 & 508 of 2005 8 interested versions of PWs.2 to 4 on the basis of which accused were convicted and therefore the finding and the conviction entered into by the court below are liable to be set aside.
8. On the other hand, the learned Public Prosecutor strenuously submitted that the accused were habitual offenders and the police officials has got prior acquaintance with them and therefore the accused in the crime subsequently identified by the official witnesses during the trial of the case and therefore the trial court is fully correct in accepting the above evidence of the official witnesses in proving identity of the accused. It is also the contention of the learned Public Prosecutor that the evidence of PW4 shows that the samples were drawn from the spot which eventually reached in the hands of the chemical analysis and after proper chemical analysis Ext.P5 report was issued which shows that the accused were found in possession of rectified spirit on 27.08.1998, as alleged by the prosecution and therefore, the trial court is justified in its finding and convicting the appellants.
Crl.A.No. 507 & 508 of 2005 9
9. I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor and thoroughly perused the evidence including PW1 and PWs.2 to 4 and other materials on record. In the light of the rival contentions advanced by the learned counsel for the appellants and the learned Public Prosecutor and the evidence on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellants. As mentioned above, the specific case of the prosecution is that the accused two in numbers were found in possession of 60 litres of rectified spirit in two cannases on 27.08.1998 at about 9 a.m. To prove the above incident, the prosecution has no other go but to rely on the evidence of PWs.2 to 4 and the documents like Exts.P1 to P5 since PW1 turned hostile. I have already gone through the depositions of PWs.2 to 4.
10. In an offence punishable under Section 8(2), it is upon the prosecution to prove beyond reasonable doubt that the accused were found in possession of the contraband article. In the present case as I indicated Crl.A.No. 507 & 508 of 2005 10 earlier, the prosecution has no case that the accused were arrested along with the contraband article from the place of occurrence. So the question of the identity of the accused assumes importance. Though PW4 has claim that the accused are habitual offenders and he has got prior acquaintance with them, no material or oral evidence has produced to that effect. It is also relevant to note that PW2 in his deposition has stated that the accused were found 100 metres away from the place of occurrence. Whereas, PW4, Detecting Officer says, it is 50 metres away from the place of occurrence they saw the accused. Therefore, about the evidence with respect to the distance at which the witnesses seen the accused there is no consistency.
11. It is also relevant to note that as submitted by the learned counsel for the appellants, the prosecution witnesses namely PWs.2 to 4 not in uniformity on their opinion about the time at which PW4 received the information. PW2 says that the information received at 9 a.m., but PW3 says it was at 8 a.m., the witness who actually received the information named PW4 says that the Crl.A.No. 507 & 508 of 2005 11 information was received at 8.40 a.m. So the above evidence of PWs.2 to 4 are not satisfactory.
12. It is also relevant to note that PWs.2 and 3 has no claim that they had got prior acquaintance with the accused. The alleged incident was taken place on 27.08.1998 and the witnesses were examined after six years. So the evidence given by PWs.2 to 4 after six years about the identity of the accused cannot be accepted as such, particularly when the witnesses had no occasion to identify the accused before lying the charge except in the case of A2.
13. Another important and crucial aspect is the sampling of the contraband article. It is true that when PW4 was examined, he had deposed that samples were drawn in four bottles which are identified as MOs.1, 2 and 5. But the above claim of PW4 cannot be believed and accepted, since there is no corroboratory evidence, and especially in the light of the delay in producing the contraband article before the concerned court. It is true that when PW4 was examined, he had deposed about the drawing of the Crl.A.No. 507 & 508 of 2005 12 sample. But it is pertinent to note that in Ext.P1 mahazar, there is no such whisper that he had drawn samples from the contraband article allegedly seized from the spot. So contemporary documents prepared by PW4 did not support his oral evidence before the court. Suffices to say though PWs.2 and 3 were accompanied PW4, in their evidence they have no claim that PW4 had drawn sample at the spot from the contraband article allegedly seized by PW4. So the claim of PW4, the detecting officer that he had drawn sample from the contraband article from the spot, not supported by his own document namely Ext.P1 mahazar and corroborated by the official witnesses PW2 and PW3, who said to have accompanied PW4 at the time of detection.
14. In this juncture, it is relevant to note that there is no link evidence to show, as to how Ext.P5 chemical analysis report was issued by the chemical analysis. No forwarding note was produced before court, though PW4 made such a claim in his deposition. During the cross examination of PW4 "seal-fa impression gx65Z 5^CafN^ Crl.A.No. 507 & 508 of 2005 13 (Q) Forwarding notee%HaXx_:nm g5^?D_O_W Y^<x^A_ (A)" He further deposed that forwarding note was prepared at the scene of occurrence itself and further deposed that forwarding note produced along with the 151 (A) Form. Further it is deposed that "forwarding note .U_f? U:nm DOn^y^A_ .Km 2xa gx6f5^Ia" 5^CaK_\og\o^e(Q) '\o (A)". So there is absolutely no link evidence to show that Ext.P5 chemical analysis prepared on the basis of a lawful request.
15. A Division Bench of this Court in the decision in Ravi v. State of Kerala [2011(3) KLT 353] held that :
"prosecution has a duty to prove that it was the sample taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition".
In the present case though PW4 claimed that sample was drawn from the contraband article from the place of occurrence itself, the above claim of PW4 must find a place in Ext.P1 mahazar. PWs.2 and 3, the official witnesses are also not rendering any support to the above claim of PW4. Another learned Judge of this Court in the decisions in Nalinakshan v. State of Kerala [2012 (4) KLT 575] and Crl.A.No. 507 & 508 of 2005 14 Lalitha v. State of Kerala [2012 (1) KLT 550] held that in the absence of any evidence as to who took the sample no reliance can be given to the report of the Chemical Examiner to conclude that the liquid is arrack etc. and it is further held in the later decision that in the absence of evidence as to the taking of sample and its following step, the conviction is bad. On examination of the facts and circumstances involved in the present case and in the light of the above cited authoritatives, it can be seen that the prosecution has miserably failed to establish that the sample, which was the basis for Ext.P5 chemical analysis report, was drawn from the contraband article contained in the cannases, allegedly seized by the prosecution on 27.08.1998, which is said to have abandoned by the accused. The learned Judge of the trial court overlooked the above serious defect in the prosecution case and went wrong in convicting the appellants. Therefore this Court not in a position to endorse the conviction recorded by the trial court and accordingly the finding and the conviction recorded by the trial court are set aside.
Crl.A.No. 507 & 508 of 2005 15 In the result, these appeals are allowed by acquitting the accused/appellants from all the charges levelled against them and the judgment dated 05.03.2005 in S.C.No.65/2000 from the Additional Sessions Court (Adhoc) II, Kollam is set aside and bail bonds, if any, executed by the appellants shall stand cancelled and they are set at liberty.
Sd/-
V.K.MOHANAN, JUDGE AV /True Copy/ P.A to Judge