Kerala High Court
Gouri vs State Of Kerala on 15 March, 2021
Equivalent citations: AIRONLINE 2021 KER 1041
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942
CRL.A.No.995 OF 2011
AGAINST THE JUDGMENT IN SC 432/2008 DATED 10-06-2011 OF
ADDITIONAL DISTRICT AND SESSIONS(ADHOC)FAST TRACK COURT-I,
PATHANAMTHITTA.
APPELLANT/ACCUSED:
GOURI
D/O KOCHIKKA,
PALATHADATHIL VEEDU,
PARANTHAL,
PANDALAMTHEKKEKARA,
PATHANAMTHITTA DISTRICT.
BY ADV. SRI.C.P.PEETHAMBARAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY EXCISE INSPECTOR,ADOOR,
PATHANAMTHITTA DISTRICT,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021,
THE COURT ON 15-03-2021 DELIVERED THE FOLLOWING:
CRL.A.No.995 of 2011
2
JUDGMENT
This appeal is preferred under Section 374(2) of the Code of Criminal Procedure, hereinafter referred to as the Cr.P.C. The appellant challenges the correctness of the conviction and sentence imposed on her under Section 8(1) and (2) of the Abkari Act in Sessions Case No.432/2008 of the Additional District and Sessions Judge (Ad hoc) Fast Track Court-I, Pathanamthitta.
2. The precise allegation against the appellant is that, on 26.09.2006 at 11 a.m, CW1 the preventive officer of Excise Circle Office, Adoor and party while conducting routine patrol duty, found the appellant on the northern side of the concrete road, about 150mtrs. east of Paranthal junction in M.C.road in Thekkekkara village in Adoor taluk, illegally possessing 10 litres of spirit. Seeing the Excise party, she abandoned the item on the side of the road and ran away from the spot; the item was seized in the presence of independent witnesses under a mahazar. Later, the material object was produced before the Excise Range Office, where Crime No.85/06 of Excise Range Office, Adoor CRL.A.No.995 of 2011 3 was registered. The material object was produced before the court on the following day. After investigation, the charge sheet was laid before the Judicial First Class Magistrate Court, Adoor, where the case was taken on file as C.P.No.38/08. After completing the procedural formalities the case was committed to the Sessions Court, Pathanamthitta, from where it was made over to the trial court.
3. The appellant had surrendered before the court on 18.07.2007. She was in judicial custody for some time and was later released on bail.
4. After hearing counsel on both sides, when the charge was framed, read over and explained, she pleaded not guilty. She was defended by a counsel of her choice.
5. When the case was taken up for trial, the detecting officer, Prabhakaran Pillai had passed away. Four witnesses were examined from the side of the prosecution as PWs1 to 4. Exhibits P1 to P5 were also marked. On conclusion of evidence, when examined under Section 313(1)(b) of Cr.P.C. , she denied all the incriminating materials. As it is not a fit case for acquittal under Section 232 of the Cr.P.C., she was called upon to enter on her evidence in defence, but no evidence was CRL.A.No.995 of 2011 4 adduced. Later, the counsel on both sides were heard and repelling the plea of innocence, the trial court found her guilty under Section 8(1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo rigorous imprisonment for six months. That finding is under challenge in the appeal.
6. I heard the learned counsel for the appellant and the learned Public Prosecutor. The trial court records were summoned and examined.
7. When heard, the learned counsel confined to the contentions touching the identity of the culprit and also that Ext.P4 forwarding note does not contain the seal of the Excise Inspector. According to her, both these aspects are sufficient to cast doubt on the veracity of the prosecution case and the appellant is entitled for acquittal. On the other hand, the learned Public Prosecutor pointed out that, there is no serious dispute on the identity of the culprit and that, in cross examination of PW3, the Excise Inspector, has stated in unambiguous terms that the original of the forwarding note bears the seal. According to the Public CRL.A.No.995 of 2011 5 Prosecutor, mere reason that the copy of the forwarding note maintained in the court does not bear the seal, is not a ground for disbelieving the version. She also invited my attention to Ext.P5 in which it is mentioned that the seal on the bottle was intact.
8. In my assessment, both the contentions raised by the learned counsel for the appellant are formidable. It is true that, the incident had occurred at broad day light at 11.a.m. The prosecution wanted to make the court believe that, seeing the Excise party the lady, who carried the contraband, ran away from the spot abandoning the can containing the contraband on the road. The Excise party could not apprehend her, though they had chased her. PWs1 and 4 are the occurrence witnesses. Both of them have stated that CW1 Prabhakaran Pillai, who led the Excise party, had passed away after the incident. True, PWs1 and 4 supported the prosecution case. But they have not given an identical version as to who had chased the lady, who had allegedly run way from the spot after leaving the contraband on the road. PW1 is very categoric when he said that Prabhakaran Pillai, CW1, had not chased her. But, according to PW4, both himself and CW1 had chased her, but she could CRL.A.No.995 of 2011 6 not be apprehended. Now, this Court is not very much on that inconsistency in the testimony of PWs1 and 4. Both PWs1 and 4 have identified the appellant before court as the culprit. But, during the course of investigation, she was not shown to them, nor they identified her as the culprit. PW4 was not even questioned by the Investigating Officer. In other words, both of them were identifying the culprit for the first time before the court, which is bad. Even though the witnesses have stated that she has criminal antecedents, she has involved in numerous such cases, that they have previous knowledge about her antecedents etc., materials are wanting to prove the same. Any how, in the absence of prior identification, the claim of the witnesses that it was the appellant who had carried the contraband, cannot be believed.
9. The second contention that Ext.P4 does not bear the seal of the Investigating Officer also cannot be ignored by the court merely for the reason that there is an observation in Ext.P5 report that, the seal on the bottle was intact and also tallying with the sample seal provided. When the accused appellant disputed the fact that the forwarding note did not bear the seal, it was for the prosecution to prove that it actually was CRL.A.No.995 of 2011 7 bearing the seal. The case hinges on the correctness of the report given by the experts with regard to the sample. The case was registered on the tentative opinion formed by the detecting officer that what contained in that jar was spirit. That could be confirmed only after getting an expert's report. The sample was collected and sent to the expert for the purpose of ascertaining the correctness of the preliminary opinion formed by them. When the defence challenges the fact that the forwarding note does not bear the sample seal, it was incumbent on the prosecution, notwithstanding the fact that the copy does not bear the seal, to summon the original forwarding note from the chemical examination laboratory and to bring it in evidence. That has not been done. The prosecution has to prove that there is nexus between the chemical examination report and the contraband allegedly seized from the illegal possession of the culprit. In the absence of such a link evidence, the prosecution is bound to fail.
10. In the circumstances, the prosecution cannot prove the guilt of the accused beyond reasonable doubt. The learned Additional Sessions Judge has not considered these vital aspects while proceeding CRL.A.No.995 of 2011 8 to convict the appellant. Therefore, in reversal of the finding, the appellant is given the benefit of doubt; she is found not guilty and acquitted under Section 386(b)(i) of Cr.P.C, she shall be set at liberty. The fine amount, if any realised, shall be refunded.
Appeal is allowed.
Sd/-
K. HARIPAL JUDGE Jms/09.03.21 //True Copy// P.A to Judge.