Kerala High Court
Ajayan vs State Of Kerala on 19 March, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935
CRL.A.No. 670 of 2004 (A)
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(JUDGMENT IN SC 263/2001 OF ADDITIONAL DISTRICT COURT (ADHOC),
PATHANAMTHITTA DATED 19-03-2004)
APPELLANT/ACCUSED:
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AJAYAN, AGED 33 YEARS, S/O. SASIDHARAN
AJAYA VILASOM VEEDU, ATHIRUNKAL, ANCHUMMUKKU
KOODAL VILLAGE, ADOOR TALUK.
BY ADV. SRI.S.MUHAMMED HANEEFF
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REP. BY
EXCISE INSPECTOR, EXCISE RANGE OFFICE
ADOOR (CRIME NO.46 OF 1998)
BY PUBLIC PROSECUTOR SMT. JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SCL.
A.HARIPRASAD, J.
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Crl. Appeal No.670 of 2004
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Dated this the 11h day of February, 2014.
J U D G M E N T
Appeal filed under Section 374(2) Cr.P.C. The learned Additional District and Sessions Judge convicted the appellant for an offence punishable under section 8(1) and (2) of the Abkari Act.
2. Prosecution case in short is that on 11-08-1998 at about 5.00 p.m while PW's 1, 2 and other Excise officers were on patrolling duty, they reached at the place of occurrence at about 5.00 p.m. They saw the appellant walking through a Panchayath road with a can in his hand. On seeing the Excise party, he abandoned the can and ran away through a rubber estate. Appellant could not be arrested though he was chased. PW1 and party took the can and closely examined. They identified the liquor contained in the can as arrack and the case was registered. The accused was arrested on 21-03-1999. Prosecution would contend that he evaded the process of law till that date.
3. Court below convicted the appellant on the basis of Exts.P1 to P6 and the testimony of PW's1 to 6. MO1 is the can, Crl. Appeal No.670 of 2004 2 allegedly possessed by the accused at the time of detection. Learned counsel for the appellant contended that the prosecution brought up no material to establish the identity of the accused revealed at the time of the alleged occurrence. PW's 1 and 2 testified that while they were travelling in a jeep on patrol duty, they found the accused carrying MO1. On seeing the Excise party, he was perplexed and he abandoned the can. He fled from the place of occurrence and he could not be caught. It is the definite case of PW's1 and 2 that the correct address and identity of the accused could be understood from the persons assembled at the place of occurrence. PW's1 and 2 were cross examined on various aspects including the identity of the accused. Questions have been asked to them as to who were the persons present at the place of occurrence at the time of alleged incident. It is true that the names of the persons present at the time of alleged incident is not mentioned either in Ext.P1 or in the testimony of PW's1 and 2. It is the definite case of these witnesses that PW's 3 and 4 were present at the time of detection. However, PW's 3 and 4 did not support the prosecution case in its entirety. According to Crl. Appeal No.670 of 2004 3 PW's 3 and 4 they went to the Excise office for some other purpose. The Excise officers forced them to sign on Ext.P1. It is interesting to note that PW's1 and 2 had a definite case that Ext.P1 mahazar was prepared from the Excise office itself. This has to be appreciated in the light of the prosecution case that the entire contraband allegedly recovered from the appellant was produced before the court and on request of the detecting officer, samples were taken from the court and sent up to the laboratory for chemical analysis. Therefore, the testimony of PW's 3 and 4 that they signed Ext.P1 from the Excise office is probabilised by the testimony of PW's 1 and 2 itself. There is no believable reason mentioned by PW's 3 and 4 for the detecting officer to get their signature on Ext.P1. Hence, testimony of PW's 1 and 2 get considerable support from the evidence of PW's 3 and 4 to find that Ext.P1 mahazar was prepared contemporaneous to the incident.
4. Ext.P2 crime and occurrence report also show the name and address of the appellant. Ext.P2 crime and occurrence report and Ext.P3 list of property were produced before the court on the next Crl. Appeal No.670 of 2004 4 day without any delay. It is seen from the judgment of the trial court in paragraph 18 that the learned Sessions Judge considered the regularity of the actions taken by the Magistrate in forwarding the materials at the time of committal of the case to the court of Sessions. Ext.P6 chemical examination report also shows that the seal affixed by the court at the time of forwarding the contraband for analysis was intact when it reached the laboratory. The appellant had no case that the sample taken from the court was tampered by any one. In the cross examination of PW5, the Investigating Officer it has been suggested that the Excise officers falsely implicated the appellant in this case on the basis of a tip off by an informer of the Excise Department. The appellant had no case that either the Excise officers or the alleged informer was enemical towards him. This suggestion was stoutly denied by PW5. Going by the prosecution evidence, I am of the view that the appellant cannot be heard to say that this is a case of false implication. All the material documents coupled with oral evidence of PW's 1, 2 and 5 would show that the appellant was the person, who was found carrying the contraband Crl. Appeal No.670 of 2004 5 and who escaped from the place and could not be arrested as he fled. When the accused was questioned under Section 313 Cr.P.C, he stated that he was engaged in rubber tapping. A tea shop vendor by name Kochukunju was enimical to him. According to the appellant Kochukunju used to influence the Excise officers to register a case against his enemies. No such suggestion was put to any of the material prosecution witnesses at the time of letting in evidence. Therefore, it can only be seen that the statement of the appellant at the time of Section 313 Cr.P.C examination is only a self serving statement. I find no legal infirmity in the conviction awarded by the court below on the appellant punishable under Section 8(1) and (2) of the Abkari Act.
5. Learned counsel for the appellant submitted that the court below has awarded a harsh punishment which is disproportionate to the gravity of the crime. I am satisfied that in the matter of sentence, there must be some leniency shown. Hence the appeal is disposed of with following directions :
Conviction of the appellant under Section 8(1) and (2) of the Crl. Appeal No.670 of 2004 6 Abkari Act is hereby confirmed. He shall undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,00,000/-, in default he shall undergo a further period of rigorous imprisonment for a period of two months.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD, JUDGE.
//True Copy// P.A to Judge amk