Allowed
Pappachan v. State of Kerala
Kerala HCCRL.A/1218/2004
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HIGH COURT OF KERALA AT ERNAKULAM PRESENT :…
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
FRIDAY, THE 19TH DECEMBER, 2008 / 28TH AGRAHAYANA, 1930
CRL.A.No. 1218 of 2004
(SC.305/2003 of the Additional District and Sessions (Adhoc) Judge, Fast Track Court-II, Pathanamthitta)
APPELLANT/ACCUSED:
PAPPACHAN, S/O. MATHAI, MANIKANDANKALA KUNNEL VEEDU, SEETHATHODU, CHITTAR, PATHANAMTHITTA DISTRICT.
BY ADV. SRI.B.RADHAKRISHNA PILLAI SMT.S.AMBIKA DEVI SMT.BABY JOSE SRI.R.JYOTHIKRISHNAN
RESPONDENT:
--------------------STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2008, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
V.K.MOHANAN, J.
Crl.A.No. 1218 of 2004
Dated this the 19th day of December, 2008
J U D G M E N T
This appeal is preferred by the sole accused in Sessions Case No.305 of 2003 on the file of the Court of Additional District and Sessions (Adhoc) Judge, Fast Track CourtII, Pathanamthitta, challenging the conviction and sentence imposed against the appellant under Sections 8(1) and (2) and 55(a) of the Kerala Abkari Act.
near the Panchayat Office, Seethathodu. On the basis of the above allegation, Crime No.171 of 1998 was registered in the Chittar Police Station for the offence punishable under Sections
8(1) and (2) and 55(a) of the Kerala Abkari Act. After completing the investigation, a final report was filed in the court
of the Judicial First Class Magistrate, Ranni whereupon C.P.No.77 of 2002 was instituted. The learned Magistrate by
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his order dated 20.2.2003 in C.P.No.77 of 2002, committed the case to the Sessions Court from where it is made over to the trial court for disposal. After hearing the accused and prosecution, a formal charge was framed under Sections 8(1) and(2) and 55(a) of Kerala Abkari Act and read over and explained the same to the accused to which he pleaded not guilty. Consequently, the prosecution adduced evidence such as, oral evidence through PWs.1 to 5 and documentary evidence through Exts.P1 to P7. The material objects were identified and marked as MOs.1 to 3 series. The incriminating circumstances, which emerged out through the prosecution evidence, were put to the accused under Section 313 of Cr.P.C. and he denied the same. The further case of the defence is that he was asked to affix his signature on a mahazar and when he refused the same, a case was falsely foisted against him. On the basis of the pleadings and contentions and after framing appropriate issues for consideration, the court finally found that the accused is guilty of the offence charged against him. Thus, after hearing him on the question of sentence, the appellant/accused was sentenced to undergo simple imprisonment for two years and
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to pay a fine of Rs.1,00,000/- and he was further directed to undergo simple imprisonment for one more year if there is default in paying the fine amount. It is the above finding, conviction and
sentence challenged in this appeal.
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witnesses deposed against the prosecution, they were not declared as hostile. Still then, their evidences are not helpful to the prosecution in any way. According to the learned counsel, the evidences of official witnesses are not free from doubt and infirmities and therefore, in the absence of corroboration from independent sources, those evidences cannot be acted upon for ordering conviction against the accused. It is also pointed out by the learned counsel that besides the discrepancies occurred in the deposition of the witnesses, the materials and evidences on record would show that there was attempt from the part of prosecution to tamper the evidence and therefore, the prosecution case itself is under shadow of doubt. Thus, the learned counsel submits that the trial court failed to take note of the above discrepancies and illegalities and hence, the conviction and sentence awarded against the accused are liable to be set aside.
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pointed out that after the seizure of the contraband article and on the arrest of the accused, on the same day, the prosecution has produced the accused as well as the contraband article before the
court and therefore, none of the allegations or grounds taken against the prosecution case is sustainable and the same are liable to be rejected. Thus, the learned Public Prosecutor, strongly supporting the finding, conviction and sentence awarded by the court below, prayed that the appeal may be dismissed.
by both the counsel for the appellant as well as the learned Public Prosecutor and also perused the records.
the appellant is that there was tampering of evidence and the
available materials are not free from doubt and the prosecution has miserably failed to explain the defects raised by the defence. Learned counsel submits that from the prosecution version, seven bottles were seized from the possession of the accused, out of the
seven bottles, M1 bottle having the capacity of 750 mls. contained illicit arrack and out of the six bottles, five were similarly numbered
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as M2 to M6, each having capacity of 375 mls. containing full of illicit arrack and the remaining bottle was affixed with the mark S1 and the same were produced before the court as per Ext.P5 property list. Learned counsel pointed out that in Ext.P5, a bottle having capacity of 375 mls. containing full of illicit arrack, marked as S1, which was purported to be sent for chemical analysis, is shown as item No.IV. The records show that S1 sample was sent from the court on 30.12.1999, but it reached in the laboratory only on 28.1.2000. So there is a delay of one month. Ext.P6 is the chemical analysis report dated 20.7.2000. The learned counsel pointed out that as per Ext.P6, what the Laboratory authorities received for chemical analysis is only 150 mls. of liquid though it is reported that its seal was intact. There is no explanation as to how
the contents of S1 bottle are reduced from 375 mls. to 150 mls. There is a shortage of 225 mls. liquid whatever may be. There is no explanation from the side of the prosecution. The trial court attempted to explain the shortage in such a fashion that 225 mls. of liquid contained in S1 might have been evaporated. It is the case of the defence that according to the prosecution witnesses, all
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the other bottles, viz., M1 to M6 contained full of liquid in accordance with the capacity of the bottles. Thus, the defence pointed out that if the version given by the trial court is accepted,
the same is applicable in the case of other bottles mentioned above. In the absence of any materials or evidence on record, the conclusion arrived on by the trial court regarding the shortage of contents in S1 is not acceptable.
the court and there is no explanation for the same. Therefore, the non-examination of the carrier caused great prejudice to the accused. From the above circumstances, it cannot be ruled out that there was tampering with the sample. If that be so, there is no evidence to show that what is alleged to have recovered from the possession of the accused is illicit arrack.
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witnesses have claimed that at the time of preparing Ext.P1 mahazar and drawing sample, separate labels were pasted on M1
to M6 bottles, they were not having such labels at the time of trial of the case. There is no explanation for the same. When PW5 was
cross-examined, he had stated that
“ MO - III -ല എന�യ�� സ�ക�കള�ന�യ�� പ�ത���ന�യ�� ഒപ� ക�ണ�ന�ല. MO-II -ല�� ക�ണ�ന�ല.”
In the chief examination itself, PW5 has stated that
“സലത� വച� ഞ�ന �ത�ച label അല MO-II -ല ഇയപ�ള ക�ണ�നത�.”
From the above version of PW5 who is the Detecting Officer, it can
be seen that the label, which he found during the time of the trial, was not the one which he pasted at the time of drawing the sample as per Ext.P1 mahazar. The above admission itself is sufficient to show that somebody has manipulated the label which was seen on the bottle at the time of trial of the case. Thus, the shortage of liquid in S1 bottle, difference in quantities mentioned in Exts.P1
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mahazar and P5 property list and the manipulation with respect to the labels in MO II and MO III (M1 to M6) are again generating serious doubts regarding the correctness of the prosecution case.
In the absence of independent evidence, especially in the background of the above shadow of doubt, the prosecution case cannot be accepted. The trial court miserably failed to consider the above defects which will go against the very route of the prosecution case and therefore, the finding and conviction arrived at by the court below is liable to set aside and I do so.
In the result, this Criminal Appeal is allowed. The appellant/accused is acquitted of the charges levelled against him. The bail bond, if any, executed by him is cancelled and he is set at liberty. The appellant/accused is entitled to get back the amount
deposited by him, if any, in pursuance of the bail order passed by this Court in Crl.M.A.No.8480 of 2004 and there would be a direction to return the same to the appellant/accused.
V.K.Mohanan,
MBS/
Judge
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V.K.MOHANAN, JJ.
Crl.A.NO. OF 200
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J U D G M E N T
DATED: -12-2008
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PAPPACHAN
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
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