Allowed

Babu v. State

Kerala HC3 Oct 2012Crl.Rev.Pet/2300/2004

Case brief

AI extract

What is this about?

The High Court allowed the criminal revision petition. Upholding the conviction for tapping toddy without tax and registration despite hostile corroboration, the Court exercised discretion to reduce the prison sentence from one month to seven days for each charge, while maintaining a substantial fine.

What did the court decide?

Conviction upheld. Sentence reduced from one month to seven days simple imprisonment for each offence, to run concurrently, with a fine of Rs. 10,000 for each offence.

Babu Vs State — Corruption | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.SIRI JAGAN

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WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`

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Crl.Rev.Pet.No. 2300 of 2004

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CRA.NO.388/2003 of SESSIONS COURT,KOTTAYAM CC.NO.5/2001 of JUDICIAL FIRST CLASS MAGISTRATE COURT,VAIKOM

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REVISION PETITIONER(S)/APPELLANT/ACCUSED.:

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BABU, S/O.RAJU, KARTHIKAVEEDU, KUDAVACHOOR KARA, VEHOOR VILLAGE, VAIKOM.

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BY ADV. SRI.V.K.SUNIL

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RESPONDENT/COMPLAINANT.:

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STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,

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ERNAKULAM.

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BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

sts

S.SIRI JAGAN, J.

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Crl.R.P.No. 2300 of 2004

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==================

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Dated this the 3^rd day of October, 2012 O R D E R

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The petitioner is the accused in C.C.No.5/2001 before the Judicial First Class Magistrate's Court, Vaikom. He was charged with offences punishable under Sections 55(d) and 55(e) of the Abkari Act. The petitioner was convicted and sentenced to undergo simple imprisonment for six months under Section 55(d) and simple imprisonment for six months under Section 55(e) of the Abkari Act. In Crl.Appeal No.388/2003, the Sessions Court, Kottayam Division, confirmed the conviction, but reduced the sentence to one of imprisonment for one month under Section 55 (d) and for one month under Section 55(e), which were to run concurrently. The petitioner is challenging the judgments of the courts below.

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The contention of the petitioner is that there is no legal evidence to convict the petitioner. According to the petitioner, apart from the interested testimony of the official witnesses, there was no independent witness, who testified to the occurrence. It is further submitted that the sentence is too

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Crl.R.P.No.2300/04 - : 2 :-

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excessive. At the relevant time the petitioner was a novice, who had just entered the profession of toddy tapping for eking out a living for himself. He was not aware of the nuances of law and, therefore, being his first offence, the courts below should have been lenient in the matter of punishment, is the contention raised.

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The learned Public Prosecutor submits that although the mahazar witnesses had turned hostile, the official witnesses, withstood cross-examination by the petitioner admirably and, therefore, evidence is convincing enough for conviction of the petitioner. It is further submitted that this Court should not be lenient in the matter of punishment insofar as unless the provisions of the Abkari Act are implemented strictly, the menace of sale of spurious toddy cannot be contained.

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I have considered the rival contentions in detail.

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The prosecution case is as follows:- On 2.2.2000 at 9.30 a.m., two Preventive Officers attached to the Vaikom Excise Range, while doing patrol duty, found the petitioner tapping toddy from the coconut tree standing on the south-western side of shed No.II/66A of Vechoor Grama Panchayat and drawing toddy from that tree. No tree tax was paid for the said tree for

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Crl.R.P.No.2300/04 - : 3 :-

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the half year 1999-2000. The same was not numbered using yellow paint also. Thus the accused committed the offences alleged is the charge.

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PWs 1 and 2 were the Preventive Officers, who caught the petitioner tapping and drawing toddy from the coconut tree. The shed in front of which the tree stands belongs to the petitioner, which has been proved through an official from the Vechoor Grama Panchayat. Despite extensive cross examination the petitioner could not discredit the convincing evidence of PWs 1 and 2. Of course, the mahazar witnesses turned hostile. They stated that although they have signed the mahazar, they did not actually see the accused tapping toddy or being arrested by the Preventive Officers. But they did not specifically dispute the presence of the accused at the place of occurrence. Therefore, the fact that the mahazar witnesses turned hostile does not in any way discredit the convincing evidence of PWs 1 and 2, who actually caught the petitioner tapping the tree and drawing toddy from the same. There is no dispute that the tapping of tree and drawing of toddy are after complying with the provisions of the Abkari Act and Rules. Therefore, I do not find any perversity in the appreciation of evidence by the courts below for

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Crl.R.P.No.2300/04 - : 4 :-

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convicting the petitioner. Hence, I am not inclined to interfere with the conviction entered by the courts below.

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Coming to the question of sentence, it is seen that the petitioner is a poor man, who decided to take up the profession of toddy taping for a living. Perhaps he may not have been conversant with the requirements of the Abkari Act and Rules made thereunder in the matter of tapping trees and paying tax in respect of the same. No other previous conviction has been entered. In the above circumstances, I am inclined to take a lenient view in the matter of punishment. Accordingly, the imprisonment imposed by the courts below is reduced to one of simple imprisonment for seven days each for the two offences.

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But the same shall run concurrently. However, the petitioner shall pay fine of ` 10,000/- each of the two offences with default sentence of one month's simple imprisonment each.

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The Criminal Revision Petition is disposed of as above.

Sd/-

sdk+ ///True copy///

S.SIRI JAGAN, JUDGE

P.A. to Judge

Babu v. State

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Babu v. State

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