Dismissed

Jayadevan v. State of Kerala

Kerala HC11 Nov 2013CRL.A/102/2007

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Kerala dismissed the appeal against conviction under the Abkari Act. Upholding the trial court's finding based on credible official witnesses, the High Court modified the sentence, reducing rigorous and simple imprisonment terms while retaining the fine.

What did the court decide?

Appeal dismissed convicting appellant in substance; sentence modified to 18 months rigorous and 15 days simple imprisonment for each default; bail bond cancelled.

Jayadevan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2013)

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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 V.K.MOHANAN

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MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935

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CRL.A.No. 102 of 2007 ( )

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AGAINST THE JUDGMENT IN SC 1923/2003 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), KOLLAM, DATED 29-09-2006

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(CP 28/2001 of J.M.F.C., SASTHAMCOTTA)

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APPELLANT(S)/ACCUSED IN SESSIONS CASE NO.1923/2003:

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JAYADEVAN, S/O.NEELAKANTAN, KOOVILATHUNDIL THEKKATHIL VEEDU, PULIKULAM MURI SOORANADU VADAKKU VILLAGE.

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BY ADV. SRI.AJAYA KUMAR. G

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REP. BY DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA ERNAKULAM.

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BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.102 of 2007

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Dated this the 11^th day of November, 2013.

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J U D G M E N T

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The sole accused in S.C.No.1923/03 of the court of Additional District and Sessions Judge (Ad hoc)-I, Kollam, is the appellant herein since by judgment dated 29.9.2006 in the above sessions case, he is convicted and sentenced under section 8(2) of the Abkari Act.

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The prosecution case is that, on 7.10.2001 at 7.30 p.m., the accused was found in possession of 5 ltrs. of arrack while transporting it at the northern side of Plavila Junction, Pulikkulam muri, Sooranad Vadakke Village, and therefore the accused has committed the offence punishable under sections 8(1) and (2) of the Abkari Act. With the above allegation, Crime No.28/01 was registered in the Excise Range, Sasthamcotta and on completing the investigation, charge was laid in the court of Judicial First

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Class Magistrate-Sasthamcotta, from where the case was committed as per the order dated 25.7.2003 in C.P.No.8/03 by the learned Magistrate and thus S.C.No.1923/05 was instituted in the Sessions court and eventually the case was transferred to the present trial court. Thus when the accused appeared after hearing the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under section 8(1) and (2) of the Abkari Act and the accused denied the charge when the same was read over and explained to him and he pleaded not guilty, pursuant to which, the prosecution adduced its evidence by examining Pws.1 to 4 and producing Exts.P1 to P8 documents. M.O.1 can was also identified as material objects. Finally the trial court found that the accused was guilty for the offence punishable under sections 8(1) and (2) of the Abkari Act and he is convicted thereunder and on such conviction, he is sentenced to undergo rigorous imprisonment for a term of 3 years and to pay a fine of

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Crl.A.No.102 of 2007

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`1 lakh and in default, he is directed to undergo simple imprisonment for one year. Set off is allowed.

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Heard Adv.Sri.Ajayakumar G., the learned counsel

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for the appellant and Adv.Sri.N.Suresh, the learned Public Prosecutor for the State.

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Out of the 4 witnesses examined from the side of the prosecution, Pws.2 and 3 are independent witnesses, but they turned hostile towards the prosecution. PW1 was then working as Excise Inspector at Sasthamcotta Excise Range and PW4 was the Preventive Officer attached to Sasthamcotta excise Range at the relevant period. Since Pws.2 and 3 turned hostile, the prosecution was constrained to heavily rely upon the evidence of Pws.1 and 4 to substantiate its allegation against the appellant. Thus when Pws.1 and 4 were examined, they have deposed that while they were on patrol duty and when they reached at Sooranadu Vadakke Village, Pulikulam Desom, they saw the accused carrying a cannas in front of the petty shop of one

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Crl.A.No.102 of 2007

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Thulasidharan, Mayabhavanam, who was proceeding from the northern side. According to Pws.1 and 4, on seeing them, the accused became panic and he tried to escape from the spot. But according to Pws.1 and 4, they intercepted and on examination of the can which was held by the accused, they realised that the content of the can, having the capacity of 10 ltrs., was 5 ltrs. of liquid which on smelling and tasting realised as illicit arrack. Thus, according to Pws.1 and 4, the accused was arrested then and there, and the material objects and the contraband article were seized and sample was drawn from the contraband article. The entire proceedings, according to Pws.1 and 4, were mentioned in the mahazar prepared then and there. The arrest of the accused has been intimated to the friend of the accused namely, one Karunakaran. On completing the proceedings with respect to the seizure of the contraband article, drawing of sample and also the arrest of the accused, the material objects as well as the

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Crl.A.No.102 of 2007

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accused were taken to the Excise Range office where crime number was registered and thereafter the accused was produced before the court with remand application and the material objects and the records were also produced before the court by preparing the property list. A request was made before the court to sent the sample for chemical analysis. Thus obtained a report as well. When PW1 was examined, he deposed before the court the entire details which lead to the seizure of the contraband article and the arrest of the accused. He had also stated about the affixture of label in the contraband article and the sample and he had also identified M.O.1 can. Thus when PW1 was examined, Ext.P1 mahazar, Ext.P2 arrest memo, Ext.P3 arrest notice, Ext.P4 crime and occurrence report, Ext.P5 remand application, Ext.P6 thondi list, Ext.P7 requisition letter and Ext.P8 chemical analysis report are marked through PW1. PW4 has identified the mahazar and also M.O.1 can. It is on the basis of the above evidence and

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materials, the trial court found in favour of the prosecution and against the accused that the prosecution has succeeded in proving its case against the accused.

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Learned counsel for the appellant/accused submitted that the court below went wrong in convicting the appellant, believing on the interested testimony of Pws.1 and 4, especially when the independent witnesses do not support the prosecution case. According to the learned counsel, the court below ought to have seen that there was no label in the M.O.1 can and therefore the prosecution case ought not have been believable. It is also the contention of the learned counsel that there was delay in producing the contraband article, material objects and the samples before the court and therefore the prosecution case is unbelievable. Hence, according to the learned counsel, the trial court went wrong in convicting the appellant and in the absence of any independent evidence, the appellant is entitled to get an acquittal after setting aside the judgment

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of the trial court. On the other hand, the learned Public Prosecutor submitted that the entire evidence of prosecution, ie., Pws.1 and 4 and other documentary evidence, positively proved the prosecution case against the appellant/accused beyond reasonable doubt. Therefore, the trial court is correct in its finding and acquitting the appellant. Thus according to the learned Public Prosecutor, no interference is warranted.

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I have carefully considered the contentions advanced by both sides and I have perused the evidence and materials on record.

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Having regard to the facts and circumstances involved in the case and in the light of the rival contentions, particularly in view of the evidence and materials on record, the sole question to be considered is whether the conviction recorded by the trial court is sustainable. As I indicated earlier, to prove the prosecution allegation, the prosecution has mainly relied upon the evidence of Pws.1 and 4, who are

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the official witnesses, since the independent witnesses Pws.2 and 3 had turned hostile. I have already referred to the evidence of Pws.1 and 4 and the documents produced by the prosecution. Though Pws.1 and 4 were subjected to lengthy cross examination, nothing brought on record to discredit their version and to disbelieve the prosecution case. The evidence of PW1-the Officer who detected the crime, is fully supported by the evidence of PW4 who accompanied PW1 at the time of the alleged seizure. There is no rule that the evidence of the prosecution witnesses, preferably the official witnesses, cannot be believed unless the same are corroborated by independent evidence. In the present case, it cannot be said that the prosecution has not made any attempt to produce independent evidence. But it is a fact that in the present case, Pws.2 and 3 were cited and examined by the prosecution, who are none other than the attestors to Ext.P1 mahazar. The evidence of Pws.1 and 4 shows that the entire seizure was effected in the presence

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of Pws.2 and 3 and their signature is affixed on Ext.P1 mahazar. But during the trial, as usual, they turned hostile towards the prosecution. This Court in the decision in Vikraman Vs. State of Kerala (2007(1) KLT 1010) has held that “Courts are not unfamiliar with witnesses turning hostile to prosecution. If the evidence of the detecting officer is credible and believable, the hostility shown by an independent mahazar witness need not deter the court from considering the testimony of the detecting officer and proceedings accordingly.” Similarly, it is also held in the decision in Abdul Rasheed Vs. State of Kerala 2008(3) KLT 150 that, “If testimony of official witnesses is blemishless and free from suspicion and inspires confidence, hostility shown by ill-motivated independent witnesses is of no consequence.” According to me, if the independent witnesses turned hostile, a duty is cast upon the court to carefully evaluate the evidence of official witnesses, so as to ensure that their evidence are credible

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and acceptable and the same are free of doubt and infirmities. In the present case, though Pws.1 and 4 were subjected to lengthy cross examination, nothing brought on record to discredit their version. Therefore, the evidence of Pws.1 and 4 inspire confidence and their evidence are supported by contemporary documents which I referred to above. In the above circumstances, according to me, I find no reason to disbelieve Pws.1 and 4, which follows that the findings of the court below can be approved as the appellant has miserably failed to make out any case against the findings of the court below. In the light of the evidence and materials on record, I am of the view that, the trial court is fully justified in its finding and the conviction recorded by it need no interference.

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As this Court is not inclined to interfere with the findings of the court below and the conviction recorded, the learned counsel for the appellant submitted that a lenient view may be taken in the matter of sentence. According to

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me, the above request of the counsel requires positive consideration. At the time of the alleged incident, the accused was at the age of 38 and the quantity involved in the present case is 5 ltrs. of illicit arrack. On a consideration of the entire facts and having regard to the mitigating circumstances, I am of the view that, 18 months rigorous imprisonment will be sufficient to meet the ends of justice and while retaining the sentence of fine and the fine amount, the default sentence can be reduced into 15 days simple imprisonment. Accordingly, in modification of the sentence imposed on the appellant by the trial court, the appellant is sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of `1 lakh and in default he is directed to undergo simple imprisonment for 15 days. Set off is allowed under section 428 of Cr.P.C.

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In the result, this appeal is dismissed confirming the conviction of the appellant for the offence under sections 8(1) and (2) of the Abkari Act, but subject to the

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modification with respect to the sentence to the extent indicated above. The bail bond if any executed by the appellant shall stand cancelled. Accordingly, the appellant is directed to appear before the trial court on 11.12.2013 to receive the modified sentence. If there is any failure on the part of the appellant in appearing before the court below as directed above, the trial court is free to initiate coercive steps to secure the presence of the appellant and to execute the modified sentence.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Jayadevan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jayadevan v. State of Kerala

Case brief

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What did the court decide?

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