Allowed

Santhosh @ Subil v. State of Kerala

Kerala HC20 Nov 2013CRL.A/236/2003

Case brief

AI extract

What is this about?

High Court of Kerala allowed the criminal appeal against conviction under Abkari Act for selling adulterated liquor causing death. Court acquitted appellant due to lack of physical evidence, insufficient witness testimony linking accused to sale, and legal bars on Section 55(a) charge. Appeals dismissed count findings set aside. Bail cancelled.

What did the court decide?

Appellant acquitted of all charges; impugned judgment set aside; bail bond cancelled and appellant set at liberty.

Santhosh @ Subil Vs State of Kerala — Cheque Dishonour | 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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WEDNESDAY, THE 20TH DAY OF NOVEMBER 2013/29TH KARTHIKA, 1935

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CRL.A.No. 236 of 2003 (E )

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AGAINST THE ORDER/JUDGMENT IN SC 172/2000 of ADDL.DISTRICT & SESSIONSCOURT (ADHOC)-I, KOTTAYAM DATED 30-01-2003

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APPELLANT/1ST ACCUSED:

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SANTHOSH ALIAS SUBIL, S/O.JOHN, CHALLIVEETTIL, VALAKAM KARA, MOONNILIVU VILLAGE.

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BY ADV. SRI.RAJU K.MATHEWS

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RESPONDENTS/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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THE CIRCLE INSPECTOR OF POLICE, ERATTUPETTA.

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BY PUBLIC PROSECUTOR SRI.N.SURESH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.236 of 2003

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Dated this the 20^th day of November, 2013

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JUDGMENT

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Challenging the judgment dated 30/1/2003 in S.C.No.172

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of 2000 of the court of the Additional District and Sessions Judge (Adhoc)-I, Kottayam, the first accused in the above Sessions Case preferred this appeal as he is aggrieved by the conviction and sentenced imposed on him for the offence under Section 55(a) and 57(A)(1)(i) (ii) of the Abkari Act.

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The prosecution case is that, from the tea shop conducted by the accused in building No.VII/225 of Moonilavu panchayat at Mechal area, PWs.1, 2, 7 and the deceased N.S.George consumed spurious liquor containing methyl alcohol sold by the accused, as a result of which, Pws.1 and 2 sustained injuries and another person namely, N.S.George died and therefore according to the prosecution, the accused two in numbers have committed the offences punishable under Section 302 read with Section 34 of IPC and Section 55(a) of Abkari Act read with Section 15 (a) & (b) of the Abkari

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Amendment Ordinance, 1997.

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With the above allegation Crime No.106 of 1997 was registered in the Melukavu Police Station for the said offences and on completing the investigation, a formal report was filed in the Judicial First Class Magistrate Court, Erattupetta whereupon C.P.No.7 of 1998 was instituted and the learned Magistrate subsequently by his order dated 20/6/2000 committed the case to the Sessions Court wherein S.C.No.172 of 2000 was instituted and the same was made over to the present trial court for disposal.

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Thus, when the accused appeared, upon considering the prosecution records and on hearing the prosecution as well as the defence, the learned Judge framed a formal charge against the accused two in numbers for the offences punishable under Section 57A (1) (i) (ii) and Section 55 (a) of the Abkari Act read with Section 15 (a) & (b) of Abkari Amendment Ordinance, 1997 and when the said charge read over and explained to the accused they denied the charge and pleaded not guilty and thus the trial was continued further,

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during which Pws.1 to 10 were examined and Exts.P1 to 13 documents were marked from the side of the prosecution. It is pertinent to note that no material object is produced by the prosecution. From the side of the defence, Ext.D1 was produced and DW.1 was examined. The trial court finally found that the deceased George died due to the consumption of arrack adulterated with methyl alcohol and Pws.1 and 2 sustained injuries to their eyes also due to the consumption of arrack adulterated with methyl alcohol and also found that on 26/10/1997 the accused was in possession of arrack in building No.VII/225 of Moonilavu panchayat at Mechal area and sold it to the deceased, Pws.1, 2 and 7 and they have consumed. It is also found that no evidence to connect the 2^nd accused with the alleged offence adduced by the prosecution, but the first accused was found guilty for the offence under Section 55(a), 57(A) (1)(i)(ii) of the Abkari Act. Thus, the second accused is found not guilty of any of the charges levelled against her. Consequently, the first accused is convicted for the said offence whereas the second accused is acquitted under Section

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235(1) of Cr.P.C. On such conviction of the first accused, who is the appellant herein, is sentenced to undergo rigorous imprisonment for 5 years and also to pay fine of 1,00,000/- for the offence under Section 55(a) of the Abkari Act. He is also sentenced to undergo rigorous imprisonment for five years and also to pay fine of 30,000/- for the offence under Section 57A (1) (ii). No separate sentence is awarded for the offence under Section 57(1) (i). It is ordered that the substantial sentences shall run concurrently. Under both the count the default sentence is fixed as two years simple imprisonment. It is also ordered that, if the fine amount is collected out of that, 20,000/- would be paid as compensation to the legal heirs of the deceased and 5,000/- each would be paid as compensation to PWs.1 and 2. It is the above finding and order of conviction and sentence that are challenged at the instance of the first accused in the above Sessions Case.

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Heard Sri.Raju.K.Mathews, the learned counsel for

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

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To prove the above specific allegation the

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prosecution has examined Pws.1, 2 and 7, who are the persons allegedly consumed the poisonous liquid allegedly sold and supplied by the appellant.

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PW.3 is the relative of the deceased George, who gave Ext.P1 F.I. Statement. PW.4 is the Doctor, who conducted the postmortem of the body of the deceased George and issued Ext.P2 Postmortem certificate. PW.5 is the then Joint Examiner working in the Chief Chemical Examination Laboratory, Thiruvananthapuram, who issued chemical analysis report No.1198 and the attested copy of the same marked through her-PW.5. PW.6 is the Doctor who was then working as physician in the Medical Mission Hospital, Kolenchery who treated Pws.1 and 2 and accordingly issued Exts.P5 and P6 wound certificates respectively with respect to Pws.1 and 2. PW.8 is the Doctor then attached to Holy Family Hospital, Muthalakodam, who examined deceased George on 27/10/1997 and he testified that the said George admitted in the said hospital on 27/10/1997 and continued treatment till

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his death on 28/10/1997 at 3.20 A.M. PW.9 is an attestor to Ext.P8 scene mahazar prepared by CW.19 the then S.I. of Police, Melukavu Police Station. PW.10 is the C.I. of Police, who continued the investigation during which he made a report to the court furnishing address of the accused and also got prepared the site plan with respect to the place of occurrence. During the trial of the above case, as CW.19 was no more, the whole documents prepared by CW.19 were marked through PW.10, who is familiar with the handwriting and signature of CW.19. Thus, when PW.10 was examined, he identified the handwriting contained in Ext.P1 F.I. Statement recorded by CW.19 on the basis of the information furnished by PW.3. PW.10 had also identified and marked Ext.P8 scene mahazar, Ext.P9 F.I.R., Ext.P10 inquest and Ext.P11 report showing the address of the accused, etc. prepared by CW.19. Besides the above, Ext.P12 further report showing some correction in the address of the accused furnished by CW.19 and Ext.P13 site plan are also marked through PW.10.

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As per the allegation of the prosecution Pws.1, 2 and 7 and the deceased are the person, who consumed the spurious liquor from the Tea Shop allegedly conducted by the accused. When PWs.1 and 2 were examined, they have deposed in favour of the prosecution and according to PW.1, he knows the accused, who are conducting provisional and stationery shop and also a tea shop at Mechal. According to PW.1, the accused were residing in the room attached to the above shop and the first accused is the husband of the second accused. According to PW.1, he is also acquaintance with the deceased George. According to PW.1, while he was going to his house along the foot path at about 9 A.M., on 26/10/1997 the first accused came through that way and he told him that:

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"ബ��ന��യ�ണ� ജ��യ� സ�ര അവ�ട�യ�ണ�."

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He had further deposed that on the same day he went to the shop of the accused and asked the first accused for brandy then he replied that there was no brandy any more, but informed about the availability of arrack. But according to PW.1, he replied that he does not want arrack. According to

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him, at that time the deceased George told him that:-

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“നല� സ�ധനമ�ണ കഴ�ക� ഞ�ന കഴ�ചത�ട$ന�.”

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PW.1 further says that, from his shirt pocket the said deceased took 42 currency notes and put in his pocket and he returned 2/-. It is further stated that thereafter the deceased George along with the first accused went inside the room of that shop and thereafter the deceased George called him to inside the side room and after 2 minutes he got inside the room and at that time along with PW.1 there was one Maniyan, who is examined as PW.2 and the said Maniyan also got inside the room along with PW.1. It is further stated that, the deceased George bought arrack which was in a bottle and the deceased George poured arrack into three glasses and they consumed the same. Thereafter all the above three persons came out and they continued their talking. PW.1 has further stated that after ½ an hour, one Vannirikal George Kutty came there and the deceased George and Maniyan asked him to give them a treat and thereafter the deceased George obtained 50/- from the said person and with that money the deceased

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George went inside the room and thereafter he came with a bottle of arrack. According to PW.1, the said arrack poured into 3 glasses and each of them took three cup of arrack and thereafter all of them engaged in chatting and about 5.30 P.M. returned to their respective houses. According to him, Mani accompanied him and while they were going, the said Mani felt giddiness and he got tired. According to PW.1, holding his hand he took Mani to his house and thereafter he went to his own house. It is the further case of PW.1, on the next day morning at about 10'^o clock one Kavanassery Benny came to his house and requested him to take deceased George to hospital as he had some chest pain. Thus, PW.1 along with the said Benny went to the house of George and took him to the hospital. According to PW.1, at that time deceased George told him to enquire about Maniyan. According to him, when he enquired with the wife of Maniyan, he was told that Maniyan was laid up after vomitting. Thereafter he went to the house of said Maniyan and told him that he sent Benny to bring jeep and called him to go to the hospital and thereafter both himself

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and said Maniyan went to the deceased George. Thereafter the jeep arrived in which the Maniyan, deceased George and Benny directly went to meet Dr.James at Kudayathur. On conveying the fact about consumption of alcohol by the said George and he was having tiresome the said doctor, gave injection to both the deceased George as well as Maniyan and PW.1 was given a dose of medicine and they were advised to take rest. PW.1 has further stated that, while they were taking rest in the hospital, deceased George asked him to bring some food and thus he had taken food and thereafter at 3^'o clock the deceased George said to him that his eye sight being diminished and the said fact when conveyed to the Doctor they were told that there would be no problem. Thereafter all of them got out of the hospital and the deceased George told him that he want to meet the doctor at Karuna Hospital in Muttom. Thus, they proceeded to that hospital and when consulted the doctor and when they conveyed the eye problem to the said doctor, the deceased was advised to meet an eye specialist and though they went to meet an eye specialist, namely,

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Dr.Jayaprakasan, he was not available and accordingly they went to Muthalakodam Hospital. PW.1 further says that, at about 6.30 P.M. deceased George was admitted in that hospital and thereafter himself and Mani were gone back to their houses. According to PW.1, while they were going to their houses and when got down from the jeep, the said Maniyan vomited again but he was taken to his house and PW.1 went to his house. At about 7 A.M. on the next day somebody came and informed that the health condition of the deceased George had worsened and therefore himself and wife went to the hospital where the deceased was admitted and he felt some tiresome and giddiness. According to PW.1, though he was taken to the hospital, where the deceased was admitted, PW.1 was not admitted in that hospital, but taken to Medical Mission Hospital, Kolenchery wherein he was admitted and he had undergone treatment as inpatient for ten days. According to PW.1, at the time of the trial there is deficiencies in his left eye sight. According to PW.1, the above defect was due to the consumption of liquor from the shop of the accused.

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Another witness examined is PW.2. According to

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PW.2, he knows the accused who are husband and wife and he knows the house where they are residing. According to PW.2, the first accused conducting stationery as well as provisional store and also a tea shop at Mechal. According to PW.2, before 1997 there was an arrack shop in the said building conducting on commission basis. He knows the deceased George who was working in the telephone department. According to PW.2, he knows the circumstances under which the said George died. PW.2 deposed before the court that, at about 12^'0 clock on 26/10/1997 he went to the shop at Mechal and at that time there was heavy rain. Consequently he awaited in the said shop. According to him, at that time the deceased George asked him to consume arrack and thus he consumed it. Thereafter the said deceased George asked him to purchase arrack and thus he paid `50/- to the said deceased George and after 10 minutes, the deceased George brought arrack. According to PW.2, himself, PW.1 and the deceased

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George consumed the same and thereafter he sat along with the deceased George and PW.1 for some time and at about 3-3.30 P.M. one Edayapurakal George came there who joined with them. At that time deceased George took 40/- from the pocket of the said Edayapurakal George and gone inside the shop room and came after 10 minutes with arrack. According to PW.2, the said arrack also shared and consumed by himself, PW.1 and the deceased George. Thereafter also they continued their talking and at that time one Vannirikal George came there and then they asked him to offer arrack. It is further stated that the said Vannirikal George paid a sum of 50/- to the deceased George who thereafter came with arrack and the said arrack also shared by them and thereafter they continued the talk and while he was going to his house he had vomitted and on the next day morning the said Edayapurakal George came and requested him to assist him to take deceased George to the hospital as he was having chest pain. Further deposition of PW.2 are in tune with the deposition of PW.1 about the taking of deceased George to various hospital and

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finally to the hospital at Muthalakodam. He had also deposed that he was admitted in the Medical Mission Hospital at Kolenchery and treated as inpatient for 10 days.

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Besides Pws.1 and 2, the prosecution has also examined another person, namely, one George as PW.7, who said to have consumed arrack from the shop of the first accused. When PW.7 was examined, he had deposed that, he knows the facts and circumstances which lead to the death of the deceased George. According to PW.7, at about 10.30-11 A.M. on 26/10/1997 he went to the family shop of Chalil John. According to PW.7, there are provisional and Stationery store and a tea shop in the family shop of said John. According to PW.7, there was also sales of arrack. According to PW.7, the said John is the father of the accused, namely, Sibil, who present in the court. PW.7 said that the above shops are run by the first accused Sibil. According to PW.7, he reached the shop at about 10.30 A.M. and firstly he took a cup of tea and while he was taking the tea, the deceased George came in the shop. He is his friend and thus they talked each other.

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According to PW.7 thereafter the deceased said:-

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പറഞ “അണന വ�ങ) എന� �. ഉ�ന തടന എട/ ജപ�കറ�ല ന�ന� 30 ര)പ�ടയ��ത�. ഞ�ന ബപത� സ��ള�ട/ പകല ടക��ത�. അജ7�ള ക�ലക�7� ച�ര�യ ബപത� സ��ള ടക�ണ� വന� എട/ കകയ�ല തന� . ഞ�ന സ��ള�ട/ പകല ന�ന� രണ� ഗ�സ>കള വ�ങ� അവ�ട� ടവച� �� ക�7�യ�ല അ�ക ടചയത�ര�ന ച�ര�യ രണ� ഗ�സ>കള�ല� ത�ല@മ�യ� ഒഴ�ച> . ഞ�ന� മര$ട7ട ജ��രC� ക��ച>.”

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According to PW.7, thereafter they continued their talking

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and within ½ an hour, PW.7 asked the deceased George to purchase a bottle of arrack and at that time the deceased George asked ½ bottle arrack from the accused Sibil and accordingly, the accused Sibil bought ½ bottle arrack. According to PW.7, the above arrack shared equally in glasses and the same consumed by him and deceased George. Thereafter they sit together and talked, which continued up to 1 - 1 ½ hours and at that time Maniyan came there who is also

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his friend. At that time deceased George asked the said Manian "ഇ�യപ�രകല അണന എവ�ട �" and accordingly Manian replied that he will come soon. According to PW.7, thereafter himself, deceased George and the said Maniyan sat on the bench and at that time he felt some uneasiness and therefore he came out and sat on the veranda. PW.7 further says that at that time Edayapurakkal George @ Joy came there and deceased George talked with him. At that time Edayapurakal George asked Sibil for ½ bottle arrack. Accordingly, ½ bottle arrack bought and the same poured into three glasses and the same was consumed by the above mentioned Maniyan, deceased George and Edayapurakal George. According to PW.7, he said that he do not want arrack. Thereafter one Vannirikal George came and he was asked by the deceased George for arrack and accordingly they again purchased and consumed the same. According to PW.7, he did not consume the arrack and it was at about 4'^o clock. According to PW.7, at that time, he asked Mani to purchase arrack and the said deceased George, Maniyan and

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Edayapurakal George were sitting inside the shop room and thus ½ bottle placed on the table and PW.7 being elder among them, asked him to share and poured the arrack into glasses. According to PW.7, as requested by others he took the bottle, but he felt heavy heat for the bottle then he asked Sibil (the accused) as to whether he had mixed hot water with the liquid. Then he replied by the 1^st accused that, it was mixed now for them and to consume the same with water. According to PW.7, the same also shared equally after mixing the same with water and they four in number consumed the arrack. According to PW.7, when he had gone to his house, he fell down but again got up and proceeded to the house. According to PW.7, on the next day when he was about to go to panchayat office at Erattupetta to attend his job as a peon, he felt tiresome and therefore, he took leave on that day. According to PW.7, from Sunny Medical store he obtained mixture of “Jeerakarishtam” & “Dhasamoolarishtam” and taken two doze. It is the further case of PW.7 that he was druggy therefore, he had gone to Kulathurkadavu in a bus and gone to toddy shop

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and consumed two bottle of coconut toddy and thereafter in a bus he returned to his house and he continuously took Ayur veda medicine and thus he got some relief. He came to know about the death of George subsequently. He had also deposed that he consumed arrack from Sibil and at that time they were residing in the house attached to the shop itself.

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It is on the basis of the above oral evidence of Pws.1, 2 and 7 and on the basis of the medical and other forensic evidence the prosecution raised its allegation against the accused that the accused sold spurious arrack which contained methyl alcohol and as a result of consuming the same, the said deceased George died on 28/10/1997 and Pws.1 and 2 sustained injuries and thus according to the prosecution, the accused has committed the said offences. The trial court accepted the above case of the prosecution on the basis of the above referred evidence and materials and convicted and sentenced the appellant.

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The learned counsel for the appellant vehemently submitted that, except the oral evidence of Pws.1, 2 and 7

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absolutely there is no evidence to connect the appellant/ accused with the alleged offence. According to the learned counsel, the prosecution has not conducted any effective investigation and no contraband article is seized from the possession of the accused so as to connect him with the alleged offence. According to the learned counsel, the oral evidence of Pws.1 and 2 are not sufficient to implicate the accused in the present case and the evidence of PW.7 cannot be believed since the same is diametrically opposed to the evidence of Pws.1 and 2 and it is unsafe to rely upon the evidence of PW.7 to convict the appellant. Thus, according to the learned counsel, the finding of the court below is factually incorrect and legally unsustainable.

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On the other hand, the learned Public Prosecutor strenuously submitted that, the evidence of Pws.1, 2 and 7 positively proved that the accused sold illicit arrack, which was consumed by the deceased as well as by Pws.1 and 2 and the medical evidence and the forensic evidence show that the death of George was due to the presence of the methyl alcohol-

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a poisonous substance and Pws.1 and 2 sustained injuries due to the consumption of illicit arrack containing methyl alcohol which was sold and supplied by the appellant. Thus, according to the learned Public Prosecutor, the trial court is fully justified in its finding and convicting the appellant for the offence punishable under Section 55(a) and 57 (1)(i)(ii) of the Abkari Act.

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I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have gone through the evidence and materials on record.

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Having regard to the facts and circumstances involved in the case, especially in the light of the evidence and materials on record, particularly in view of the rival contentions advanced, the question to be considered is, whether the trial court is justified in convicting the appellant for the offence punishable under Section 55(a) and 57 A (1)(i) & (ii) of the Kerala Abkari Act.

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At the out set it is to be noted that the prosecution has no allegation that the appellant has imported or transported liquor from out side State of Kerala to the place of occurrence or he was found in possession of liquor in violation of the provisions contained under Section 55(a) of the Abkari Act. The learned Public Prosecutor has also fairly conceded that the offence under Section 55(a) is not attracted in the light of the facts and circumstances involved in the present case. In view of the decision in Narayanan Nair Vs. State of Kerala [2011(3) KLT 722] , to prove the offence under Section 55(a) of the Abkari Act even if the offence is connected with foreign liquor, the prosecution has to prove that the accused brought the liquor into the State of Kerala, from some place which lies outside the State. A division bench of this Court in Mohanan Vs. State of Kerala [2007 (1) KHC 752] , has also held that the words transports, transits or possess coming after the words 'imports or exports' in Section 55(a) has to be read in ejusdem generis to the words 'imports or exports'Section 55(a) is not applicable to all kinds of transportation of

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liquor and Section 55 is applicable for illegal import or transport or in possession while importing. In the absence of any such allegation from the side of the prosecution against the appellant to attract the ingredients of 55(a), the finding of the court below that the accused has committed the offence under Section 55(a), is unsustainable and unwarranted. Therefore, the above finding of the court below is liable to be set aside.

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The appellant in the present case is asked to face charge for the offence punishable under Section 55(a) read with Section 15(a) & (b) which I have already found not sustainable. The second charge is against the accused/appellant is for the offence punishable under Section 57A (1)(i)(ii) of Abkari Act. 57 A of the Kerala Abkari Act read as follows:-

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“57A. For adulteration of liquor or intoxicating drug with noxious substances,

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etc:- (1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug

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shall, on conviction, be punishable-

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(i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;

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(ii) if, as a result of such act, death is caused to any person, with death or imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;”

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So, a bare reading of Section 57(1) it can be seen that in

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order to attract the above offence, the prosecution has to allege and prove that the accused mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings with any liquor or intoxicating drug. In the present case the prosecution has no such specific allegation that the accused has mixed or permitted to mix any noxious substance with any liquor or any intoxicating drug. No evidence is also

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adduced to substantiate any of such overt act. Regarding the liquor or intoxicating drug with which the accused/appellant mixed or permits to be mixed any noxious substance are also not specifically pleaded and proved by the prosecution.

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Even if it is conceded for the arguments sake that Section 57-A is attracted, the further question to be considered is whether the prosecution has succeeded to establish that the appellant/ accused mixed methyl alcohol with arrack and he had sold and supplied the same to PWs.1, 2 and the deceased and whether the cause of death of the deceased and the cause of the injuries allegedly sustained by PWs.1 and 2 was the result of the adulterated or spurious liquor consumed by them which contained intoxicating drug or noxious substance as sold by the accused.

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In the present case no effective investigation was undertaken by the police though the charge raised against the appellant is very serious which warrant rigorous punishment. It is beyond dispute that the police has not seized any contraband article including the illicit arrack containing

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methyl alcohol either from the physical possession of the accused or from the house in which the accused allegedly resided or from the tea shop which said to have run by the accused. So, absolutely there is no physical evidence to connect the appellant/accused with the alleged offences. In Ext.P2 medical certificate also no opinion was incorporated to the cause of death, but the same reserved pending in the laboratory examination. When PW.5 was examined Ext.P3 attested copy of chemical examination report was marked through her. According to the above forensic expert evidence methyl alcohol and ethyl alcohol detected in item Nos.1, 2 and 3. Item No.3 is the blood of the deceased which contained 185 mgs. of methyl alcohol and 74 mgs. of ethyl alcohol per 100 ml. of blood. According to these evidences, methyl alcohol is a highly poisonous substance. The above expert evidence would show that the blood of deceased containing methyl alcohol which is highly poisonous substance. But is it sufficient to fix the criminal liability upon the appellant/accused in the light of the allegation raised against them by the prosecution. In the

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absence of any incriminating evidence and materials or physical evidence collected by the prosecution to connect the accused with the alleged evidence, it is incorrect and illegal to convict the accused for the offence alleged. According to me, in the absence of such physical evidence and materials, the attempt of the prosecution is to implicate the accused in the alleged crime with resorting the oral evidence of Pws.1, 2 and 7. The said fact is fairly conceded by the learned Public Prosecutor. If that be so, the further question to be considered is, whether the evidence of Pws.1, 2 and 7 are sufficient to establish the involvement of the accused in the offence alleged against him.

¶126

Before considering the evidence of Pws.1, 2 and 7 it is beneficial to once again refer the fact that the prosecution has miserably failed to detect the presence of any illicit arrack or any contraband article which containing methyl alcohol either from the physical possession of the accused or from the tea shop or from the house wherein they allegedly resided.

¶127

Crl.A.No.236 of 2003

¶128

:-27-:

¶129

I have already referred to the evidence of Pws.1 and 2. In the evidence of PW.1 except the statement that:-

¶130

ഒന� “ത��രന� ജ��രC� ബപത�യ�മ�യ� �� ക�യ�ട� side roomജലക� കയറ�.”

¶131

No whisper in his evidence towards the overt act of the accused to prove the possession of the contraband article or the sale of the same or supplying the arrack. In the light of the evidence of PW.1 it is pertinent to note that money was collected by the deceased George from all the persons who came at the tea shop of the accused. It is the deceased George came with the illicit arrack. PW.1 never deposed before the court that the accused collected the money or he had supplied the illicit arrack or sold the same to any of these witnesses. PW.1 has also no case that the accused got collected the money from the deceased George, on giving or supplying arrack to him. Same is the position in the deposition of PW.2. As in the case of PW1, PW.2 has not even said that the accused along with deceased George went inside the shop and brought

¶132

Crl.A.No.236 of 2003

¶133

:-28-:

¶134

the illicit arrack. PW.2 also, fully in terms of the deposition of PW.1 has deposed that the money was collected by the deceased George from all the persons came there including Pws.1 and 2 and other persons. PW.2 has also no case that the accused collected the money from the deceased George. Pws.1 and 2 has also not stated the place from where the illicit arrack brought and where the same was stocked, etc. So, the evidence of Pws.1 and 2 are no way helpful for the prosecution to show that the accused has any nexus or proximity with the liquor or arrack allegedly brought by the deceased George. In this juncture it is also relevant to note that it is already brought on evidence to the effect that just behind the shop room there was a rubber plantation and there was opening to the same from the house where the accused allegedly residing. It can be seen from the evidence of Pws.1, 2 and 7 that after collecting the money in one occasion the deceased came out after five minutes and in another occasion came out in 10 minutes. The prosecution has no case that the accused engaged in the illicit distillation of arrack in the house or in the

¶135

Crl.A.No.236 of 2003

¶136

:-29-:

¶137

tea shop. In this juncture it is also relevant to note the fact that PW.1 and PW.2 has no claim that they have witnessed the accused handed over the arrack to the deceased George or any other person including themselves. If that be so, can the prosecution ruled that the illicit arrack was brought either from the rubber plantation or from some other place. Thus, in the evidence of Pws.1 and 2 there is no whisper to the effect that it was the accused who illicitly distilled the arrack or he prepared the mixture with the arrack and sold or supplied the illicit arrack or he collected the money being the value of the illicit arrack supplied and therefore their evidence not helpful the prosecution to prove the involvement of the accused in the commission of the offence.

¶138

The learned Public Prosecutor after inviting me through the evidence of PW.7 tried to convince me about the role of the appellant in the commission of offence alleged against him. But, according to me, the evidence of PW.7 is not all reliable and not sufficient to inspire the confidence of the court. What all stated by PW.7 is not supported by Pws.1 and 2

¶139

Crl.A.No.236 of 2003

¶140

:-30-:

¶141

the loyal witnesses of the prosecution. The antecedents of PW.7 is also not so good to place reliability upon his evidence. I have already referred to the deposition of Pw.1 during his chief-examination, so I am not proposed to repeat the same. But during the cross-examination the defence had succeeded in bringing out the fact that all what he stated during chiefexamination attributing role of the accused in the sales and supply of spurious liquor or arrack, are only improved version of PW.7 from his statement recorded under Section 161 of Cr.P.C. So, the evidence of PW.7 implicating the accused in the sales or supply of illicit arrack are only substantially improved version of Pw.7. Such evidence of PW.7 is not tallying with the evidence of Pws.1 and 2 and also goes against the evidence of Pws.1 and 2, who are loyal witnesses of the prosecution. So, according to me, it is unsafe to convict the appellant simply on the basis of the improved version of PW.7. Thus, on exclusion of the evidence of PW.7, for the aforesaid reason, there is nothing remained in the prosecution evidence to connect the appellant with the alleged offence. If that be so,

¶142

Crl.A.No.236 of 2003

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¶144

it cannot be said that the deceased George died or PW.1 and PW.2 sustained injuries as a result of consumption of illicit arrack or spurious liquor supplied or sold by the accused.

¶145

Even otherwise it is relevant to note that in the absence of any physical evidence namely absence of any contraband article allegedly seized from the physical possession of the accused which contained methyl alcohol it cannot be held that the accused supplied or sold liquor containing methyl alcohol and the same consumed by Pws.1 and 2 and the deceased. Merely on the basis of the evidence including the medical as well as the forensic which show that the body particle of deceased contained methyl alcohol are not sufficient, in the absence of any link evidence to connect the accused with the alleged offence, that he had mixed any noxious substance or narcotic drugs with the arrack and he supplied or sold the spurious liquor or illicit arrack containing methyl alcohol and the same consumed by the deceased or Pw.1 and Pw.2 so as to attract Section 57(1) of the Abkari Act.

¶146

In the light of the above discussion and the evidence

¶147

Crl.A.No.236 of 2003

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¶149

and the materials referred to above, I am of the firm view that, the prosecution has miserably failed to adduce any reliable and cogent evidence to prove the allegation against the accused so as to attract Section 57A or 57A(1) of the Kerala Abkari Act and therefore I am unable to approve the findings and the conviction recorded by the trial court against the appellant. Accordingly the findings and the conviction recorded by the learned Judge of the trial court as per the impugned judgment are set aside.

¶150

In the result, this appeal is allowed setting aside the judgment dated 30/01/2003 in S.C.No.172 of 2000 of the court of the Additional District and Sessions Judge (Adhoc)-I, Kottayam and the appellant is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stands cancelled and he is set at liberty.

¶151

V.K.MOHANAN, JUDGE

¶152

skj

¶153

True copy P.A. to Judge

Santhosh @ Subil v. State of Kerala

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Santhosh @ Subil v. State of Kerala

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