Allowed

Bhaskaran v. State of Kerala

Kerala HC4 Mar 2013CRL.A/707/2005

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the criminal appeal challenging a conviction under Section 55(a) of the Abkari Act. The Court held that the prosecution failed to prove the case beyond reasonable doubt due to inconsistencies between witness testimonies regarding the location of the incident, hostile witness behavior, and a total failure to explain the delay in producing seized material objects bef

What did the court decide?

Appeal allowed; conviction set aside; appellant acquitted; bail bond cancelled; appellant set at liberty.

Bhaskaran 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 4TH DAY OF MARCH 2013/13TH PHALGUNA 1934

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CRL.A.No. 707 of 2005

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AGAINST THE ORDER/JUDGMENT IN SC.229/2002 of ADDL. DISTRICT & SESSIONS COURT FAST TRACK (ADHOC-II), KOZHIKODE DATED 17-05-2004

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APPELLANT/ACCUSED.:

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BHASKARAN, S/O.RARICHAN, NADUKANDY, CHEMANCHERY AMSOM, THIRUVAKAD DESOM, KOZHIKODE.

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BY ADVS.SRI.PROMY KAPRAKAT

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SRI.K.N.ABHILASH

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SMT.M.R.JAYALATHA (STATE BRIEF)

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RESPONDENT/COMPLAINANT.:

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

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BY PUBLIC PROSECUTOR SMT.V.H.JASMINE

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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Crl.A.No.707 of 2005

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Dated this the 04^th day of March, 2013

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JUDGMENT

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The appellant is the sole accused in S.C.No.229 of 2002 of the court of the Additional District and Sessions

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Judge Fast Track (Ad-hoc-II), Kozhikode. By judgment dated 17/05/2004 in the above Sessions Case, the appellant/accused is found guilty for the offence under Section 55(a) of the Abkari Act and then he is convicted and sentenced thereunder and in this appeal, the challenge is against the above conviction and sentence.

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The prosecution case is that, at about 6 p.m. on 29/07/1997 the accused was found in possession of 8 litres of illicit arrack in a 10 litre plastic can in ThuvvakodeThorayikadav road near Sisumandiram and Kunhimadam temple in Thuvvakode desom Chemanchery amsom and accordingly the accused has committed the offence punishable under Section 55 (a) of the Abkari Act. On the

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basis of the above allegation, Crime No.90 of 1997 was registered in the Quilandy Excise Range against the accused and on completing the investigation, charge sheet was filed in the Judicial First Class Magistrate Court, Quilandy, wherein C.P.No.65 of 2001 was instituted and subsequently the case is committed to the Sessions Court and after instituting S.C.No.229 of 2002 finally the case was made over to the present trial court for disposal. When the accused appeared, after hearing the prosecution and the defence, a formal charge was framed against the accused for the offence punishable under Section 55(a) of the Abkari Act which, when read over and explained to the accused, he denied the same. Consequently the prosecution adduced its evidence by examining PWs.1 to 5 and producing Exts.P1 to P8 documents. MO.1 material object is also identified. Finally the trial court has found that the prosecution has proved the case against the accused beyond all reasonable doubt and accordingly the accused is found guilty under

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Crl.A.No.707 of 2005

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Section 55(a) of the Abkari Act and he is convicted thereunder. On such conviction, the accused/appellant is sentenced to undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rupees One lakh and in default of payment of fine, he is directed to undergo rigorous imprisonment for six months. Set off is allowed. It is the above finding and order of conviction and sentence that are challenged in this appeal.

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I have heard Smt.M.R.Jayalatha, the learned counsel, appointed from the panel of State Brief to prosecute the matter on behalf of the appellant and the learned Public Prosecutor.

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As per the prosecution case, the alleged offence was detected by one Mr.R.Mohanan, who was the then Excise Inspector of Quilandy Excise Range who subsequently expired and during the trial of the case the prosecution was constrained to depend upon the evidence of PWs.2 and 3 to prove the occurrence. When PWs.2 and 3

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were examined they have deposed in terms of the prosecution allegation. When PW.2 the then preventive officer attached to Quilandy Excise Range examined, he had deposed that he went along with CW.1, the then Excise Inspector on 29/07/1997. According to him, when himself went along with CW.1 and while they reached near the Kunhimadam temple situating on the side of the Thorayikadav road leading to Thorayikadav from Thuvvakode road, seeing the accused holding a 10 litre can on his right hand and on doubt, he was intercepted and when examined the content of the can, the same was realised as illicit arrack. He had further deposed about the steps taken towards the seizure of the contraband article and the drawing of the sample. According to this witness, as per the instruction of the Excise Inspector, the excise guard prepared seizure mahazar, which marked as Ext.P2. The arrest memo of the accused prepared by CW.1 is marked as Ext.P3. Ext.P4 occurrence report prepared by

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CW.1 is also marked through PW.2. PW.2 has identified the thondi list which marked as Ext.P5. Ext.P6 is the forwarding note and Ext.P7 is the chemical analysis report. PW.2 has also identified MO.1 material object. When PW.3, the then Excise Guard attached to Quilandy Excise Range examined, he had deposed that on 29//07/1997 he went along with CW.1 and he had deposed about the detection of the crime. According to him, near to the Sisumandiram adjacent to Kunnimadam temple in Thorayikadavu road, they found the accused going with a 10 litre can and on doubt intercepted him and inspected the plastic can and realised the content as illicit arrack. According to him, CW.1 arrested the accused and sample was drawn in a 180 ml. bottle and according to him, he prepared Ext.P2 seizure mahazar as directed by CW.1. He had also identified MO.1. He had also deposed that place of occurrence is a road and the case was detected, after walking 20 mtrs. on stopping the jeep. He had deposed that

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he is not remembering the exact side of the road, or the place of occurrence.

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PW.1 is the then Village Officer, Chemanchery who prepared Ext.P1 sketch plan. PW.4 is an independent witness cited and examined by the prosecution, but he turned hostile to the prosecution. PW.5 is the then Excise Inspector, who undertook the investigation and eventually laid the charge. These are the evidences and materials referred to and relied on by the learned Judge of the trial court in support of his finding and convicting the appellant.

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The learned counsel for the appellant, sticking upon the contention raised before the trial court, argued before me, that regarding the exact place of occurrence the prosecution has no consistent case and on this point, the available evidence of the prosecution contradicting each other. It is also contented by the learned counsel that there is culpable delay in producing the properties before the court and such delay is not explained by the prosecution.

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Thus, it is the submission of the learned counsel that, the trial court has miserably failed in considering the above two vital points which go against the prosecution. Thus, according to the learned counsel, the findings and the order of conviction recorded by the trial court are liable to be interfered with.

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On the other hand, the learned Public Prosecutor has submitted that the minor discrepancies that occurred in the evidence of PWs.2 and 3 with respect to the place of occurrence are not sufficient to disbelieve the prosecution case, especially when the officer, who detected the crime, is not available at the time of the trial of the case. It is also the submission of the learned Public Prosecutor that, even if there is some delay in producing the properties before the court below, the same has no way affected the defence and no prejudice is caused to the accused. Thus, according to the learned Public Prosecutor, the trial court judgment requires no interference.

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I have carefully considered the arguments

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advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have perused the judgment of the trial court and I have gone through the evidence and materials on record.

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In the light of the arguments advanced by the learned counsel for the appellant and the counter arguments, the question to be considered is, whether the trial court is justified in its finding and convicting the appellant for the offence under Section 55(a) of the Abkari Act and whether the prosection has succeeded in proving its case against the appellant beyond reasonable doubt. According to me, the two points raised by the learned counsel for the appellant before this Court, if found in favour of the defence, it will cut the very root of the prosecution case. In this juncture, it is relevant to note that PW.2, the then Preventive Officer, who participated in the detection of the crime when examined has deposed that

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they found the accused on 29/07/1997 at about 6 p.m. while they were going along with Thorayikadavu road and near to the Kunhimadam temple adjacent to a Sisumandiram. PW.2 has no case that they have seen the accused along the colony road, when they walked along the colony road after stopping the jeep. But PW.3 has deposed that they had seen the accused when they were walking along the colony road. PW.3 has stated that:-

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“സ�ഭവസല� റ��ഡ�ണ�. ജ�പ� ന��ത� 20 മ�റര നടന�ണ� റ�സ� �ണ�പ�ട�ചത�. റത�ര�യ�കടവ� റ��ഡ�ല ന�ന� വടറക�ട�ണ� നടനത� . റ��ളന� റ��ഡ�ന* ഏത� ഭ�ഗതത�ണ� എന� �.ത.മ�യ� ഓരക�ന�ല.”

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It is relevant to note that along the Thorayikadavu

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road, no Sisumandiram or Kunhimadam temple is marked by PW.1 in Ext.P1 sketch. As per the evidence of PW.2, the accused has been found, while they were coming by jeep along the Thorayikadavu road. But, according to PW.3, the accused was found on walking 20 mtrs. along the colony road after stopping the jeep in Thorayikadavu road. In this

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juncture, it is relevant to note that the available evidence of PWs.2 and 3 regarding the exact place of occurrence is not upto the satisfaction of this Court. To prove the incident there is no independent evidence and though PW.4 was examined, he turned hostile. Hence, in the absence of any independent evidence, regarding the exact place of occurrence, particularly when the evidence of PWs.2 and 3, the official witnesses, are not tallying each other, I find it difficult to accept the prosecution case as such.

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In this juncture, it is relevant to note that, though the alleged incident has taken place on 29/07/1997, as per Ext.P5 property list, the contraband article and the sample bottle reached the court only on 05/08/1997. Neither the investigating officer nor the officials involved in the detection of the crime has offered any explanation for such delay in producing the contraband article beofe the Court. Though the learned Judge in the impugned judgment has observed, that the said delay is explained by the

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prosecution, I am unable to endorse the above finding of the learned Judge. In the deposition of PWs.2 or 3 the officials, who allegedly involved in the detection of the crime or PW.5 investigating officer, has offered any explanation for the delay in producing the contraband article before the court. The question of appreciation of delay arise only when any explanation is offered. In the present case absolutely no explanation is offered and therefore, there is no question of appreciating the explanation as to whether the explanation is sufficient or not. Therefore, according to me, the nonexplanation of delay in producing the contraband article will go against the prosecution especially in the light of the Division Bench decision of this Court in Ravi Vs. State of Kerala [2011(3)KLT353, this Court has held that “prosecution has a duty to prove that it was the sample taken from contraband liquor seized from accused which had reached the hands of Chemical Examiner in a fool proof condition.” Thus, the prosecution has miserably failed in explaining the

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delay in the production of the material object and the document in the court below. Regarding the place of occurrence, the evidences of the prosecution witnesses are not mutually tallying and coupled with the fact that the prosecution has miserably failed to explain the delay in producing the properties before the court in time, goes against the prosecution, which are sufficient to generate doubt in the minds of the court about the veracity of prosecution case itself. But the trial court has miserably failed to extent said benefit to the accused/appellant. So, according to me, the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt and the benefit of doubt certainly goes in favour of the appellant/ accused. Therefore, I am unable to sustain the conviction recorded by the trial court against the appellant/ accused and accordingly the conviction of the appellant for the offence under Section 55(a) of the Abkari Act is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 17/05/2004 in S.C.No.229 of 2002 of the court of the Additional District and Sessions Judge Fast Track (Ad hoc II), Kozhikode and acquitting the appellant/ accused of all the charges levelled against him and bail bond, if any, executed by him shall stand cancelled and the appellant is set at liberty.

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V.K.MOHANAN, JUDGE

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skj

Bhaskaran v. State of Kerala

Case brief

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Bhaskaran v. State of Kerala

Case brief

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