Allowed

Santhosh v. State of Kerala

Kerala HC21 Nov 2013CRL.A/741/2005

Case brief

AI extract

What is this about?

In an appeal against conviction for possessing arrack, the Court held that the prosecution failed to prove the identity of the appellant as the possessor of the contraband found abandoned at the scene. The conviction was unsustainably based on identification evidence given two years after the incident without prior acquaintance or arrest. The appeal was allowed, conviction set aside, and the appel

What did the court decide?

The appeal is allowed; the judgment of the trial court is set aside; the appellant is acquitted and set at liberty.

Santhosh Vs State of Kerala — Constitutional and Fundamental Rights | 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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THURSDAY, THE 21ST DAY OF NOVEMBER 2013/30TH KARTHIKA, 1935

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CRL.A.No. 741 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 686/2004 of ADDL. DISTRICT & SESSIONS JUDGE, FAST TRACK COURT (AD HOC)-II, PATHANAMTHITTA, DATED 12-04-2005

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APPELLANT(S)/ACCUSED:

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SANTHOSH, S/O.NARAYANAN, VADAKKEKARA PUTHEN VEEDU, EZHAMTHALA THEKKUTHODU MURI, THANNITHODU VILLAGE KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.C.S.MANILAL

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RESPONDENT(S)/COMPLAINANT:

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

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BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2013, 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.741 of 2005

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Dated this the 21^st day of November, 2013.

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J U D G M E N T

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Alleging that the appellant/accused was found in possession of 4 ltrs. of arrack, Crime No.64/03 was registered in Thannithodu Police Station for the offence punishable under sections 8(1) and (2) of the Abkari Act and on completing the investigation, report was filed, based upon which finally S.C.No.686/04 was instituted in the Sessions court, Kollam and subsequently the same was made over to the present trial court, namely the court of Additional District and Sessions Judge (Ad hoc), Fast Track-II, Pathanamthitta. The learned Judge by his judgment dated 12.4.2005 in the above sessions case has found that the accused is guilty of the offence under Sections 8(1) and (2) of the Abkari Act and accordingly he is sentenced thereunder. Challenging the above conviction

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Crl.A.No.741 of 2005

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and sentence, the sole accused therein preferred this appeal.

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During the trial of the above case, a formal charge was framed against the accused for the offence punishable under Sections 8(1) and (2) of the Abkari Act, which when read over and explained to the accused, he denied the same and pleaded not guilty and consequently from the side of the prosecution Pws.1 and 4 were examined and Exts.P1 to P6 were marked and produced. M.Os.1 and 2 were also identified. The trial court finally found that the prosecution has succeeded in establishing its case against the appellant/ accused and accordingly he is found guilty of the offence under sections 8(1) and (2) of Abkari Act and thus he is convicted thereunder. On such conviction, he is sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of `1 lakh and in default, he is directed to undergo further rigorous imprisonment for 1 year. Set off is allowed. It is against the above finding, order of conviction and sentence, this appeal is preferred.

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Crl.A.No.741 of 2005

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Heard the counsel for the appellant and the learned Public Prosecutor.

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The case of the prosecution is that while the police party headed by PW4-the then Sub Inspector of Police, Thannithodu Police Station, were on patrol duty accompanied by Pws.1 and 2, they got information that the accused conducting sale of arrack at Eloorkadavu and they proceeded to that place and at about 4.35 p.m. on 5.7.2003, the accused was seen holding a 5 ltr. black can and a glass tumbler and on seeing the patrol party, the accused escaped and could not be arrested, and the can containing contraband was abandoned by him were recovered on the spot by the police party and they examined the content of the plastic can which they realised as illicit arrack by smelling and tasting. According to the police party, the can and content of the same were seized and sample was drawn from the contraband article. According to the Police, the seizure was effected by recording the entire proceedings in the mahazar and samples were drawn from the contraband

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Crl.A.No.741 of 2005

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article in the presence of the independent witnesses. After completing the said proceedings, according to the Police, they returned to the Police Station. When Pws.1, 2 and 4 were examined, they deposed strictly in terms of the above prosecution case. PW1 has identified M.O.1 can, which was seized from the scene of occurrence of crime and allegedly abandoned by the accused. When PW2 was examined, he had identified Ext.P1 mahazar which contained his signature prepared by PW4. When PW4 was examined, he had also deposed in terms of the prosecution allegation and he had also identified Ext.P1 mahazar, which was prepared by him. Besides Exts.P1 mahazar, P2 FIR, P3 property list, P4 forwarding note, P5 chemical analysis report and Ext.P6 report furnishing correct address of the appellant/accused were also marked through PW4. It is on the basis of the above evidence and materials, the trial court convicted the appellant.

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Learned counsel for the appellant vehemently submitted that the appellant/accused is implicated falsely in

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Crl.A.No.741 of 2005

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the above crime and there was no proper seizure in the present case so as to prove the involvement of the appellant/ accused. It is the contention of the learned counsel that the prosecution has miserably failed to prove the identity of the accused. In support of the above contention, the learned counsel placed reliance upon the decision of this Court in

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Roy K.A. Vs. State of Kerala (2012(2) KHC 768) .

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Per contra, the learned Public Prosecutor submitted that the evidence of Pws.1, 2 and 4, supported by the other documentary evidence, shows the involvement of the appellant/accused and therefore the trial court is fully justified in its finding and hence no interference is warranted.

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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 perused the evidence and materials on record.

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In the light of the rival contentions and in view of the evidence and materials on record, the questions to be

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Crl.A.No.741 of 2005

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considered is whether the conviction recorded by the trial court is sustainable and whether the prosecution has succeeded in establishing the identity of the accused in the present case.

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It is beyond dispute that the prosecution has not arrested the appelant/accused along with the contraband article at the place of occurrence at the alleged time. According to the prosecution, on the basis of the information received by PW4 and party, while they were conducting patrol duty at Thekkuthodu Junction-Ezhamthala Road in Thannithodu Village, they proceeded to the place at which the accused was allegedly conducted sale of illicit arrack, namely Eloor Kadavu and according to Pws.1, 2 and 4, on seeing the police party, the accused jumped into the river and escaped. But according to the prosecution, the accused abandoned the plastic can which was held by him and therefore the police seized the can as well as the content thereof. To implicate the appellant/accused in the above case, the case shaped by the prosecution is to the effect that

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Crl.A.No.741 of 2005

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PW4 has got previous acquaintance with the appellant, since PW4 once advised and warned the accused when he had involved in an Abkari offence. Suffice to say, PW4 has got such a version for the first time before the court. It is brought on record when PW4 was examined that, no document is produced by him to show that he had previous acquaintance with the appellant/accused. Even in Ext.P1 mahazar, there was no recital that PW4 has previous acquaintance with the appellant/accused. It is quite unbelievable that a duty-bound Police Officer would spare an accused who is involved in a serious offence like the present one. So, the claim of PW4 that he had prior acquaintance with the appellant/accused cannot be believed. Pws.1 and 2 had no claim that they got any prior acquaintance with the appellant/accused. In short, to prove the identity of the appellant/accused, the only evidence is that during the trial of the case, Pws.1, 2 and 4 had identified the appellant/accused in the box. The incident was allegedly taken place at about 4.35 p.m. on 5.7.2003

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Crl.A.No.741 of 2005

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and these witnesses were examined during the month of March 2005, ie., after 2 years of the alleged incident. So, the evidence of Pws.1, 2 and 4 of identifying the appellant/ accused for the first time during the trial, cannot be given any weightage. In this case it is also relevant to note that after the registration of the crime, though the appellant/ accused was residing within 9 kms. from the Police Station, no earnest effort was made to arrest the accused. So, before filing the report, none of the Police Officials including PW4 had any occasion to identify the appellant/accused. The only explanation offered by PW4 is that when the appellant/accused got bail, based upon the condition imposed thereof, he appeared before the Police Station and at that time he saw the appellant/accused. The above evidence cannot be treated as a substantial evidence.

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In this case it is also relevant to note that, as I indicated earlier, even the prosecution has no case that the contraband article was seized from the physical possession of the appellant. The evidence on record shows that the

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Crl.A.No.741 of 2005

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place at which M.O.1 can was seized by the Police, other persons were also present there. All the three Police Officials were deposed before the court that the appellant/ accused was seen at a distance of 25-30 meters. If the case of the prosecution, namely the version of PW4 is taken as correct, that he had once warned the appellant/accused, the possibility of the accused being run away from the scene of occurrence on seeing PW4, even if he has not committed any offence, cannot be ruled out. Since, the prosecution has miserably failed to positively prove that M.O.1 was physically held by none other than the appellant/accused, especially when other persons were present at the place of occurrence, which was admitted by the Police, it is not safe to convict the appellant, particularly when the prosecution has miserably failed to establish the identity of the appellant/accused, and there is only a simple version of the official witnesses that they had seen the accused. In this juncture it is relevant to note that none of these witnesses had made any earnest effort to catch the appellant/accused

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and the version given by them in this regard are not convincing. The decision relied on by the learned counsel

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for the appellant squarely covers the facts and circumstances involved in the case.

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In the light of the above facts and circumstances and the evidence on record, I am of the view that, the prosecution has miserably failed in establishing the identity of the appellant/accused that he had involved in the commission of offence and it was the appellant/accused who ran away from the scene of crime holding the can in question and he had abandoned the same and therefore the appellant is entitled to get a benefit of doubt. Thus extending the benefit of doubt, the conviction recorded by the trial court is set aside.

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In the result, this appeal is allowed setting aside the judgment dated 12.4.2005 in S.C.No.686/04 of the court of Additional District and Sessions Judge (Ad hoc), Fast TrackII, Pathanamthitta, and the appellant/accused is acquitted of all the charges levelled against him and the bail bond if any

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Crl.A.No.741 of 2005

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executed by him shall stand cancelled and he is set at liberty.

Sd/-

V.K.MOHANAN,

Judge

ami/

//True copy//

P.A. to Judge

Santhosh v. State of Kerala

Case brief

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Santhosh v. State of Kerala

Case brief

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