Partly allowed

Thomas v. State of Kerala

Kerala HC21 May 2013Crl.Rev.Pet/507/2003

Case brief

AI extract

What is this about?

A criminal revision petition challenging conviction under Section 58 of the Abkari Act where the appellate court confirmed conviction based solely on official witness testimony. The High Court held the conviction valid despite hostile independent witnesses, modified the fine to Rs. 3,000 with reduced default imprisonment.

What did the court decide?

Criminal Revision Petition allowed in part; conviction confirmed; sentence modified to fine of Rs. 3,000 or fifteen days simple imprisonment in default.

Thomas Vs State of Kerala — Narcotics (NDPS) | 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 K.HARILAL

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TUESDAY, THE 21ST DAY OF MAY 2013/31ST VAISAKHA 1935

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Crl.Rev.Pet.No. 507 of 2003 ( )

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AGAINST THE JUDGMENT IN Crl.A. 600/1999 of THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FAST TRACK(ADHOC-I), KOZHIKODE AGAINST THE JUDGMENT IN ST 1049/1995 of JUDICIAL I CLASS MAGISTRATE-I, PERAMBRA

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

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PETITIONER/APPELLANT/ACCUSED:

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THOMAS, S/O.CHACKO, PERAMBRA AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.

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BY ADVS.SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER

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RESPONDENT/RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, BALUSSERY KOZHIKODE DISTRICT.

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J. --------------------------------------Crl.R.P.No. 507 OF 2003

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

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The Revision Petitioner is the accused in S.T.No.1049/1995 on the files of Judicial First Class Magistrate Court-I, Perambra as well as the appellant in Criminal Appeal No. 600/1999 on the files

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of Additional District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode. He was prosecuted for the offence punishable under Section 58 of the Abkari Act and convicted thereunder. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.3,000/-. In default, to undergo simple imprisonment for one month. Though the conviction and sentence were challenged in appeal, the Appellate Court confirmed the conviction but modified the fine amount to Rs.2,000/- and sustained the substantive sentence of simple imprisonment for three months as such without any interference.

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This Revision Petition is challenging concurrent findings of conviction and sentence.

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Crl.R.P. No. 507/2003

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The substratum of the prosecution case is that on 31.07.1995 by about 05.30 PM the Revision Petitioner was found carrying a 20 litres kannas containing 6 litres of illicit arrack, through a public road. To prove the charge, prosecution relied on the testimonies of PWs 1 and 5 and Exts.P1 to P5, X1 and MO1. The Revision Petitioner while questioning under Section 313 Cr.P.C., denied the incriminating circumstances brought out against him in trial and stated that he is falsely implicated under the offence. Thus he pleaded not guilty. The learned counsel appearing for the Revision Petitioner submits that the conviction entered and sentence imposed on the Revision Petitioner is totally unsustainable and illegal, and opposed to the evidence available on record. The court below went wrong by relying on the evidence of PWs 1 and 4 who are none other than excise officials. The court below ought to have considered the plea of ali-bi in its correct perspective.

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Per contra, the learned Public Prosecutor advanced arguments justifying the conviction entered and sentence imposed on the Revision Petitioner. The learned Public

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Crl.R.P. No. 507/2003

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Prosecutor contends that the prosecution case is proved beyond reasonable doubt and nothing brought out in evidence to disbelieve the evidence of official witnesses PWs 1 and 4. The Public Prosecutor contends that conviction can be relied on the evidence of official witnesses, if the same is reliable and worthy of credit.

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I have given anxious consideration to rival contentions raised by respective counsel.

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Going by the impugned judgment, it could be seen that the courts below concurrently relied on the evidence of PWs 1 and 4, the excise officials, who detected the offence, and have given a detailed account of the detection of the offence and seizure of MO1 containing illicit arrack from the possession of the Revision Petitioner. They further deposed respecting the preparation of Ext.P1 Mahazar prepared contemporaneously. The court below after appreciating the evidence of PWs 1 and 4 arrived at a finding that their evidence corroborates each other on material aspects. Then the question is, 'can the conviction be based on the solitary evidence of the official witnesses?' The law

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Crl.R.P. No. 507/2003

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settled by judicial precedence is that conviction can be based on the solitary evidence of official witnesses, in the absence of independent witness, if the evidence of official witnesses is reliable and trustworthy. It is true that independent witnesses PWs 2 and 3 turned hostile. But it is pertinent to note that they admitted their signature in the Mahazar; but it was put in different circumstances, according to them. The Prosecutor brought out in evidence that they are persons residing in the same locality very near to the Revision Petitioner. So the reason for truning hostile to prosecution is presumable and obvious. In view of the judicial precedents, the hostility of independent witnesses is of no consequence, if official witnesses are true and reliable. Public servants are prima facie presumed to be acted honestly and consciously (1978 SCC Crl. 203) . In the light of the decisions quoted above, I am of the opinion that there is no illegality, irregularity or impropriety in the conviction relying on the solitary evidence of official witnesses.

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Another point raised in this Revision Petition is that the court below has not considered the question of ali-bi in its correct

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Crl.R.P. No. 507/2003

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perspective. Going by the impugned judgment, it could be seen that the plea of ali-bi was neither stated in the statement under Section 313 Cr.P.C. nor suggested to the prosecution witnesses while cross examining them. As far as the plea of ali-bi is concerned, the burden of proof is on the person who takes defence of ali-bi. Here, the Revision Petitioner miserably failed to prove the plea of ali-bi also. Therefore, I do not find any illegality or impropriety in the rejection of the plea of ali-bi also. Thus I do not find any kind of illegality or impropriety in the findings arrived at by the court below concurrently on conviction or perversity in the appreciation of evidence from which the conviction have been arried. Consequently, conviction is confirmed.

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Coming to the sentence, the learned counsel for the Revision Petitioner submits that the Revision Petitioner is a chronic cardiac patient undergoing treatment and now he is aged 55 years. It is true that the alleged offence was committed on 31.07.1995 and so many years have been elapsed after the detection of the offence. It is true that he is living under the

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Crl.R.P. No. 507/2003

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threat of conviction since the last more than seventeen years. That also can be counted in the matter of sentence.

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Considering the entire facts and circumstances of the

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case, in supersession of the sentence ordered by the court below, the Revision Petitioner is sentenced to pay a fine of Rs. 3,000/and in default, to undergo simple imprisonment for fifteen days.

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The Criminal Revision Petition is allowed in part accordingly.

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Sd/K.HARILAL, JUDGE

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Thomas v. State of Kerala

Case brief

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Thomas v. State of Kerala

Case brief

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