Allowed

Udayakumar @ Udayan, v. State of Kerala

Kerala HC6 Jan 2021CRL.A/658/2007

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a criminal appeal where the conviction for an arrack offence was set aside due to the fatal absence of the forwarding note, which the court held necessary to prove the prosecution case beyond reasonable doubt. The appellant was acquitted and set at liberty.

What did the court decide?

Conviction and sentence set aside; Appellant acquitted and set at liberty; Bail bond cancelled if any; Fine refunded if any.

Udayakumar @ Udayan, Vs State of Kerala — Kerala HC (2021) — LawSathi Research

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CRL.A.No.658 OF 2007

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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 BECHU KURIAN THOMAS

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WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

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CRL.A.No.658 OF 2007

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AGAINST THE ORDER/JUDGMENT IN SC 1799/2002 DATED 24-03-2007 OF III ADDITIONAL DISTRICT COURT, KOLLAM

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AGAINST THE ORDER/JUDGMENT IN CP 242/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM

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APPELLANT/S:

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UDAYAKUMAR @ UDAYAN, AGED 36 YEARS UDAYAKUMAR MANDIRAM, BUNGLAMCHARUV,, THEKKEMURI, EAST KALLADA VILLAGE.

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BY ADV. SRI.G.BHAGAVAT SINGH

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RESPONDENT/S:

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STATE OF KERALA,

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REP. BY SUB INSPECTOR OF POLICE, EAST KALLADA POLICE, STATION, THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.

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R1 BY PUBLIC PROSECUTOR

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MAYA M N GP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.658 OF 2007

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JUDGMENT

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Dated this the 6th day of January 2021

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The appellant challenges the conviction and sentence

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imposed on him in SC No.1799/2002 on the files of the III Additional Sessions Judge, Kollam.

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By the impugned judgment, the accused has been found guilty for the offence under Section 55(i) of the Kerala Abkari Act (For short the Act) and has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.One lakh and in default, to undergo simple imprisonment for three months for the offence as mentioned above.

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The prosecution case was that on 14.11.1999 at 8 p.m, PW4 the Sub Inspector of Police found the accused in possession of MO1 can containing 3 liters of arrack apart from MO3 glass. After investigation the final report was filed and

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CRL.A.No.658 OF 2007

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thereafter, the case was committed to the court of Session.

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In order to prove the prosecution case, PWs1 to 4

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were examined and Exts.P1 to P7 were marked apart from MOs1 to 3.

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After analysing the evidence in the case, the learned Sessions Judge came to the conclusion that the accused is guilty of the offence alleged and imposed a sentence as stated earlier.

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The sole point that arises for consideration of the case is as to whether the prosecution had proved beyond reasonable doubt, the guilt of the accused. A perusal of the evidence adduced and the exhibits marked, shows that the forwarding note was conspicuously absent as an evidence before the court. It has been repeatedly held by this Court in the decisions in Sadasivan @ Para v. State of Kerala and another (2020 KHC 478) and Smithesh v. State of Kerala

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(2019 2 KLT 974 ) that the absence of forwarding note is fatal

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CRL.A.No.658 OF 2007

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to the prosecution case. Since admittedly, in the instant case, the forwarding note was not produced or marked as evidence, the prosecution failed to prove its case beyond reasonable doubt. Since, the absence of forwarding note alone is sufficient to doubt the veracity of the prosecution case, the accused is to be set at liberty.

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In the aforesaid circumstances, I set aside the conviction and sentence imposed on the accused by judgment dated 24.03.2007 in SC No.1799/2002 on the files of the III Additional Sessions Judge, Kollam and acquit the accused. The accused is set at liberty and the bail bond if any furnished by the accused stands cancelled. Fine amount if any remitted shall be refunded to the appellant.

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The appeal is allowed accordingly.

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Sd/-

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BECHU KURIAN THOMAS

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JUDGE

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Udayakumar @ Udayan, v. State of Kerala

Case brief

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Udayakumar @ Udayan, v. State of Kerala

Case brief

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