CRL.A/2151/2004 of MATHEW, S/O.PHILIP, C.NO.7868, C.P TVM Vs STATE OF KERALA on 16 November 2005

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MRS. JUSTICE K.HEMA

WEDNESDAY, THE 16TH NOVEMBER 2005 / 25TH KARTHIKA 1927

CRL.A.No. 2151 of 2004(C)

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SC.427/2001 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CP.11/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA

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APPELLANT:

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MATHEW S/O. PHILIP,

CONVICT NO.7868, CENTRAL PRISON,

THIRUVANANTHAPURAM.

BY ADV. SRI.S.D.ASHOKAN (STATEBRIEF)

RESPONDENTS:

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STATE OF KERALA, REPRESENTED BY A

PUBLIC PROSECUTOR.

BY PUBLIC PROSECUTOR SMT.DEEPTHI

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD

ON 16/11/2005, THE COURT ON THE SAME DAY DELIVERED THE

FOLLOWING:

K.HEMA, J.

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Crl. Appeal.No.2151 OF 2004 (C)

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Dated this the 16[th] day of November, 2005J U D G M E N T

This appeal is filed against the conviction and sentencepassed against the appellant under Section 8(1) and 8(2) of theKerala Abkari Act. The appellant was sentenced to undergoRigorous Imprisonment for three years and to pay a fine of Rs.1lakh under Section 8(2) of the Kerala Abkari Act. In default ofpayment of fine, he has also ordered to undergo Simpleimprisonment for one year.

2. According to the prosecution, on 26.2.2000, at about6.15 p.m., CW6 and the Police were on patrol duty and on theway, CW6 got information that the appellant was conductingsale of arrack, and accordingly he proceeded to the place ofoccurrence, which is on the side of the Kavalapacha-Thevannoor road at Cheruval Marayikkottukonam road. Theaccused was found on the eastern side of a rock which was

lying on the northern side of Kavalapacha-Thevannoor road onthe Government purambokke. He was pouring some liquid to aglass and giving it to another person standing nearby. Thepolice approached him while they attempted to ran away. Theaccused was apprehended and the article which was in hispossession in the bottle was seized and examined. It wasfound to contain arrack. Enquiries were made while hedisclosed his identity and at 6.15 p.m., he was arrested fromthe spot. Some currency notes were also seized from there.Thereafter two bottles containing arrack were seized from thenearby place. On examination it was found that it containarrack. Those were seized under Ext.P1 mahazer which wasattested by PWs.1 and 2.

3. The evidence in this case consists of the oral testimonyof PWs.1 to 6, Exts.P1 to P3, MO1 to 3 on the side of theprosecution. Ext.D1, a portion of the statement from the casediary of PW4 was marked on the side of the accused. On ananalysis of the evidence adduced in this case, the court belowheld that the prosecution established possession of arrack by

the accused.

4. The learned counsel appearing for the appellantsubmitted that there are contradictions in the version given bythe witnesses examined in this case. The prosecutionexamined PWs.1 to 4 and PW6 to prove the incident. PW6 isthe detecting Officer. PWs.1 and 2 are attestors to theMahazar. PWs.3 and 4 are the police constables who witnessedthe seizure and who were present in the police party along withCW6. PWs.1 and 2 turned hostile to the prosecution anddeposed that they did not see any seizure. But they admittedtheir signature in Ext.P1 and denied the truth in thecontentions. The court below rightly rejected the evidence.

5. However, the evidence of PWs.3, 4 and 6 is consistentwith the prosecution case. They deposed that, on 26.6.2000,in the evening they were on patrol duty and the Sub Inspector,CW6 got information about the sale of arrack by the accused,and accordingly they went to the spot on the Kavalapacha -Thevannoor road, and they found the accused holding a bottle,

and on seeing the police, he attempted to run away, but he wastaken into custody by CW6. On an examination of the bottlewhich was in possession of the accused, it was found to containarrack. The said bottle was seized and the accused wasarrested and thereafter it was also found that two bottles wereconcealed near the place where the accused was foundstanding. These articles were also seized under Ext.P1mahazar attested by two independent witnesses. Thosewitnesses were present at the time of seizure.

6. On going through the evidence of PWs.3, 4 and 6, itcan be seen that, they corroborated each other all materialparticulars, and they gave consistent version regarding theoccurrence. They stood the test of cross examination andthere is only minor contradiction in their version. All thosecontradictions were considered by the court below, and thosewere discarded as minor contradictions. As per the evidence ofPW6, PW3 stated that there were two to three persons,whereas PW4 stated that, there were three persons at thescene. PW4 gave evidence that MO3 bottle was not fully filled,

whereas the other witnesses stated that those bottles werefully filled. There were also some contradictions in theevidence of PWs.3, 4 and 5 regarding the time at which theystarted patrol duty. According to PW, they started the stationfrom 4 p.m. and PW5 stated that, it was on 5 p.m. PW6 saidthat, they reached the spot at 6 p.m.

7. On an over all appreciation of the evidence of PWs.3, 4and 6, I find that veracity of their version were not shaken incross examination. Nothing is brought out to show that theywere motivated against the accused to foist a false caseagainst him. Nothing is suggested to any of the witnesses toreveal that they had any reason for falsely foisting a caseagainst the appellant. Though they are official witnesses, thereis no rule that their evidence should be discarded for the merereason that they are officials. I do not find any reason to rejecttheir evidence, especially since the core of the case spoken toby them has not been shaken in cross examination.

8. The finding of the guilt of the accused can only be

sustained. The sentence is only three years rigorousimprisonment and to pay a fine of Rs.1 lakh, and to undergoSimple Imprisonment for one more year in default of paymentof fine. The article involved in this case is 3.75 litres of arrack.Considering the gravity of offence, I do not find any ground tointerfere with the sentence. Set off is also granted. It wasbrought to my notice by the learned counsel for the appellantthat only 26 days set off is allowed by the court below. Butthere is mistake in the calculation of the days in custody. I findthat the appellant is entitled to set off under Section 428 of theCode of Criminal Procedure for the actual period during whichhe was under detention. In the above circumstances,sentences are confirmed and set off is allowed for the entireperiod under Section 428 of the Code of Criminal Procedure.

This Criminal Appeal is dismissed.

K.HEMA, JUDGE

K.HEMA,J

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CRL.APPEAL.2151 OF 2004

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16[th] NOVEMBER, 2005