Sivan vs State Of Kerala
2021 Latest Caselaw 17381 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
     WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
                        CRL.A NO. 158 OF 2014
 AGAINST THE JUDGMENT DATED 01.10.2013 IN S.C.NO.161/2010 OF THE
    ADDITIONAL DISTRICT & SESSIONS JUDGE (II), PATHANAMTHITTA


APPELLANT/ ACCUSED :

            SIVAN,
            AGED 58 YEARS, S/O KOCHKUNJU,
            PRAKASH BHAVAN, MUNDAPPALY, PERINGANADU,
            PERINGANADU VILLAGE, ADOOR TALUK,
            PATHANAMTHITTA DISTRICT

            BY ADVS.
            SRI.V.SETHUNATH
            SRI.S.JUSTUS



RESPONDENT/ COMPLAINANT/ STATE :

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA,
            ERNAKULAM,
            COCHIN - 682 031

            BY SENIOR PUBLIC PROSECUTOR AD.M.K. PUSHPALATHA


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 158 OF 2014
                                   2

                             JUDGMENT

Dated this the 25th day of August 2021

Appellant faced an indictment for the offences under

Sections 8(1) & 8(2) of the Kerala Abkari Act (for short, 'the Act').

The learned Sessions Judge found the appellant guilty and sentenced

him to undergo rigorous imprisonment for two years and to pay a

fine of Rs.1,00,000/- in default to undergo simple imprisonment for

15 days. Aggrieved by the conviction and sentence, appellant has

preferred this appeal.

2. Prosecution alleged that on 21.12.2003, at about 12.30

p.m., accused was found carrying two litres of arrack in a can in front

of the house of one T.Mathai at Peringanad village thereby

committing the offence under Sections 8(1) and 8(2) of the Act.

3. After investigation and filing of final report, the learned

Judicial First Class Magistrate, Adoor, on noticing a case exclusively

triable by a Court of Sessions, committed the same for trial to the

Sessions Court, Pathanamthitta, which was thereafter made over to

the Additional Sessions Court-II, Pathanamthitta.

4. To prove the prosecution case, PWs 1 to 5 were

examined and Exts.P1 to P7 were marked apart from court witness CRL.A NO. 158 OF 2014

examined as CW1 and court exhibits Ext.C1 marked. MO1 jerry can

was identified and marked during the prosecution evidence. After

analysing the circumstances arising in the case, the learned Sessions

Judge found the accused guilty for the offence under Section 8(1)

read with Section 8(2) of the Abkari Act and imposed the sentence as

mentioned earlier.

5. I have heard Adv.B.Sethunath, the learned counsel for

the appellant and also Adv.M.K.Pushpalatha, the learned Public

Prosecutor.

6. The learned counsel for the appellant invited my

attention to the exhibits produced in the case as seen from the

appendix to the judgment and submitted that the forwarding note

has not been surprisingly marked in evidence in the instant case.

Referring to the decisions in Sajeevan v. State of Kerala [2020

(6) KLT 53] and in [email protected] para v. State of Kerala and

Another [2020 KHC 478], it was submitted that the absence of

forwarding note is fatal to the prosecution case and on that solitary

ground, the prosecution story is to be decried.

7. The learned Public Prosecutor, on the other hand fairly

submitted that though the forwarding note had not been produced in CRL.A NO. 158 OF 2014

evidence, the surrounding circumstances as evidenced from the

witnesses examined and the documents marked would be sufficient

to prove the prosecution case. She thus sought for dismissal of the

appeal.

8. Though the learned counsel for the appellant raised a

three pronged attack against the impugned judgment, he primarily

relied upon the absence of the forwarding note as the main ground

for allowing the appeal. Since during the course of the argument,

the learned counsel confined his submissions to the aforesaid

absence of the forwarding note, I confine consideration of this appeal

to the said solitary ground.

9. On a perusal of the evidence of witnesses PWs 1 to 5

and the exhibits produced as P1 to P7, it is evident that the

forwarding note had not been produced or marked in evidence by the

prosecution. It is no longer a disputed question that absence of the

forwarding note is fatal to the prosecution case. Reference can

profitably be made to the decisions in Sajeevan v. State of Kerala

[2020 (6) KLT 53] and in [email protected] para v. State of Kerala

and Another [2020 KHC 478]. As rightly submitted by the learned

counsel for the appellant, in a prosecution where severe punishment

is provided under the statute, including a minimum sentence of fine, CRL.A NO. 158 OF 2014

it is necessary that prosecution must prove every link in the chain of

circumstances before a court of law can convict an accused. Absence

of the forwarding note breaks the link in the prosecution case and

hence the prosecution cannot be said to have proved its case beyond

reasonable doubt, as contemplated by law.

In the above circumstances, the impugned judgment in

SC.No.161 of 2010 on the files of the Additional District and Sessions

Judge (II), Pathanamthitta dated 01.10.2013 is liable to be set aside.

Accordingly the conviction and sentence imposed upon the appellant

in SC.No.161 of 2010 by judgment dated 01.10.2013 is hereby set

aside and the accused is acquitted. The bail bonds if executed shall

stand cancelled and the fine amount, if any remitted, shall be

refunded forthwith to the appellant.

The appeal is allowed.

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM