Kerala High Court
Kunhunni vs State Of Kerala on 3 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942
CRL.A.No.1695 OF 2007
AGAINST THE JUDGMENT IN SC 364/2006 OF ADDITIONAL SESSIONS
COURT FAST TRACK COURT(ADHOC)III, MANJERI
APPELLANT/ACCUSED:
KUNHUNNI,
S/O. NEELAKANDAN,
PILAPRATHODI PULLUKUNNU VEEDU,
RAMANATTUKARA AMSOM DESOM,
KOZHIKODE TALUK.
BY ADVS.
SMT.JAYASREE MANOJ
SRI.M.RISHIKESH SHENOY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
2 EXCISE INSPECTOR,
EXCISE INFORCEMENT AND ANTI NARCOTICS
SPECIAL SQUAD,
MALAPPURAM.
SRI.DHANIL M.R., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 03-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.1695/07 -:2:-
JUDGMENT
Dated this the 3rd day of February, 2021
Appellant is the accused in S.C. No.364 of 2006 on the files
of the Additional Sessions Court, Fast Track Court No.III (Adhoc),
Manjeri. He challenges the conviction and sentence imposed on
him, for the offence under Sections 8(1) and 8(2) of the Abkari
Act, by the impugned judgment. After finding him guilty,
appellant was sentenced to undergo rigorous imprisonment for
two years and was imposed with a fine of Rs.1,00,000/-, in
default to undergo simple imprisonment for six months.
2. The prosecution alleged that on 2.2.2005 at around
5.30 pm, the Excise Inspector found the accused carrying 1½
litres of arrack in a plastic bottle in a public place. In the
presence of PWs 1 and 2, the bottle of arrack was seized and
after taking the sample and complying with all the procedural
requirements, the accused was arrested and investigation
commenced. After completion of investigation and filing of the
final report, the learned Magistrate on realising that the case
involves offences triable exclusively by a court of session, the
case was committed to the Sessions Court.
3. In order to prove the prosecution case, two independent
witnesses were examined as PWs 1 and 2 for the purpose of
proving the seizure of the contraband from the possession of the
accused and arrest of the accused. PWs 3 to 5 were also
examined to prove the prosecution case, apart from marking of
Exits.P1 to P9 and the material object as MO1.
4. On an appreciation of the evidence adduced in the case,
the learned Sessions Judge came to the conclusion that the
accused had committed the offence as alleged and imposed the
sentence, as mentioned earlier. Aggrieved by the said conviction
and sentence, the appellant has preferred this appeal contending
that the judgment is totally incorrect and that he ought to have
been acquitted.
5. I have heard Adv.Jayasree Manoj on behalf of the
appellant as well as Adv.Dhanil M.R., learned Public Prosecutor
for the State of Kerala.
6. Adv.Jayasree Manoj argued that the two independent
witnesses produced by the prosecution and examined as PWs 1
and 2 had turned hostile to the prosecution and had deposed in
their evidence that they had not seen the Excise Officials seizing
the contraband arrack from the accused. Both of them had also
stated that the police party had come to the hotel where they
were working and had asked them to put their signatures, which
they obliged. According to PW1, the signature on MO1 bottle
does not belong to him. PW2 also deposed that the signature on
the bottle MO1 does not belong to him.
7. Even though PWs 1 and 2 were declared as hostile,
nothing much was elicited through their cross-examination so as
to disbelieve their version that they had not seen the seizure or
arrest of the accused. The burden to prove that the accused was
found in possession of contraband liquor is certainly upon the
prosecution. Unless the prosecution proves that the accused was
found in possession of contraband liquor, criminal jurisprudence
does not permit an accused to be regarded as guilty for the
offence alleged.
8. Though PWs 3 and 4 had stated that the accused was
arrested in a public place, certain infirmities and inconsistencies
are pointed out by the learned counsel for the appellant. PW3
stated that PWs 1 and 3 were standing near the accused and
that they were standing 5 to 6 metres away from the accused.
It is to be noted that the accused has no criminal antecedents
nor has he been alleged even remotely as having any history of
indulging in possessing such contraband articles. For the
investigating officer to generate suspicion in his mind, there is
nothing available on record to prove that such suspicion was
aroused on bona fide grounds. The nature of the case, as
revealed by the prosecution, and the evidence of PWs 1 and 2
creates doubt in the minds of the court as to whether the
prosecution story is, as alleged. It is in this context that the
deposition of PWs 1 and 2 assumes significance. Viewed in the
above perspective, the prosecution case does not inspire the
confidence of the court for the purpose of entering a finding of
guilt on the accused.
9. Apart from the above, few other factors that arise in the
case also compels this Court to give the benefit of doubt to the
accused. PW5 deposed that the investigation into the crime was
commenced only after 1 year and 2 months. Crucial evidence
would have already been destroyed and the same would cause
prejudice to the accused. Further, the deposition of PW5 also
reveals that the accused was arrested even before the search
and also that there was no sample seal on the mahazar. Though
the absence of the seal on the mahazar by itself may not destroy
the prosecution case in its entirety, in the nature of the evidence
adduced in the case the prosecution story becomes doubtful. The
quantity of arrack involved in the case is only 1½ litres and the
present age of the accused is stated to be 71. The fact that the
accused had no criminal antecedents also weighs with the Court
to come to the conclusion that the accused ought to be given the
benefit of doubt in the peculiar facts arising in the case.
10. In view of all the circumstances arising in the case, this
Court is of the opinion that the benefit of doubt ought to be
given to the accused and that the prosecution has failed to prove
beyond reasonable doubt the guilt of the accused.
11. In the aforesaid circumstances, this appeal is allowed
by setting aside the conviction and sentence imposed on the
accused by Judgment dated 07-08-2007 in S.C. No.364 of 2006
on the file of the Additional Sessions Court, Fast Track Court
No.III (Ad hoc), Manjeri. The accused is thus acquitted and is
set at liberty. Bail bonds, if any, furnished shall stand cancelled
and fine amount, if any, remitted shall be refunded forthwith.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/True Copy/ PS to Judge
