Kerala High Court
Anu @ Aravinda vs The Sub Inspector Of Police on 22 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 22ND DAY OF FEBRUARY 2021 / 3RD PHALGUNA, 1942
CRL.A.No.1195 OF 2006
AGAINST THE JUDGMENT DATED 21.06.2006 IN S.C.NO.217/2002 OF
ADDITIONAL SESSIONS COURT (AD HOC)III, KASARAGOD
APPELLANT/1ST ACCUSED:
ANU @ ARAVINDA, S/O. NARAYANA,
THUMMINADU, NEAR G.H.S.
KUNJATHUR VILLAGE,, MANJESHWAR.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENTS/COMPLAINANT & STATE:
1 THE SUB INSPECTOR OF POLICE
MANJESHWAR.
2 THE STATE OF KERALA REPRESETNED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY SMT.MAYA.M.N, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1195 OF 2006
2
JUDGMENT
Dated this the 22nd day of February 2021
The appellant is the first accused in S.C.No.217 of 2002 on
the files of the Additional Sessions Judge (Adhoc) III, Kasaragode.
The appellant and another was charge sheeted by the
Manjeshwar Police alleging offences punishable under Section
55(a) and 64(A) of the Abkari Act.
2. The prosecution case is that on 08.11.2000 at
about 08.10pm, the accused no.1 was found driving a Maruthi
Omni Van bearing No.MH.03.B.1678 from Daigoli side to
Hossangadi side. When the Sub Inspector of Police, Manjeshwar
Police Station directed the driver of the vehicle to stop the
vehicle, the vehicle proceeded without stopping. According to the
prosecution, the police officials chased the vehicle.
Subsequently, the vehicle was stopped in a pitch on the roadside
at Mullugiri in Badaje village. At that time, the driver ran away
from the van and on inspection of the van, 15 cardboard boxes
containing 180ml of 720 foreign liquor bottles of Original Choice
Deluxe Whisky and 10 cardboard boxes containing 375ml of 240
bottles of Original Choice Deluxe Whisky were recovered.
According to the prosecution, the second accused is the owner of
the above Maruthi van and with his knowledge the foreign liquor
CRL.A.No.1195 OF 2006
were transported in the Maruthi Van. The prosecution case is that
the foreign liquor seized from the appellant cannot be transported
to State of Kerala and hence it is alleged that the accused
committed the offences. To substantiate the case, prosecution
examined PW1 to PW12 and Exts.P1 to P10 were marked. MO1
to MO3 are the material objects. After going through the evidence
and the documents, the trial court found that the first accused,
who is the appellant herein is guilty under Section 55(a) and
64(A) of the Abkari Act. The second accused was found not guilty
and he was acquitted. The appellant / accused no.1 was
sentenced to undergo simple imprisonment for four years and to
pay a fine of Rs.1,00,000/- and in default of payment of fine, the
accused was directed to undergo simple imprisonment for six
months. Aggrieved by the conviction and sentence, the appellant
/ 1st accused filed this appeal.
3. Heard the learned counsel for the appellant and
the learned Public Prosecutor.
4. The counsel for the appellant submitted that
even if the entire prosecution case is accepted, there is absolutely
no evidence to connect the appellant / 1 st accused with this case.
The counsel submitted that the alleged incident happened at
about 08.10 p.m on 08.11.2000. The appellant was not arrested
CRL.A.No.1195 OF 2006
from the spot. The admitted prosecution case is that he ran away
from the place. The counsel submitted that the evidence
adduced by PW1 and PW11 regarding the identity of the accused
cannot be accepted at all. The counsel submitted that except the
interested testimony of PW11, the detecting officer and the PW1
the Head Constable, who accompanied PW11, there is absolutely
no evidence to connect the appellant / 1 st accused with the case.
The counsel submitted that there is no evidence adduced by the
prosecution to show that when exactly the appellant / 1 st accused
was arrested. The investigating officers examined in this case are
silent about the same. The counsel submitted that simply
because huge quantity of foreign liquor is seized, there is no
presumption that the accused committed the offences. The sum
and substance of the argument of the counsel is that the
appellant is entitled to benefit of doubt.
5. The learned Public Prosecutor submitted that in
the light of the evidence of PW11, the detecting officer and PW1,
the Head Constable, the prosecution proved the case. The
learned Public Prosecutor submitted that the official witnesses
clearly deposed that they identified the accused from the spot
and they identified the accused from the court also.
6. The point for consideration in this case is whether
CRL.A.No.1195 OF 2006
the accused committed the offences as alleged.
7. Altogether 12 witnesses were examined in this
case. PW11 is the detecting officer. PW1 is the Head Constable,
who accompanied PW11. PW2 to PW6, PW8 and PW9 are the
seizure mahazar witnesses and scene mahazar witnesses. Almost
all of them turned hostile to the prosecution case. PW7 and PW12
are the investigating officers. I perused the evidence of PW11,
the detecting officer and PW1, the Head Constable, who
accompanied PW11. According to PW11, he and his party
identified the appellant / 1st accused, when he was running away
from the spot. According to PW11, he know the appellant / 1 st
accused earlier and hence he identified the accused. PW11 was
cross examined by the counsel for the 1 st accused in detail. PW1
is the officer who accompanied PW11. He also deposed that the
accused ran away from the place in opposite direction.
Admittedly, the time of the alleged seizure was at 08.10 p.m. It is
also admitted by the witnesses that there was no light at the
place from where the seizure was effected. According to PW1 and
PW11, they identified the accused with the help of torch light.
But, there is absolutely no evidence adduced by the prosecution
how the appellant / 1st accused was identified by the police
subsequently and filed the charge sheet. PW7 and PW12 are the
CRL.A.No.1195 OF 2006
investigating officers in this case. They have no case that the
appellant / 1st accused was arrested by them during the course of
investigation. There is absolutely no independent corroboration
to the evidence of PW1 and PW11, the official witnesses. The
evidence adduced by PW1 and PW11 regarding the identity of the
accused is not convincing to this Court. It is true that the
evidence of official witnesses cannot be rejected simply because
there is no independent corroboration. But if the evidence
adduced by the official witnesses are not reliable, the evidence of
independent witness is necessary for conviction. In this case,
admittedly all the seizure mahazar witnesses turned hostile to the
prosecution. The incident happened at 08.10 p.m, according to
the prosecution. Admittedly the place from where the seizure
was effected was a place where there is no light. PW12, the
investigating officer admitted that, the 1st accused is not arrested.
If that is the case, PW1 and PW11 are identifying the 1st accused
from the court for the first time after their alleged identification of
the 1st accused, when he was running away after abandoning the
vehicle on the date of incident. This vague evidence regarding
the identity is not sufficient to convict the appellant in a serious
case like this.
8. In such circumstances, it is very difficult to accept
CRL.A.No.1195 OF 2006
the evidence of PW1 and PW11 as far as the identity of the
accused is concerned. Moreover, how the appellant / 1 st accused
was subsequently arrested is not explained by the prosecution. In
such circumstances, according to me, the appellant is entitled to
benefit of doubt.
Therefore, this Crl.Appeal is allowed and the conviction
and sentence imposed on the appellant as per judgment dated
21.06.2006 in S.C.No.217 of 2002 on the files of the Additional
Sessions Court (Adhoc)III, Kasaragode is set aside. The appellant
is set at liberty, bail bond, if any, executed by him stands
cancelled.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DK
