Lakshmikutty vs State Of Kerala
2021 Latest Caselaw 7728 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR. JUSTICE K.HARIPAL

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                      CRL.A.No.1042 OF 2013

AGAINST THE JUDGMENT IN SC 717/2011 DATED 24-06-2013 OF ADDITIONAL
              SESSIONS COURT FAST TRACK-I, ALAPPUZHA


APPELLANT/ACCUSED:

             LAKSHMIKUTTY,
             AGED 70 YEARS,
             W/O MADHAVAN,
             THUNDILVEETIL,
             NEENDOOR MURI,
             PALLIPPAD VILLAGE,
             ALAPPUZHA DISTRICT.

             BY ADVS.
             SRI.M.V.THAMBAN
             SRI.B.BIPIN
             SRI.R.REJI
             SMT.THARA THAMBAN

RESPONDENT/STATE:

             STATE OF KERALA,
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM,
             REPRESENTING THE STATION HOUSE OFFICER,
             HARIPAD POLICE STATION,
             ALAPPUZHA,
             PIN-686001.


             BY SR.PP - SRI. M.S.BREEZ

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2021,
THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:
 CRL.A.No.1042 OF 2013              2




                        JUDGMENT

The appellant is the convict in Sessions Case No.717/2011 of

the Additional Sessions Court, Fast Track-I, Alappuzha. By the

judgment dated 24.06.2013, the appellant stands convicted for

offence punishable under Section 8(1) and (2) of the Abkari Act and

sentenced to undergo simple imprisonment for six months and also to

pay a fine of Rs.1,00,000/-, in default of payment of the fine amount,

she has to undergo simple imprisonment for a further period of two

months. She was also found entitled to get set off for the period

undergone by her in judicial custody under Section 428 of the

Criminal Procedure Code, hereinafter referred to as the Cr.P.C.

2. The precise allegation against the appellant is that on

18.11.2010, at about 08:45 A.M, the Sub Inspector of Haripad Police

Station and party found her in illegal possession of four litres of

arrack in a jerry can having the capacity of five litres. She was so

found on the courtyard on the southern side of her house, Thundil

veedu within the Haripad police station limits. She was arrested

from the spot along with the contraband; the item was seized under a

mahazar prepared in the presence of independent witnesses. After

getting back to the police station, Crime No.677/2010 was registered;

the accused/appellant and the contraband were produced before court

on the same day and she was remanded to judicial custody. On

conclusion of investigation, the charge sheet was laid before the

Judicial First Class Magistrate Court-I, Haripad, where the case was

taken on file as C.P.No.36/2011. After completing the procedural

formalities, the case was committed to the Court of Sessions,

Alappuzha from where the matter was made over to the trial court.

3. After hearing the learned counsel on both sides, when the

charge was framed, read over and explained, the appellant pleaded

not guilty. She was on bail. She was defended by a counsel of her

choice.

4. The prosecution charge contains seven witnesses; out of

them, except CW2, all were examined as PWs 1 to 6. Exts.1 to 13

were also marked. The material object was identified and marked as

MO1. After completing the prosecution evidence when examined

under Section 313(1)(b) of the Cr.P.C., she denied all the

incriminating evidence tendered against her by the prosecution.

According to her, she is innocent. She also filed a statement to the

effect that, on 15.11.2010, there was an altercation between her son-

in-law Sahadevan and one Surendran, the contractor of a toddy shop

situated about 100 mtrs. north of her house, out of that animosity, the

said Surendran influenced the Sub Inspector and made him to register

a false case against herself and her daughter Ambujam, that she is

totally innocent.

5. As the learned Judge found that this is not a fit case to be

acquitted under Section 232 of the Cr.P.C, she was called upon to

adduce evidence in defence. But no oral evidence was adduced on

her behalf. However, Exts.D1 and D2 were marked through PW5

Village Officer. After hearing counsel on both sides, by the impugned

judgment, the learned Sessions Judge repelled her plea of innocence

and found her guilty of offence punishable under Section 8(2) of the

Abkari Act and she was sentenced as stated above. Now she has

come up in appeal under Section 374(2) of Cr.P.C.

6. I heard the learned counsel for the appellant and also the

learned Public Prosecutor. The trial court records were summoned

and perused.

7. According to the learned counsel, the prosecution did not establish

the case beyond reasonable doubt. The testimony of PWs 1 and 6,

official witnesses should not have been relied upon in the absence of

independent occurrence witnesses. PWs 2 to 4 independent

witnesses have turned hostile to the prosecution. Though two

samples were collected from the contraband, Ext.P13 chemical

examination report indicates that the samples contained 47.07% and

50.74% by volume of ethyl alcohol, which is not natural; samples

were collected from the very same item and in that case the results

should have been uniform. Similarly, it is improbable that, in spite of

the fact that the appellant was allegedly found carrying the offensive

article from the courtyard of her house, the detecting officer and

party did not enter the house or did not make any enquiry with regard

to the source of the arrack. Similarly, he spoke that he had proceeded

to the place of occurrence after getting reliable information about the

commission of the crime; still, it is illegal that he had left the station

house without recording the substance of the information in the

General Diary. So, according to the counsel, PW6 is not a credible

witness. He also tried to highlight the contradictions found in the

testimony of PWs 1 and 6; while PW6 had said that the kitchen was

on the south-eastern corner of the house, PW1 said that it is on the

eastern side. Similarly, though the sample was entrusted to a Civil

Police Officer on 14.03.2011, it had reached the laboratory only on

15.03.2011. According to the learned counsel, these are doubtful

aspects casting aspersions on the credibility of the prosecution

version.

8. PW1 is the Civil Police Officer, who had accompanied the

Sub Inspector on 18.11.2010, while detecting the crime. He gave a

statement fully in conformity with the statement given by the Sub

Inspector, who was examined as PW6. PW2 Rajendran and PW3

Satyarajan are shown as independent occurrence witnesses, who had

attested the Ext.P8 seizure mahazar. But both of them denied having

witnessed the incident and also denied the signature shown in the

mahazar. PW4 Thankamma, another independent witness, also

turned hostile to the prosecution. PWs 2 to 4 were declared hostile to

the prosecution and were cross examined by the Public Prosecutor.

PW5 Sarath Kumar is the Village Officer, Pallippad village, who had

issued the Ext.P4 certificate showing that the said house and property

are in the name of the appellant. PW6 is the Sub Inspector of police

who detected the crime, conducted investigation and laid the charge

sheet before court. According to him, on 18.11.2010, while he was

attending routine duty in the police station, he got reliable

information that the appellant and her daughter Ambujam were

engaged in illegal trade of arrack in their respective houses.

Immediately, himself and party consisting of women police officers

proceeded to the said place in civil dress; when the party reached the

courtyard on the southern side of the residence of the appellant, she

was found standing on the courtyard carrying a jerry can of five litres

capacity; seeing the police party, she tried to run away. She was

intercepted and her details were gathered; the content of the can

carried by her was tested in the presence of independent witnesses

and he understood that it was arrack. At 8.45 A.M, she was arrested

with the help of accompanying women police officers. After keeping

the appellant in the custody of a woman police constable Deepthy

and constable Rajesh Khanna, he proceeded to the nearby house of

her daughter. Thereafter, he came back to the place of occurrence,

after taking two samples from the contraband, the item was seized

under Ext.P8 mahazar. He had also prepared arrest memo, inspection

memo and arrest notice; the arrest notice was served on Sahadevan,

the son-in-law of the appellant. After reaching back police station,

the crime was registered. He also prepared a forwarding note for

getting samples tested; on the same day, the appellant was produced

before the court; on completion of investigation, he laid the charge

sheet before the court. He also proved Ext.P13 chemical

examination report.

9. In cross examination, he said that he himself had detected

the crime, registered the FIR, investigated the case and laid the

charge sheet. He does not know whether Suresh Babu and Sumesh,

who are the witnesses in Ext.P5 are witnesses in the case registered

against Ambujam. Ext.P5 was prepared before he proceeded to the

second house, Exts.P6 and P7 were prepared after returning to the

place of occurrence. The samples were sent from the court on

14.03.2011 which were received in the laboratory on 15.03.2011. Till

it reached the laboratory, it was in the possession of the Civil Police

Officer. Samples were marked as S1 and S2. Normally, if different

samples are collected from a single lot, the chemical examination

report should be the same. After detection, he had reached back the

police station at 12.45 P.M. The appellant was produced before the

court on the same day at 9.30 P.M. On getting such an information,

normally that will be recorded in the General Diary. Here, the

detection of the offence was recorded in the General Diary at 12.45

P.M., he did not conduct search of the house. After keeping the

contraband in the custody at 8.45 A.M. till 9.20 A.M., it was in the

custody of CWs 1 and 2. The Ext.P8 mahazar was prepared in his

own hand. He did not investigate into the source of the contraband.

He denied the suggestion that he was influenced by contractor

Surendran of neighbouring toddy shop and it is a falsely foisted case

registered at the instance of the said Surendran. Eventhough both

PWs 1 and 6 were cross examined in detail, the counsel for the

defence could not make any inroad into the testimony of the

witnesses.

10. It is true that independent witnesses PWs 2 to 4 had

turned hostile to the prosecution. Merely for that reason, the

testimony of official witnesses cannot be ignored. Normally in such

cases, independent witnesses do not support the prosecution case.

Here there are reasons to think that the independent witnesses were

drawn from the place of occurrence itself. In all probability they

must be neighbours of the appellant and such witnesses will not help

the prosecution, which may ultimately result in making a finding

against their neighbour.

11. Then the question is whether there are sufficient reasons to

disbelieve official witnesses PWs 1 and 6. Even the appellant has no

case that, they have any previous acquaintance with her, for that

reason, no animosity and motive can be attributed against them for

giving false testimony against her. It is not probable also. Even

though it was stated that the case is the outcome of the quarrel

between the contractor of the nearby toddy shop and the son-in-law

of the appellant, such a version was raised for the first time only

when the witnesses were examined. Both PWs 1 and 6 denied the

suggestion. The appellant did not take any step to adduce evidence

probabilising this version.

12. After going through the testimony of PWs 1 and 6 and also

considering the totality of circumstances, I agree with the learned

Sessions Judge that there is no hazard in placing reliance on the

version of PWs 1 and 6 and other supporting materials.

13. Though some contradictions were highlighted by the

learned counsel for the appellant in the testimony of PWs 1 and 6,

those are not capable of upsetting the prosecution case and the

finding against the appellant. Such minor contradictions are bound to

happen in any criminal trial. The incident had happened on

18.11.2010, whereas the witnesses were examined during June 2013.

Therefore, official witnesses, who used to handle numerous such

cases may not be able to recollect such minor details with

mathematical precision. For the mere reason that there are minor

contradictions, the prosecution case cannot be thrown over board.

14. There is also no substance in the contention that the

chemical examination report should not have been different in the

two samples taken from a common bottle. It is evident that samples

were collected in different bottles. Depending upon the nature of the

content, minor variations are bound to happen. For instance, if one

bottle was wet and other was dry, the samples collected and the result

of such samples cannot be uniform. For that reason, the otherwise

credible case of the prosecution cannot be set at naught. Here reports

from both the samples indicate that it contained arrack of high

percent by volume of ethyl alcohol.

15. As rightly contended by the learned counsel, on getting

information of the commission of a cognizable offence, which

prompted the Sub Inspector to proceed to the place of occurrence, the

substance of information is required to be recorded in the General

Diary. Here it was not done. In fact, that is only a procedural

irregularity which cannot affect the investigation and outcome of

trial.

16. After revisiting the evidence, I have no doubt that

overwhelming reasons are not made out to interfere with the finding

of conviction, which is based on proper appreciation of materials. It

is only to be confirmed and I do so.

17. Turning to the sentence, it is submitted that on the date

when the appellant faced trial, she was 65 years old. Now after about

8 years, she has turned a septuagenarian. Therefore, certainly in the

matter of sentence, she deserves leniency. I also take note of the fact

that the prosecution has not alleged any criminal antecedents against

her. In the circumstances, the substantive sentence imposed is

reduced to simple imprisonment for forty five days, maintaining the

fine and default sentence.

Subject to the above modification, the appeal is dismissed.

Sd/-

K.HARIPAL JUDGE

Jms/03.03.21

//True Copy// P.A to Judge