Gouri vs State Of Kerala
2021 Latest Caselaw 8483 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE K.HARIPAL

      MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942

                          CRL.A.No.995 OF 2011

       AGAINST THE JUDGMENT IN SC 432/2008 DATED 10-06-2011 OF
     ADDITIONAL DISTRICT AND SESSIONS(ADHOC)FAST TRACK COURT-I,
                           PATHANAMTHITTA.


APPELLANT/ACCUSED:

             GOURI
             D/O KOCHIKKA,
             PALATHADATHIL VEEDU,
             PARANTHAL,
             PANDALAMTHEKKEKARA,
             PATHANAMTHITTA DISTRICT.

             BY ADV. SRI.C.P.PEETHAMBARAN

RESPONDENT/COMPLAINANT:

             STATE OF KERALA
             REPRESENTED BY EXCISE INSPECTOR,ADOOR,
             PATHANAMTHITTA DISTRICT,
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA,
             ERNAKULAM.

             BY ADV.SMT.M.N.MAYA, PUBLIC PROSECUTOR.

      THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-03-2021,
 THE COURT ON 15-03-2021 DELIVERED THE FOLLOWING:
 CRL.A.No.995 of 2011
                                   2




                           JUDGMENT

This appeal is preferred under Section 374(2) of the Code of

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

challenges the correctness of the conviction and sentence imposed on

her under Section 8(1) and (2) of the Abkari Act in Sessions Case

No.432/2008 of the Additional District and Sessions Judge (Ad hoc)

Fast Track Court-I, Pathanamthitta.

2. The precise allegation against the appellant is that, on

26.09.2006 at 11 a.m, CW1 the preventive officer of Excise Circle

Office, Adoor and party while conducting routine patrol duty, found the

appellant on the northern side of the concrete road, about 150mtrs. east

of Paranthal junction in M.C.road in Thekkekkara village in Adoor

taluk, illegally possessing 10 litres of spirit. Seeing the Excise party, she

abandoned the item on the side of the road and ran away from the spot;

the item was seized in the presence of independent witnesses under a

mahazar. Later, the material object was produced before the Excise

Range Office, where Crime No.85/06 of Excise Range Office, Adoor CRL.A.No.995 of 2011

was registered. The material object was produced before the court on

the following day. After investigation, the charge sheet was laid before

the Judicial First Class Magistrate Court, Adoor, where the case was

taken on file as C.P.No.38/08. After completing the procedural

formalities the case was committed to the Sessions Court,

Pathanamthitta, from where it was made over to the trial court.

3. The appellant had surrendered before the court on 18.07.2007.

She was in judicial custody for some time and was later released on bail.

4. After hearing counsel on both sides, when the charge was

framed, read over and explained, she pleaded not guilty. She was

defended by a counsel of her choice.

5. When the case was taken up for trial, the detecting officer,

Prabhakaran Pillai had passed away. Four witnesses were examined

from the side of the prosecution as PWs1 to 4. Exhibits P1 to P5 were

also marked. On conclusion of evidence, when examined under Section

313(1)(b) of Cr.P.C. , she denied all the incriminating materials. As it is

not a fit case for acquittal under Section 232 of the Cr.P.C., she was

called upon to enter on her evidence in defence, but no evidence was CRL.A.No.995 of 2011

adduced. Later, the counsel on both sides were heard and repelling the

plea of innocence, the trial court found her guilty under Section 8(1) and

(2) of the Abkari Act and sentenced to undergo rigorous imprisonment

for one year and to pay a fine of Rs.1,00,000/-, in default to undergo

rigorous imprisonment for six months. That finding is under challenge

in the appeal.

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

Public Prosecutor. The trial court records were summoned and

examined.

7. When heard, the learned counsel confined to the contentions

touching the identity of the culprit and also that Ext.P4 forwarding note

does not contain the seal of the Excise Inspector. According to her, both

these aspects are sufficient to cast doubt on the veracity of the

prosecution case and the appellant is entitled for acquittal. On the other

hand, the learned Public Prosecutor pointed out that, there is no serious

dispute on the identity of the culprit and that, in cross examination of

PW3, the Excise Inspector, has stated in unambiguous terms that the

original of the forwarding note bears the seal. According to the Public CRL.A.No.995 of 2011

Prosecutor, mere reason that the copy of the forwarding note maintained

in the court does not bear the seal, is not a ground for disbelieving the

version. She also invited my attention to Ext.P5 in which it is mentioned

that the seal on the bottle was intact.

8. In my assessment, both the contentions raised by the learned

counsel for the appellant are formidable. It is true that, the incident had

occurred at broad day light at 11.a.m. The prosecution wanted to make

the court believe that, seeing the Excise party the lady, who carried the

contraband, ran away from the spot abandoning the can containing the

contraband on the road. The Excise party could not apprehend her,

though they had chased her. PWs1 and 4 are the occurrence witnesses.

Both of them have stated that CW1 Prabhakaran Pillai, who led the

Excise party, had passed away after the incident. True, PWs1 and 4

supported the prosecution case. But they have not given an identical

version as to who had chased the lady, who had allegedly run way from

the spot after leaving the contraband on the road. PW1 is very categoric

when he said that Prabhakaran Pillai, CW1, had not chased her. But,

according to PW4, both himself and CW1 had chased her, but she could CRL.A.No.995 of 2011

not be apprehended. Now, this Court is not very much on that

inconsistency in the testimony of PWs1 and 4. Both PWs1 and 4 have

identified the appellant before court as the culprit. But, during the

course of investigation, she was not shown to them, nor they identified

her as the culprit. PW4 was not even questioned by the Investigating

Officer. In other words, both of them were identifying the culprit for the

first time before the court, which is bad. Even though the witnesses have

stated that she has criminal antecedents, she has involved in numerous

such cases, that they have previous knowledge about her antecedents

etc., materials are wanting to prove the same. Any how, in the absence

of prior identification, the claim of the witnesses that it was the

appellant who had carried the contraband, cannot be believed.

9. The second contention that Ext.P4 does not bear the seal of the

Investigating Officer also cannot be ignored by the court merely for the

reason that there is an observation in Ext.P5 report that, the seal on the

bottle was intact and also tallying with the sample seal provided. When

the accused appellant disputed the fact that the forwarding note did not

bear the seal, it was for the prosecution to prove that it actually was CRL.A.No.995 of 2011

bearing the seal. The case hinges on the correctness of the report given

by the experts with regard to the sample. The case was registered on the

tentative opinion formed by the detecting officer that what contained in

that jar was spirit. That could be confirmed only after getting an expert's

report. The sample was collected and sent to the expert for the purpose

of ascertaining the correctness of the preliminary opinion formed by

them. When the defence challenges the fact that the forwarding note

does not bear the sample seal, it was incumbent on the prosecution,

notwithstanding the fact that the copy does not bear the seal, to summon

the original forwarding note from the chemical examination laboratory

and to bring it in evidence. That has not been done. The prosecution has

to prove that there is nexus between the chemical examination report

and the contraband allegedly seized from the illegal possession of the

culprit. In the absence of such a link evidence, the prosecution is bound

to fail.

10. In the circumstances, the prosecution cannot prove the guilt

of the accused beyond reasonable doubt. The learned Additional

Sessions Judge has not considered these vital aspects while proceeding CRL.A.No.995 of 2011

to convict the appellant. Therefore, in reversal of the finding, the

appellant is given the benefit of doubt; she is found not guilty and

acquitted under Section 386(b)(i) of Cr.P.C, she shall be set at liberty.

The fine amount, if any realised, shall be refunded.

Appeal is allowed.

Sd/-

K. HARIPAL JUDGE

Jms/09.03.21

//True Copy// P.A to Judge.