Kerala High Court
Rajan vs State Of Kerala on 2 August, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
CRL.A NO. 2088 OF 2006
AGAINST THE JUDGMENT DATED 27.09.2006 IN SC NO.1308 OF 2001
ON THE FILE OF COURT OF SESSION, THIRUVANANTHAPURAM
APPELLANT/2ND ACCUSED:
RAJAN
S/O PONNAYYAN NADAR,PALLELI MEKKUMKARA PUTHEN
VEEDU, DALUMUGHOM, KARIKKAMMOKODU,
VELLARADA VILLAGE.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SANAL P.RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING
ON 31.7.2024, THE COURT ON 02.08.2024, DELIVERED THE
FOLLOWING:
2
Crl.Appeal No.2088 of 2006
C.S.SUDHA, J.
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Crl.Appeal No.2088 of 2006
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Dated this the 2nd day of August 2024
JUDGMENT
This appeal under Section 374(4) Cr.P.C. has been filed
by the second accused aggrieved by the judgment dated 27/09/2006
in S.C.No.1308/2001 on the file of the Court of Session,
Thiruvananthapuram, convicting and sentencing him to three years
rigorous imprisonment and to a fine of ₹1 lakh for the offence
punishable under Section 58 of the Abkari Act, 1077 (the Act).
The appellant will be referred to in this appeal as the accused.
2. The prosecution case is that on 06/12/1999 PW4, the
then Sub Inspector of police, Vellarada, was on patrol duty. While
so, by about 06:00 p.m., when he reached the place by name
Perambrakonam, he received reliable information that arrack was
being sold by two persons, namely, Thankappan and Rajan, that is,
accused 1 and 2. The information received was that the sale was
being conducted in a rubber plantation owned by one Valiya
Vattakuzhi Unni. PW4 along with his team proceeded to the place
of occurrence and on reaching there, found the accused persons in
possession of two jerrycans and a glass tumbler. One of the
jerrycans having a capacity of 10 ltrs, was held by the first accused,
which on examination was found to contain 8 ltrs of arrack.
Another jerrycan having a capacity of 10 ltrs held by the second
accused was found to contain 9 ltrs of arrack. The glass tumbler
had 100 ml capacity. On seeing the police team, the accused tried
to run away. However, PW4 and his team apprehended them.
PW4 seized the contraband articles as per Ext.P2 mahazar in the
presence of independent witnesses, that is, PW1 and PW2. On the
basis of the incident, PW4 registered Ext.P3 FIR. After completing
the investigation, the final report was submitted by PW4 himself
against both the accused persons before the jurisdictional
Magistrate.
3. The jurisdictional Magistrate after complying with the
necessary formalities committed the case to the Court of Session,
Thiruvananthapuram. The case was thereafter made over to the
Assistant Sessions Court, Neyyattinkara, for trial and disposal. In
the final report submitted, the first accused was reported to be no
more.
4. On receipt of summons, the accused appeared before the
trial court. After hearing the prosecution as well as the accused,
the trial court framed a charge for the offence punishable under
Section 58 of the Act against the accused, which was read over and
explained to him to which he pleaded not guilty.
5. PW1 to PW5 were examined and Exts.P1 to P7 and
MO.1 series and MO.2 were marked on the side of the prosecution.
After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence.
6. As the Sessions Court did not find it a fit case to acquit
the accused under Section 232 Cr.P.C., he was asked to enter on
their defence and adduce evidence in support thereof. The accused
examined himself as DW1 and got marked Ext.D1 to Ext.D3.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment found the accused guilty of the offence
punishable under Section 58 of the Act and hence convicted and
sentenced him to imprisonment hereinabove stated. Aggrieved, the
accused has come up in appeal.
8. The only point that arises for consideration in this
appeal is whether there is any infirmity, illegality or irregularity in
the findings of the trial court calling for a interference by this
Court.
9. On 07/01/2021, the advocate appearing for the
accused/appellant was reported to be no more. As per order dated
24/11/2021, the registry was directed to issue notice to the
appellant with a direction to appear before the court on 23/12/2021
at 10:15 a.m. Pursuant to the same, the SHO, Vellarada police
station, Thiruvananthapuram, has filed a report stating that the
accused left his home years back ; that his whereabouts are not
known ; his photographs have been widely circulated and that he
would be produced as and when traced out. In such circumstances,
this Court relying on the dictum in Bani Singh v. State of U.P.,
(1996)4 SCC 720, is proceeding to hear the appeal on merits after
examining the entire records in this case.
10. Heard Adv.Sanal P.Raj, the learned Public Prosecutor
for the respondent/State.
11. I have perused the entire records and gone through the
deposition of both the prosecution and defence witnesses. PW4,
the detecting officer testified in support of the prosecution case.
According to him, MO.1 series are the jerrycans which were found
in the possession of the accused which on inspection was found to
contain arrack. MO.2 is stated to be the glass tumbler in the
possession of the accused. PW4 also deposed that he prepared
Ext.P2 mahazar when MO.1 and MO.2 articles were seized.
Ext.P3 is the FIR registered by him. According to him, the
material objects were produced before the court as per Ext.P5
property list on the very next day itself, that is, on 07/12/1999. He
had submitted a forwarding note to the court requesting for sending
a sample to be drawn from the contraband seized to the chemical
examiner for examination. Ext.P6 is the chemical analysis report.
He completed the investigation and submitted the charge sheet
before the court. PW4 also identified the accused in the dock.
11.1. PW3, a police constable, who is stated to have
accompanied PW4 on the relevant date to the scene of occurrence
ably supports the case of the prosecution. PW1 and PW2, the
independent witnesses turned hostile and denied having seen the
seizure or arrest. PW1 though initially denied his signature in
Ext.P2 mahazar, on further questioning admitted his signature in
the same. PW5, the thondi section clerk, JFCM Court-III,
Neyyattinkara, deposed that on 07/12/1999 she had received the
material objects as per Ext.P5 property list and an entry has been
made in page 236 of the register maintained in the office of the
court. The relevant entry in page 236 of the thondi register was
identified by PW5 and the same was marked as Ext.P7. PW5
deposed that as directed by the Magistrate, she had taken a sample
from the contraband seized and that the same had been sent for
chemical analysis. Necessary entry to the said effect was also
made in Ext.P7.
12. It is true that PW1 and PW2, the independent witnesses
turned hostile and do not support the prosecution case. But merely
because the independent witnesses have turned hostile and that
there is only the testimony of official witnesses to support the
prosecution case, is no ground to discard or disbelieve the
prosecution case. The testimony of the official witnesses if found
to be creditworthy and if it inspires confidence in the mind of the
court, can be relied on for arriving at a finding of guilt of the
accused. PW3 and PW4, the official witnesses were extensively
cross examined. However, nothing was brought out to disbelieve
or discredit their testimony.
13. The accused examined himself as DW1 in support of his
defence that the present case is a false one foisted on him by PW4.
However a reading of the testimony of DW1 and on going through
the records produced by the accused in support of his case, it is
clear that both the cases, that is, the present case as well as the case
referred to in the documents are two different cases. In fact DW1
in cross examination admitted that the incident in the present case
took place on 06/12/1999 whereas the incident in Ext.D1 case took
place on 08/07/2000. There is no material or ground to believe the
defence version that PW4 had deliberately foisted a false case
against the accused merely because the accused was successful in
getting bail from this Court within a short span of time relating to
an earlier case registered against him. I do not find any infirmity
or illegality in the findings of the trial court calling for an
interference by this Court. Hence this appeal is liable to be
dismissed.
In the result, the appeal is dismissed accordingly.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
