Kerala High Court
Usha vs State Of Kerala on 23 May, 2024
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 23rd DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.REV.PET NO. 387 OF 2016
CRIME NO.145/2004 OF WALAYAR POLICE STATION, PALAKKAD
AGAINST THE JUDGMENT DATED 27.02.2013 IN CRA NO.369 OF 2011 OF II
ADDITIONAL DISTRICT COURT & SESSIONS COURT, PALAKKAD ARISING OUT
OF THE JUDGMENT DATED 19.07.2011 IN SC NO.143 OF 2006 OF ASSISTANT
SESSIONS COURT, PALAKKAD
REVISION PETITIONERS/LEGAL HEIRS OF APPELLANT/2nd ACCUSED:
1 USHA, W/o LATE GOGULAN @ GOGULDAS,
AGED 45 YEARS, GOGUL NIVAS, PANCHAMI KUNNU,
MEPPADI P.O., WAYANAD - 673 577.
2 NISHA, D/o LATE GOGULAN @ GOGULDAS,
AGED 22 YEARS, GOGUL NIVAS, PANCHAMI KUNNU,
MEPPADI P.O., WAYANAD - 673 577.
3 NIMISH, D/o LATE GOGULAN @ GOGULDAS,
AGED 18 YEARS, GOGUL NIVAS, PANCHAMI KUNNU,
MEPPADI P.O., WAYANAD - 673 577.
BY ADVS. SRI.C.A.CHACKO
SMT.C.M.CHARISMA
SMT.MEGHA K.XAVIER
RESPONDENT/RESPONDENT/COMPLAINANT:
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR PUBLIC PROSECUTOR SRI C N PRABHAKARAN
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON
23.05.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.R.P.No.387 of 2016 2
ORDER
The accused No.2 who was found guilty of the
offence punishable under Section 55(a) of the Abkari
Act came up in revision through the legal heirs after
his death. The sentence awarded included a fine of
Rs.2,00,000/-. Hence, as against the order of fine the
offence is not abated, though the substantive sentence
for four years will stand abated on the death of the
revision petitioner.
2. Heard the learned counsel for petitioners and
the learned Public Prosecutor.
3. What is alleged to have been seized comes to
13,475 litres of illicit spirit transported in a lorry.
Both the courts below found that accused No.2 is guilty
of the said offence and convicted thereunder and
sentenced to undergo rigorous imprisonment for four
years and a fine amount of Rs.2,00,000/- with default
sentence. It is against that judgment of conviction
and the order of sentence concurred by the first
appellate court, the legal heirs of accused No.2 came
up in revision.
4. The main challenge against the concurrent
judgment of conviction is that there is non disclosure
by PW7, the investigating officer, regarding the place
wherein the alleged illicit spirit was kept after its
seizure till the date of forwarding the same under a
forwarding note and it was not properly understood or
considered either by the trial court or by the first
appellate court. Strange enough, no such defence was
taken up in the trial court or in the first appellate
court and no question was put up in that behalf to PW7,
the investigating officer, while he was in the box, by
the accused. Yet another ground was also raised
pertaining to the date of FIR registered. The alleged
incident had happened on 18.05.2004 and the FIR, in
fact, was registered on the very same day. But, there
is an overwriting by correcting the same as 19.05.2004.
It was also not brought to the notice of the officer
who had registered the FIR. There may be some
overwriting. Unless it was taken up before the officer
who had registered the FIR, no defence can be set up
without affording an opportunity to explain the
infirmities, if any, occasioned. Necessarily, it will
not vitiate the concurrent judgment of conviction
rendered by both the trial court and the first
appellate court. But, having regard to the fact that
the accused No.2 passed away during the pendency, it is
a fit case wherein the fine amount can be reduced to
Rs.1,00,000/-. Hence, the fine amount will stand
modified to Rs.1,00,000/- taking into account the death
of accused No.2 during the pendency and the liability
which can be fastened against the legal heirs, the
widow and children of the deceased. Hence, the
sentence awarded will stand modified to a fine of
Rs.1,00,000/- (Rupees one lakh only) which can be
recovered from the assets left out by the deceased.
Having regard to the submission made by the learned
counsel for the petitioners, at the fag end of the
argument, three months time is granted to the
petitioners to deposit the fine amount.
The Criminal Revision Petition will stand allowed
in part accordingly.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
APPENDIX
PETITIONER'S ANNEXURE:
ANNEXURE A1 : TRUE COPY OF DEATH CERTIFICATE OF HUSBAND OF 1st
REVISION PETITIONER.
// TRUE COPY //
P.A. TO JUDGE
