Kerala High Court
Vanaja vs State Of Kerala on 22 August, 2025
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Crl. Appeal No. 714/2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 22ND DAY OF AUGUST 2025 / 31ST SRAVANA, 1947
CRL.A NO. 714 OF 2008
AGAINST THE JUDGMENT DATED 07.04.2008 IN SC NO.186 OF 2007 OF
ADDITIONAL SESSIONS COURT/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA
APPELLANT/ACCUSED NO.1:
VANAJA, W/O RAJU,THERARUKUZHIYIL,CHERUTHONI KARA, IDUKKI
DISTRICT.
BY ADV SRI.R.PREM SANKAR
RESPONDENTS/STATE:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.08.2025, THE
COURT ON 22.08.2025 DELIVERED THE FOLLOWING:
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Crl. Appeal No. 714/2008
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'C.R'
JOHNSON JOHN, J.
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Crl. Appeal No. 714 of 2008
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Dated this the 22nd day of August, 2025
JUDGMENT
The appellant is the first accused in S.C. No. 186 of 2007 on the
file of the Additional Sessions Judge/Special Judge for NDPS Act Cases,
Thodupuzha.
2. As per the prosecution case, on 02.08.2005, while the Sub
Inspector of Idukki Police Station and party were conducting patrol duty,
they got information that the first accused is conducting sale of arrack in
her house and accordingly, after forwarding search memorandum to the
Magistrate, they reached the house of the first accused at about 4.30
p.m. and searched the house in the presence of the first accused and
recovered 2 cans of two litre capacity and a glass from the kitchen.
When it is found that the cans contained illicit arrack, the police party
attempted to arrest the first accused and then she resisted the arrest
and tore her nighty and made loud noise and thereupon, accused Nos. 2
to 4, who are the neighbours of the first accused, reached there with
weapons.
3. It is alleged that the second accused was armed with a chopper
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and she attempted to inflict cut injury on the head of the Sub Inspector
and the third accused pelted stones on his back and head. The first
accused beat a Police Constable on his left cheek. The fourth accused
threatened to cause the death of the Sub Inspector, if in case he caused
the arrest of the first accused and the accused are thereby alleged to
have prevented the police party from discharging their official duty.
Subsequently, after the arrival of the additional police force, they
arrested the accused persons and recovered the contraband items.
4. Before the trial court, when the accused persons pleaded not
guilty to the charge, PWs 1 to 12 were examined and Exhibits P1 to P23
and MOs 1 to 6 were marked from the side of the prosecution and no
evidence adduced from the side of the defence.
5. After hearing both sides and analysing the evidence, the trial
court convicted the first accused for the offences under Sections 353,
332, 506(ii) r/w 34 IPC and Section 8(1) r/w 8(2) of the Kerala Abkari
Act. For the offence under Section 8(1) r/w 8(2) of the Kerala Abkari
Act, she is sentenced to undergo rigorous imprisonment for four years
and to pay a fine of Rs.1,00,000/-; for the offence under Section 353
IPC, she is sentenced to undergo rigorous imprisonment for one year
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and to pay a fine of Rs.1,000/-; for the offence under Section 332 IPC,
she is sentenced to undergo rigorous imprisonment for one year and to
pay a fine of Rs.1,000/-; and for the offence under Section 506(ii) IPC,
she is sentenced to undergo rigorous imprisonment for one year and to
pay a fine of Rs.1,000/-. In default of payment of the respective fine
amounts, she is ordered to undergo simple imprisonment for six months
for each of the defaults and the same is under challenge in this appeal.
6. Even though, accused Nos. 2 to 4 were also convicted and
sentenced for the offences under Sections 353, 332 and 506 (ii) r/w 34
IPC, the judgment dated 24.01.2024 in Crl. Appeal No. 837 of 2008
passed by this Court shows that the said accused are no more and their
appeal was dismissed as abated.
7. Heard Sri. Jithin Varghese, the learned counsel for the
appellant and Smt. Hasnamol N.S., the learned Public Prosecutor.
8. The learned counsel for the appellant argued that the
prosecution has not explained the delay in lodging the FIR and there is
no evidence to show that accused Nos. 2 to 4 shared a common
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intention with the first accused. It is pointed out that no document is
produced to show that the Sub Inspector and party were discharging
official duty as public servants at the time of occurrence. It is also
argued that there is no proper dock identification of the appellant/first
accused by PWs 1 to 5, official witnesses who supported the prosecution
case.
9. The learned Public Prosecutor argued that there is no reason to
suspect the evidence of the official witnesses regarding the occurrence
and that their evidence is supported by the seizure mahazar and
contraband items recovered and even when separate acts are done by
the accused persons in furtherance of their common intention, each of
the accused is liable for the result of all the acts. It is also argued that
common intention can be inferred from the proved facts and
circumstances as the same can develop during the course of an
occurrence or at the spot.
10. A perusal of Exhibit P9 FIR would show that the occurrence
was at 4.50 p.m. on 02.08.2005 and apart from the alleged possession
of the contraband items, the overtact alleged against the first accused is
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that she beat Police Constable, Jose Varghese, on his left cheek with
hand, when he assisted the Woman Police Constable to arrest the first
accused. Exhibit P9 FIR, Exhibit P2 search list, and Exhibit P5 mahazer
are seen received in the court only at 3.30 p.m. on 03.08.2005.
11. The learned counsel for the appellant pointed out that the
Panchayat number of the house from where the contraband items are
recovered is not stated in Exhibit P5, mahazar, and the specimen
impression of the seal used is not affixed in the mahazar or Exhibit P4,
property list, or Exhibit P2, search list, wherein the sample items are
included as serial Nos. 3 and 4. Exhibit P10, copy of the forwarding
note, is dated 03.08.2005 and Exhibit P18, report of the chemical
examiner, would show that the sample was received in the Chemical
Examiner's Laboratory at Ernakulam only on 25.10.2005.
12. The decision of this Court in Vijayan @ Puthoor Vijayan v.
State of Kerala [2021 (5) KHC 347] shows the steps to be followed by
the officer collecting the sample, thondi clerk who is authorised to
receive the thondi and the measures to be ensured by the chemical
examiner. The same reads as under:
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"Steps to be followed by the officer collecting the sample:
(i) Collection of sample from the alleged contraband by the Officer
concerned shall be transparent eschewing possibility of tampering
the sample in any manner;
(ii) While collecting sample, the officer shall describe the nature of
the specimen seal in the mahazar and the specimen seal shall be
affixed on the mahazar, on the sample bottle, bottle containing the
remaining part of contraband and the forwarding note;
(iii) The sample so collected shall be produced before the
jurisdictional Magistrate without any delay and the delay if any, shall
be properly explained;
(iv) Specimen seal affixed on the sample should be produced before
the court along with the contraband for comparison;
(v) The said officer shall depose about compliance of the above
before the court while giving evidence.
Steps to be followed by the Thondy Clerk who is authorised to receive
the thondy:
(i) The Thondy Clerk shall verify the specimen seal produced before
the court and to compare the same with a seal affixed in the mahazar,
collected sample and in the forwarding note to ensure that the seal of
the sample is intact and there is no scope for tampering the same in
between its collection and production before the court;
(ii) While forwarding the sample to the laboratory, the Thondy Clerk
shall ensure that specimen sample seal is affixed on the forwarding
note;
(iii) The forwarding letter shall contain the name of the official who is
entrusted to handover the sample to the Chemical Examiner;
(iv) Specimen seal also to be provided to the Chemical Examiner for
verification and to ensure that the specimen seal, so provided, is
tallying with the seal affixed on the sample, to rule out the possibility
of tampering while on transit of the sample;
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(v) Thondy Clerk must be examined to prove compliance of the
above, also to prove that he has been in custody of the sample from
the date of receipt of sample till the date of forwarding and also to
prove compliance of item No.(i) to (iv) steps stated hereinabove.
Measures to be ensured by the Chemical Examiner:
(i) Chemical Examiner shall ensure production of specimen seal to
verify as to whether the specimen seal provided in the forwarding
note and the sample forwarded are tallying to rule out tampering of a
sample during transit;
(ii) In the chemical analysis report the said fact shall be stated so as to
act upon the same without examining the Chemical Examiner as
provided under S.293 Cr.PC."
13. The prosecution has a duty to prove that it was the sample
taken from the contraband liquor which was allegedly seized from the
accused, ultimately reached the hands of the chemical examiner, in a
fool proof condition, as held by this Court in Sasidharan v. State of
Kerala [2007 (1) KLT 720=2007 KHC 3404].
14. When the specimen impression of the seal used is not affixed
on the seizure mahazar and not produced before the court to enable the
property clerk for comparison, it is not possible to arrive at a conclusion
that the sample which reached the Chemical Examiner's Laboratory was
the sample taken from the contraband allegedly seized from the
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possession of the accused, as held by this Court in Moothedath
Sivadasan v. State of Kerala [2021 (1) KLT 744=2021 KHC 3232].
15. On a perusal of Exhibit P5 mahazar, Exhibit P4, property list,
and Exhibit, P2 search list, it can be seen that the specimen impression
of the seal used is not affixed in the said documents and therefore, I find
that the prosecution has not complied with the procedural requirements
for ensuring tamper proof collection of samples and production of the
same in the Chemical Examiner's Laboratory in a fool proof condition.
16. The prosecution has not adduced any satisfactory evidence to
prove the identity and ownership of the house from where the
contraband article was allegedly recovered. It is pertinent to note that
the Panchayath number of the house is not stated in Exhibit P5 mahazar.
But, in the final report filed after investigation, it is stated that the
contraband liquor was recovered from house No. III/231 of Vazhathoppu
Panchayath. The evidence of PW8, Panchayath Secretary, and Exhibit
P13, residential certificate, shows that Vanaja, Kolamkudiyil, Idukki
Colony P.O., is residing in building No. VP III/231. In this connection, it
is to be noted that as per the final report filed in this case, the accused is
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Vanaja @ Unniyamma, Thevarkkuzhiyil House, Vellakayam,
Cheruthonikkara, Idukki.
17. The learned counsel for the appellant pointed out that the
prosecution has not produced the copy of the building tax assessment
register in the Panchayat and there is no satisfactory evidence as to who
is the owner of the house mentioned in Exhibit P13. Exhibit P15 is the
report filed by PW10 regarding the correct address of the accused and in
the said report, it is stated that at the time when the first accused was
arrested, there was no opportunity for verifying her address and
subsequently, on verification of the ration card and electoral identity
card, it is revealed that her correct address is Vanaja @ Unniyamma,
W/o Raju, Kolakudiyil house, Vellakayam, Cheruthony.
18. But, in spite of filing Exhibit P15 report by PW10, during the
course of investigation, PW11, who filed the final report under Section
173 Cr.P.C., has chosen to incorporate the house name and address of
the first accused originally mentioned in the mahazar without any proper
investigation regarding the identity of the accused. PW11 deposed that
while working as Circle Inspector of Idukki during 2006-2007, the
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investigation in this crime was almost complete and on receipt of the
scene plan, he filed the final report after verifying the records. The
statutory duty and obligation of the Investigating Police Officer is not
merely to chargesheet the accused arrayed in the FIR at any cost, but to
conduct detailed probe so as to unravel the truth of the matter, as held
by this Court in Siraj K. and Another v. State of Kerala and Another
[2022 KHC 240] .
19. In Om Prakash @ Baba v. State of Rajasthan [2009 KHC
5198], the Honourable Supreme Court held thus:
"7. A bare perusal of the evidence aforementioned would reveal that
the ownership and possession of the house and the place of recovery is
uncertain. As a matter of fact PW.3 has categorically stated that the house
from where the recovery had been made belonged to one Durga Bhanji and
not to the appellant. Even assuming for a moment that the house did belong
to the appellant and was in his possession, the prosecution was further
required to show the appellant had exclusive possession of the contraband
as a very large number of persons including the appellant and five of his
brothers, their children and their parents were living therein."
20. The prosecution has not adduced satisfactory evidence in this
case to prove the conscious possession of the contraband article by the
appellant/first accused. In the absence of satisfactory evidence
regarding the identity of the house and failure on the part of the
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prosecution to establish the mandates necessary to ensure tamper proof
collection of the sample and the unexplained delay in between the
sending of the sample for chemical examination and the date on which
the sample was received by the laboratory, the conviction and sentence
imposed on the appellant/first accused for the offence under Section
8(1) r/w 8(2) of the Kerala Abkari Act is liable to be set aside.
21. The other allegation against the appellant/first accused is that
when the police party attempted to arrest her, she had torn her nighty
and made loud noise and on hearing the same, accused Nos. 2 to 4
reached there armed with weapons and attacked the police party. It is
also alleged that when Police Constable, Jose Varghese, assisted Woman
Police Constable to arrest the first accused, she beat him on his left
cheek with hand.
22. A perusal of the evidence of PWs 1 to 5 would show that only
PW4, Woman Police Constable Sreedevi, pointed out the accused, A1, in
the dock as the person referred by her in the evidence and there is no
proper dock identification of the appellant/first accused by PWs 1 to 3
and 5.
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23. The identification of an accused in court by the witness is the
substantive evidence and even if the witness and the accused are
persons known to each other, it is obligatory for the witness to identify
the accused in court by pointing out that the person referred to by him
in the evidence is the person who is standing in the dock and it is
obligatory for the court to record in the deposition that the witness had
identified the accused in the dock, as held by this Court in Vayalali
Girishan and Others v. State of Kerala [2016 KHC 204] and Shaji @
Babu @ Japan Shaji v. State of Kerala [2021 (5) KHC SN 27].
24. In this case, the presiding Judge has omitted to do so, while
recording the deposition of PWs 1 to 3 and 5 and there was no attempt
on the part of the prosecutor to put appropriate questions to the said
witnesses for the said purpose. The trial court has not recorded in the
deposition of PWs 1 to 3 and 5 that the said witnesses had identified the
first accused, Vanaja, W/o. Raju, Thevarkkuzhiyil, Cheruthoni Kara,
Idukki Village. In this connection, it is also pertinent to note that the
address of the first accused in Exhibit P15 report filed by PW10 does not
tally with the address of the accused in the final report filed under
Section 173 Cr.P.C.
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25. The evidence of PW12, doctor, and Exhibit P22, wound
certificate of PW3, Jose Varghese, clearly shows that there is no external
injury. Further, there is also nothing in Exhibit P22 to indicate that he
sustained an injury on an attack by the appellant/first accused. It is
pertinent to note that in Exhibit P22, the alleged history is shown only as
'raid'. Even though, PW3 deposed that the first accused, Vanaja, beat
him on the left cheek at the time of occurrence, he has no case that he
suffered any bodily pain and therefore, considering the nature of the
medical evidence, it is not possible to arrive at a conclusion that the
prosecution has proved the alleged overtact against the appellant/first
accused.
26. Even though, the prosecution has a case that the first accused
tore her nighty at the time of occurrence and made loud noise, no
attempt is seen made to recover the torn nighty worn by the first
accused at the time of the alleged occurrence. It is true that common
intention can be inferred from the proved facts and circumstances and
the same can develop during the course of an occurrence. But, Section
34 is only a rule of evidence which attracts the principle of joint criminal
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liability and does not create any distinct substantive offence. Therefore,
the question whether the prosecution has established common intention
in a given case has to be decided on the basis of the proved facts. Since
common intention implies acting in concert, the prosecution has to prove
the existence of a prearranged plan, either from the conduct of the
accused, or from the circumstances or from any incriminating facts and
it is not enough to have the same intention independently of each other,
as held by the Honourable Supreme Court in Chhota Ahirwar v. State
of M.P. [(2020) 4 SCC 126].
27. It is pertinent to note that even as per the prosecution case,
accused Nos. 2 to 4 arrived at the spot on hearing the noise and the
prosecution has no case that accused Nos. 2 to 4 reached there because
of any premeditated or prearranged plan. It is well settled that Section
34 of the IPC is really intended to meet a case in which it is difficult to
distinguish between the acts of individual members of a party and prove
exactly what part was played by each of them. Even though there may
be some evidence to show that accused Nos. 2 to 4 attacked the police
party at the time of occurrence, the prosecution has miserably failed to
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establish any common, premeditated or prearranged intention jointly of
the appellant/first accused and the other accused persons to attack the
police officers or to prevent them from discharging their official duty on
the spot or otherwise. In the absence of satisfactory evidence to show
that the appellant/first accused was in ownership or possession of the
house in question or that she prevented the police officers from
discharging their official duty, the conviction and sentence imposed by
the trial court cannot be sustained.
28. In the result, the appeal is allowed. The conviction and
sentence imposed by the trial court against the first accused/appellant is
hereby set aside and she is acquitted of the offences punishable under
Sections 353, 332, 506(ii) r/w 34 IPC and under Section 8(1) r/w 8(2)
of the Kerala Abkari Act. The bail bond executed by the first
accused/appellant shall stand cancelled and she is set at liberty
forthwith.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
