Lakshmikutty vs State Of Kerala

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.

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.

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.

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.

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.

I heard the learned counsel for the appellant and also the learned Public Prosecutor. The trial court records were summoned and perused.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.