Manoharan vs State

P.S. Gopinathan, J.—The Sub Inspector of Police, Aramula Police Station, who was examined as PW3 in Sessions Case No. 24/2000 on the file of the Additional Sessions Judge (Adhoc-1), Pathanamthitta, prosecuted the appellant accusing offence u/s 8 of the Abkari Act with a plea that at 9.30 a.m., on 6.3.1998, the appellant was found possessing 7 litres of illicit arrack at Manakkupi in Kottackakam, Edayaranmula. The appellant pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 5 were examined. Exts.P1 to P9 and MOs 1 to 4 were marked. After closing the evidence for the prosecution, the appellant was questioned u/s 313 of the Code of Criminal Procedure (Cr.P.C). He denied the incriminating evidence and stated that he was falsely implicated. No defence evidence was let in. The learned Additional Sessions Judge, on appraisal of the evidence, arrived at a finding of guilty. Consequently, the appellant was convicted ans sentenced to rigorous imprisonment for three years and a fine of rupees one lakh with a default sentence of simple imprisonment for one year for offence u/s 8 of the Abkari Act. Aggrieved by the above conviction and sentence, this appeal is preferred. I have heard Adv. Sri. M.R. Sudheendran, the Learned Counsel appearing for the appellant and Smt. S. Hyma, the learned Government Pleader. Perused the judgment impugned and the evidence on record.

PWs 1 and 2 are two independent witnesses, who are attestors to Ext.P3 seizure mahazar prepared by PW5, the Junior Sub Inspector, Aranmula Police Station. PWs 1 and 2 turned hostile. It is curious to note that Ext.P3 was not even put to PWs 1 and 2. PW3 would depose that he verified the records and filed the charge sheet. PW4 is a Head Constable accompanying PW5, who detected the crime. PW5 would depose that, on 6.3.1998, he was Junior Sub Inspector at Aranmula Police Station and that on that day during the law and order patrol duty, at 10.30 a.m, when the police party reached at Manakkuppi, a person was found standing with a black jerry can and a glass. No sooner the jeep was stopped, the person took to his heels after throwing away the jerry can and glass which were marked as MOs 1 and 2. He was intercepted and interrogated. The appellant was the person so intercepted. On interrogation, he confessed that he was selling arrack. On inspection of MO1, it was found containing illicit arrack, the quantity of which is not deposed. The nature of the same was tested by smell and taste. 180 mls was taken in a sample bottle. The appellant was arrested. He would further depose that on the basis of the information given by the appellant a white jerry can and another black jerry can were detected out from among the bushes near the place from where the appellant was arrested. MOs 3 and 4 are the jerry cans, each containing 2 litres of illicit arrack. The nature of the liquid was also tested by smell and taste. Sample was taken from each jerry can. Ext.P3 is the seizure mahazar prepared. Ext.P5 is the arrest notice issued. Returning to the police station, a case as Crime No. 71/98 was registered, for which Ext.P4 First Information Report was prepared. The appellant was produced before the court along with Ext.P6 remand report. The material objects were also produced before the court along with Ext.P7 property list. Ext.P8 forwarding note was submitted and the samples were sent for chemical examination. Ext.P9 is the report of the chemical examiner wherein, it is certified that the samples contained 24.7%, 24.1 % and 24.23% by volume of ethyl alcohol. PW4 would corroborate with the evidence of PW5 regarding seizure.

Since PWs 1 and 2 turned hostile the question that arises is whether the evidences of PWs 4 and 5 are believable or not. I had a critical scrutiny of the evidence of PWs 4 and 5. Their evidence is silent as to what was the quantity of the arrack contained MO1 jerry can. Silence would go in favour of the appellant. In Exts.P3 and P4, there is no mention that MOs 3 and 4 were detected out on the basis of the information given by the appellant. But in the box, PWs 4 and 5 would depose that MOs 3 and 4 were detected out on the basis of the information given by the appellant. Since there is no such case in Exts.P3 and P4, it is not safe to rely upon their evidence on that aspect. According to PW5, the appellant alone was present at the spot. According to PW4 there were other persons. They also took to their heels. Though the appellant was said to have confessed that he had been selling arrack, if the evidence of PW5 is believed, there was no purchasers at all. Since MO1 was not seized from the possession of the appellant and if there were more persons as deposed by PW4 and they also ran along with the appellant, I find that it is not safe to come to a conclusion that it was the appellant, who had abandoned MO1. Possibility for mistaken identity cannot be ruled out. From what is discussed earlier, it can be seen that PWs 4 and 5 had no consistent case and their case is improving stage by stage. Adding to that, they are silent regarding the quantity of liquor in MO1. In the above circumstance, I find that the evidence of PWs 4 and 5 are not at all convincing to sustain a conviction. Therefore, the appellant is entitled to an order of acuqittal. In the result, the appeal is allowed. While setting aside the conviction and sentence under challenge, the appellant would stand acquitted and set at liberty. The fine amount, if any, realised shall be refunded to him.