Sasikumar vs The State of Kerala

V.K. Mohanan, J.—The above two appeals are arising out of the judgment dated 22.6.2010 in S.C. No. 682 of 2006 of the court of the Additional District and Sessions Judge (ADHOC), Fast Track Court-I, Pathanamthitta and the facts and circumstances and the question of law involved are identical, the above appeals are heard together and being disposed of by this common judgment. Crl.A. No. 1338 of 2010 is preferred by accused Nos. 2 and 3 in Crime No. 21 of 2005 of Thannithodu Police Station whereas the first accused in the very same crime is the appellant in Crl.A. No. 2198 of 2010. Crl.A. No. 1338 of 2010 was filed through Advocate Sri. V. Sethunath, counsel of the choice of the said appellants and this Court, by order dated 9.7.2010 in Crl.M.A. No. 6529 of 2010 in the above appeal, suspended the execution of sentence with respect to those appellants. As the appellant in Crl.A. No. 2198 of 2010 is undergoing imprisonment, in pursuance of the impugned judgment, he preferred the above appeal from jail and on receiving the jail appeal as directed by this Court, the Registry has appointed Advocate Smt. K. Laija George, from the panel of State Brief to prosecute the appeal for and on behalf of the appellant.

The prosecution case is that on 12.3.2005 at 11.15 a.m., the accused were seen coming in an autorickshaw, belonging to the third accused and driven by the third accused, bearing Regn. No. KL03 F 3146 and on seeing the police party, leaving the autorickshaw accused Nos. 1 to 3 ran away at a place named Peruvali in the Konni-Thannithodu road and on further inspection of the autorickshaw, the Police found two 20 litres can containing 40 litres of arrack and thus, according to the prosecution, the accused has committed the offence punishable u/s 8(1) read with Section 8(2) of the Abkari Act. On completing the investigation in Crime No. 21 of 2005 of the Thannithodu Police Station, the Police preferred a report before the Judicial First Class Magistrate Court-II, Pathanamthitta in which cognizance was taken for the said offence and instituted C.P. No. 41 of 2006 and thereafter, the learned Magistrate, by his order dated 20.9.2006, committed the case to the Sessions Court where the case is received as S.C. No. 682 of 2006.

On appearance of the accused, a formal charge was framed for the offence under Sections 8(1) read with 8(2) of the Abkari Act, after hearing the defence and prosecution and when the said charge was read over and explained to the accused, they denied the same, pleaded not guilty, as a result of which the trial was further proceeded during which PWs. 1 to 3 were examined from the side of the prosecution and Exts. P1 to P19 documents were marked. Besides the above, the material objects MO1 series were also identified and marked. As court witnesses, CWs. 1 and 2 were examined and Exts. C1 and C2 were marked as court exhibits. When the incriminating evidence and circumstances, which emerged during the prosecution evidence, put to the accused u/s 313 of Cr.P.C., they denied the same. No evidence was adduced from the side of the defence. On the basis of the above evidence and materials, the learned Judge of the trial court has found that the accused were in possession of arrack in MO1 series at the time of detection of the offence, and thus, entered into a finding in favour of the prosecution and accordingly, the accused are found guilty under Sections 8(1) read with Section 8(2) of the Abkari Act. On such conviction, the accused are sentenced to undergo rigorous imprisonment of three years each and to pay a fine of Rs. 1 lakh each and in default, they are directed to undergo Rigorous Imprisonment for one year each for the offence u/s 8(1) read with Section 8(2) of the Abkari Act. Set off was allowed. The above conviction and sentence are challenged by the accused by preferring the above two separate appeals.

I have heard Sri. V. Sethunath, learned counsel appearing for the appellants in Crl.A. No. 1338 of 2010, which is preferred by accused Nos. 2 and 3 and Smt. K. Laija George, counsel appearing for the appellant in Crl.A. No. 2198 of 2010 preferred by the first accused. I have also heard Sri. M.R. Venugopal, learned Public Prosecutor.

The crux of the prosecution allegation is that the accused were found in possession of 40 litres of arrack in two 20 litres of can by accused Nos. 1 to 3 in an autorickshaw bearing Reg. No. KL 03 F 3146 which belongs to the third accused and driven by him. In order to substantiate the above allegation, the prosecution mainly depends upon the evidence of PWs. 1 to 3 and the documents, which I mentioned earlier. PW1 is the Head Constable attached to Thannithodu Police Station, who was along with PW3, at the time of detection of the offence and seizure of the contraband article. When he was examined, he had deposed in terms of the prosecution case. According to him, at about 11.15 a.m. on 12.3.2005, while himself was on patrol duty along with S.I. and when they reached at Peruvali at Konni-Thannithodu Road, they saw an autorickshaw bearing No. KL 03 F 3146 and on giving signal by the S.I. to stop the autorickshaw, the accused, after stopping the autorickshaw, ran away from the spot leaving the autorickshaw. According to him, though they chased the accused, they could not apprehend them. PW1 further deposed that on inspection of the autorickshaw, they detected two 20 litres of can and the liquid contained therein, which was identified as arrack by smelling and tasting. According to PW1, the S.I. had drawn two samples and the sample bottles were sealed and labelled. According to PW1, the seizure, drawing the sample etc. are recorded in Ext. P1 mahazar. he had also identified MO1 series as the can. During the examination of PW1, he had identified A3 as the person who drove the autorickshaw and he had also identified A1 and A2 as the persons who ran away from the autorickshaw. According to him, the place of occurrence is a forest area and there is no residence near it. During the cross-examination, he had stated that they could have seen the vehicle within a distance of 500 metres. He denied the suggestion that A3 was not in the autorickshaw. He had admitted that the accused was not shown to him. He had also stated that there was no seal or label in the can. According to him, there was no much vehicular traffic in the road in question and it is he, who had driven the autorickshaw involved in the case to the Police Station. He had also admitted that while they were at the place of occurrence, some vehicles were passed through the road and the passengers of such vehicle were not cited as witnesses.

PW2 is the S.I., who filed the charge and Ext. P3 is the report of the Assistant Chemical Examiner, which is marked through him. As per Ext. P3, the sample contains 24.61% and 29.2% by volume of ethyl alcohol.

PW3 is the then S.I. of Police of the Thannithodu Police Station, who detected the offence and seized the contraband article and the vehicle, which is used for the commission of the offence. When PW3 was examined, he had deposed that on 12.3.2005, he along with party, went for patrol duty and at about 11.15 a.m. they reached at Peruvali and at that time, the above autorickshaw came from west and he had given signal to stop the same. According to him, the autorickshaw stopped, but the driver and the passengers escaped through the forest after leaving the autorickshaw there. According to him, though they chased, they could not apprehend the accused. It is the further deposition of PW3 that thereafter, they inspected the vehicle and detected two, 20 litres of can which was seen behind the rear seat. According to him, the liquid contained in the can was arrack. It is the further deposition of PW3 that driving licence and other records were also seen in the dash box of the autorickshaw and on receiving the records, he found that the autorickshaw belongs to one Gopi at Thannithodu and the driving licence was also that of Gopi. Thus, Ext. P3 is the driving licence. Ext. P4 is the attested copy of the R.C. Book. Ext. P5 is the permit of the autorickshaw. Ext. P6 is the insurance certificate. Ext. P7 is the tax token and Ext. P8 is the pollution certificate, which are seized by PW3, from the dash box of the autorickshaw and those documents were marked through PW3. He had also deposed regarding the drawing of the sample. According to him, the samples were sealed and labelled and signed on it. The two cans were also sealed and labelled. According to him, the place of occurrence is a forest area and there was no other witness available at the scene of occurrence. He had also deposed about Ext. P1 mahazar under which the material objects were seized. According to him, after the seizure of the material objects and other articles, himself and party returned to the Police Station and thereafter, he had drawn Ext. P9 F.I.R. He had also preferred Ext. P10 property list and thus, produced MOs. in the court on 14.3.2003. Exts. P11 and P12 were marked through PW3. Ext. P11 is the report filed showing the correct name and address of second accused whereas Ext. P12 is with respect to accused Nos. 1 and 3. Thus, according to PW3, the third accused was arrested on 26.3.2005 as per Ext. P13 arrest memo. Ext. P14 is the register for arrest. According to PW3, on the arrest of third accused, he was produced before the court along with Ext. P15 remand report. According to PW3, first accused was arrested on 7.4.2005 and Ext. P16 is the arrest memo and Ext. P17 is the register of arrest. Ext. P18 is the inspection memo. Thus, the first accused was produced along with Ext. P19 remand report. He had also deposed that he prepared the forwarding note to the court. He had also identified MO1 series as the can. During his chief examination, he has also identified the third accused as the person who was the driver of the autorickshaw and A1 and A2 are the persons, who were the passengers in the autorickshaw and who ran away from the spot. During the cross-examination, PW3 deposed that he could identify A1 and A2. He had also deposed that the Policemen, who are witnesses, have seen the accused in the Police Station. He denied the suggestion of the defence that false case was foisted against the accused. During cross-examination, he had admitted that the original of the R.C. Book is not produced before the court. He had also admitted that in the last page of Ext. P4, the attested copy of the R.C. Book, there is writing regarding the place and house name. He had also admitted that in Ext. P6 insurance certificate, the house name is erased and is written. He had also deposed that there was no delay in producing the thondi article. It is deposed that in the property list, it is not stated that the sample is labelled. He had also admitted that there was little vehicular traffic through that road at the relevant time. PW3 has also denied the suggestion of the defence that false case was registered against the accused. He had also denied the suggestion that third accused was not the driver of the autorickshaw. In the re-examination, PW3 has clarified and stated that on the correction, there is the signature of the person who made the correction in Exts. P7 and P8.

CW1, the Thondi Section Clerk of the committal court, when examined, has deposed that on 14.3.2005, Smt. S. Lekha was the thondi section clerk. She received MOs. in Thannithodu Station in Crime No. 21 of 2005 and entered the same as TR 54/05 on 14.3.2005. Ext. C1 is marked through CW1 which is the photo copy of the thondi register. He has also deposed that as per Ext. C1, MOs. received are 20 litres black can each containing 20 litres of arrack and 2 bottles of 180 ml. each taken as sample and sealed. According to CW1, on 6.5.2005, the sample was forwarded through PC 1671 Sathyadas and the said Police Constable has signed after noting sample received. She had also deposed that in the receipt, which is issued from the chemical analysis lab, it is noted that the samples in three crime was received in the chemical examiners laboratory. During the cross-examination, she had deposed that the entry in the thondi register is not made by her and in Ext. C1, the date of receipt of sample by the Police Constable is noted. She had also admitted that it is not stated in the property list about the forwarding note produced when sample was produced before the court. According to CW1, as per Ext. P10, the properties are entered in Ext. C1. CW2 is the thondi section clerk attached to the Judicial First Class Magistrate Court-II, Pathanamthitta and Ext. C2 is the receipt obtained from the Chemical Examination Laboratory for receipt of sample in TR 54/05 forwarded from the court on 6.5.2005 through PC 1671 on 7.5.2005. It is the above evidence and materials relied on by the learned Sessions Judge in support of his findings in favour of the prosecution, and for convicting the accused.

Sri. V. Sethunath, learned counsel appearing for accused Nos. 2 and 3 vehemently submitted that the prosecution has failed to establish the identity of the accused. In support of the above submission, it is pointed out that the accused were not shown to the witnesses on their arrest and identified the accused only for the first time in the court. According to the learned counsel, it is practically impossible for the witnesses to identify the accused, who claimed to have seen the accused in 500 metres distance. It is also submitted that no features of the accused are described in any of the prosecution documents relied on by the court below. It is also the submission of the learned counsel that in the present case, except the official witnesses, no other persons are examined to substantiate the prosecution case. It is also pointed out that though four charge witnesses were cited, the prosecution has examined only three and omitted one. Another contention raised by the learned counsel is that the prosecution case as such cannot be believed and in support of the above contention, it is pointed out that the samples were received in the chemical lab only on 17.3.2005. According to the learned counsel, the T.R. number shown in the chemical analysis report is not tallying with the T.R. number in the property list. It is also pointed out that Exts. P3 to P8 are only photocopies and originals are not produced. On the basis of the correction that contained in Ext. P4, it is the submission of the learned counsel that at the relevant time, third accused was not the owner of the vehicle and in spite of the said fact, the prosecution has not produced any document from the records kept by the R.T.O. with respect to the above vehicle. It is also the submission of the learned counsel that in Ext. P10 property list, the T.R. number was actually ''53'' which is seen scored and written as ''54'' and the above correction is not substantiated by the prosecution. According to the learned counsel, convincing explanation is inevitable from the part of the prosecution since CW1 says that Ext. C2 receipt issued by the lab authorities shows that they have received samples connected with three crime cases. Learned counsel has also pointed out that in the final report filed by the Police also, the T.R. number is shown as 53/2005 and also 60/2005 as the properties namely, the contraband articles and the samples. Thus, according to the learned counsel, there is no guarantee to show that Ext. P2 chemical analysis report is with respect to the samples alleged to have drawn from the contraband article which is claimed to have seized from the possession of the accused. In support of the above contention, learned counsel heavily relied upon the decision of this Court reported in Joseph v. State of Kerala (2009 (2) KLD 915), especially paragraph 18. Thus, according to the learned counsel, the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt and the learned Judge of the trial court miserably failed to consider the above fact and came to a wrong conclusion that the prosecution has succeeded in establishing the case against the accused.

Endorsing the above argument, Smt. Laija George, learned counsel appearing for the first accused in Crl.A. No. 2198 of 2010 submitted that the first accused was arrested on the basis of the confession statement of third accused and there is no independent evidence to show that first accused was one among the three persons alleged to have involved in the transportation and possession of the contraband article. According to the learned counsel, first accused is only a passenger of the vehicle from where the contraband articles were seized and he has no knowledge regarding the contents of MO1 series can and he has no intention either for the possession or transporting the contraband article. It is also pointed out by the counsel that even the prosecution was not sure about the persons, those who are actually involved in the crime. In order to substantiate the above contention, it is pointed out that though the prosecution has claimed that they have got R.C. particulars of the vehicle as well as the driving licence of the person, who drove the vehicle, in Ext. P19 remand report of the first accused, it is stated that the autorickshaw is that of the first accused and the same was driven by the first accused. It is also pointed out that similarly, in Ext. P15 remand report with respect to the third accused, the same mistake is repeated. It is also the submission of the learned counsel that in the absence of any features of the first accused mentioned in any of the records of the prosecution, no evidentiary value can be attached for the evidence of PW3 identifying A1 for the first time in the court. Thus, according to the counsel for the first accused also, the trial court has omitted to consider the above vital point and therefore, the appellant/first accused is entitled to get a clear acquittal.

The learned Public Prosecutor, stoutly opposing the contentions raised by the counsel for the appellants, submitted that the documents and the contraband article seized from the autorickshaw of which A3 is the registered owner, is more than enough to assure the correctness of the prosecution allegation against the accused. According to the learned Public Prosecutor, the contraband article and the autorickshaw were seized from the scene of occurrence as recorded in Ext. P1 seizure mahazar and those material objects and Ext. P1 seizure mahazar and other documents reached in the court without any delay. Thus, the above facts would further guarantee the correctness of the prosecution allegation. According to the learned Public Prosecutor, the place of occurrence is a forest area and therefore, no local inhabitants were available to make as witnesses connected with the seizure and the detection of the offence. It is also the submission of the learned Public Prosecutor that under the above circumstances, the non-examination of any independent witness is not a ground to disbelieve the prosecution, especially the prosecution evidence is intact. It is also the submission of the learned Public Prosecutor that the contemporary documents like Ext. P1 seizure mahazar, Ext. P9 FIR, Ext. P10(a) property list and Ext. P2 chemical analysis report would further show that the contraband articles and the samples were reached in court in fool proof and the samples were reached in the chemical analysis lab intact and therefore, the trial court is fully justified in holding that the prosecution has proved the case beyond reasonable doubt and therefore, no interference is warranted.

I have carefully considered the arguments advanced by the learned counsel for the appellants and the learned Public Prosecutor. I have perused the judgment carefully and scrutinized the deposition of the witnesses with utmost care and thereby, perused the documentary evidence and other materials.

The prosecution allegation is that the accused three in numbers were found carrying 40 litres of arrack in two cans each having capacity of 20 litres in an autorickshaw bearing Regn. No. KL 03 F 3146. At about 11.15 a.m. on 12.3.2005 when PW3 and party were on patrol duty at a place Peruvali at Konni-Thannithodu road. In the light of the rival contentions and in the light of the materials referred above and in view of the findings of the court below, the point that arises for consideration is whether the trial court is justified in its finding and the conviction recorded against the accused u/s 8(1) read with 8(2) of the Abkari Act. I have already referred to the evidence involved in this case of which the main evidence is that of PW3, the Sub Inspector of Police, the officer who detected the crime. When he was examined, he has deposed in terms of the prosecution allegation and he had categorically deposed that when himself and party were on patrol duty, they had seen an autorickshaw coming along with the said road from west to east and on giving signal to stop the vehicle, the vehicle was stopped but the driver as well as the passengers of the vehicle ran away from the spot leaving the autorickshaw and on further inspection of the autorickshaw, they have detected the contraband article and accordingly, as per Ext. P1 seizure mahazar, the contraband articles and other materials were seized and the samples were also drawn and subsequently, returned to the station and thereafter, registered Ext. P9 F.I.R. PW3 has also stated that during the inspection of the autorickshaw, he had seized the driving licence of the driver of the autorickshaw and the attested copy of the R.C. Book i.e., Ext. P4 and Ext. P5 permit, Ext. P6 insurance certificate, Ext. P7 tax token and Ext. P8 Pollution certificate etc. So, at the time of registering Ext. P9 FIR, the name of third accused, being the driver and owner of the autorickshaw, has been shown as the accused. Thus, subsequently, the said person is arrested on 26.3.2005. Thereafter, PW3 preferred Ext. P11 report to the court showing the correct name and address of the second accused and similarly Ext. P12 report with respect to A1 to A3. It has also come out in evidence that first accused was arrested on 7.4.2005 and second accused on 8.5.2005. It is relevant to note that both A1 and A2 were arrested after the arrest of A3 on 26.3.2005 whose identity recordically established from the documents seized from the autorickshaw and mainly with respect to the driving licence and other documents pertaining to the said vehicle. When PW3 was examined in the court, he had identified A3 as the person who drove the vehicles and A1 and A2 as the persons who sat in the back seat of the autorickshaw.

Though counsel for the appellants argued much regarding the identity of the accused, PW3 was not cross-examined effectively on the question of identity of the accused. It is also relevant to note that as per the prosecution case, the offence was detected at about 11.15 a.m. on 12.3.2005 in a public road and PWs. 3 and 1 had occasion to see the accused at the place of occurrence and they have identified the accused during their examination in the court. In the absence of any contra evidence to disbelieve their evidence regarding the identity of the accused, it cannot be held that the prosecution has failed to establish the identity of the accused. So the evidence of PWs. 1 and 3 and the other documents referred to above are sufficient to establish the identity of the accused.

Another main contention raised by the counsel for the appellant is to the effect that the prosecution has miserably filed to prove the case beyond reasonable doubt and in support of the above ground, it is pointed out that there is no guarantee that it is the sample, alleged to have drawn from the contraband articles which are claimed to have seized from the accused, reached in the chemical analysis lab and therefore, according to the learned counsel, in the light of the decision of this Court reported in 2009 (2) KLD 915 cited supra, the appellants/accused are entitled to get an acquittal. I am unable to sustain the above contention in the light of the documentary evidence available in this case, which are corroboratory and supportive in nature, of the evidence of PW3. According to the prosecution, though the incident was on 12.3.2005, the contraband articles and the documents were produced before the court on 14.3.2005 and the said claim of the prosecution is substantiated by the documents viz., property list Ext. P10 and also Ext. P1 seizure mahazar. When CW1 thondi clerk was examined, she had also deposed in terms of the prosecution and further deposed that the contraband articles were reached in the court on 14.3.2005. She had also deposed that the samples were sent for chemical analysis report through one Sathyadas, Police Constable PC 1671. The above evidence of CW1 and the documentary evidence regarding the sending of samples for chemical analysis remain intact. It is true, when CW1 was examined, she had deposed that there was no correction in Ext. P10 property list with respect to the TR number. It is relevant to note that in Ext. P10 property list, the TR number, which was written as "53" is scored and re-written as "54". It is with the above TR number, the samples were reached in the chemical analysis lab as evidenced by Ext. P2 chemical analysis report. On a perusal of the chemical analysis report, it is further clear that the samples mentioned therein were received there through the Police Constable No. 1671 on the 7th day of May, 2005, i.e., on the next day of sending it from the court. The contents of Ext. P2 report thus corroborate the evidence of CW1. It is also relevant to note that the report says as follows:-

Two sealed bottles marked 1 and 2 in the laboratory each containing 180 ml. of clear and colourless liquid alleged to be country made arrack involved in Crime No. 21/05 of Thannithodu Police Station for chemical analysis.

The seals on the bottles were intact and found tallied with the sample seal provided.

In the light of the above documentary evidence and in the absence of any contra evidence or materials, I am unable to accept the contention of the counsel for the appellants that the prosecution has failed to prove the case beyond reasonable doubt. It is true that the prosecution has not produced the forwarding note or the covering letter of the Magistrate for sending the sample for chemical analysis. The requirement for production of those documents is only for the purpose to show that the samples are reached in the court promptly and those samples were got analysed in time without any possibility of tampering the same. In the present case, as per the evidence on record, the samples were reached in the court on 14.3.2005 and the same were sent to the chemical analysis lab on 6.5.2005 through PC 1671 of the Thannithodu Police Station and the same reached in the lab on 7.5.2005. As indicated earlier, Ext. P2 lab report further shows that they have received the samples pertaining to Crime No. 21/2005 of the Thannithodu Police Station. Nothing is brought on record or no evidence is adduced by the defence to disbelieve the claim of the prosecution and to reject those evidence including the documentary evidence. In the decision cited by the learned counsel for the appellant, the factual scenario is entirely different from the present one and in that case, there was no convincing evidence regarding the production of the contraband article in the court and the thondi clerk was not examined to ascertain whether the samples were kept in a foolproof condition etc. But, in the present case, the thondi clerk as well as other witnesses were examined. Nothing brought on record at least to create any doubt so as to hold that the sample bottles were tampered etc. Therefore, the decision relied on by the learned counsel has no relevance in the present case. Therefore, according to me, the trial court is fully justified in holding that the prosecution has succeeded in establishing the allegation against the accused beyond reasonable doubt. Accordingly, the finding of the learned Sessions Judge and the conviction of the accused u/s 8(1) read with Section 8(2) of the Abkari Act are confirmed.

Regarding the sentence, the counsel for the appellants submitted that on a consideration of the allegation against the accused, the sentence is disproportionate and unreasonable and considering the mitigating circumstances which are pointed out by the counsel, the same may be modified. I find some force in their submission. It is relevant to note that at the time of registration of the crime, first accused was at the age of 57 and accused Nos. 2 and 3 were at the age of 42 and 48 respectively. Now six years are over. Therefore, first accused will be at the age of 63, second accused at the age of 48 and third accused at the age of 54. The prosecution has no case that the accused are habitual offenders. Having regard to the above facts and the mitigating circumstances, I am of the view that the substantial sentence imposed against the accused requires reconsideration. Thus, according to me, 18 months Rigorous Imprisonment will be sufficient to meet the ends of justice. While confirming the sentence of fine, the default sentence can be reduced to six months. In the result, in modification of sentence imposed by the trial court, the accused are sentenced to undergo rigorous imprisonment for 18 months each and to pay fine of Rs. 1 lakh each and in default, each of them is directed to undergo simple imprisonment for a period of six months instead of one year rigorous imprisonment ordered by the trial court. The appellants are entitled to get the benefit of set off u/s 428 of Cr.P.C.

In the result, both the appeals preferred by the appellants are dismissed, but subject to modification with respect to the sentence as indicated above. Accordingly, the bail bond executed by the appellants in Crl.A. No. 1338 of 2010 is cancelled and they are directed to surrender before the trial court within one month from today to receive the modified sentence.