T. Chandrasekharan vs State of Kerala

S. Siri Jagan, J.—The petitioner is the accused in Sessions Case No. 226 of 2008 before the Assistant Sessions Judge, Kasaragod. He was prosecuted u/s 55(a) of the Abkari Act. The prosecution case was as follows:

On 27.6.2007 at about 7.30 a.m., the accused was found transiting five litres of arrack in a ''kannas'' through Kuttikole- Poinachi road, at Pallathumkal, in Kuttikole village, in contravention of the provisions of the Abkari Act, which was an offence u/s 55(a) of the Abkari Act. The Excise Inspector, who seized the contraband articles, lodged a complaint before the Judicial First Class Magistrate-I, Kasaragod, who committed the case to the Court of Sessions, Kasaragod, who made over the case to the Assistant Sessions Court for trial and disposal. After trial, the Assistant Sessions Judge convicted the petitioner and sentenced him to undergo rigorous imprisonment for two years and imposed a fine of Rs. 1,00,000/- (Rupees one lakh only) with a default sentence of six more months, if not paid. The petitioner filed an appeal before the Court of Sessions, Kasaragod as Criminal Appeal No. 236/2010, which was dismissed. The petitioner is challenging the orders of the courts below. The petitioner''s contention in this Criminal Revision Petition is that, there was no acceptable evidence to find the petitioner guilty. According to him, the only witnesses, who supported the prosecution case was the Excise Officers and the only independent witness examined by the prosecution turned hostile. As such, there was no acceptable evidence on record to find the petitioner guilty is his contention.

The learned Public Prosecutor would contend that there is no law which says that there cannot be any conviction on the basis of the evidence of the investigating officers alone, provided their evidence convincing enough for a successful prosecution. It is further pointed out that, although the independent mahazar witness turned hostile, he did not dispute the fact that he had witnessed the mahazar. Therefore, it was plain that he was trying to falsely depose that he was not aware of the contents of the mahazar. It was pointed out that PW3 had no case that the excise officials obtained his signature by force or compulsion. Therefore, according to the learned Public Prosecutor, the evidence of the PW3 also supports the case of the prosecution at least to the extent that he was present at the scene of occurrence, without any compulsion, attested the mahazar. Therefore there is no perversity in the appreciation of evidence is the contention raised.

I have considered the rival contentions in detail. My jurisdiction under Sections 397 and 401 of the Code of Criminal Procedure is very limited. The petitioner only canvasses the validity of the findings of the lower authorities on evidence. He can succeed in his attempt only if he proves before me that the appreciation of evidence is perverse. As rightly pointed out by the learned Public Prosecutor, there is no inviolable rule that there cannot be any conviction on the basis of the evidence of the Investigating Officer alone, provided the evidence given is convincing enough for prosecution. I am of opinion that in this case, PW1 and PW2, who apprehended the petitioner while he was transiting the arrack, gave convincing evidence in support of the prosecution case. The fact that the attesting witness turned hostile does not in any way mitigate the value of their evidence. In fact, PW3 did not have any case that he signed the mahazar under compulsion from the Excise Officers. He admitted having signed the same also. Therefore, as found by the lower authorities, the evidence of PW3, although he turned hostile in some aspects, to a great extent supported the prosecution case. In the cross examination of the other two witnesses also the petitioner could not pick any holes in their evidence and they withstood the cross examination admirably. That being so, I do not find any perversity in the appreciation of evidence by the lower courts.

In the above circumstances, I do not find any merit in this Criminal Revision Petition and accordingly, the same is dismissed.