Sathyanesan Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1134704
CourtKerala High Court
Decided OnMar-17-2014
JudgeHONOURABLE MR. JUSTICE A.HARIPRASAD
AppellantSathyanesan
RespondentState of Kerala
Excerpt:
in the high court of keralaat ernakulam present: the honourable mr. justice a.hariprasad monday, the17h day of march201426th phalguna, 1935 crl.a.no. 1027 of 2003 ( ) --------------------------- sc3652000 of additional sessions court (adhoc-i), alappuzha appellant(s)/accused: ------------------------ sathyanesan, s/o.velayudhan, koduvalli kizhakkethil, ward no.xxii, kayamkulam shown in the impugned order as lakshmi bhavanam, cheravally muri, kayamkulam village. by advs.sri.george varghese(perumpallikuttiyil) smt.sreelekha puthalath respondent(s)/state and complainant: ---------------------------- 1. stateof kerala, represented by public prosecutor, high court of kerala.2. excise range inspector, kayamkulam range, kayamkulam. by public prosecutor smt.jasmine this criminalappeal having been finallyheard on1703-2014, the court on the same day delivered the following: a.hariprasad, j.-------------------------------------- crl.appeal no.1027 of 2003 -------------------------------------- dated this the 17th day of march, 2014. judgment appeal filed under section 374(2) of the code of criminal procedure code (for short, "cr.p.c.").2. appellant was convicted by the learned trial judge (additional sessions judge) for an offence punishable under section 8(2) of the abkari act (for short, "the act"). allegation against the appellant is that on 16.09.1999 the detecting officer and party, on the basis of an information, conducted raid in his house and found out about two litres and 850 ml. of arrack kept in the bed room of appellant's house bearing door no.xxii/31 of kayamkulam municipality. in order to establish the prosecution case, five witnesses were examined and nine documents marked. dw1 was examined by the appellant and ext.d1 marked. mos 1 to 4 are the material objects.3. heard the learned counsel for the appellant and the learned public prosecutor.4. learned counsel for the appellant contended that the prosecution miserably failed to establish that the alleged recovery of the contraband arrack was effected from the house belonged to the appellant. crl..appeal no.1027/2003 2 the door number of the house, going by the prosecution case, is xxii/31 of kayamkulam municipality. ext.d1 is produced to show that the house bearing door no.xxii/48 was the one belonging to the appellant. therefore, it is contended that the whole case has to be thrown out.5. let us consider the evidence adduced by the prosecution to nail the appellant to the alleged crime. pw1 was working as the preventive officer in the excise range office, kayamkulam. he testified that on 16.09.1999, he conducted patrol duty along with other officers. when he reached near hobby theatre, he got information that the appellant was selling illicit arrack from his house. he prepared search memo (ext.p1) and it was sent to the court by post. thereafter, he conducted search in the house of the appellant. testimony of material prosecution witnesses and the recitals in ext.p2 mahazar would show that the house of the appellant was having three shoprooms abutting it. in the thorough search conducted in the house of the appellant it was found that illicit liquor was kept in three bottles full and one bottle nearly half filled in one of the bed rooms. on examination of them, pw1 was satisfied that it was coloured arrack. pw1 testified that details of the house were verified with reference to the ration card handed over by the inmates of the house. after arresting the appellant and taking samples and sealing it properly, ext.p2 mahazar was prepared. pw1 identified the material objects from the court. crl..appeal no.1027/2003 3 6. pw1 was cross-examined at length. suggestions were put to him to show that the appellant is a physically challenged person and having 60% disability. though the fact that the appellant is a physically challenged person is admitted by pw1, he disputed the percentage of disability. pw1 when cross-examined deposed that the number of ration card was mentioned in ext.p2 and that was done after verification. case suggested to pw1 that one excise guard by name h.shaji (pw2) was enimical to the appellant and at his instigation the case was registered is stoutly denied by him.7. pw2 also rendered support to the testimony of pw1. on material terms, he supported the evidence of pw1. according to the appellant, this witness was enimical to him. pw2 denied the case that he was instrumental for falsely implicating the appellant in the crime. pw3 is an independent witness cited to prove the detection of offence. on material terms, he deviated from the prosecution case. however, he admitted his signature on ext.p2 mahazar. he also testified that the appellant was running a pan shop and the house of the appellant is abutting the shop. testimony of pws1 and 3 and recitals in ext.p2 would show that the building was a composite unit of shoprooms and a house. pw4, yet another independent witness, also refused to support the prosecution case. pw5 is the excise range inspector, kayamkulam at the crl..appeal no.1027/2003 4 material time. he conducted investigation in the matter. accused was produced in the court on the next day of detection. all the material documents, including thondy list (ext.p8), were produced in the court on the next day of detection. ext.p9 is the chemical analysis report.8. dw1, who was the secretary of the kayamkulam municipality, was cited to prove ext.d1, copy of assessment register. it shows that during 1994-95 period, house in ward no.xxii bearing door no.48 was in the name of the appellant. learned counsel for the appellant would contend that there is no evidence adduced by the prosecution to show that the house bearing door no.xxii/31 belonged to the appellant as contended by the prosecution. this aspect had been considered by the trial court in detail. oral evidence of pws 1, 2 and 5 coupled with the recitals in ext.p1 would show that the accused was found residing in a house, with his wife and two small children, from where the recovery was effected. pw1 deposed that he verified the identity of the house, with reference to the ration card, whose number is indicated in ext.p2 mahazar. further, pw5 also testified that he referred to the ration card for verification during the investigation. therefore, merely for the reason that ext.d1 shows a different number, it cannot be said that the house in which the accused was found present with his family did not belong to him. all other incriminating circumstances established by the prosecution point clearly to the guilt of crl..appeal no.1027/2003 5 the accused. therefore, i find conviction of the appellant under section 8 (2) of the act is legally correct. no interference is required in that matter.9. learned counsel for the appellant contended that the appellant is a physically challenged person. quantity of liquor allegedly recovered from him cannot be said to be a large quantity. considering the entire aspects, he would submit that the appellant is entitled to get a reduced punishment. there is some force in that contention. therefore, the sentence is to be modified in the following manner. in the result, the appeal is partly allowed. conviction of the appellant under section 8(2) of the abkari act in s.c.no.365 of 2000 on the file of additional sessions judge (adhoc-i), alappuzha is hereby confirmed. sentence imposed on the appellant is reduced to rigorous imprisonment for a period of three months and to pay a fine of `1,00,000/- (rupees one lakh only). in default of payment of fine, he shall undergo simple imprisonment for a period of three months. appellant is entitled to get the benefit of set off under section 428 cr.p.c. all pending interlocutory applications will stand dismissed. a. hariprasad, judge. cks crl..appeal no.1027/2003 6 a.hariprasad, j.crl.appeal no.1027 of 2003 judgment17h march, 2014
Judgment:

IN THE HIGH COURT OF KERALAAT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD MONDAY, THE17H DAY OF MARCH201426TH PHALGUNA, 1935 CRL.A.No. 1027 of 2003 ( ) --------------------------- SC3652000 of ADDITIONAL SESSIONS COURT (ADHOC-I), ALAPPUZHA APPELLANT(S)/ACCUSED: ------------------------ SATHYANESAN, S/O.VELAYUDHAN, KODUVALLI KIZHAKKETHIL, WARD NO.XXII, KAYAMKULAM SHOWN IN THE IMPUGNED ORDER

AS LAKSHMI BHAVANAM, CHERAVALLY MURI, KAYAMKULAM VILLAGE. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH RESPONDENT(S)/STATE AND COMPLAINANT: ---------------------------- 1. STATEOF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

2. EXCISE RANGE INSPECTOR, KAYAMKULAM RANGE, KAYAMKULAM. BY PUBLIC PROSECUTOR SMT.JASMINE THIS CRIMINALAPPEAL HAVING BEEN FINALLYHEARD ON1703-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.HARIPRASAD, J.

-------------------------------------- Crl.Appeal No.1027 of 2003 -------------------------------------- Dated this the 17th day of March, 2014. JUDGMENT

Appeal filed under Section 374(2) of the Code of Criminal Procedure Code (for short, "Cr.P.C.").

2. Appellant was convicted by the learned trial Judge (Additional Sessions Judge) for an offence punishable under Section 8(2) of the Abkari Act (for short, "the Act"). Allegation against the appellant is that on 16.09.1999 the detecting officer and party, on the basis of an information, conducted raid in his house and found out about two litres and 850 ml. of arrack kept in the bed room of appellant's house bearing door No.XXII/31 of Kayamkulam Municipality. In order to establish the prosecution case, five witnesses were examined and nine documents marked. DW1 was examined by the appellant and Ext.D1 marked. MOs 1 to 4 are the material objects.

3. Heard the learned counsel for the appellant and the learned Public Prosecutor.

4. Learned counsel for the appellant contended that the prosecution miserably failed to establish that the alleged recovery of the contraband arrack was effected from the house belonged to the appellant. Crl..Appeal No.1027/2003 2 The door number of the house, going by the prosecution case, is XXII/31 of Kayamkulam Municipality. Ext.D1 is produced to show that the house bearing door No.XXII/48 was the one belonging to the appellant. Therefore, it is contended that the whole case has to be thrown out.

5. Let us consider the evidence adduced by the prosecution to nail the appellant to the alleged crime. PW1 was working as the Preventive Officer in the Excise Range Office, Kayamkulam. He testified that on 16.09.1999, he conducted patrol duty along with other officers. When he reached near Hobby Theatre, he got information that the appellant was selling illicit arrack from his house. He prepared search memo (Ext.P1) and it was sent to the court by post. Thereafter, he conducted search in the house of the appellant. Testimony of material prosecution witnesses and the recitals in Ext.P2 mahazar would show that the house of the appellant was having three shoprooms abutting it. In the thorough search conducted in the house of the appellant it was found that illicit liquor was kept in three bottles full and one bottle nearly half filled in one of the bed rooms. On examination of them, PW1 was satisfied that it was coloured arrack. PW1 testified that details of the house were verified with reference to the ration card handed over by the inmates of the house. After arresting the appellant and taking samples and sealing it properly, Ext.P2 mahazar was prepared. PW1 identified the material objects from the court. Crl..Appeal No.1027/2003 3 6. PW1 was cross-examined at length. Suggestions were put to him to show that the appellant is a physically challenged person and having 60% disability. Though the fact that the appellant is a physically challenged person is admitted by PW1, he disputed the percentage of disability. PW1 when cross-examined deposed that the number of ration card was mentioned in Ext.P2 and that was done after verification. Case suggested to PW1 that one Excise Guard by name H.Shaji (PW2) was enimical to the appellant and at his instigation the case was registered is stoutly denied by him.

7. PW2 also rendered support to the testimony of PW1. On material terms, he supported the evidence of PW1. According to the appellant, this witness was enimical to him. PW2 denied the case that he was instrumental for falsely implicating the appellant in the crime. PW3 is an independent witness cited to prove the detection of offence. On material terms, he deviated from the prosecution case. However, he admitted his signature on Ext.P2 mahazar. He also testified that the appellant was running a pan shop and the house of the appellant is abutting the shop. Testimony of PWs1 and 3 and recitals in Ext.P2 would show that the building was a composite unit of shoprooms and a house. PW4, yet another independent witness, also refused to support the prosecution case. PW5 is the Excise Range Inspector, Kayamkulam at the Crl..Appeal No.1027/2003 4 material time. He conducted investigation in the matter. Accused was produced in the court on the next day of detection. All the material documents, including thondy list (Ext.P8), were produced in the court on the next day of detection. Ext.P9 is the chemical analysis report.

8. DW1, who was the Secretary of the Kayamkulam Municipality, was cited to prove Ext.D1, copy of assessment register. It shows that during 1994-95 period, house in Ward No.XXII bearing door No.48 was in the name of the appellant. Learned counsel for the appellant would contend that there is no evidence adduced by the prosecution to show that the house bearing door No.XXII/31 belonged to the appellant as contended by the prosecution. This aspect had been considered by the trial court in detail. Oral evidence of PWs 1, 2 and 5 coupled with the recitals in Ext.P1 would show that the accused was found residing in a house, with his wife and two small children, from where the recovery was effected. PW1 deposed that he verified the identity of the house, with reference to the ration card, whose number is indicated in Ext.P2 mahazar. Further, PW5 also testified that he referred to the ration card for verification during the investigation. Therefore, merely for the reason that Ext.D1 shows a different number, it cannot be said that the house in which the accused was found present with his family did not belong to him. All other incriminating circumstances established by the prosecution point clearly to the guilt of Crl..Appeal No.1027/2003 5 the accused. Therefore, I find conviction of the appellant under Section 8 (2) of the Act is legally correct. No interference is required in that matter.

9. Learned counsel for the appellant contended that the appellant is a physically challenged person. Quantity of liquor allegedly recovered from him cannot be said to be a large quantity. Considering the entire aspects, he would submit that the appellant is entitled to get a reduced punishment. There is some force in that contention. Therefore, the sentence is to be modified in the following manner. In the result, the appeal is partly allowed. Conviction of the appellant under Section 8(2) of the Abkari Act in S.C.No.365 of 2000 on the file of Additional Sessions Judge (Adhoc-I), Alappuzha is hereby confirmed. Sentence imposed on the appellant is reduced to rigorous imprisonment for a period of three months and to pay a fine of `1,00,000/- (Rupees one lakh only). In default of payment of fine, he shall undergo simple imprisonment for a period of three months. Appellant is entitled to get the benefit of set off under Section 428 Cr.P.C. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. cks Crl..Appeal No.1027/2003 6 A.HARIPRASAD, J.

Crl.Appeal No.1027 of 2003 JUDGMENT

17h March, 2014