SUNIL Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED in S.C. No. 394/2002 before the Assistant Sessions Judge, Thiruvalla is the petitioner in this revision petition. The petitioner was charge sheeted for offence under Section 55(g) of the Abkari Act. The accused was found to be engaged in the manufacture of illicit arrack at the bathroom situated in his house bearing No. X/202 of Peringara Panchayat at about 23.00 hours at night of 23.3.2001 by the Excise Officers. As soon as the petitioner saw the Excise Officers, he ran away and he was apprehended later. After considering the evidence, the Assistant Sessions Judge convicted the petitioner for the offence under Section 55(g) and imposed on the petitioner the punishment of rigorous imprisonment for a period of three years and to pay a fine of Rs. 1 lakh in default of payment of which the petitioner was to undergo simple imprisonment for six months more. Although the petitioner filed an appeal before the Additional District Sessions Judge, Pathanamthitta as Crl. A. No. 252/2007, the same was also dismissed. The petitioner is challenging the judgments of the lower courts. The petitioner's contention is that there was no proper identification of the petitioner as the person who was indulging in the alleged offence of manufacturing illicit liquor. The petitioner particularly emphasized the fact that no independent witnesses have been examined to prove the identity of the petitioner as the person who was alleged to have committed the offence. It is submitted that the house in question did not belong to the petitioner and no evidence has been adduced by the prosecution in respect thereof. Therefore, according to the petitioner, the judgments of the courts below are results of perverse appreciation of evidence.

(2.) THE learned Public Prosecutor would submit that there was sufficient evidence on record to prove the guilt of the petitioner. It is pointed out that the two independent witnesses cited as CWs. 1 and 2 could not be examined only because CW1 was no more and CW2 was reported to be in Gulf. According to the learned Public Prosecutor, the evidence was adduced by the prosecution regarding the identity of the petitioner as the person who ran away from the scene of occurrence, whom the official witnesses have conclusively identified, which is more than sufficient for the purpose of finding the petitioner guilty.

(3.) I have gone through the judgments of the courts below. Every aspect of the matter was specifically considered by the lower courts which were found against the petitioner. The fact that the independent witnesses were not examined is not fatal to the prosecution case, if there was sufficient other evidence to prove the identity of the petitioner as the person who has committed the offence. As rightly pointed out by the learned Public Prosecutor, the official witnesses against whom no allegations of mala fides have been raised, have categorically identified the petitioner as the person who ran away from the scene of occurrence, which is more than sufficient to prove the identity of the petitioner as the person who has committed the offence. In this connection, it is pertinent to note that the accused had taken steps to examine the Secretary of the Peringara Grama Panchayat, who was present in court to give evidence with a document pertaining to the ownership of House No. 203 in Ward X of Peringara Grama Panchayat. But the accused did not care to examine the witness and gave up the witness. Even assuming that there is no sufficient proof that the house in question is that of the petitioner, when the petitioner had run away from the scene of occurrence and he has been identified, I do not find any perversity in the appreciation of evidence by the courts below. The petitioner also points out about the delay in producing the contraband articles before the court. But, no such contention is seen raised before the courts below. Therefore, I am not inclined to consider the same in this revision petition.