LIZY KURIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the second accused in of 1986 of Excise Range Office, Kottayam. There were two accused in the said case. The offence alleged against the petitioner and the first accused is under S.55(a) of the Abkari Act. The Prosecution case is that on 31.12.1986 at 4.30 p.m. CWs 1 and 2, the preventive officers of the Excise Range, Kottayam on getting information conducted search in a shed situated in Kanjavu Kavala at Thottakkadu, Puthupally on the basis of a search memo and at the time the accused were in unauthorised possession of ten litres of toddy in plastic can, 850 ml. of 3 bottles and a glass. Annexure A is the charge sheet. The notice was served on the petitioner. She was not arrested. But, her case was split up and refiled. The first accused then faced trial and he was acquitted by Annexure B judgment. The only allegation against the petitioner is the confession of the first accused that the toddy was entrusted to him by the petitioner. Petitioner was implicated as the second accused in the above case only on the basis of the confession of the first accused. As held by this Court and by the Hon'ble Supreme Court, confession of coaccused cannot be taken as a substantive piece of evidence. Admittedly, the petitioner was not found in possession of any contraband article. Even the prosecution witnesses have no case that the petitioner was present at the time of occurrence of the case. Hence the only available evidence on the prosecution, i.e., the alleged confession of the coaccused is not sufficient to convict the petitioner. In Para.15 of Annexure B judgment while acquitting the first accused it is observed as follows: