GOPAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal essentially challenges the legality of the proceeding of a Sessions Court whereby a witness was arraigned as an accused under Sec. 319 Cr.PC, solely based on his oral testimony in the Court.

(2.) The Excise Inspector, Excise Range Office, Thirupuram, on 12/3/1998 at or about 6.00 p.m., while conducting patrol duty, received information that illicit arrack was stored at House No.546 in Ward No.IV of Karodu Panchayath in Thiruvananthapuram District by one Babu (Accused No.1). The Excise Inspector proceeded to the place of occurrence and recovered a white jerry can containing illicit arrack at the north-eastern side of a room in the building. There was nobody in the said house at the time of the search. Babu, a permanent resident of House No.4 Chenkavila of Karodu Panchayath was in possession of the building. On seeing the Excise party, Babu ran away from the house. The Excise Inspector registered a crime alleging offence under Sec. 58 of the Kerala Abkari Act arraying Babu as the sole accused. After completing the investigation, the Excise Inspector submitted the final report before the jurisdictional Magistrate. The learned Magistrate committed the case to the Sessions Court, Thiruvananthapuram, from where it was made over to the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara. The accused entered appearance. He denied the charge framed against him. The prosecution examined PWs 1 to 10 and proved Exts.P1 to P11, Ext.X1 series and MO1.

(3.) The Charge Witness No.7 was the appellant herein. The prosecution cited him as a witness as the building was in his ownership as per Ext.P7 certificate issued by the local authority. While giving evidence as PW4, the appellant denied the ownership of the building. The prosecution later filed an application to recall the appellant. While giving evidence after he was recalled, the appellant admitted that in the earlier examination, he was telling a lie regarding the ownership of the building. He admitted that he was the owner of the building from where illicit arrack was seized. The learned Sessions Judge found that the appellant was responsible to answer for the unauthorised storing of the contraband in the building. The learned Sessions Judge concluded that the appellant appeared to have committed the offence punishable under Sec. 58 of the Abkari Act. Invoking the provisions of Sec. 319 Cr.PC, the learned Sessions Judge, arraigned the appellant as accused No.2. The Court framed charge against him, alleging offence punishable under Sec. 58 of the Abkari Act. He denied the charge. He faced trial along with accused No.1. All the witnesses were re-examined. At the close of the trial, the Sessions Court found the appellant (accused No.2) guilty of the offence under Sec. 58 of the Abkari Act. The Sessions Court acquitted accused No.1 and convicted accused No.2/appellant under Sec. 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of five years and pay a fine of Rs.1.00 Lakh.