VIJAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS appeal is by accused 1, 2,4 and 5 in Sessions case No. 58 of 1963 on the file of the Sessions Court, Tellicherry. The third accused who was tried along with them was acquitted.

(2.) SHORTLY stated the prosecution case is as follows: On 29 51963 at about 9 A. . M. pw. 2 Excise Inspector and his party went on patrol duty to detect prohibition offences and at about 10. 30 A. M. while they were in the tea shop of one Nanu they saw the first accused rowing a small boat along the Andaloor river. Suspecting trouble, accused 1 got out from the boat at a place about 50 yards from the tea shop and ran away towards the east. pw. 2 and party got the boat to the shore and searched it when they found two drums and one tin containing about sixteen gallons of fermented and fresh toddy. A mahazar was prepared and taking two bottles full of fermented toddy for sample, they destroyed the rest. pw. 2 then directed pw. 1 Kannan the Excise Guard to take the sample bottles and other articles seized to Chekkupalam in the boat and he and the other members of the party followed walking along the Varamba. Before the boat neared the bridge the accused ran up and dragged pw. 1 out of the boat and accused 1 and 2 beat him with sticks while accused 3 to 5 threw the articles into the water. The Inspector & party took the injured guard pw. 1 to Chekkupalam and then in a car removed him to the hospital at tellicherry. The matter was reported to the Police who registered a case and began the investigation. On 3151963 the third accused was arrested and all the rest surrendered before Court.

(3.) THE only points urged before me in this appeal are:- (i) that the conviction of accused 1 is not sustainable since there is no conclusive proof of his identity and (ii) that the conviction of accused 1 under S. 148 as well as of accused 2,4 & 5 under S. 147 is incompetent since one out of the five accused who were charged and tried with having formed the assembly was acquitted.