VELAYUDHAN ALIAS GURUKKAL Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal is preferred against the judgment of conviction and sentence in SC 354/2003 on the files of the Additional Sessions Court, Fast Track Court No.I (Adhoc), Manjeri. The conviction is under Section 55 (a) of the Abkari Act. The sentence is to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 1 lakh with default simple imprisonment for six months.

(2.) When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that the prosecution case is that on 14.11.2000 at about 3.45 pm the appellant was found in possession of 8 ltrs of arrack. The appellant and another person was standing under a coconut tree near to a paddy field which belonged to one Muhammedkutty Haji. It is the case of the prosecution that he was seen pouring liquor to a tumbler and on seeing the excise party, he ran away. Thereon the articles were seized, crime was registered and after investigation police filed the charge. The main argument advanced before this court is regarding the identity of the accused. It is the submission that, as per the prosecution case, the appellant was seen by the excise officials from a distance and he ran away. The name and address of the appellant was provided by other local witnesses. But those witnesses did not support the prosecution. When the persons, who provided the name, not supported the prosecution, there should be positive evidence regarding the identity of the accused. It is also the submission of the learned counsel that, admittedly, as per the prosecution case, the other person who provided the name of the appellant herein came for taking illicit arrack. There is a chance that he may be the real owner of the contraband. To absolve himself, he may provide a false name. The role of this witness can be considered as an accomplice and the evidence of an accomplice can be accepted only with corroboration. section 114 of the Indian Evidence Act states that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In this case, the said witness is not supporting the prosecution. Under such circumstances, it is highly unsafe to convict the appellant on the basis of the allegation of the official witnesses that they had a glimpse of the appellant from a distance.

(3.) I heard the learned Public Prosecutor, who submitted before this court that within 4 days, appellant was arrested and produced before the court. If there was a mistaken identity, then the officials would have corrected the same. At this juncture, the learned counsel appearing for the appellant submitted before this court that the name of the appellant was incorporated in the occurrence report itself.