26 October 2020


Judgments

High Court of Kerala

K. Kaikkalan Vs. State

MANU/KE/1721/2020

03.07.2020

Criminal

When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence

In facts of instant case, the Excise Circle Inspector (PW3) of Hosdurg Excise Range found the Petitioner/accused with a can containing three litres of arrack. The trial court framed charge against the accused under Section 8(1) read with 8(2) of the Abkari Act. The accused pleaded not guilty and claimed to be tried. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder. The accused filed Criminal appeal before the Court of Session, challenging the order of conviction and sentence passed against him by the trial court.

The appellate court confirmed the conviction against the accused but modified the substantive sentence of imprisonment imposed on him by the trial court and reduced it to rigorous imprisonment for a period of six months. Aggrieved by the concurrent verdicts of guilty and conviction made against him by the Courts below and the sentence imposed on him by the appellate court, the accused has filed instant revision petition. Learned counsel for the Petitioner has contended that the testimony of the excise officers, which is not corroborated by the evidence of independent witnesses, cannot form the basis of conviction against the accused.

It is trite that, when the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence. It is for the accused, through cross-examination or through any other materials, to show that the evidence of the official witnesses is either unreliable or at least unsafe to be acted upon. There is no legal proposition that evidence of official witnesses, unless supported by independent evidence, is unworthy of acceptance. Evidence of police or excise officers cannot be discarded merely on the ground of their desire to see the success of the case. However, prudence requires that the evidence of such officers, who are interested in the outcome of the result of the case, shall be carefully scrutinized and independently appreciated. If the testimony of an official witness is found to reliable and trustworthy, the court can definitely act upon the same.

Credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. It is not the law that official witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by the testimony of independent witnesses. Evidence of such officers must be considered on its own merits and its own inherent improbabilities.

There is no whisper of an allegation that PW3 and PW4 or any other excise officer had any motive to falsely implicate the petitioner in a case of this nature. There is nothing to show that the excise officers have falsely implicated the petitioner in the case with a view to settle any personal score with him. No semblance of even a suggestion was made to PW3 and PW4 in the cross examination to indicate even remotely that they had any animosity against the petitioner.

This is a case in which there is evidence to find that the very same sample, which was drawn by PW3 at the spot of the occurrence from the liquid contained in the can seized from the possession of the petitioner, had reached the chemical examiner for analysis. The link evidence is complete and unbroken in this case.

Section 53A (5) of the Abkari Act states that, notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, any Court trying an offence under the Act, shall treat the inventory certified by the Magistrate as primary evidence in respect of such offence. Learned counsel for the Petitioner has not pointed out any infirmity in the inventory prepared by the authorised officer and the certificate issued by the learned Magistrate.

Discretion exercised by subordinate courts in the matter of appreciation of evidence and in choosing to accept the evidence will not normally be interfered with lightly by this Court exercising the correctional jurisdiction in revision. There is no illegality, impropriety or perversity in the appreciation of evidence by the Courts below.

The Petitioner now faces a substantive sentence of rigorous imprisonment for a period of six months and a default sentence of imprisonment for a period of three months. The quantity of arrack found in the possession of the Petitioner was only three litres. There is no material to show that he has got criminal antecedents. In such circumstances, present Court is satisfied that leniency can be shown on the question of substantive sentence of imprisonment imposed on the Petitioner. Conviction of the Petitioner for the offence under Section 8(1) read with 8(2) of the Abkari Act is confirmed. The sentence imposed on the petitioner by the courts below is modified and reduced. The revision petition is allowed in part.

Tags : Conviction Evidence Credibility

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