TMI Blog2021 (10) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... police constable working at the concerned police station. He claimed that after the truck was stopped, three persons in the truck ran away. One was caught who disclosed that he was the driver of the truck. He identified the accused No.2 in the Court. However, he has not seen accused No.2 driving the truck. PW10 Shri N. George was a police constable attached to the concerned police station who claimed that after the truck was stopped, three persons inside the truck ran away and one person who was stopped, claimed to be the driver of the truck. However, he has not stated that he had seen the accused No.2 driving the truck. He also identified the accused No. 4 as a person who ran away from the truck. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful. The impugned judgment and orders are hereby set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen they located the truck and stopped the same, the accused No.2 who was in the driver s seat in the truck and the accused Nos.3 and 4 who were present in the truck ran away. The police party, however, apprehended the accused No.2 who allegedly disclosed to them that spirit was loaded in the truck in plastic cans. He also disclosed to the police that the accused No.1 was the owner of the truck who was his brother-in-law. He disclosed that the accused No. 1 was a shop contractor. Even the accused No.4 was apprehended by the police. The police party inspected the truck and seized 6090 litres of spirit which was stored in 174 plastic cans having a capacity of 35 litres each. The police party also found two name plates in the truck bearing registration number KLB-7589. A seizure mahazar was drawn and the truck, the plastic cans and the spirit therein were seized by the police. Thereafter, PW12 returned to the police station and recorded the First Information Report. 5. According to the prosecution case, the accused No.1 was a toddy shop contractor and the other accused were his relatives. It is alleged that the accused No.1 purchased a truck from PW3, Shri Rajendra Prasad and after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the said photocopy of R.C book allegedly showing the name of the accused No.1 as the owner was not produced before the trial court. He submitted that no investigation was carried out for ascertaining the engine number and chassis number of the truck with a view to find out whether the correct registration number of the truck was KLY-730 or KLB-7589. He pointed out the notices issued by the investigation officer to Shri Sajan Mathai, Shri Chandran and PW3 Shri Rajendra Prasad and the response submitted by the said three persons. He pointed out that notices were issued for inquiring about the ownership of the truck. He submitted that the said Shri Sajan Mathai in his response claimed that he sold the said truck to one Shri Makkar Maideen on 4th September 1998. However, both Shri Sajan and Shri Makkar were not examined as witnesses. He pointed out that Shri Chandran who was served with a similar notice claimed that he purchased the truck from one Shri Ebrahim which was registered in the name of Shri Sajan Mathai. In the reply, the said Shri Chandran claimed that he sold a truck to PW3 Shri Rajendra Prasad. The learned Senior Counsel pointed out that Shri Ebrahim and Shri Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prosecution witnesses in the Court cannot be disbelieved only on the ground that T.I Parade was not conducted. He submitted that PW13 is an independent witness whose version has not been shaken in the cross examination. He submitted that considering the quality of evidence of PW13 which is supported by the evidence of PW6 Shri A.S. Krishnan, the Courts below have rightly held that the accused No.2 was the driver of the offending truck. He submitted that the quantity of liquor containing injurious substances found in the truck has not been disputed. He, therefore, submitted that the accused No.2 was clearly guilty of transporting liquor without permission which is a punishable offence under Section 55(a) of the Abkari Act. 10. The learned counsel appearing for respondent submitted that PW3 Shri Rajendra Prasad issued a reply to the notice served upon him by the investigation officer stating that he sold the said truck to the accused No.1 at the cost of ₹ 1,50,000/- in the year 1999. He submitted that though PW3 may not have supported the prosecution, his reply to the notice has been marked as an exhibit which proves that the ownership of the truck vested in the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution came to the conclusion that the correct registration number of the truck was KLB-7589 on the basis of a photocopy of R.C book allegedly found in the seized truck. However, as admitted by PW12 - the investigation officer, the said photocopy of the R.C book was not produced by the prosecution. 13. A very shocking aspect of the case is that the prosecution did not even produce the record of the RTO in respect of the registration of the truck. Though the chassis and engine number of the truck were recorded in the mahazar, no investigation was carried out to ascertain the correct registration number of the offending truck. Thus, the identity of the truck itself becomes doubtful. The most relevant evidence of the record of RTO showing the name of the registered owner was withheld by the prosecution. There is no documentary evidence placed on record to show that the accused No. 1 was the owner of the offending truck at the relevant time. There is no other evidence pressed into service by the prosecution against the accused No.1. Therefore, we are of the considered view that it is a case of no evidence against the accused No.1. Thus, there was no justification for convicting the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t may be impressed with testimony of the prosecution witnesses which is of a sterling quality. In such cases, the testimony of such a witness can be believed. In the present case, PW13 accepted that he is not able to identify any persons whom he had seen 11 years back. However, he asserted that he can identify the accused Nos.2 and 4 though he had seen them for the first time more than 11 years back on the date of the incident. Therefore, in the facts of the case, the evidence of PW13 as regards the identification of the accused Nos.2 and 4 in the Court cannot be accepted. 16. PW5 who was working as ASI at the concerned police station identified the accused No.2. However, he has not stated that the accused No.2 who was arrested at the spot was driving the truck. PW6 Shri A. S Krishnan was working as a Sales Tax Inspector at the relevant time. He stated that the truck was stopped at 12:30p.m at the check post when the cleaner of the truck claimed that it contained dry coconut leaves. He claimed that a clerk Shri Balachandran climbed on the top of the truck for taking search. He claimed that as the driver started the truck, the said Shri Balachandran jumped from the truck. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle was used and the driver of the said vehicle is not a witness. He accepted that though mahazar records that a copy of RC book was found in the truck, it is not produced in the Court. He admitted that though he enquired with RTO, the record of RTO is not produced in the Court. It is pertinent to note that in the examination chief, PW12 did not state that he had seen the accused No.2 driving the truck. Even in this case, the evidence of PW12 has been recorded more than 11 years after the date of the incident. 20. It is very difficult to believe that PW13 who was not knowing the accused Nos.2 and 4 prior to the incident could identify them in the Court after lapse of 11 years. That is also the case with all the official witnesses. The prosecution has chosen not to produce evidence regarding the correct registration number of the truck and the name of the registered owner thereof. Therefore, the entire prosecution case becomes doubtful. 21. In the circumstances, both the appeals must succeed and the same are allowed. The impugned judgment and orders are hereby set aside and the appellants are acquitted of the offences alleged against them. Their bail bonds stand cancelled. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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