Sunilkumar vs The State Of Kerala

NON­REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(S). 907 OF 2022 (ARISING OUT OF SLP(CRL.) NO(S). 239 OF 2022)

SUNIL KUMAR ….APPELLANT(S)

VERSUS STATE OF KERALA & ANR. ….RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. Leave granted.

2. The correctness of the judgment passed by the High Court of

Kerala dated 24th November, 2020 in Criminal Appeal No. 460 of

2006 is a subject matter of challenge in appeal before this Court.

3. The appellant, after facing trial, was convicted for the offence Signature Not Verified

under Section 55(a) of the Abkari Act and Section 309 IPC and was Digitally signed by ASHA SUNDRIYAL Date: 2022.06.22 18:03:50 IST Reason:

sentenced to undergo simple imprisonment for 3 years and to pay a

1 fine of Rs.1,00,000/­ (Rupees One Lakh only) each, in default of

payment of fine, to undergo simple imprisonment for one year

under Section 55(a) of Abkari Act and further sentenced to pay fine

of Rs.2,000/­ (Rupees Two Thousand only) under Section 309 IPC

by the learned Additional Sessions Judge by judgment dated 7 th

October 2005.

4. On appeal being preferred, the High Court while upholding

conviction, modified the sentence to undergo simple imprisonment

for 2 years and to pay a fine of Rs. 1,00,000/­(Rupees One Lakh

only), in default of payment of fine, to undergo simple imprisonment

for one year and conviction and sentence under Section 309 IPC

was set aside, that became a subject matter of challenge in appeal

before this Court.

5. As per the case of the prosecution, the appellant under the

leadership of co­accused (A­3 to A­5) was found dealing with spirit

and for that purpose, A­3 had taken house on rent. A­3 to A­5

bought 3000 litres of spirit in 86 cans each containing 35 litres and

stored the same in two rooms on the upstairs of the above said

house, and entrusted the same to the appellant(A­1) and A­2 to deal

2 with it on commission basis. This was detected on 12 th June, 1999

at about 01:55 a.m. by PW­10 and his police party. When the

appellant and A­2 came to know about the same, they attempted to

commit suicide by inflicting injuries on the wrist portion of their

hands, and thus, according to the prosecution, the accused

committed offence under Section 55(a) of the Abkari Act and

Section 309 IPC.

6. To substantiate the case, prosecution examined PW­1 to PW­

11. In support of the defence, four witnesses were examined as

DW­1 to DW­4 and the record was exhibited during the course of

trial.

7. After going through the evidence and documents, the trial

Court found the appellant(A­1), A­2 and A­3 guilty and convicted

them under Section 55(a) of the Abkari Act and A­1 and A­2 under

Section 309 IPC.

8. The High Court on appeal being preferred, perused the record

and upheld the conviction of the appellant under Section 55(a) of

the Abkari Act but modified the sentence to undergo simple

imprisonment of two years and fine of Rs. 1,00,000/­(Rupees One 3 Lakh only), in default of payment of fine, the appellant was directed

to undergo simple imprisonment for one year and set aside

conviction under Section 309 IPC.

9. We have heard learned counsel for the parties and with their

assistance have gone through the record as well as statements of

PW­1 to PW­11 and also the statement of the accused appellant

recorded under Section 313 CrPC and find no reason to deviate

from the finding of conviction returned by the learned trial Court

and confirmed by the High Court under the impugned judgment.

10. At the same time, taking into consideration the overall aspect

of the matter and the fact that 23 years have been rolled by this

time from the date of incident and also noticing that there are no

criminal antecedents against the appellant as indicated in Para 20

of the impugned judgment, while upholding conviction under

Section 55(a), consider it appropriate to modify the sentence to

simple imprisonment of one year and to pay a fine of Rs. 1,00,000/­

(Rupees One Lakh only), in default of payment of fine, to further

undergo simple imprisonment of six months.

11. With this modification, the appeal stands disposed of. 4

12. Since the appellant was granted exemption from surrendering

by an Order of this Court dated 10th January 2022, the appellant

shall now surrender and undergo the remaining part of the

sentence. If the appellant fails to surrender within four weeks, the

authorities shall take appropriate action in accordance with law.

13. Pending application(s), if any, stand disposed of.

…………………………….J. (AJAY RASTOGI)

……………………………J. (C.T. RAVIKUMAR)

NEW DELHI JUNE 22, 2022.

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