JUDGMENT

There is a delay of 27 days in filing the present appeal. It is noticed that the appeal lacks any merit. Therefore, the application for condonation of delay is allowed. The appeal is considered on merits.

It is to be noticed that the Lower Appellate Court has arrived at categorical findings as follows:

“10. Point No.1 to 3:- The important aspect that has

to be proved by the prosecution is the seizure of 80 litres of jaggery wash and 5 litres of illicit liquor from the possession of the accused on 1.3.2010 at 5.30 PM at Lakkenahalli Village, Kadur Taluk beyond all reasonable doubt. To prove this aspect the prosecution has relied upon the oral evidence of PW1 to PW4 and documentary evidence Ex.P1. Looking to the grounds urged in the

appeal memo and the reasons assigned by the learned magistrate in the judgment it is proper to re-appreciate the evidence placed on record. Therefore the evidence of PW1 to PW4 is taken for re-appreciation. PW1 to PW3 are the official witnesses. PW3 is the investigating officer deposed supporting the case of the prosecution. It may be quite natural that PW3 would depose in his official capacity. Let me go through whether the evidence of PW3 is corroborated by the evidence of PW1, PW2 and PW4 and their evidence is up to believable expectation.

11. PW4 stated to be the independent mahazar witness to the seizure mahazar Ex.P1. The evidence of PW4 does not speak anything about the seizure of liquor and jaggery wash from the possession of accused by PW3 under the mahazar Ex.P1 on 1.3.2010 at 5.30 PM. According to PW4 the Excise Officials called him to their office and obtained his signatures on the mahazar and seized articles. On reading the examination-in-chief of PW4 it does not indicate that he accompanied PW3 and his staff to the land belonging to the accused, and accused was present there with the seized articles. The other panch witness was not secured by the prosecution and examined in support of their case. It is significant to note that PW4 turned hostile and not supported the case of the prosecution. Nothing is brought out by the prosecution in the cross examination of PW4 to believe that he is telling false to help the accused. Thus the prosecution does not derive any assistance from the evidence of PW4 to connect the accused in the alleged seizure. The learned Magistrate completely ignored as to why PW4 turned hostile to the case of the prosecution. The record indicates that the prosecution has failed to secure the other panch witness despite granting sufficient opportunity and issue of summons and warrants on several occasions. Thus the non- securing of other panch witness who is material from the point of view of prosecution is fatal to case of the prosecution. The learned Magistrate failed to appreciate the non-securing of material witness by the prosecution despite granting sufficient opportunity. Thus the evidence of PW3 is not corroborated by the evidence of PW4. If the version of PW3 that he called PW4 at Emmedoddi to accompany him is accepted PW4 could have deposed the said fact. There is no reason as to why PW4 gave evidence contradicting the evidence of PW3.

12. The next evidence that arise are for my consideration is the evidence of PW1 and PW3. According to the evidence of PW1 the Excise Inspector received credible information when they were in Excise Office, Kadur. The oral evidence of PW1 does not indicate the presence of PW4 and the other panch witnesses in the spot and they accompanied them from the office. It is significant to note that it is not at all the case of the prosecution that PW3 received credible information when he was in the office at Kadur as deposed by PW1.

According to prosecution PW3 received credible information when he and his staff were patrolling in Emmedoddi Road. The oral evidence of PW3 does not indicate that he received information when he was on patrolling duty in Emmedoddi Road. According to the evidence of PW3 he received credible information wh