Punjab-Haryana High Court
Nafe Singh vs State Of Haryana on 8 December, 2009
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: DECEMBER 08, 2009
Nafe Singh
.....Appellant
VERSUS
State of Haryana
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. J. S. Bedi, Advocate,
for the appellant.
Mr. Gaurav Dhir, AAG, Haryana,
for the State.
****
RANJIT SINGH, J.
What a tragedy? Hootch consumption consumed life of six poor persons. Three persons lost light in their life and are living in darkness around. Society is insensitive to the plight of these poor persons. Such tragedies are highlighted for a few days then is forgotten and are relegated to obscurity. No one has now bothered to make himself aware of the outcome of the trial. Living blinds have been left to fend for themselves. Tragedy is further compounded to CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 2 }:
notice that the preparators are going off the hook. Such a heinous crime committed for petty financial gains would go almost unpunished due to infirm and faulty investigation. One would feel sad to notice that in such like cases even the investigating agencies are either seen soft paddling the investigation or connive to do shoddy investigation, lending a helping hand to persons accused of such serious offences. Though, the misconduct on the part of the appellant led to serious consequences for large number of families, yet they will be able to get reprieve because proper evidence was not marshaled. I think, time would be ripe to direct some action packed measures to make the investigating agencies to account for their connivance or inefficiency, whatever it may be. Normally, the investigation agency is left with some odd observation after making reference to the defective investigation. That should not be the approach. Such agencies must be made accountable for the lapses, if any, found. Relegating this aspect for the time being, to later part of this order/judgment, let us have brief account of tragic event that has devastated the life of so many poor families.
Nafe Singh, appellant in Criminal Appeal No.1279 SB of 2004 is main accused and Naseeb Singh, Rajpal, Dharampal and Satpal are appellants in Criminal Appeal Nos. 1031 SB of 2004 (Naseeb Singh Vs. State of Haryana), 1267 SB of 2004 (Raj Pal Vs. Haryana State), 1399 SB of 2004 (Dharampal Vs. State of Haryana) and 354 SB of 2006 (Satpal Vs. State of Haryana).
22.11.2000 was that unfortunate day in the life of large number of persons. A V.T message was received by Police Station Sadar Rohtak about admission of one Sumer Singh (PW4) and CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 3 }:
Mahinder (PW22) at P.G.I.M.S., Rohtak after consuming some spurious country made liquor. ASI Ram Kishan (PW20) reached the emergency ward of the Institute and recorded the statement of Sumer Singh, Ex.PG. PW4 stated that he is a retired police official and had consumed a quarter of country made liquor of `Saunfi make' after purchasing it from one Ombir son of Tara Chand, resident of Ritoli (since deceased). As per PW4 deceased Ombir used to sell country made liquor in the village. PW4 went to sleep after consuming liquor and having meal. At about 11 A.M., the following day, he started feeling pain in his body and by the evening started loosing his eye sight. He first went for treatment to a private medical practitioner but when he did not get any relief and his agony increased, he reported to P.G.I.M.S, Rohtak, where he was admitted. Narain Singh (PW7) was another person who had purchased country made liquor from same Ombir on 20.11.2000, which he consumed. He was also admitted to the same hospital with identical symptoms. Ombir had statedly died after consuming liquor which he had sold to others. Statement of PW4, as recorded, was sent to Police Station, leading to registration of FIR, Ex.PG/1. The case punishable under Section 304, 326, 328 IPC and read with Section 61 (1) of Punjab Excise Act was accordingly registered.
ASI Ram Kishan took up investigation and went to village Ritoli. SHO Sub Inspector Ishwar Singh (PW21) also reached there in the meantime and took up the investigation of the case in his own hands. He visited the house of Ombir from where two empty nips, one quarter and one empty carton (card board box) were taken in possession through a recovery memo duly attested by the Sarpanch CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 4 }:
Raj Singh. In the area of Village Balland, Suraj Bhan, PW15, a liquor contractor, met the police party. He disclosed this fact to the police that accused Nafe Singh Rathi, Dharampal, Raj Pal and Naseeb used to sell illicit country made liquor and that investigation for them may lead to some tangible revelations. The police party accordingly went to village Kanheli in search of these persons. Reference is also made to a secret information received by the police that accused Nafe Singh indulged in preparing spurious country made liquor in his fields and was at that time present in his house and so could be apprehended if raid was conducted. The police accordingly raided the house of Nafe Singh, which was away from abadi. Nafe Singh was not found present but 17 cartons of country made liquor, `Jagadhri No.1' and 5 cartons of country made liquor of `Mastana' were found lying in his house. Nafe Singh accused alongwith Dharampal, Rajpal and Naseeb, however, were found present in the sugar fields nearby from where various articles meant for preparation of spurious country made liquor were also found. The accused were accordingly apprehended. Empty cartons and empty plastic bottles, packets of paper labels, gum bottles, metallic caps, paper labels, funnels etc. were recovered and taken in possession. Certain recoveries were also made from the house of accused Nafe Singh. It was also found that Ombir son of Tara Chand, Raj Singh son of Mehar Singh, Hoshiar Singh son of Sher Singh, Jagbir son of Nafe Singh, all residents of Village Ritoli, Azad son of Pirage and Daya Kishan son of Bholu, resident of Village Kabulpur had expired due to consumption of spurious country made liquor. Some recoveries like one plastic can containing some dye, one plastic container containing CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 5 }:
some essence, one drum fully filled and another drum half filled with spirit and one empty plastic drum were also recovered at the instance of Nafe Singh on 26.11.2000. Statements of Nafe Singh and other accused leading to recovery were also recorded. It is recorded that the accused had conceded that they used to prepare spurious country made liquor under the supervision of Nafe Singh. Accused Sat Pal was arrested on 14.12.2000, who also made a statement which is of a confessional nature about preparation of the spurious liquor. Zora Singh and Gurcharan Singh accused were also arrested. The complainants who had survived were subjected to medical examination and their blood sample sent to FSL, Madhuban. The report received from the FSL revealed presence of ethyl and methyl alcohol in their blood, which was in the strength of 149.5 mg.%, 115.0 mg% and 80.5mgs% in respective blood sample of Sumer Singh, Narain Singh and Mahender. Sample of country made liquor, dye etc. were also sent to FSL, Madhuban and so also one standard bottle of Mastana and Jagadhri No.1. The report regarding ethyl alcohol contents in the same was also received. The metallic caps, papers labels of Jagadhri No.1 and empty bottles were found different from the originals. It is on this basis that the charges under Section 304, 328, 326, 468, 471 IPC was filed against Dharampal, Nafe Singh, Raj Pal and Naseeb in addition to charges under Sections 61 and 63 of the Punjab Excise Act.
All the accused persons took up a defence of simple denial. All the incriminating circumstances were put to the accused persons and they denied the said circumstances so put to them besides pleading that they are innocent. They, however, did not lead CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 6 }:
any evidence.
The accused-appellants faced trial under Sections 326, 328, 304, 120-B, 468 and 471 IPC coupled with Sections 61(1) and 63 of the Punjab Excise Act. The Trial Court on the basis of evidence led by the prosecution and on the analysis thereof, came to conclude that the prosecution has failed to established charges under Sections 304 and 326 IPC beyond reasonable doubt. The Trial Court further found that offences alleged under Sections 468 and 471 IPC also could not be established against the accused-appellants as the prosecution failed to established these charges beyond reasonable doubt. The Trial Court, however, was of the view that the prosecution had proved the offences punishable under Section 328 IPC and under Sections 61 and 63 of the Punjab Excise Act against the accused-Nafe Singh, Dharampal, Naseeb and Rajpal and they were accordingly found guilty of the said offences. Accused Zora Singh, Gurcharan, Arjun and Suresh, however, were acquitted as the charges against them could not be proved beyond reasonable doubt.
The convicted accused are, thus, before this Court through the present appeals.
The finding by the Trial Court acquitting the present appellant-accused for offences under Section 468, 471 and 304 and 326 IPC is not under challenge. It will defy logic as to why the prosecution has not come forward to challenge the finding of acquittal of the present accused as that is one of the handicap, which the Court will face while dealing with the arguments made on behalf of the accused-appellants who have filed these appeals.
The first submission made by learned counsel for the CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 7 }:
appellants is that once, the appellants were acquitted of charges under Sections 304, 326 IPC, they could not have been found guilty of charge under Section 328 IPC. The standard of evidence and the requirement and ingredients of the offences would not be much different, when offences under Sections 326, 328 or for that matter 304 IPC are compared. It is in this background submitted that if the Court had found evidence not to be sufficient to convict, the appellants for an offence under Section 326 for causing grievous hurt, then that evidence would not be sufficient to bring home the offence under Section 328 IPC, which is a causing of hurt by means of poison. If the reasoning given by the Trial Court to acquit the appellants for offences under Sections 304 and 326 IPC is noted, then it would show that the submissions made by learned counsel for the appellants is not without much basis. While acquitting the appellants for the offences under Sections 304 and 326 IPC, the Trial Court has observed "defence counsel has convincingly argued that there is no link evidence in between possession of spurious country made liquor with the accused persons and the deaths or injuries to the victims as there is no evidence to prove beyond reasonable doubt that either of the victims took liquor from either of the accused persons." This being a reason to acquit the accused-appellants for offences under Sections 304 and 326 IPC, the same evidence can not appropriately be considered sufficient to bring home the offence under Section 328 IPC. To establish the offence under Section 328 IPC, it was essential to establish for the prosecution that the appellants had administered or have caused a poison to be taken by the victims etc. with intent to cause hurt to such persons or with CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 8 }:
intent to commit or facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt. Thus, link evidence between the country made liquor consumed by the victims for causing injuries, hurt etc. was an essential ingredient of the offence required to be established to bring home the offence against the appellants under Section 328 IPC. The evidence in regard is no different than what has been considered while acquitting the appellants for offences under Sections 304 and 326 IPC. The finding of the Trial Court is that there is no link evidence between the possession of spurious country made liquor with the appellants and the deaths or injuries to the victims. Finding further is that there is no evidence to prove beyond reasonable doubt that either of the victims took liquor from either of the accused persons. How then, the appellants could be said to have caused hurt by either administering poison or cause this to be taken with intent to hurt or with intent to commit or facilitate commission of offence to make them answerable for offence under Section 328 IPC.
Reference in this regard ha s also been made to the evidence of Suraj Bhan (PW15). PW15 has stated that he had warned appellant Nafe Singh not to sell spurious country made liquor. There is no such evidence by any of the other witnesses to show that either of the accused had sold spurious country made liquor. In fact, Ombir son of Tara Chand was the prime witness in this case. It was from him that the victims had purchased this so called spurious liquor. The difficulty was that Ombir himself had become victim and has succumbed to the consumption of this country made spurious liquor and, thus, was not available as a witness. The Trial CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 9 }:
Court had taken note of the fact that huge quantity of country made liquor was recovered just after the incident from the possession of the accused-appellants to say that it could be presumed that they had supplied the country made liquor but had also rightly observed that this would go to cast a strong suspicion, which was not substitute for a proof. That being the position, which in fact is a correct legal position, it would not be fair to hold that the charge under Section 328 IPC was proved and not under Section 326 IPC. If the appellants could not be held guilty of having caused the deaths due to supply of spurious liquor, then it can not be said or held that they could be made answerable for an offence under Section 328 IPC.
It is required to be observed with heavy heart that such a grave tragedy would go almost unpunished. The confusion in regard to the state of prosecution evidence would get further confounded from the fact that the recoveries from the accused-appellants was of liquor bottles make `Mastana' and `Jagadhri No.1' whereas, the complaint would show that the victims had consumed country made liquor of `Saunfi make'. This liquor was purchased from Ombir, who himself was the victim being dead due to consumption of spurious liquor. To me, it sounds a padded version. Word `saunfi' appears to be creating problem and singularly stand to favour the accused. Is it true or a fact just introduced? It would not have been difficult for the police to collect material as to from where Ombir got this liquor even if he was not alive. This line has not properly been pursued. It would not have been difficult for the investigating agency to link the spurious liquor recovered from the appellants to the injuries and CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 10 }:
deaths of the victims, if it was so. Police could have easily followed to look for a source of saunfi spurious liquor as alleged to link it with the person who was indeed actually responsible for this tragedy, if the accused were not so linked. Relatives of the dead persons could have easily led investigating agency to reach the source of spurious liquor. Investigation is, thus, found wanting and was clearly sketchy. Though, the spurious liquor was sent to FSL but no efforts were made to link the liquor recovered with the cause of death or injuries. So much so that two bottles of Mastana and Jagadhri No.1, which were sent to FSL, Madhuban, were not even obtained from proper source. This has enabled the defence to challenge this report on this count. Police could have easily obtained standard liquor to compare the contents of the spurious liquor with the standard liquor or a standard sample. It is on this basis that prosecution has invited criticism that the recoveries which were effected from the appellants was the genuine country made liquor.
It would have not been difficult to link the injuries or deaths with spurious liquor recovered. The deceased were not subjected to post mortem. No explanation is forthcoming. Deaths being due to poisonous liquor could have been easily linked with the the poison detected from the liquor and the deceased. This was also not done. These and various other loopholes would give out a loud cry that the investigation was faulty and scanty. It may be with purpose or due to casual approach. In both eventualities, it would call for action. It would not have been much difficult to link the liquor recovered from the appellants to that which was consumed by the victims. The liquor recovered though was sent for examination to the CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 11 }:
F.S.L but no efforts were made to link the deaths or injuries to the liquor which was recovered from the appellants. The action of the prosecution agency not to conduct the post mortem on the dead bodies would also sound a bit strange. It was a medicolegal case. There can not be much justification not to get the post mortem of the dead bodies conducted. This would have been another link to establish that the deaths were due to the liquor consumed. It is not for this Court to say that this was intentional but such an approach can not be accepted.
The Court is, thus, put to serious handicap to sustain the finding recorded under Section 328 IPC. The same standard of evidence is needed as was discussed and not found sufficient to bring home the offences under Sections 304 and 326 IPC. The State has also chosen not to file any appeal against the order acquitting the appellants for these offences. The evidence available, which was not found sufficient to bring home offences under Sections 304 and 326 IPC would make it impossible for the court to sustain finding under Section 328 IPC. With much reluctance and utter sadness, the finding of guilty recorded under Section 328 IPC is set-aside. The material in plenty as recovered and established by evidence on record would clearly establish that the accused are responsible for making spurious liquor and, thus, offences against the appellants under the Excise Act are clearly established. The findings of Trial Court for these offences is accordingly sustained.
Having been found guilty for offences under Section 328 IPC and those under Excise Act, appellants Nafe Singh, Dharam Pal, Nasib Singh, Raj Pal and Sat Pal were sentenced to undergo 10 CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 12 }:
years RI under Section 328 IPC and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo RI for three years. They were further sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo, six months rigorous imprisonment for conviction under Section 61 of the Punjab Excise Act and one year RI with fine of Rs.500/- and in default to undergo RI for three months for offence punishable under Section 63 of the Punjab Excise Act. However, there was no charge against appellant Sat Pal under Section 63 of the Excise Act. All the sentences were to run concurrently.
Since the conviction of the appellants under Section 328 IPC is now being set-aside, the sentence awarded for this offence can not be sustained and the same is accordingly set-aside. However, the offences alleged against the appellants under Sections 61 and 63 of the Punjab Excise Act have been maintained. Learned counsel for the appellants, however, would pray that the appellants have suffered enough and have undergone the agony of prolonged trial and awaiting the sentence for number of years. It is stated that the prosecution was unable to link the liquor allegedly recovered from them for the commission of the main offence and hence, the rigors of sentence for this offence may also call for some mercy.
The incident is of year 2000 and by now 9 years have gone passed. Considering the totality of the circumstances, sentence awarded to the appellants is reduced to a period of two years for conviction of offences under Section 61 of the Excise Act but the fine is enhanced to a sum of Rs.one lac in case of each appellant instead of Rs.2000/-. However, sentence awarded to the appellants (except CRIMINAL APPEAL NO.1279 SB OF 2004 :{ 13 }:
appellant Satpal) under Section 63 of the Punjab Excise Act is maintained. In default of payment of fine, the appellants shall undergo RI for a period of one year.
With the abovesaid observations, the appeals are partly allowed.
As already noted that the investigation in this case was not properly conducted. A detailed reference in this regard has already been made in the judgment. It needs to be found out if this scanty investigation was with motive or purpose or is only a reflection of inefficient investigation. In both eventuality, the person responsible for investigation can not escape to responsibility and need to be made answerable. While disposing of the appeals in the aforesaid manner, direction is issued to the Director General of Police to look into this aspect and get the matter investigated to see in case there was any reason or purpose in conducting this investigation in this manner or the real link could not be established because of reasons beyond the control of the investigating agency. If it is found that the manner and method of the investigation was not proper, the Director General would ensure action against the persons found responsible in this regard. The final outcome of this exercise will be brought to the notice of the Court. Copy of this order be sent to the Director General as well as Advocate General, Haryana, to ensure compliance of this part of the direction. Let the report in this regard be submitted within three months from the date of receipt of the copy of this order.
December 08, 2009 ( RANJIT SINGH ) khurmi JUDGE