Rajasthan High Court - Jaipur
Moti Lal vs State Of Rajasthan on 25 May, 2006
Equivalent citations: RLW2006(4)RAJ2771, 2006(4)WLC354
JUDGMENT Khem Chand Sharma, J.
1. These criminal appeals by appellants Moti Lal and Dayal Das arise out of the judgment and order dated August 7, 1984 passed by the learned Additional Sessions Judge No. 1, Ajmer, by which the learned trial Judge has convicted and sentenced them in the following manner:
Appellants Moti Lal and Dayal Das:
For Offence Under Section 54(a) of the Rajasthan Excise Act: Imprisonment for 3 years with a fine of Rs. 2,000/-, in default thereof, each to further undergo imprisonment for six months Appellant Dayal Das:
1. For Offence under Section 304 Part II IPC Rigorous imprisonment for 10 years with a fine of Rs. 4,000/-, in default thereof, to further undergo rigorous imprisonment for one year;
2. For offence Under Section 328 IPC:
Rigorous imprisonment for 10 years with a fine of Rs. 3000/-, in default thereof, to further undergo rigorous imprisonment for ten months
2. On 26.8.1979 at 11.30 AM, the SHO, Police Station Clock Tower, Ajmer recorded Parcha Bayan, Ex. P. 34 of injured Bheru Lal in J.L.M. Hospital, Ajmer, according to which, on 23.8.1979 at about 8.45 PM while he was standing out side New Magestic Cinema, Hari Singh Band Master and Ram Niwas came out of the shop of Soda Lemon belonging to Dayal Sindhi. Both were known to Bheru Lal. On being asked by Bheru Lal as to their well being, they replied that they had purchased liquor from Dayal and offered him to consume remaining liquor. Thereafter all the three consumed the remaining liquor and then entered into the shop of Dayal. Bheru Lal stated that Hari Singh Band Master purchased half bottle (Adha) of liquor from Dayal and paid to him Rs. 7/- and all the three consumed the liquor in the shop itself. Thereafter Hari Singh Bank Master again purchased one 1 tr. Liquor for Rs. 3.50 and they came out of the shop and consumed the said liquor while standing opposite cinema. According to Parcha Bayan, while they were consuming liquor in the shop of Dayal, one Lal Chand Sindhi was also busy in consuming liquor in the shop of Dayal. Thereafter all the three left for their houses. Having reached home, Bheru Lal ate bread with curd and went to sleep. In the morning he became unconscious. He regained consciousness in the hospital and came to know that Lal Chand Sindhi died in the hospital because of consuming liquor. Lastly, it was stated that the wine which they purchased from the shop of Dayal and consumed was poisoned and he became unconscious as a result of consuming poisonous liquor. According to him the liquor was illicit and Dayal was selling the liquor without there being valid licence.
3. On the basis of above Parcha Bayan, Police registered a case for offence under Sections 328, 336, 304, 284 IPC and Section 8/14 D.D. Act vide FIR, Ex. P. 63 and proceeded with the investigation. After the completion of investigation, the police submitted a charge sheet against 7 accused persons. The prosecution story as unfolded after investigation as enumerated in the charge sheet may be summarised below.
4. Accused Nari Badhumal, Sriya @ Shrilal, Moti and Ganga Ram hatched conspiracy, according to which they manufactured illicit poisonous liquor at Kishan-garh (Ajmer) for the purposes of sale through Dayaldas and in furtherence of their conspiracy hatched at the instance of Peshu, accused Nari and Sriya @ Srilal brought the illicit poisonous liquor to Ajmer in a car belonging to accused Sriya, the driver of which was accused Ganga Ram and sold the same to Dayal Das and accused Dayal Das, in turn, sold the said illicit poisonous liquor to various persons. As a result of consuming the poisonous liquor, Arjun, Lal Chand, Bhagwan, Pamman das, Dhanna and Suresh Prakash lost their lives, while Lal Chand lost vision of his one eye. Few persons including Bheru Lal succeeded in saving their lives because of medical aid and treatment.
5. On the basis of charge sheet, the evidence and material collected during investigation and on hearing arguments on the question of framing of charges, the learned trial Court framed charges against the accused. The accused denied the charges and claimed trial.
6. To prove its case, the prosecution examined as many as 46 witnesses and got exhibited numerous documents. After the prosecution evidence was over, the accused were examined under Section 313 Cr.P.C. At the conclusion of trial, the learned trial Court while acquitting accused Ganga Ram and Peshu of the offences charged with, convicted the sentenced the appellants in the manner stated herein above. It may be stated that out of remaining 3 accused, Sriya @ Srilal has expired, while Narumal and Badhuamal are absconding.
7. I have heard learned Counsel for the accused appellants and learned Public Prosecutor and gone through the impugned judgment and the evidence available on record.
8. Having gone through the impugned judgment, it appears that:
(a) Appellant Dayal has been held responsible for the death of Suresh, Pammandas, Arjun, Bhagwan, Lal Chand, Dhanna and Jethanand. According to the trial Court these persons purchased poisonous liquor on or about 23.8.1989 from the shop of appellant Dayal Das and as a result of consumption of poisonous liquor, they lost their lives;
(b) Appellant Moti has been convicted for offence under Section 54 of the Rajasthan Excise Act on the basis of evidence of recovery of one bottle of illicit liquor from is possession in pursuance of information furnished by him. In doing so, the trial Court relied upon the FSL report, according to which the sample of liquor was found to be of illicit liquor;
(c) Two bottles of liquor were also recovered from the possession of appellant Dayal on the basis of information furnished by him. But the trial Court did not find him guilty of the offence under Section 54 of the Rajasthan Excise Act on the ground that prosecution has not been able to prove information furnished by appellant Dayal. However, the trial Court convicted him for offence under Section 54 of the Rajasthan Excise Act for having sold the illicit liquor to various persons;
(d) Appellant Dayal das has also been convicted for offence under Section 328 IPC;
(e) According to the trial Court there was no evidence of conspiracy against Pesumal and Ganga Ram and accordingly acquitted them of the charges, and
(f) Accused Badumal and Nari are absconding, while accused Sriya passed away.
9. The findings arrived at by the learned trial Court may be categorised in two parts viz., (1) the findings arrived at on proper appreciation of evidence and (2) the findings which are perverse being not based on evidence.
(i) It is correct that Bhagwan died due to alcohol poisoning as has been proved by the post-mortem report, Ex. P. 41, the chemical examiner's report Ex. P. 42 and by the statement of PW. 15 Dr. A.N. Mathur who conducted autopsy on the dead body.
(ii) Similarly, the cause of death of Arjun was also poisoning due to methyle alcohol as is evident from the post mortem report, Ex. P. 45. The doctor who conducted autopsy and prepared PMR opined on the basis of chemical examiners' report that cause of death was poisoning due to methyl Alcohol. The chemical examiner's report Ex. 44 also supports this fact.
(iii) Likewise, it stands proved that Pammandas died due to alcohol toxicity. The post mortem report Ex. P. 48 and the opinion, Ex. P. 49 of the Doctor corroborates this fact. The chemical report Ex. P. 50 and the statement of PW. 16 Dr. Kavia further fortifies the fact that death of deceased was due to alcohol toxicity.
(iv) The cause of death of Suresh Prakash was also the poisoning of methyle alcoholas is established by the post mortem report, Ex. P. 54, the opinion (Ex. P. 55) of the doctor about the cause of death, the Chemical Examiner's report Ex. P. 56 and by the statement of Dr. R.K. Soni who conducted autopsy.
(v) The cause of death of deceased Jethanand was also methyle alcohol poisoning as is proved by the post mortem report Ex. P. 57 and Chemical Examiner's report Ex. P. 58. PW. 17 Dr. R.K. Soni who conducted autopsy also certifies the above fact.
(vi) The post mortem report and chemical examiner's report of deceased Dhanna could not be exhibited for the reasons best known to the prosecution.
10. On careful scrutiny of the statements of all the prosecution witnesses, I have not been able to lay my hands to any of the evidence which could, by any stretch of imagination point out that above deceased persons purchased the liquor from the shop of Dayal Das. Therefore, appellant Dayal Das could not have been convicted for offence under Section 304 IPC for the death of Bhagwan, Arjun, Jethanand, Suraj Prakash, Dhanna and Pammandas.
11. Appellant Motilal has been convicted for offence under Section 54 of the Rajasthan Excise Act for he being found in possession of 1 bottle of illicit liquor, which was recovered vide Ex. P. 16 from his house on the basis of information furnished by him under Section 27 of the Evidence Act. The learned trial Court while dealing with the charge under Section 54 of the Rajasthan Excise Act against appellant Moti has observed that the sample taken from the liquor recovered from Moti was sent for chemical examination and that sample was found to be of illicit liquor. Despite all possible efforts, 1 could not lay my hand on chemical examiner's report as regards liquor recovered from Motilal and was sent for examination. The trial Court has also not mentioned the exhibit mark of so-call report of chemical examiner. For the reasons, therefore, the liquid recovered from Moti Lal could not be proved to be illicit liquor. Thus, the conviction of Moti for offence under Section 54 of the Rajasthan Excise Act cannot be sustained for want of chemical examiner's report.
12. The learned trial Court has further arrived at a conclusion that Lal Chand s/o Hemandas consumed liquor which he purchased from Dayaldas and as a result of which, he lost vision of his one eye. Having gone through the record, 1 do not find an iota of evidence to prove that Lal Chand s/o Hemandas purchased liquor from Dayaldas. To prove the above fact, the prosecution could not examine Lal Chand S/o Hemandas. However, Dr. A.N. Mathur examined Lal Chand S/o Hemandas and prepared poisoning report, Ex. P. 45, according to which the patient was conscious, pupils were dilated and non-reacting in both eyes, no perception and projection in right eye. Therefore, the finding of the learned trial Court that Lal Chand S/o Hemandas lost vision of one eye due to consumption of liquor purchased by him from Dayal Das is erroneous.
13. Now remains the charges under Sections 304 and 328 IPC and Section 54 of the Rajasthan Excise Act against appellant Dayaldas.
14. PW. 21 Saiyad Mohd. Alique has stated that in the year 1979 he was Joint Secretary of Anjuman Moiniya Fakiria Chisti of Khadims. The property bearing No. 16/725 situated in Kawandaspura was Anuman property and he used to receive the rent of the said property. According to him, shop No. 18, 19, 20 and 21 were on rent with Jassa Ram, Tharumal and Pamandas and he used to receive rent of these shops. He stated that rent receipts Exs. P. 30, 31 and 32 bear his signatures. PW. 5 Ashok, brother of appellant Dayal has stated that he has three brothers and after the death of . his father and uncle, two shops belong to Dargah came in his tenancy while two shops came in tenancy of his brothers. This witness has produced the rent receipts Exs. P. 30, 31 and 32. It is thus proved that these shops were on rent in the names of father and uncles of appellant Dayal where he was engaged in the business of selling Soda and lemon. PW. 12 Bheru Lal has stated that appellant Dayal was engaged in selling Soda-lemon at the shop situated infront of New Magestic Cinema, where, on 23.8.1979, he, Ram Niwas and Hari Singh Band Master consumed liquor.
15. Now the question that arises would be whether accused appellant Dayal sold illicit liquor to deceased Lal Chand S/o Bhoj Raj, Bheru Lal, Hari Singh and am Niwas. PW. 9 Hari Singh and PW. 13 Ram Niwas have not supported the prosecution case as such. However, PW 12 Bherulal has proved that on 23.8.1979 appellant Dayal sold illicit liquor, inasmuch as according to this witness, Hari Singh purchased liquor from appellant Dayal and thereafter he, Hari Singh and Ram Niwas consumed liquor at the shop of Dayal and at that time deceased Lal Chand S/o Bhojraj was busy in consuming liquor at the shop of Dayal. I see no reason to disbelieve or discard the testimony of PW. 12 Bheru Lal. Thus it can well be said that deceased Lal Chand purchased liquor from the Dayal and consumed it while sitting at his shop, which ultimately caused his death. PW. 16 Dr. V.D. Kavia conducted autopsy on the body of deceased Lal Chand S/o Bhojraj on 26.8.1979 and prepared post mortem report Ex. P. 51. Hekept pending his opinion regarding cause of death till receipt of chemical examiner's report. After incorporating Chemical Examiner's report (Ex. P. 53), the doctor was clearly of the opinion that cause of death of deceased Lal Chand was due to methyl alcohol toxicity (Ex. P. 52). It must, therefore, be concluded that cause of death deceased Lal Chand was the methyl alcohol toxicity which he consumed after he purchased it from appellant Dayal Das.
16. Having held that cause of death of Lal Chand S/o Bhojraj was the methyl alcohol which he consumed after having purchased from appellant Dayal Das, the question still remains to be decided whether on the above premises the conviction of appellant for offence under Sections 304 Part II and 328 IPC can be sustained?
17. The act done with the knowledge that death is likely to ensue but there is no intention to cause death or an injury likely to cause death, falls within the ambit of Section 304 Part II IPC.
18. Knowledge is a mental act- a condition of mind and as such incapable of direct proof. Knowledge implies consciousness and every sane person of the age of discretion is presumed to possess knowledge of the likelihood of the consequences of his act. When a person administers a poisonous substance to another which has resulted in his death, he is normally expected to know the effect of the poisonous substance and if death has resulted; then it must be held that the accused atleast knew that death was the result of poison administered.
19. It the facts and circumstances of the case at hand, it cannot be said that appellant Dayal Das had intention to kill Lal Chand S/o Bhojraj. He was engaged in selling poisonous liquor and therefore, he ought to have known that as what he had sold to Lal Chand was a poisonous substance which was likely to case grievous hurt and even death. Therefore, appellant Dayal Das is held guilty for committing the offence punishable under Section 304 Part II IPC for causing the death of Lal Chand S/o Bhojraj. I am fortified in my view by a decision of the Apex Court in State of Bihar v. Ramnath Prasad 1988 Cr.L.J. 679, wherein their Lordships, while dealing with a case of administering poisonous substance in the shape of 'Prasad', held as under:
... The prosecution has not been able to establish any motive strong enough to induce Ramnath to kill any of those five persons even if some enmity with Bishwanath Prasad Rajgaria is assumed. He did not have any enmity with others. If really his intention was to kill them he would not have given that poisonous substance so openly and in presence of others. It is, therefore, not possible to infer from the facts and circumstances of the case that Ramnath had given the same to Bishwanath Prasad with any intention to cause his death. However, he ought to have known that as what he had given to Bishwanath Prasad Rajgaria and others was a poisonous substance, it is likely to cause grievous hurt and even death.
20. In assailing conviction under Section 328 IPC, learned Counsel for the appellants has relied upon a decision of the Apex Court in Joseph Kurian v. State of Kerala . This was a case relating to "Punalur Liquor Tragedy" in which certain persons died and others received injuries due to consumption of poisonous adulterated arrack, ethyl alcohol adulterated with methyl alcohol. In this case 10 accused were tried. At the conclusion of trial, the court of Sessions found A-1 and A-4 guilty of offences punishable under Sections 272 and 328 IPC as also for offences punishable under Sections 55(a) and 55(i) of the Kerala Abkari Act, while accused No. 2, 3, 6 and 7 were found guilty for offence punishable under the Abkari Act. Remaining four accused (5, 8, 9 and 10) were acquitted. On appeal, the High Court confirmed the conviction of A-1. However the High Court set aside similar conviction and sentences of A-4 and instead convicted him, under Section 109 IPC for having abetted the commission of offences punishable under Sections 272 and 328 IPC. The Apex Court, having quoted the findings of the Trial Court and the High Court in para 10 of the Judgment, made their observations in para 11 of the judgment, which may be quoted below:
As it appears both the findings of the trial Judge as also by the High Court are somewhat vague and confusing. The trial Court observed,as is evident from the emphasised portion, that it cannot be said that the accused or any of them knew that arrack mixed with small quantity of methyl alcohol (2.64% as found by the chemical analyst) was likely to cause death or serious bodily injury that is likely to cause death. On this finding applicability of Section 302 or even that of Section 304 IPC has been ruled out. This finding on the fact situation is open to doubt. If the finding be correct that the accused did not have guilty knowledge of causing death or of likelihood of causing death or of serious bodily injury likely to cause death, how could the guilty knowledge stop in that slide or grading not coming down to take within its arms hurt also. The act of the accused is adulterating liquor per se, as the law then stood sans amendments would not attract the provision of Section 328 of IPC. Unless there is positive evidence that A-l administered the poisoned liquor directly or by Sreedharan, deceased indirectly caused it to be taken buy Sreedha-ran indirectly with the necessary intent and mensrea. This view of the learned trial Judge as confirmed by the High Court does not appear to us to be sound in the back drop of the death actually occurring. But since it has taken that view it cannot stop short of hurt and so must slip down to a fall downright. Important links in the prosecution case on this particular remain otherwise missing. A-l would thus have to be acquitted of the charge under Section 328 IPC in carrying out of the findings of the High Court to their logical end.
21. From the observations quote above, it is evident that their Lordships of the Supreme Court did not approve the view taken by the court of Sessions and the High Court. Their Lordships acquitted accused A-l of the charge under Section 328 IPC only in carrying out the findings of the High Court to their logical end. The conclusion arrived at by the trial Judge as affirmed by the High Court were not found to be sound in the back drop of the death actually occurring. Thus, for the reasons therefore, the above judgment of the Hon'ble Supreme Court has no application to the facts and circumstances of the case at hand.
22. So far as conviction of appellant Dayal Das under Section 328 IPC is concerned, suffice it to observe that prosecution has been able to prove beyond doubt that Dayal Das knowing it to be likely that consumption of poisonous liquor which he sold to Bheru Lal would cause hurt to him. Section 319 IPC provides that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. Thus, conviction of Dayal Das under Section 328 IPC cannot be interfered with and should be maintained.
23. In view of above, there is hardly any scope to interfere with the conviction of appellant Dayal Das for offence under Section 54(a) of the Rajasthan Excise Act. The trial Court has rightly found him guilty for selling illicit liquor.
24. Resultantly, appeal filed by appellant Motilal is allowed. His conviction under Section 54(a) of the Rajasthan Excise Act is set aside and he is acquitted of the charge. He is already on bail and need not surrender to his bail bonds, which are hereby cancelled. The appeal of appellant Dayal Das is dismissed. His conviction under Sections 304 Part II, 328 IPC and Section 54(a) of the Rajasthan Excise Act and the sentences awarded thereunder are maintained.
25. Appellant Dayal Das is on bail. His bail bonds are cancelled. He is directed to surrender himself before the trial Court to undergo the sentence awarded by the trial Court and affirmed by this Court. In case of failure on the part of appellant Dayal Das to surrender himself, the trial Court shall proceed in accordance with law to ensure his arrest so that he could be sent to jail to serve out the sentences.