CONVICTION UPHELD u/ss 302 IPC & 55, 57 ABKARI ACT.

1. The present appeals arise from the final judgment and order dated 23.07.2010 passed by the High Court of Kerala at Ernakulam in Criminal Appeal No.72 of 2004, which confirmed the judgment and order dated 02.04.2004 passed by Sessions Judge, Kollam in Sessions Case No.1308 of 2003 vide which the present Appellants, two in number, namely, (i) Sajeev (Accused No. 10) and (ii) Roy (Accused No.11) were convicted under Sections 302, 307 and 326 read with Section 120B of the Indian Penal Code (hereinafter ‘IPC’), Section 55(a), (h), (i) and Section 57 (A) (1) (ii) of the Abkari Act. They were awarded imprisonment for life for the offence under Section 302 and Section 57(A)(1)(ii), along with other sentences, ordered to run concurrently.

2. The incident in question relates to alcohol poisoning, resulting in the death of 7 innocent people, blindness in 11 people, and more than 40 people sustaining injuries.

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1. Accused No.1 had filed SLP (Crl.)mDiary No.2018/2016 against the order of the High Court, which came to be dismissed by this Court vide order dated 29.01.2016. Therefore, the conviction qua A1 stands affirmed. No other accused preferred appeal to this Court.

2. Accused Nos.10 and 11 have filed instant separate appeals by special leave against the final judgment and order of the High Court of Kerala, upholding their conviction, which were registered as Criminal Appeal No.1154 of 2011 and Criminal Appeal No.567 of 2015.

3. The question which arises for consideration before this Court is whether the conviction and sentence imposed by the Trial Court and High Court on A10 and A11 are sustainable in law or not.

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Our View

1. The Courts below have held A1 to be the kingpin of the illicit liquor business. The conviction qua A1 has come to be confirmed right up to this Court. Hence, the issues requiring consideration are: (a) the relationship between A10 & A11, and their relationship with A1; and (b) the role played by each one of them in hatching a conspiracy, if any, supply of Biosole and subsequent malice in the supply and sale of illicit liquor.

2. Undisputedly, the cause of death of the deceased is poisoning caused by methyl alcohol. So also the persons suffering injuries on their body parts as a result of such consumption.

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1. PW18, Vincent is a neighbor of A1. Even though this witness turned hostile, for not remembering having seen A10 and A11, yet, pertinently, he identified the car (MO16) of A10 in which the methyl alcohol was brought at the residence of A1 by the appellants. It is the settled law that the testimony of a hostile witness can be accepted to the extent that the version is found to be dependable on careful scrutiny thereof. Testimony of such a witness can be relied upon and cannot be treated as being washed off the record. [Refer: Mohd. Naushad v. State (NCT of Delhi) – 2023 SCC Online SC 784 (3- Judge Bench); Hari and Anr. v. State of UP – 2021 SCC Online SC 1131 (3-Judge Bench) and Koli Lakhmanbhai Chanabhai v. State of Gujarat – (1999) 8 SCC 624 (2-Judge Bench)].

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1. From a conjoint reading of the testimonies of the above witnesses, what comes to be established is that: (a) A10 and A11 were known to A1; (b) A10 and A11 visited the residence of A1 on 05.04.2003, in the presence of other accused persons/independent persons; and (c) some material which is alleged to be methyl alcohol was supplied in 21 cans, which were emptied into 3 cans of 35L each and stored at the residence of A1. Keeping this in mind, we proceed to examine the next set of witnesses.

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DISCUSSING FORENSIC EVIDENCE

1. We now discuss the forensic evidence against these accused persons at this stage. 32. PW44, James Philipose is the Joint Director (General) at FSL, Trivandrum. He verified having prepared the FSL Report (Ex.P30), which bears his signature. His examination of the plastic cans of MO15 and MO31 series revealed the same to have been cast from the same mould. Significantly, this fact remains unrebutted on record. Also, from this testimony, it is seen that the cans of MO15 series [recovered from the residence of A1 by PW76], which, as discussed above, stand proved to have been supplied by A10 and A11 to the residence of A1 and the cans of MO31 series, which is the sample of the cans provided by PW27 in the sale of Biosole, are of the same make and mould.

2. The next witness to be discussed is PW51, Sindhu. In his testimony, he states that he conducted the FSL examination of MO33 series cans (35L each). Out of the 5 cans tested, ethyl + methyl alcohol was found in 2 cans and methyl alcohol was found in 3 cans.

3. These witnesses reveal two pertinent facts: (a) The cans supplied by A11 to A1 are from the same mould of cans that were supplied by PW27 to A11, on purchase of methyl alcohol; and (b) 3 out of 5 cans recovered from the residence of A1 tested positive for methyl alcohol.

PRINCIPLES OF CONSPIRACY

1. After consideration of these depositions, we must decide whether the evidence on record is sufficient to establish a conspiracy under Section 120B, IPC. The ingredients to constitute a criminal conspiracy were summarised by this Court inState through Superintendent of Police v. Nalini & Ors – (1999) 5 SCC 253 (3-Judge Bench). They are as follows:

i. Conspiracy is when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means.
ii. The offence of criminal conspiracy is an exception to the general law, where intent alone does not constitute crime. It is the intention to commit a crime and join hands with persons having the same intention.
iii. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. iv. Where in pursuance of the agreement, the conspirators commit offenses individually or adopt illegal means to do a legal act that has a nexus to the object of the conspiracy, all of them will be liable for such offenses even if some of them have not actively participated in the commission of those offenses.

1. These principles were followed in Yakub Abdul Razak Memon v. State of Maharashtra – (2013) 13 SCC 1 (2-Judge Bench), wherein this Court reiterated that to establish conspiracy it is necessary to establish an agreement between the parties. Further, the offence of criminal conspiracy is of joint responsibility, all conspirators are liable for the acts of each of the crimes which have been committed as a result of the conspiracy. [See also: Arvind Singh v. State of Maharashtra – (2021) 11 SCC 1 (3-Judge Bench); Mohd. Naushad (supra)].

APPLYING PRINCIPLES OF CONSPIRACY IN THE PRESENT FACTS

1. Applying these principles to the case at hand, as discussed above, it is established that (a) A10 and A11 were known to A1; (b) A10 and A11 visited the residence of A1 on 05.04.2003, in the presence of other accused persons; (c) Methyl alcohol was supplied to and stored at the residence of A1, with the knowledge that the substance being sold was harmful; (d) A11 was running the affairs of the firm RR distributors which procured methyl alcohol at the first instance and fabricated record of its sale to different entities; (e) There is no dispute about the causation of deaths and injuries. Hence, the argument on behalf of the present appellants that they did not know A1 and were nowhere connected with the present crime is untenable and cannot be accepted. Therefore, the prosecution has succeeded in establishing the offence of criminal conspiracy of A10 and A11 with A1 (conviction of whom stands affirmed).

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CONDUCT OF ATTEMPTING TO DESTROY EVIDENCE IS LARGER CONSPIRACY

1. Another aspect to be considered is the destruction of evidence by A11, as submitted by both the learned Amicus Curiae and the State of Kerala.

2. K.J. Devasia (PW76), the Investigating Officer, has deposed that in his presence, PW51 collected materials/samples from land at the southern side of the residence of A11 which was marked as MO49 to MO53. This was in furtherance of information given by A11.

3. PW51, FSL Assistant Director tested these samples, who in his deposition stated that except for MO52, these samples consisted of burnt plastic and soil, which all pertinently tested positive for methyl alcohol. This supplements the prosecution story that A11 attempted to destroy evidence at his residence by burning the incriminating material connecting him to the crime. In similar circumstances, this Court in State of Haryana v. Krishan – (2017) 8 SCC 204 (2- Judge Bench) while convicting the respondents therein placed reliance on the conduct of those accused in attempting to destroy evidence to connect them to the larger conspiracy. Applying this reasoning to the evidence at hand, we disagree with the Trial Court observation that A11’s firm had a license for methyl alcohol and there is no connection between this piece of evidence and the occurrence of the incident. Per contra, there is no reason for the soil sample drawn from the residence of A11 to test positive for burnt plastic residue and methyl alcohol, connecting this material to the incident in question.

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ACCUSED FAILED TO EXPLAIN CIRCUMSTANCE u/s 313 Cr.P.C

1. Notably, no less than 627 questions/circumstances were put to A10 and A11 each under Section 313 of the Code of Criminal Procedure, 1973. This Court has clarified on numerous occasions that in law, the accused has a duty to furnish some explanation of an incriminating circumstance, with the prosecution crossing the threshold of proving its case beyond reasonable doubt. However, no explanation, much less, a plausible one, is put forth. In the event of complete denial or silence, the Court is entitled to draw an adverse inference against the accused. [Ref: Phula Singh v. State of Himachal Pradesh – AIR 2014 SC 1256 (2-Judge Bench); Indrakunwar v. State of Chhattisgarh – 2023 SCCOnline 1364 (2-Judge Bench)] Applying this to the case at hand, in the statements under Section 313, the accused persons failed to justify the incriminating circumstances appearing against them.

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IN ABKARI ACT BURDEN OF PROOF IS ON ACCUSED

1. This Court extensively dealt with Section 57(A)(1) of the Abkari Act in Chandran v. State of Kerala – (2011) 5 SCC 161 (2-Judge Bench). It is observed that the offence under Section 57A is not limited to the holders of the license under the Act, but refers to anybody who mixes or permits to be mixed any noxious substance, likely to endanger human life with any liquor. The burden of proof on the accused person under sub-Section 5 of Section 57A stands constitutionality upheld of which has been upheld by this Court in P.N. Krishna Lal v. Govt. of Kerala – 1995 Supp (2) SCC 187 (2-Judge Bench).

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ANALYSING SECTION 6 & 8 EVIDENCE ACT

1. Keeping in view the above conspectus and position of law, in res gestae Section 6 and Section 8 of the Evidence Act applies, inasmuch as: (a) testimonies of the witnesses highlighted by the Amicus Curiae indicate the presence of the accused/convicts on the spot at least few days prior to the occurrence of the incident; (b) the accused/convicts being present on the spot in relation to the supply of the spirit; (c) the accused/convicts knowing that they were being in full knowledge of the substance supplied by them to be of poisonous/prohibited in nature and permitted the noxious substance to be mixed with liquor, likely to endanger human life (d) the convict A11 having forged the record concerning the supply of the poisonous/prohibited substance.

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1. We therefore find that the conclusion and conviction arrived concurrently by the High Court and Trial Court regarding the role played by these accused persons in this tragedy does not suffer from any infirmity and does not warrant interference of this Court.

PARTY: SAJEEV VERSUS STATE OF KERALA – CRIMINAL APPEAL NO. 1134 OF 2011 – 9 th November, 2023

https://main.sci.gov.in/supremecourt/2010/34206/34206_2010_8_1501_48164_Judgement_09-Nov-2023.pdf

sajeev vs. state of kerala