Dharman s/o Kunjukunju; George s/o Varkey; Velayudhan s/o Sanku v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY,THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** ## **CRL.A.No. 288 of 2003** **AGAINST THE JUDGMENT IN SC 527/1999 of II nd ADDITIONAL SESSIONS JUDGE, KOLLAM, DATED 11-02-2003** ## **APPELLANT/S:** **DHARMAN** **S/O KUNJUKUNJU, CHARUVILA PUTHEN VEEDU, 9 ACRE, VENTURE DIVISION, KAZHUTHURUTTI MURI, ARIANKAVU VILLAGE.** **BY ADV. SRI.T.R.ASWAS** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY C.I. OF POLICE, KULATHUPUZHA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA., ERNAKULAM** **BY ADV. PUBLIC PROSECUTOR, SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2018, ALONG WITH Crl.MC.2995/2003, CRL.A.340/2003, CRL.A.592/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.Nos. 288,340 & 592/2003 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY,THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** **CRL.A.No. 340 of 2003** **AGAINST THE JUDGMENT IN SC 527/1999 of II nd ADDITIONAL SESSIONS JUDGE, KOLLAM, DATED 11-02-2003** ## **APPELLANT/S/3RD ACCUSED:** **GEORGE S/O VARKEY, HOUSE NO.1,LAYAM NO.48, FLORANCE DIVISION,, ARIENKAVU VILLAGE (FROM KARIYILAKULAM VEEDU,, KARIKULAM, EDAPPALAYAM MURI,, ARIENKAVU VILLAGE.)** **BY ADVS. SRI.B.MOHANLAL SRI.KUNDARA VARGHESE THOMAS** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM REPRESENTING THE C.I. OF POLICE, KULATHUPUZHA.** **BY ADV. PUBLIC PROSECUTOR, SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2018, ALONG WITH CRL.A.288/2003 & CRL.A.592 of 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.Nos. 288,340 & 592/2003 3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY,THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939** **CRL.A.No. 592 of 2003** **AGAINST THE JUDGMENT IN SC 527/1999 of II nd ADDITIONAL SESSIONS JUDGE, KOLLAM DATED 11-02-2003** **APPELLANT/S/1ST ACCUSED:** **VELAYUDHAN S/O SANKU, HOUSE NO.4, METTUPALAYAM 63, FLORANCE DIVISION, KAZHUTHURUTTI MURI, ARIENKAVU VILLAGE** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENT/S/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KULATHUPUZHA, (BY THE PUBLIC PROSECUTOR), HIGH COURT OF KERALA, ERNAKULAM** **BY ADV. PUBLIC PROSECUTOR, SRI.D.CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2018, ALONG WITH CRL.A.340/2003, CRL.A.288/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.Nos. 288,340 & 592/2003** **4** ## **JUDGMENT** All these appeals are filed by the accused in S.C.No.527/1999 on the files of the Court of II Additional Sessions Judge, Kollam. The challenge is against the conviction and sentence passed by the court below by its judgment dated 11.02.2003. Crl.Appeal No.592/2003 is filed by the first accused, whereas Crl.Appeal No.288/2003 is filed by the second accused and Crl.Appeal No.340/2003 is filed by the third accused. Accused Nos.1 and 2 ( appellants in Crl.Appeal Nos. 592/2003 and 288/2003) were found guilty under Section 57 (A) of the Abkari Act. Accused Nos. 1 to 3 are found guilty for the offence punishable under Section 55(a) of the Abkari Act and further Accused Nos. 2 and 3 were found guilty of offences punishable under Section 55(b) of the Abkari Act. Accused No.1 was also found guilty for offence punishable under Section 55(i) of the Abkari Act. Even though originally there was charge under Sections 302, 272 and 273 of IPC, the appellants were acquitted for the said offences. The sentence imposed by the court below is to undergo rigorous imprisonment for six years for the offence under Section 57 (A) of the Abkari Act and also to pay a fine of Rs.30,000/- **CRL.A.Nos. 288,340 & 592/2003 5** (Rupees Thirty Thousand Only) with default simple imprisonment for six months. For the offence under Section 55(a) of the Abkari Act, all the accused were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) with default imprisonment. For the offence under Section 55(b) Accused No.3 was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only) whereas Accused No.2 was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) for the said offence. There was default imprisonment for fine. 2. When the appeal came up for hearing, learned counsel for the first accused (appellant in Crl.Appeal No.592/2003) submitted before this court that here is a case where there was a moral conviction against the appellant herein without legally sustainable evidence. It is the submission of the learned counsel that when there is ailments or even death by taking alleged liquor orally, there should be positive evidence to show that what was the real cause of such ailments. A bare perusal of the postmortem certificate as well as chemical analysis reports will show that prosecution miserably failed to **CRL.A.Nos. 288,340 & 592/2003 6** establish that there was any noxious substance much less any poison present in the body of either the witnesses who were treated in the hospital or persons died in this case. The postmortem certificate does not say that there was any poison. Even though, as per the court charge, it was specifically stated a number of poisons, no evidence adduced by the prosecution to substantiate the said court charge. The first appellant was called upon to answer the court charge. Only when prosecution succeeded in adducing evidence to substantiate the court charge, a question of conviction will come. In this case admittedly when there is no positive evidence to substantiate the claim of the prosecution that there was such chemical substance like Aluminium Carbonate, Organo Phosphorus, Methyl Alcohol, any one of these elements were not proved as present neither in the body of the deceased nor in the alleged recovered articles on the alleged disclosure statement of Accused No.1. When there is no positive evidence to show that there was such poisonous substance, the trial court patently erred in coming to a conclusion that the ingredients of Section 57 (A) was established by the prosecution. When there is no evidence to substantiate the charge under Section 57 (A), the appellant is entitled for acquittal for the offence under Section 57 (A). **CRL.A.Nos. 288,340 & 592/2003 7** 3. The next conviction is under Section 55(a) and (i) of the Abkari Act. Surely, the witnesses are deposing before the court that they consumed alcohol from the possession of Accused No.1. But when the witnesses got a case that they consumed alcohol, they are also a party to an illegal act. Thus their evidence has to be scrutinized very carefully. It is to be remembered that there is nothing to show that actually any illicit arrack was kept or possessed by the appellant herein. No recovery was made from the direct possession of the appellant herein. There is some recovery from the plantation belonging to Harison Group. Even if the evidence of investigating officer is believed, what comes out is that the appellant herein who was an employee of Harison group was aware that such an article was present therein. A knowledge will not incriminate a person when there is no positive evidence to show that it was exclusively known to the appellant herein alone and knowledge is not a crime. When knowledge is not a crime and further when the recovery was from the plantation of Harison Group, naturally a conviction under Section 55(a) of the Abkari Act will not sustain. Further, the submission of the learned counsel is that admittedly, the prosecution got no case that he had manufactured even a millilitre of arrack. The only case **CRL.A.Nos. 288,340 & 592/2003 8** against the appellant is that he was only a possessor or receiver of illicit arrack from accused Nos. 2 and 3. When the prosecution case is that he was only a receiver of alcohol, a conviction under Section 55(i) will not lie against the appellant herein. It is submitted that without a charge under Sections 55(a) and (i), there was a conviction passed by the court below which prima facie prejudiced the appellant and it has to be set aside. It is also the submission that the incident occurred during 1996 period. Thus, considering Section 8(1) and (2) of the Abkari Act, the court should have itself restrained from convicting under Section 55(a) even if the elements of Section 55(a) is made out, when framing charge under the said section. Finally it is submitted before this court that the appellant is an aged man now aged more than 77 years and he has undergone a bye-pass surgery and can be considered as a totally laid up person. It is also the submission of the learned counsel that the appellant was also hospitalized. No intention or knowledge of mixing any noxious substance can be attributed under such circumstances. 4. Learned counsel for the second accused i.e. the appellant in Crl.Appeal No.288/2003 submitted before this court that the case against him **CRL.A.Nos. 288,340 & 592/2003 9** is that he is the person who manufactured the arrack. But, it is a fact that no positive evidence was adduced by the prosecution to show that he is the person, who manufactured the contraband. The learned counsel submitted that he is also convicted for an offence under Section 57(A) of the Abkari Act. As per the said section, there should be positive evidence to show that he either mixed the noxious substance or permitted to mix any poisonous substances which are likely to endanger human life or cause grievous hurt on human being in a liquor. Thus, the submission of the learned counsel is that there should be evidence that he is the person, who distilled or manufactured the liquor and further he mixed or permitted to mix a poisonous substance. When the case of the prosecution is that he got no employees, but he himself manufactured or distilled the arrack, there will be no question of permitting to mix the poisonous substance, but only point to be looked into is that whether there is any evidence to show that he mixed any noxious substance. Then the burden of the prosecution is to prove that he himself mixed the poisonous substance. There is nothing before the court to show that he, at any point of time, purchased any poisonous substance from any shop or from any person or there is nothing to show that he is the person, who handed over **CRL.A.Nos. 288,340 & 592/2003 10** the liquor to Accused No.1 Then, here is a case where there is practically no evidence to fasten the guilt upon this appellant for an offence under Section 57(A) of the Abkari Act. 5. Now, coming to the offence under Section 55(b) of the Abkari Act. The learned counsel submitted that as per the disclosure statement, there was a recovery of utensils and that was also from an estate. The submission of the learned counsel is that there is evidence in the case that he is an agriculturist by profession. When he is only an agriculturist by profession and when there is no evidence to show that taking illicit arrack by person of that area is only an ordinary affair, a knowledge that such an article of distillation will be therein cannot be equated with possession of the same. When there is no positive evidence regarding possession of the same or seized articles were actually belonging to the appellant herein, no presumption can be drawn under Section 64 of the Abkari Act and the appellant cannot be convicted for an offence under Section 55(b) of the Abkari Act. For the same reason, a conviction under Section 55(b) cannot be sustained against the appellant herein, when a conviction under Section 55(a) of the Abkari Act will not lie. Thus, the sum and substance of the submission **CRL.A.Nos. 288,340 & 592/2003 11** of the learned counsel is that a conviction is entered against him without any legal evidence, but only a moral conviction. 6. The learned counsel for the third accused, who filed Crl.Appeal No.340/2003 submitted before this court that without any legal evidence, based upon some hearsay evidence, a conviction was entered into against the appellant herein. The only evidence is that of PW7 that Accused No.1 told him that he purchased the same from Accused No.3. But, it can be only treated as a hearsay evidence and will not come under Section 6 of the Evidence Act. When there is a prosecution, one of the accused is making a statement that he committed the offence with the aid of another, that can be only treated as an accomplice evidence. When the weakness of the accomplice evidence is there, it cannot be treated as evidence as per Section 6 of the Evidence Act. When PW7 is excluded, practically there will be zero evidence against the appellant herein and actually the appellant herein is entitled for acquittal. It is also submitted that even though as per Exts.P29 and P30, as per the prosecution case, there was some recovery effected and the prosecution got a case that those are vessels used for manufacturing of arrack, there is no analysis report to substantiate the claim and further the **CRL.A.Nos. 288,340 & 592/2003 12** prosecution got no case that those utensils were seized from the house of the appellant herein and when the utensils are seized from a forest area, no exclusive possession can be fastened when there is no exclusive possession, a conviction under Section 55(b) of the Abkari Act cannot be sustained against the appellant. 7. Here is a case where four persons lost their life in a liquor tragedy. In respect of the said tragedy, prosecution registered a crime as FIR 181/1996 at Thenmala police station, Kollam for offences under Section 57 A of Abkari Act and further under Sections 272, 273, 307 and 34 of IPC. Thereafter, filed a report as Ext.P80 reporting that apart from already registered offences, appellants had committed an offence under Section 302 of IPC. Thus, after investigation a final charge was filed and on committal, Court of Sessions took cognizance. Then, the court on appearance of the accused, framed charge as follows : _“ That for getting more intoxiation to the arrack manufactured by A2 and A3 for having good sale during Deepavali time, A1 to A3 conspired together and mixed poisonous substance such as Aluminium Carbonate, Organo Phosphorus, Methyl Alcohol in the_ **CRL.A.Nos. 288,340 & 592/2003** **13** _arrack manufactured and made it poisonous and knowing that the person who consumes this arrack will be affected by illness and that may even cause their death, on 9/11/1996 at 3 p.m. At a place at the rubber estate, 150 metres towards the east of the estate road, on the eastern side of the office of the Divisional Forest Officer on the north-eastern side of the building No.63 and 6 metres 50 cm. towards the north-western side from the north eastern corner of the cattle shed of A1, A2 with the help of A2 and A3 supplied illicit arrack to CWs. 1 to 20 and four others and by the consumption of arrack those persons suffered illness such as loose motion, vomitting, abdominal pain and drowsiness and while undergoing treatment, Raju @ Pallivasar, aged 51 years S/o Muniswami died at Punalur Taluk Headquarters Hospital at 7 a.m. On 10/11/1996, Subrahmanian S/o Madanmuthu Aged 25 years died on 10/11/1996 at 10.30 a.m. at Medical College Hospital, Thiruvananthapuram, Mookkayya S/o Subbayya aged 40 years died at 4.40 p.m. on 12/11/1996 at the Medical College Hospital and Ayyapillai S/o Karuppaswami aged 65 years died on 15/11/1996 at 8 p.m. at the Medical College Hospital_ **CRL.A.Nos. 288,340 & 592/2003** **14** _and CWs 1 to 20 were suffering from severe illness and had to undergo treatment at the Taluk Headquarters Hospital, Punalur and Medical College Hospital, Thiruvananthapuram and thereby you had committed offence punishable U/s. 57(A) of the Abkari Act and 272, 273, 307, 302 r/w 34 of IPC, within the congnizance of this Court and I hereby direct that you be tried by this Court on the said charge.”_ 8. Investigating officer deposed before the court that he got information regarding the registration of crime in this case and immediately reached the Taluk Head Quarters Hospital. Witness recorded the statement of late Raju, Late Subramanian, Late Ayyapillai and late Mukkayya and also the statements of PW1, PW2,PW3, PW4 and PW6. Witness further deposed that he obtained permission of the Doctor to record the statement. Witness also deposed that when the statement was given, all the patients were conscious. The statements of the deceased were marked as Exts.P74 to P77. Witness conducted the inquest of the deceased Raju on 10.11.1996 and the said report is marked as Ext.P78. It is also deposed that the body of the deceased was forwarded to Medical College Hospital for postmortem. When the witness got information regarding the death of Subramanian, arrangements were **CRL.A.Nos. 288,340 & 592/2003 15** made to prepare the inquest report. Witness prepared the scene mahazar, which was identified as Ext.P29. Witness further deposed that the place of incident is “ A1 ന�� വക ക�ല����ഴ�ത�ന വടക� ക�ഴക� മ�ല ഭ�ഗത�ന�ന�� 6 മ�റർ മ���യ�ള A1 കകവശ� ഉള rubber ത��ട� ആണ.” Witness also deposed that Accused No.1 was staying near to the place of the incident. Witness also deposed that on that day, he also recorded the statement of witnesses including the statement of PW5. Witness also deposed that a report was filed to add Section 302 of IPC and the said report is marked as Ext.P80. Witness further deposed that on 10.11.1996 at about 5.30 p.m., accused No.1 was arrested from Rajakoop. Since, there was an injury on the left knee area and was seen tired, he was admitted at Punalur Government Hospital. Accused Nos. 2 and 3 were arrested at 6 p.m. from a place called Chenagiri. When Accused Nos. 2 and 3 were questioned, a statement was given and that was recorded. Accused No.1 was discharged on the next day and was arrested and then brought to the station. When he was questioned, he stated that “ **കനനസസസ അതതലലള ചനരനയവലസ ഒഴതച** glass **ഉസ ലയതതനടലതല rubber തതനടതതൽ പയർ കനടതൽ ഒളതചസ വചതടസണ .”** Along with the accused, they reached **CRL.A.Nos. 288,340 & 592/2003 16** at a place behind layam No.83 in the second division of Florence Division Estate. There was creeper undergrowth and from therein, in the presence of witnesses two cans, one having a capacity of 1 litre and other having a capacity of 3 litre and a glass tumbler were recovered through accused No.1 and handed over to the witness, which was seized as per a mahazar. The can and the glass were identified and marked as Mos. 2 and 3 respectively. Witness also deposed that when the can was opened and verified, it contained two litres of arrack and sample was collected from the same and the balance was sealed and seized. It was analysed and obtained a report as Ext.P82. He got an information that one Mukkayya as well as Ayyappillai died. The inquest report of Mukkayya is marked as Ext.P83. 9. Accused No.2 gave a confession statement/disclosure statement and distilling area was shown by the accused and a mahazar was prepared in this regard, which was marked as Ext.P28. The relevant portion of the statement recorded in Ext.P28 is marked as Ext.P28(a). From the said place, big and small mud pots and also a barrel were seized and he further deposed before the court that the place of incident is in the beat of reserved forest at Edappalayam. He also deposed before the court that at the place, he had **CRL.A.Nos. 288,340 & 592/2003 17** witnessed remainings of a place where fire was burnt in a stove (അട�പ%). The seized materials are marked as MO5 and MO6. Accused No.3 gave a disclosure statement to the effect that, if he is taken, he will show the pot and utensils used for distillation in Murikkangad forest. As he led, they reached at Edappalaym beat at Murikkangad forest and there was a barrel of wash and mud pot and also another pot were seized. A sample was taken from the wash. A mahazar was prepared in this regard and marked the same as Ext.P29. The relevant portion of the confession statement was marked as Ext.P29(a). The articles seized from therein was marked as MO8, MO9 and MO 10 series. When Accused No.3 was further questioned, he further gave a statement that if he is taken, he will show the place where arrack was distilled and as he led they reached at a place at Karikkalam bhagam and shown the place where arrack was distilled. From there also barrel as well as big and small mud pots were seized. A mahazar was marked as Ext.P29 and the relevant portion was marked as Ext.P29(a). The barrel was marked as MO11 and the pot is marked as MO12. He further deposed that on the bottom of the pot, there was a rubber tube seen fitted. 10. In this case, it can be seen that four persons died. The prosecution **CRL.A.Nos. 288,340 & 592/2003 18** case is that they died after consuming liquor containing poison. As the prosecution case is that death is due to liquor, which contained poison, an offence under Section 57(A) was charged against the appellants herein. Surely accused No.3, who filed Crl.Appeal No.340/2003 was not convicted for an offence under Section 57(A). 11. Now, let us examine what are the materials available to prove the alleged offence under Section 57(A) of Abkari Act. In this regard, the material documents to show death and cause of death are the postmortem certificates, chemical analysis report and other medical records. Exts.P31, P32, P33, P34, P36 and P38, P39 and P40 are the postmortem certificates. Ext.P31 is in respect of one Raju @ Pallivasar. Ext.P32 is the final report in respect of the said Raju. The opinion given therein is that there is no evidence of natural disease or violence to account for death. Chemical examination did not r **e** veal any poison. However, possibility of death due to poisoning cannot be ruled out. Similarly, in the case of Subramanian, Ext.P33 is the postmortem certificate, whereas Ext.P34 is the final opinion. But, therein it is opined that postmortem appearances are consistent with death due to poisoning. Exts.P36 and P38 are the postmortem report and the final ## **CRL.A.Nos. 288,340 & 592/2003 19** opinion respectively in respect of Ayyappillai. There the final opinion was given as postmortem appearances are consistent with death due to poisoning. Exts.P39 and P40 are postmortem certificates and final opinion in respect of Mukkayya wherein the final opinion is postmortem findings are consistent with death due to poisoning. 12. A strong argument is advanced by the learned counsel for the first accused that when there is no detection of poisoning, it cannot be positively opined that the death was due to poisoning. PW17, PW18 and PW19 are the the Doctors, who conducted the postmortem. On a perusal of their evidence before the court, it will reveal that they gave evidence in tune with the certificates issued by them as already mentioned above. Surely, at the first blush, it can be seen that in a huge tragedy where four persons died, it can be seen that a variation of opinion by the Doctors, who conducted the postmortem i.e. the doctor, who conducted postmortem of Raju categorically stated that chemical examination did not reveal any poison. However, possibility of death due to poisoning cannot be ruled out. The other Doctors' opined that postmortem findings are consistent with death due to poisoning. In this case, the relevant aspect to be considered is regarding the evidence of ## **CRL.A.Nos. 288,340 & 592/2003 20** Doctors, who treated the deceased except Raju from Medical College Hospital, Thiruvananthapuram. Exts.P52, P53 and P54 are the case sheets relating to the deceased persons. Ext.P52 relates to Subramanian and Ext.P53 relates to Ayyappillai whereas Ext.P54 relates to Mukkayya. On a perusal of these documents will reveal that internal clinical investigation was conducted as part of the treatment, wherein in the case of Subramanian, sample of blood and urine was collected and sent for investigation and reported that the given sample shows the presence of alcohol and organo phosphorus compounds. In the case of Mukkayya, the case sheet Ext.P54 revealed that organo phosphorus compounds and methanol present in the given sample. In the case of Ayyappillai the case sheet, Ext.P53 revealed that the sample shows the presence of methanol and organo phosphorus compounds. 13. PW23 is the Associate Professor of Medicine at Medical College Hospital, Thiruvananthapuram and as authorized by the Superintendent of Medical College, he produced the case sheets which were marked as Exts.P51 to P54 referred above. He further deposed before the court that one Dr.Rajeswary Ammal was the Doctor, who attended the cases and he further deposed that she was the Head of Unit M3 on that day and the Doctor was **CRL.A.Nos. 288,340 & 592/2003 21** already retired from service. What comes out is that the documents were produced from the Medical College Hospital and as per Section 35 of the Evidence Act “any entry made in public or other official book, register or record or an electronic record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty” is a relevant fact. Thereon, the said documents i.e. the case sheets can be a relevant document in appreciation of the evidence of the doctors, who conducted postmortem and gave evidence to the effect that the death was due to poisoning. When Exts.P1 to P54 are available and therein there is an entry to the effect that Methanol as well as organo phosphorus compound were detected, there is nothing to disbelieve the evidence of the Doctors, who conducted the postmortem of Subramanian, Ayyappillai and Mukkayya that they died due to liquor poisoning. 14. The next point is regarding how far the prosecution proved the involvement of the appellants herein in respect of the death of the above persons. Surely, an array of persons, who were treated in the hospitals were examined before the court. PW1 was treated in Government Hospital at Punalur for 13 days. He deposed before the court that he consumed illicit **CRL.A.Nos. 288,340 & 592/2003 22** arrack and thereon the symptoms of loose motion, vomiting and stomach pain appeared. Similarly PW2 also gave evidence to the effect that after consuming arrack, he started to sweat and thereafter there was vomiting and loose motion. Thereon, he was treated in the hospitals, first at Punalur Government Hospital and thereafter at Medical College Hospital, Thiruvananthapuram for 19 days. PW3 also gave evidence that he was under treatment for 20 days after consuming illicit arrack. He was also having symptoms of headache, stomach pain and vomitting. PW4 was also having the very same symptoms after consuming illicit arrack and was treated in the hospital for ten days. PW5 also deposed that he consumed illicit arrack and treated for 8 days. He was also having the very same symptoms after consuming the illicit arrack. PW6 also consumed illicit arrack and was in the hospital for treatment for the very same symptoms for ten days. PW7 also deposed that he consumed illicit arrack and thereafter he was in the hospital at Punalur as well as in the Medical College Hospital. He was also having the very same symptoms after consuming the illicit arrack. PW8 also deposed that he was treated for the very same symptoms after consuming alcohol. He was treated for a period of 11 days. PW9 deposed that he was **CRL.A.Nos. 288,340 & 592/2003 23** treated in the hospital for the very same symptoms. PW10 deposed before the court that he also consumed illicit arrack and had the very same symptoms as stated earlier and treated in the hospital for 11 days. PW11 consumed illicit arrack and due to very same symptoms as stated earlier, he was treated in the hospital. Thus, it can be seen that here is a case where not only death but also persons suffered a lot after consuming illicit arrack and by treatment in the hospitals. 15. The next aspect to be considered is how far the involvement of these appellants are proved by the prosecution by adducing cogent and reliable evidence. PW1 deposed before the court that he consumed alcohol from accused No.1. He categorically deposed before the court that he consumed alcohol on the eve of Deepavali and in the afternoon he had the symptoms as stated above. He deposed before the court that he consumed alcohol from a place near to the cow shed of accused No.1 and thereafter he deposed that “ A1 ച�ര�യ� വ�ങ� വ�ല*ന നടത�യ�ര�ന�. A1, A2 ൽ ന�ന�� . വ�ങ�യ��ണ എന� *�ഞ�” Surely he got a further case that charge witnesses and one Subramanian told him in this regard. The learned counsel for the appellant submitted before this court that a plane reading of the **CRL.A.Nos. 288,340 & 592/2003 24** evidence will give an impression that the persons CW5, accused No.2 and CW3, who came to consume alcohol stated him that about two days prior , accused No.2 gave the arrack. If accused No.2 is one among the person, who came to consume alcohol, naturally this is not a believable story presented by the prosecution. 16. I very carefully perused the evidence tendered by PW1. The evidence is as follows : “ A1 ച�ര�യ� വ�ങ� വ�ല*ന നടത�യ�ര�ന�. A1, A2 ൽ ന�ന�� . A1 ന ച�ര�യ� 2 A1 ന ച�ര�യ� വ�ങ�യ��ണ എന� *�ഞ� ദ�വസ� മ�ൻപ A2 �ക�ട�ത��യ� എതന��ട�പ� ക�ട�ക�ൻ വന CW5 ഉ� A2, CW3 ഉ� മ���� . " *�ഞ� സ�ബ3മണ5ന�� *�ഞ� 17. It can be only read as CW5 was along with him when he went to consume alcohol. But the other persons, who told him regarding the same are accused No.2, CW3 and one Subramanian. He also deposed before the court that while he was taken to the hospital, he came to know that there are so many persons came therein for treatment, who were all consumed illicit arrack from A1. During cross examination, this aspect is seen clarified by his evidence that “ ഞ�ൻ ക�ട�ക�തമ�ൾ CW5 ഉ� മരണ�പട സ�ബ3മണ5ന�� മ�ബ�തമ **CRL.A.Nos. 288,340 & 592/2003** **25** n " ഉണ�യ ര�ന�ള: . Thus, it can be seen that there cannot be the presence of accused No.2 and accused No.3 along with him to consume alcohol. 18. Thus, the legal question is that how far the evidence of this witness regarding the involvement of accused No.2 can be relied. Surely, he gave evidence on oath that accused No.1 told him that accused No.2 supplied arrack to accused No.1. This may be admissible under Section 6 of the Evidence Act. But, still, it is to be remembered that it is a case where prosecution has adduced evidence that accused No.1 told him that the illicit arrack was supplied by accused No.2. 19. I perused Ext.P1 to see whether this version took place in the earliest version. There it was only stated that “ തവല�യ�ധൻ സ�ര� ന�ടൻ . ച�ര�യ� വ�ല*ന നടത�ന ആള�ണ അവ��ട അട�ത�ള ധർമന�� ത?�ർജ�� വ����ന ച�ര�യമ�ണ തവല�യ�ധൻ �ക�ണ% വന� വ�ൽക�നത" . Thus, surely at the earliest point of time this witness got a case that the first appellant was selling arrack distilled by one George and Dharman. But, he had not stated that accused No.1 accused No.2 ൽ ന�ന�� hm ങ�യ���ണന% *�ഞ�. It is relevant to note that knowledge of informant that first accused is getting arrack from one Dharman and George is seen stated therein. As already **CRL.A.Nos. 288,340 & 592/2003 26** stated, there were an array of witnesses, who were hospitalized but not died. Pws 2 to 11 deposed that they all consumed illicit arrack from accused No.1. As already stated, as per the evidence of PW1 he got a case that Accused No.1 received arrack from accused No.2. But the said fact is not seen stated when he gave the F.I.Statement. As per the evidence of PW7, he consumed alcohol from accused No.1 and accused No.1 told him that it was supplied by accused No.2 and accused No.3. But he further added that he is not aware whether accused No.2 and accused No.3 were having illicit distilling. 20. This is the main oral evidence adduced by the prosecution in this regard by independent victims. Surely, this is not a case where the injured witnesses can be treated as accomplice witness only because they were also a part of an illicit act by getting illicit arrack which was a banned item during the relevant point of time and consumed the same. Further, the evidence adduced to link accused No.2 and accused No.3 is recovery of the implements for distillation. The accused No.3 was acquitted for an offence under Section 57(A) of IPC. Surely, it cannot be presumed or assumed that both the accused Nos. 2 and 3 simultaneously mixed methyl alcohol or organo phosphorus material and as such illicit arrack was supplied. It is also **CRL.A.Nos. 288,340 & 592/2003 27** relevant to note that ordinarily methyl alcohol will not be present. When arrack was illicitly distilled, there is a chance for the presence of methyl alcohol, but only in minute traces, even if the wash was kept in wooden pots for a long period. When methyl alcohol present caused the symptom of diminution of vision, as deposed by the witnesses, the percentage of the same will not be minute traces. Under such circumstances, it can be only considered as there was mixing of methyl alcohol to illicit arrack. Organo phosphorus compounds also will not be ordinarily present when illicit arrack is distilled and collected. It also has to be added. 21. As already stated, even though all the appellants herein faced a charge for an offence under Section 57A of the Abkari Act r/w Section 34 of IPC, the 1[st] and 2[nd] appellants alone was convicted for an offence under Section 57A of the Abkari Act. There was no finding of the court below to the effect that the 1[st] and 2[nd] accused with a common intention mixed the noxious substance. 22. In a prosecution under Section 57A of the Abkari Act, a presumption is available in favour of the prosecution. Sec 57 A(5) is relevant in this aspect. **CRL.A.Nos. 288,340 & 592/2003** **28** _57A(5) Notwithstanding anything contained in the Indian Evidence Act,1872 (1 of 19872),-_ _(a) where a person is prosecuted for an offence under subsec (1) or sub-sec (2), the burden of proving that he has not mixed or permitted to be mixed or, as the case may be, omitted to take reasonable precautions to prevent the mixing of, any substance referred to in that sub-section with any liquor or intoxicating drug shall be on him._ _(b) where a person is prosecuted for an offence under subsection (3) for being in possession of any liquor or intoxicating drug in which any substance referred to in sub-section (1) is mixed, the burden of proving that he did not know that such substance was mixed with such liquor or intoxicating drug shall be on him._ In this case as already stated the offence shown in the charge is 57A(1) ## alone. 57(A)(1) state as follows: _Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable-_ _(i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;_ **CRL.A.Nos. 288,340 & 592/2003** **29** _(ii) If, as a result of such act, death is caused to any person, with death or imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;_ _(iii) in any other case, with imprisonment for a term which shall not be less than one year, but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees._ 23. Thus, what comes out is that, in a prosecution like this, the burden to show that the accused has not mixed or permitted to be mixed or as a case is on the accused. Now, in this case what are all the evidence adduced by the prosecution to show that he has committed an offence under Section 57A of Abkari Act relevant to be considered. 24. In this case as already stated there is evidence that PW1 to PW7 consumed alcohol. The main prosecution witnesses are the persons who consumed alcohol and who were affected with the poison/toxin in the liquor and as a consequence of the same, hospitalized. Here is a case where the witnesses got a case that they were a party to an illegal activity, wherein A1 sold illicit arrack and the witnesses herein consumed the same by purchasing the illicit arrack. Thus, among the said witnesses, apart from deposing that **CRL.A.Nos. 288,340 & 592/2003 30** they consumed illicit arrack from A1. PW1 got a specific case that while consuming alcohol, A1 told him that he purchased the same from A2. Even though, while giving the evidence in chief he deposed that he came to know about the sale of arrack by A2 to A1 from A2, CW3 and CW5. During crossexamination, he deposed that he was not aware of the illicit distillation of arrack by A2 and he came to know about it as A1 told him. There is nothing to disbelieve the evidence of PW1 to PW7 regarding the purchase of arrack from A1. It is an evidence wherein their involvement in purchasing is also deposed too. Now, let us examine the status of these witnesses, who happened to be therein only to purchase illicit arrack. Only because they happened to be therein to purchase illicit arrack, they heard A1 saying that he got it from A2. PW7 deposed that A1 told him that he got arrack from A2 and A3. That aspect will be dealt with later. As already stated, the question to be considered is that whether the witnesses herein can be considered as accomplice witnesses. As per Section 133 of the Evidence Act, it is stated as follows: _An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it_ **CRL.A.Nos. 288,340 & 592/2003** **31** _proceeds upon the uncorroborated testimony of an accomplice._ 25. Surely, this court can act upon the uncorroborated evidence of an accomplice. There also the question is that whether this witnesses can be treated as accomplice witnesses. Ordinarily, an accomplice is a person who participate in the commission of the actual crime charged against the accused. Approver is a typical accomplice witness. An accomplice can be considered as a person directly or indirectly concerned or present and involved in the offence. In this case, what we can see is that, as per the prosecution case, A1 was an illicit arrack vendor. Other witnesses are going therein to purchase the illicit arrack. The witnesses including the accused was hospitalised for liquor poison. Thus, what comes out is that the common element in all these persons are poisoned liquor. The supply of poisoned liquor was the reason for A1, A2 and A3 now facing the trial. The sale of arrack was prohibited under the Abkari Act. A consumption of arrack cannot be made without even temporary possession of the same. Thus, what comes out is that the accused will be transferring a banned article to the witnesses for consumption and immediately before consuming the same, the banned arrack will be in the possession of the witnesses and thereby they can be only considered as **CRL.A.Nos. 288,340 & 592/2003 32** accomplice witness. When witnesses can be only considered as accomplice witnesses, then Section 133 of Evidence Act will come into play. But at the very same time, it is also relevant to note that Section 114 (b) of the Evidence Act, wherein it is stated that: xxxx 114(a) 114(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars: 26. As per Section 133 of the Evidence Act, as I have already highlighted the witnesses are competent witnesses and even a conviction can be had on the uncorroborated testimony. But as already highlighted under Section 114(b) _prima facie_ they are unworthy witnesses. Now, let us examine, the nature of the witnesses in this case. Surely, when considering the facts of the case, what comes out is that, the witnesses are not sharing the elements of _mens-rea_ as that of a accused, who was selling the same. What this court is highlighting is that, a consumer of an illicit arrack will not be having prick of conscious, while consuming alcohol from an illicit arrack vendor. But, still the category to which he can be termed is an accomplice witnesses. When the witness is coming under a group, which can be termed **CRL.A.Nos. 288,340 & 592/2003 33** as an accomplice witness, but there participation in the crime is only a marginal one, the reliability of such a witnesses will be very high. 27. Now, let us examine the nature of the evidence tendered by the witnesses. The case of PW1 to PW11 is that they consumed alcohol from A1, this aspect can be believable especially when as per the stand of A1 during 313 is that, on the eve of Deepawali, there was a group of persons assembled near a water tank in the rubber estate and he was also invited and from therein he consumed arrack. 28. Thus, in the statement of the A1, A1 got a case that he consumed alcohol and he was admitted in the hospital. There is also evidence to the effect that he was treated by the doctor for liquor poisoning. The persons who are affected by liquor poisoning was not taken to the hospital from the spot, but from different time and from different places. PW1 to PW11 deposed regarding how they were taken to the hospital. Under such circumstances, when A1 is not giving a possible or reliable explanation regarding how he was liquor poisoned and when other witnesses are pointing to A1 regarding supply of arrack, it can be only said that the evidence of PW1 to PW11 that A1 supplied illicit arrack is believable. Surely, I have already **CRL.A.Nos. 288,340 & 592/2003 34** highlighted that all these witnesses are accomplice witnesses and further more it is also highlighted that all their evidence can be accepted. Ordinarily, there will be only one or two accomplices. But in this case, by the nature of the offence, it can be seen that there were an array of witnesses deposing regarding the supply of arrack by A1, which are mutually corroborated. When the evidence of the accomplice witness are mutually corroborated, then there is nothing to doubt the veracity or reliability of the said witnesses regarding the evidence that A1 supplied the arrack by which they had liquor poisoning. 29. The next point to be considered regarding how far the evidence of PW1 and 7 can be relied upon in respect of the _res gastae_ they had deposed too. It is the stand of the prosecution that it will come under the category of _res-gastae._ In _**Javed Alam v. State of Chattisgarh and Another [2009 KHC 698:2009(6) SCC 450:2009(8) SCALE 68, in Para 13, our Apex Court relying upon Gentela Vijayavardhan Rao v. State of Andra Pradesh, 1996 KHC 965 : 1996(6) SCC 241 : 1996 SCC (Crl) 1290,**_ It was held that Section 6 of the Evidence Act is an example where non admissible evidence is made admissible. The test for applying the rule of the _res-gastae_ is that the **CRL.A.Nos. 288,340 & 592/2003 35** statement should be spontaneous and should form part of the same transaction ruling out any possibility of concoction. 30. In this case, the question is that whether it can be considered as in the very same transaction. As the facts in the case is that, at the time of consuming of illicit arrack, the witnesses will not have any apprehension that the liquor going to be consumed is poisonous. As per “In the law of Evidence” 24[th] edition, Dr. Shakeel Ahamed Khan in page 232, it is stated that Sir. James Stephen defined the term 'transaction' as a group of facts so connected together as to be referred to by a single name, as a crime, contract, a wrong or any other subject of enquiry which may be in issue. By quoting tailor, it is also highlighted therein that transaction includes everything that may be firmly considered as an incident of the event under discussion. Thus, it can be seen that the crux of the case that the supply of poisoned arrack originates from sale of the arrack by the accused to the witnesses. In the preceding paragraphs, I have already believed the evidence in this regard. When the evidence in this regard is believed, it can be only said that it is during the same transaction it was told to PW1 and PW7 by A1 that it was supplied by A2. When it comes under the category of _res- gastae,_ it can be **CRL.A.Nos. 288,340 & 592/2003** **36** only said that it is an admissable evidence. 31. In this case, it is already found that it is an admissable evidence. But two facts are there: it is admissable only because it is _res-gastae_ and the witnesses, who were disposing the same are accomplice witnesses. The next question is regarding how far their evidences are seen corroborated. If the corroboration is believable, how far their complexity in the case can be believable. Surely, in the case of 1[st] accused when there is evidence to show that the poisoned arrack handed over by him to the witnesses, there is evidence regarding the possession of the arrack mixed with toxious substance by A1. Thus, the A1 will be burdened to show that he was not mixed the same. As already stated, while he was questioned under Section 313 of Crpc, he got no case that he obtained the same from A2 or A3. The only evidence against A2 and A3 is the evidence of two witnesses in respect of A2 whereas one witness in respect of A3. The independent corroboration of this evidence highlighted by prosecution is the recovery of utensils. Both A2 and A3, after arrest made, disclosure statement and on the basis of such disclosure statement, utensils were recovered. Both recoveries are from forest area. It is not in a concealed state but open areas from where there was evidence to **CRL.A.Nos. 288,340 & 592/2003 37** show that distillation was conducted. In the case of A3, there was also seizure of wash . In all these cases, there is nothing to show that there was any seizure of actual arrack from the place. How far the recovery can be used to corroborate the evidence of the accomplice witness/witnesses is the question to be considered. Prosecution not adduced any evidence to show that the articles allegedly seized was actually belonging to accused nos. 2 and 3. 32. I very carefully examined the stand of A2 and A3, while answering the questioning under Section 313 of CrPC, in respect of the recoveries. There was a total denial alone. They got no case that they had shown the place as they were aware of the fact that some distillation was going on therein or they have only knowledge about such a place. Now, the fact that they were aware of the place of distillation is seen proved by the recovery of the utensils by PW25. The legal presumption that can be drawn is that the place of distillation came to the knowledge of the investigating officer on an information passed by the accused. That much can be relied upon. There is another set of evidence before the Court regarding the fact that A1 told them that A2 sold the arrack to A1. At the same time, it is to be **CRL.A.Nos. 288,340 & 592/2003 38** remembered that at the earliest point of time, PW1 not stated to the police that A1 got arrack from any other person. It is also relevant to note that there is no actual recovery from the possession of A2 and A3. There is only a discovery as per Section 27 of Evidence Act. The question is that whether it can be positively said that the arrack was supplied by A2 or A3 and said arrack was actually involved in this case. It is to be remembered that, A3 was acquitted for an offence under Section 57 A of the Abkari Act. PW7 got a case that A2 and A3 supplied arrack to A1 whereas PW1 only got a case that A2 supplied arrack. If the arrack contained poison was mixed in the arrack supplied by A3 alone then the conviction for an offence under Section 57A against A2 will not lie, because benefit of doubt can be given under such circumstances. Thus, the conviction under Section 57A found against A2 is hereby set aside. Now, the next question is regarding how far the conviction under Section 55(a) of the Abkari Act against A1 to A3 will survive. Surely, 57A can be committed only once the offence under Section 57(a) is therein. But the prosecution failed to prove that A1, A2 and A3 jointly prepared, transferred and sold the poison containing arrack or jointly mixed the arrack. A presumption under Section 64 of the Abkari Act can be drawn only when **CRL.A.Nos. 288,340 & 592/2003 39** there is evidence of possession. In this case, there is only a recovery of utensil and wash under Section 27 of Evidence Act. As already stated, it can at the most shows that A2 and A3 are having the knowledge that such places are therein. It cannot be equated with possession as long as such links are not therein. 33. Thus, the conviction passed against A2 and A3 against all the heads of charges are hereby set aside and they are acquitted. The conviction and sentence passed against A2 and A3 are hereby set aside and the bail bond stand cancelled. The conviction of accused No.1 under Section 57 (A) of the Abkari Act as well as under Section 55(a) and 55(i) of the Abkari Act are hereby upheld. The sentence imposed is also upheld. The sentence shall run concurrently. **Sd/-** ## **K.P.JYOTHINDRANATH** rk/sv ## **JUDGE** **//TRUE COPY// PA TO JUDGE**