HaneeFa @ Turki Haneefa v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 27TH DAY OF NOVEMBER 2012/6TH AGRAHAYANA 1934 CRL.A.No. 825 of 2001 (B) ------------------------SC.127/1996 of I ADDL.DISTRICT COURT, ERNAKULAM APPELLANT(S): ------------ HANEEFA @ TURKI HANEEFA, S/O. HANEEFA, VIGMENT MANSIL, KOMBARA MARKET, FORT KOCHI, KOCHI TALUK BY ADV. SRI.M.SAJJAD RESPONDENT(S): -------------- STATE OF KERALA REPRESENTED BY THE THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADGP SRI. K.I. ABDUL RASHEED PUBLIC PROSECUTOR SRI. P.M. SANEER THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2711-2012, ALONG WITH CRA. 826/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## N.K. Balakrishnan, J. ................................................. ## **Crl.Appeal Nos. 825/2001 and 826/2001** .................................................. Dated: 27-11-2012 ## JUDGMENT Accused No. 1 and 13 in S.C. No. 127/1996 of Sessions Court, Ernakulam, are respectively the appellants in Crl.A. No. 826/2001 and Crl.A. No. 825/2001. 16 accused persons were charged for offences under Sections 302, 272, 326, 328 and 201 read with Sec. 109 and 34 I.P.C. Though there were 16 accused persons, four out of them died and so only twelve persons faced trial. A1 and three others were convicted for offences punishable under Section 304 Part II of I.P.C. and also under Sections 328, 272 and 201 of I.P.C. Accused No. 13 and 16 were convicted as abettors of the offences under Section 304 Part II of I.P.C. and also for offences under Secs. 328 and 272 read with Sec. 109 of I.P.C. Accused No. 1 was sentenced **Crl.Appeal Nos. 825/2001 and 826/2001** -:2:- to R.I. for 10 years each for the offence under Sec. 304 Part II and 328 read with 34 I.P.C. She was also directed to undergo lesser sentences for the other offences. A13 was sentenced to R.I. for 10 years each for the offence under Sec. 304 Part II and 328 read with Sec. 109 and 34 I.P.C. He was sentenced to R.I. for six months for the offence under Sec. 272 read with Sec. 109 and 34 I.P.C. 2. This is another case of hootch tragedy. It took place on 20-10-1995. 14 persons lost their lives and so many other persons sustained very serious injuries by consuming methyl alcohol. 3. The gist of the prosecution case is stated thus:While A15, CW 167 (Charley – who was not examined) and others were fishing in deep sea they found a barrel measuring 200 litres floating on the surface of water. They took it to their fiber glass boat and it was taken to Beypore seashore and unloaded it there. The liquid contained in the barrel was poured into 4 cans each having a capacity of 35 ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:3:- litres. 2 such cans containing the aforesaid liquor were taken in a boat to Kochi. A3 is the brother of A1 and is the son of the 2nd accused. The prosecution contended that the whole family of A1 was notorious for bootlegging. On 19-10-1995 and 20-10-1995 the liquor which was brought to Kochi in two cans measuring 35 litres was diluted and sold it to their usual customers and other persons knowing fully well that it was methyl alcohol and also with the knowledge that by the consumption of methyl alcohol death of the persons who consume the same is likely to occur. The evidence would show that from the house of A1 (Smt. Jeena) the aforesaid liquor/methyl alcohol was sold by herself and also by her employees/servants to various persons. Because of the noxious character of methyl alcohol which was endangering human life, most of the persons who consumed methyl alcohol felt uneasiness and were taken to the hospitals. Fourteen out of them died. So many other persons sustained very serious ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:4:- injuries. F.I.R. was registered. The investigation was conducted and charge sheet was laid against the accused. 4. 96 witnesses were examined and Exts. P1 to P167 were marked. Besides, MO1 to MO46 were identified and marked. The accused persons adduced no evidence on their side. 5. The learned Sessions Judge after a detailed consideration of the entire evidence adduced on the side of the prosecution and the arguments advanced on behalf of the accused found that 14 persons died due to the consumption of methyl alcohol. It was also found that so many other persons sustained very serious injuries. It was found that the accused had no intention to cause the death of the persons who consumed the liquid/methyl alcohol but they had the required knowledge that by consuming methyl alcohol the persons who consume the same are likely to die and so they were found guilty of the offence punishable under Sec. 304 Part II of I.P.C. It was further found that **Crl.Appeal Nos. 825/2001 and 826/2001** -:5:- the accused persons had caused the deceased and injured persons to consume the unwholesome drug/methyl alcohol knowing it to be likely to cause hurt and accordingly, the aforesaid accused persons were found guilty of the offences under Section 328 I.P.C. as well. It was found that the accused had caused disappearance of evidence of offence and so they were found guilty of the offence under Sec. 201 read with 34 I.P.C. as well. Since A13 and other accused persons had abetted the commission of the offences as above they were held guilty of the offfence as above with the aid of Sec. 109 of I.P.C. Since it was found that the accused had the knowledge that the liquid which was brought to Kochi in two cans measuring 35 litres each contained noxious substance; namely; methyl alcohol and since it was sold by adding water in it and making it dilute they were also found guilty of the offence under Sec. 272 I.P.C. 6. The learned counsel for the first accused would ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:6:- submit that even according to the prosecution the first accused and her family members are notorious bootleggers and they used to sell spurious liquor. Since that was the course of conduct of their business and as there is no other evidence to show that the accused had opportunity to know that the liquid contained in the two cans was methyl alcohol or any such noxious substance, it cannot be found that she is guilty of the offences under Sec. 304 Part II and 328 of I.P.C. The learned counsel also submits that there is no legal evidence to show that the liquor was in fact sold by A1. It is further argued that even if it is accepted that A1 had in fact sold the spurious liquor, it can only be said that she did not take reasonable care and diligence and so her act would, if at all, attract only an offence under Sec. 304 A I.P.C. and not an offence under Sec. 304 Part II of I.P.C., for, there is nothing on record to show that any such knowledge required to attract an offence of culpable homicide can be imputed to the appellant, especially **Crl.Appeal Nos. 825/2001 and 826/2001** -:7:- because even according to the prosecution, she has been conducting business in illicit liquor, for quite a long time. It is further argued that had she the required knowledge or opportunity to know that the liquid contained in the plastic cans was methyl alcohol it would not have been sold by her to her own workers who also happened to consume, some of whom happened to die in the incident. Therefore, according to the learned counsel Mr . Ralph, there is nothing to show that A1 had the knowledge that it was methyl alcohol, which is a noxious substance. 7. The learned counsel for A13 would submit that it was A15 who sold the noxious substance to A3 and others whereas the allegation against A13 is that he had helped A15 for the sale of the same but A15 was acquitted by the trial court and so it is inconceivable how A13 can be found guilty when the allegation is that he only helped A15 in the sale of the alleged noxious substance . 8. The inquest reports and the post mortem **Crl.Appeal Nos. 825/2001 and 826/2001** -:8:- certificates pertaining to the 14 persons who succumbed to the noxious effect of the methyl alcohol consumed by them would prove positively that those 14 persons died because they consumed methyl alcohol. The evidence to that effect given by the doctors who conducted the postmortem examination and the post mortem certificates and also the inquest report and other documents are beyond challenge now. The wound certificates pertaining to other injured persons who sustained serious injuries in the incident and also the viscera contents and blood of the deceased and other persons which on examination was found to contain methyl alcohol, also would clinch the issue that 14 persons happened to die because they consumed methyl alcohol. It is also beyond any pale of doubt that other persons sustained serious injuries in the incident as they consumed methyl alcohol. These aspects are not in dispute now. 9. PW11 and his former statement Ext. P151 (the statement given to the Magistrate) which was corroborated **Crl.Appeal Nos. 825/2001 and 826/2001** -:9:- by P.W.42 would clearly show that A1 herself had sold the illicit liquor /methyl alcohol to P.W.11, 44 and so many other persons. Other witnesses have also deposed that the spurious liquor was sold from the house of A1 either by A1 herself or by her employees. The actual role of A1 in the sale of the spurious liquor was spoken to by P.W.11, 13,17,19,36 and 42. 10. The main argument advanced by the learned counsel for A1 is that the evidence adduced by the prosecution is not sufficient to show that A1 had the knowledge that it was a spurious liquor or that it was noxious to health and if there is no evidence to show that she had the required knowledge that by consumption of that liquor death was likely to occur then she cannot be found guilty of the offence under Section 304 Part II **.** According to the learned counsel, since the liquor was not manufactured or was got imported or brought to the place from other illicit distillery by A1 it cannot be said that A1 **Crl.Appeal Nos. 825/2001 and 826/2001** -:10:- had the knowledge that it was methyl alcohol. **11.** It is also argued on behalf of A1 that since the evidence is to the effect that A1 to A4 were indulged in illicit liquor trade, they will not do anything which would affect their business prospects and so, had they the knowledge that the liquor contained in it Methyl Alcohol, then certainly they would not have sold it to the customers since if something wrong happens to their own customers that will badly affect their business. Hence, that also is projected by the appellant (A1) to bolster up the plea of absence of knowledge. In other words, according to the appellants there was no reason to believe that the liquid contained methyl alcohol and that was why the liquor was sold to the workers/employees of A1 also. 12. The evidence is to the effect that a barrel was seen floating on the sea and so it was brought to Beypore from where it was taken to Kochi in four cans of a capacity of 35 litres each. Out of the 4 cans two cans containing **Crl.Appeal Nos. 825/2001 and 826/2001** -:11:- 35 litres each were brought to the house of A1. The appellant (A1) contends that she had no knowledge that it was spurious or illicit liquor. The common course of conduct would compel a man of ordinary prudence to know and ascertain whether the liquid contained in the can was licit or genuine liquor; not endangering life. There was no occasion for A1 to presume that it was a licit or a consumable liquor. The contention that A1 had supplied the liquor even to her workers cannot in any way help her to contend that she had no knowledge as to the noxiousness of the liquid. Mere plea or argument that she had no knowledge of the spurious nature of the liquor cannot absolve her liability. Knowledge is also a state of mind; it has to be inferred or gathered from the proved facts and circumstances obtained in the case. 13. Mr. Ralph the learned counsel for A1 would strenuously argue that the contention raised by the appellant is that the act complained of was purely **Crl.Appeal Nos. 825/2001 and 826/2001** -:12:- accidental and not intentional but that contention raised by the appellant was not properly adverted to by the learned Sessions Judge. The argument is based on Sec. 15 of the Evidence Act which says that when there is a question whether the act was accidental or intentional or done with a particular knowledge or intention the fact that such act formed part of a series of similar offences in each of which the person doing the act is concerned is relevant. The learned counsel submits that even according to the prosecution, A1 is a notorious bootlegger and so it is an undisputed fact that A1 was engaged in the sale of liquor and when death happened because liquor was consumed by such persons, it can only be said that there was no intention or that it was done with a particular knowledge since she used to sell liquor as part of her illicit business and so the death that happened by consuming liquor can only be termed as accidental. 14. The learned Public Prosecutor submits that A1 **Crl.Appeal Nos. 825/2001 and 826/2001** -:13:- was a notorious bootlegger. Her contention that she could not have had the required knowledge that the act of sale of such spurious liquor would endanger human life cannot be sustained. It cannot be accepted that there was only absence of reasonable care or diligence so as to attract an offence under Sec. 304A only. The learned Public Prosecutor would further submit that the accused who used to sell illicit liquor cannot take advantage of his own act or notoriety to contend that because of such notoriety, the act complained of would only be treated as an accidental or less serious one attracting only an offence under Sec.304A I.P.C. 15. The learned Public Prosecutor has relied upon the decision of the Apex court in **Chandran @ Manichan @ Manian v. State of Kerala – AIR 2011 SC 1594.** But the learned counsel for the appellant has pointed out that the aforesaid decision has no application to the facts of this case since in that case there was evidence to show that the ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:14:- accused either by himself or through his employees had mixed up or added substances endangering human life . Sec. 57 A of the Abkari Act was considered by the Supreme Court in that case. The learned counsel for the appellant submits that in this case the appellant had not mixed up or added any noxious substance into the liquid or added any such substance in the liquid which was in the two cans of 35 litres each . The facts dealt with in **Chandran's case** are entirely different. In that case there was evidence in abundance to show that such noxious substances were brought by the accused through his employers or workmen and mixed up the same with alcohol, toddy etc. It is pointed out that when standard and healthy alcohol in the form of liquor is not available or is too costly for a common man, especially persons who are addict to alcohol, such sections of the society goes for illicitly distilled or manufactured liquor which is sold by bootleggers and that in this case also such easily vulnerable section of the ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:15:- society, prone to consume such spurious liquor, was exploited by the first accused with the help of other accused persons. The conscious act of such a bootlegger cannot be termed as mere accidental so as to hold that the offence would fall only under Sec. 304 A I.P.C. The evidence and circumstances would clearly show that the accused had the required knowledge that it was not a pure liquor but there was sufficient material to hold that the Ist appellant had the knowledge that the liquid was a spurious liquor, the consumption of which was dangerous to human life. Therefore, the argument vehemently advanced by Sri. Ralph the learned counsel for the appellant (A1), cannot be accepted, the prosecution contends. 16. The appellant contends that she had no reason to believe that the liquid sold by her was methyl alcohol or a liquor containing in it any noxious substance. Sec. 26 of I.P.C. says that a person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not **Crl.Appeal Nos. 825/2001 and 826/2001** -:16:- otherwise. The learned counsel emphasizes the word "has sufficient cause" which would mean that mere existence of a "sufficient cause" is not enough; it must have been brought to his knowledge. "Sufficient cause" must exist and he must know of its existence; otherwise it has to be said he has no "reason to believe a thing". Therefore, the gravamen of the contention raised by A1 is that the evidence on record must show that there existed “sufficient cause” from which the knowledge required to attract the offence under Sec. 304 Part II can be imputed but according to the learned counsel, there is no such evidence. It is further submitted that if from the facts established two views are reasonably possible, the court will not hold a person guilty if it only comes to the conclusion that though the grounds may provide to the offender “sufficient cause” to believe but not that there existed "sufficient cause" to make him believe so. But unlike certain other provisions in the Penal Code to attract the offence of **Crl.Appeal Nos. 825/2001 and 826/2001** -:17:- culpable homicide it is not necessary to prove that the accused had reason to believe that the liquor had noxious substance in it. 17. The learned counsel submits that only because the accused was charged for a serious or heinous act, the court below concluded that she had the required knowledge so as to find her guilty of the offence under Sec. 304 Part II, but there is no evidence to show that there was sufficient cause for her to believe that the liquid contained methyl alcohol which was a noxious substance. What is a “sufficient cause” in a given case so as to justify the presumption is a matter which must depend upon the facts and circumstance of each case. The question is whether the accused had the knowledge or opportunity to have knowledge. The fact that she is a notorious bootlegger would sufficiently indicate that she had the opportunity to know whether the liquid contained in the two cans was illicit or a genuine potable liquor. Even otherwise, the **Crl.Appeal Nos. 825/2001 and 826/2001** -:18:- natural human conduct would tend a person not to use or consume a substance without ascertaining the content and character of that substance, especially because, here the indisputable fact is that the barrel containing the liquid was found floating on the sea. No man of ordinary prudence will think that the liquid in it was potable or consumable. Presumption can only be in favour of legality and in favour of a course of conduct of a man of ordinary prudence and not otherwise. There was no reason to believe that the liquid in it was fit for human consumption. Therefore, one will not come to the conclusion that it was potable or consumable. The fact that some of her own employees had also consumed the same is no reason to say that she had no knowledge that it is methyl alcohol. When certain facts are proved the presumption of guilt arising from such facts can certainly be drawn. Here, the question is whether such a presumption of guilt arising from facts which are themselves sufficient to prove the knowledge **Crl.Appeal Nos. 825/2001 and 826/2001** -:19:- could be drawn from the facts proved. Since the liquid was collected and brought to the residence of A1 in the manner stated above there was sufficient cause to believe that it was not pure ethyl alcohol which can be sold to persons for consumption. It is not a case where there is only a mere existence of a sufficient cause. The evidence on record would show that she had sufficient cause to believe that it was a spurious liquor endangering human life. It can never be treated as a negligent act so as to bring it as an offence falling under Sec. 304A I.P.C. It is pointed out that in law, a person "knows" a thing not only when he has precise knowledge of it but also when he is in possession of circumstances leading to the conclusion that a thing exists. 18. The learned counsel for the appellant submits that reason to believe is a higher level of state of mind. 'Knowledge' will be slightly on a higher plane than reason to believe. A person can be supposed to know where there is a direct appeal to his senses. Guilty knowledge is the **Crl.Appeal Nos. 825/2001 and 826/2001** -:20:- essence of a crime to fall under Sec. 304 Part II. Therefore, there should be evidence to show as to how the accused could be imputed with the knowledge. Therefore, the question is whether “knowledge” can be deduced from the various circumstances obtained in this case. The very fact that accused (A1) was in the habit of selling illicit liquor would help the prosecution to contend that the sale of liquor was not an innocent or innocuous act but was a deliberate act done by her totally disregarding or unmindful of the consequences of consumption of such liquor by the consumers. It is contended that she had actually exploited the drug addiction or addiction to alcohol of such persons to sell such spurious liquor, and therefore, the contention that she had no knowledge that it was a spurious liquor, cannot be accepted. It can be inferred that the accused, by the act of sale of such illicit/spurious liquor, had the knowledge that the persons who consume the same are likely to die. Though she may not have had ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:21:- the intention to cause the death of the persons who consume the same, knowledge had to be imputed to the accused so that the contention that the offence against her will not come under the second part of Sec. 304, does not gain ground. 19. Exts. P111 to P123 which are the certificates of chemical analysis of viscera, showed that it contained Methyl Alcohol. Methyl Alcohol was found in the blood of the deceased and the injured persons also. It was also found that one of the samples showed positive result of ethyl alcohol. That has been pointed out as a circumstance by the courts below to hold that methyl alcohol was mixed up with ethyl alcohol. Since the said illicit/spurious liquor was sold by and from the house of A1, it has to be reasonably inferred that it was mixed up by or with the knowledge of A1. 20. The prosecution contends that the accused cannot take shelter under Section 80 of Indian Penal Code contending that it was an accident or misfortune and that it **Crl.Appeal Nos. 825/2001 and 826/2001** -:22:- was done without any criminal intention or knowledge, since the sale of illicit liquor was an unlawful act which was done in an unlawful manner and not by lawful means. The sale of illicit liquor itself is prohibited because of the fact that the consumption of illicit liquor is injurious to health. When such an illicit liquor, was mixed up or in any event contained methyl alcohol, it can never be contended that the accused had no knowledge of the consequence of consumption of methyl alcohol. ## 21. Section 80 reads: _"Nothing is an offence which is done by accidence or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution"._ 22. An accident is an occurrence out of the ordinary course which no man of ordinary prudence could anticipate or provide against. A misfortune is an accident with attendant evil consequences. Here, it can neither be an accident nor a misfortune since it did not occur out of the ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:23:- ordinary course. If there is unlawfulness in the act complained of, then the plea that it arose out of an accident or out of a misfortune cannot be sustained. 23. The prosecution case is that the offence committed amounts to culpable homicide. The first and second part of Sec. 299 I.P.C. do not apply to this case, is not disputed by the prosecution. According to the prosecution, if it is proved that the death was caused by doing an act with the knowledge that he is likely by such act to cause death, he can be held to have committed the offence of culpable homicide. The decision of the Apex Court in **Joti Prasad v. State of Haryana - AIR 1993 SC 1167** has been cited by the learned Addl. D.G.P. That was a case where one of the accused who was the appellant before the Apex Court was convicted for offences under Sections 258 and 259 of I.P.C. Possession or sale of various counterfeit stamps by the appellant, who was a stamp vendor, was proved beyond doubt. The sole question ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:24:- was whether the appellant had knowledge or reason to believe that the stamp which he had in his possession and was selling were counterfeit of the stamps issued by the government. So far as the case on hand is concerned, it is not necessary to prove that the accused 'had reason to believe' that the liquid/liquor which was sold by the accused was a spurious liquor, the consumption of which was in all probability sufficient to cause the death of the person who consumes it. It was held in the decision cited supra:- “Under the Indian Penal law, guilt in respect of almost all the offences is fastened either on the ground of “intention” or “knowledge” or “reason to believe”. We are now concerned with the expressions “knowledge” and “reason to believe” . “knowledge” is an awareness on the part of the person concerned indicating his state of mind. “Reason to believe” is not the same thing as “suspicion” or “doubt” and mere seeing also cannot be equated to believing. “Reason to believe” is a higher level of state of mind. Likewise “knowledge” will be slightly on higher plane than “reason to believe”. A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient case to believe the same. Section 26 I.P.C. explains the meaning of the words “reason to believe” thus:” **Crl.Appeal Nos. 825/2001 and 826/2001** -:25:- 24. As said earlier, Sec. 299 of I.P.C. does not speak of "reason to believe" as a state of mind required to be proved to attract the offence of culpable homicide. 25. In the case cited supra, there was only a bare allegation by way of an explanation by the accused/appellant that he purchased all the stamps including the counterfeit one from the Treasuray. That, on the face of it, was found to be false. Thus, it was found in those circumstances, the only inference that can be drawn is that the appellant had “knowledge” and “reason to believe” that the stamps which he had in his possession were counterfeit ones. 26. It is argued on behalf of the prosecution that the evidence on record would show that the liquor was found in the barrel which was floating on the high seas and it was taken to the fiber fishing boat and it was brought to Beypore Port and it was from there two cans having 35 litres each were brought to Kochi. A reasonable and **Crl.Appeal Nos. 825/2001 and 826/2001** -:26:- prudent man would certainly examine the liquid whether it was a foreign liquor or any liquor which is not a noxious substance. That much prudence and reasonable care is expected of a common man. Here the accused is admittedly a notorious bootlegger engaged in sale or distribution of illicit liquor . The contention that as he was admittedly a bootlegger, there was nothing to rouse a suspicion that the liquid was a noxious substance and so he cannot be fastened with the knowledge as is required under Sec. 299 of I.P.C. is a far-fetched argument, the learned Addl.D.G.P. submits. 27. The learned Addl. D.G.P. has relied upon the ## decision of **Sankar Narayan Bhadolkar v. State of** ## **Maharashtra – AIR 2004 SC 1966** where it was held: _“Sec. 80 protects an act done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. The primodial requirement of S. 80 is that the act which killed the other person must have been done “with proper care and caution”. In Bhupendrasinh A,. Chidasama v. State of Gujrat (1998 (2) SCC 603; 1998 SCC (Cri) 668) it was held by this Court that_ **Crl.Appeal Nos. 825/2001 and 826/2001** -:27:- _where the accused shot his own colleague at close range without knowing the identity of his target, the act smacked of utter dearth of any care and caution._ _The amount of care and circumspection taken by an accused must be one taken by a prudent and reasonable man in the circumstances of a particular case. Where the act of the accused is itself criminal in nature the protection under S. 80 is not available. If the accused pleads exception within the meaning of S. 80 there is a presumption against him and the burden to rebut the presumption lies on him”._ 28. The contention that if at all the offence would fall only under Sec. 304 A I.P.C. is also unacceptable. Section 304 A relates to offences outside the range of Sec. 299 and 300 I.P.C. It applies only to such acts which are rash and negligent and are directly to cause the death of another person. Doing an act with the knowledge that the act is likely to cause the victim die amounts to culpable homicide. It was held by the Apex Court in the decision cited (supra) that in order to be encompassed by the protection under Sec. 304 A there should be neither intention nor knowledge to cause death. 29. In the light of the decision in **Sankar Narayan** **Crl.Appeal Nos. 825/2001 and 826/2001** -:28:- (cited supra) the contention that the accused had no knowledge that the liquor sold by the accused was spurious or harmful to human being cannot be sustained at all since the accused was not doing a lawful act in a lawful manner by lawful means. 30. So far as the requisite knowledge under section 299 of IPC as against A1 is concerned the evidence given by PWs 49 and P.W.97 and Ext.P23, the mahazar would also assume much relevance. The case of the prosecution is that the spurious liquor contained in one of the cans measuring 35 litres was poured into cans of 10 litre capacity. That was done by A3-Jude, the brother of A1. The place from where the liquor was transferred from the big can to the small can was inspected by PW97, in respect of which Ext.P23 mahazar was prepared. It was specifically mentioned in that mahazar “.. **”** ട� സലത� 70 ച�റളവ�ല പ�ല കര�ഞ� മണ�മ�യ� പറ� ചചര�� ക�ണ���. ട� സലത� ഏച � ദ"�വക# വ$ണ� കര�ഞ�ട�ള �യ� **Crl.Appeal Nos. 825/2001 and 826/2001** -:29:- # ക�ണ���. കര�ഞ പ�ല മണ�# ഏ �ന�# ഭ�ഗ# ച�രണട� എട�ത� ലക-ത�ചലക�യ� ബനവസ�ലലട�ത�". 31. The fact that when a very little quantity of that spurious liquor fell on the ground the grass etc got burnt or dried to such an extent, would certainly impel or persuade anybody to know that the liquid/substance is so noxious that it is likely to burn the intestine and other inner organs of a person who consumes it. As said earlier, the evidence is that A1 to A3, who are near relatives and who were engaged in sale of illicit liquor, had acted in concert and so the knowledge which A3 had about the noxiousness and the harmful nature of that liquid, that it was likely to cause the death of the person who consumes it, must have certainly been conveyed to A1 as well. That is a reasonable inference to be drawn from the facts and circumstances of the case. That also would strengthen the case of the prosecution that the 1[st] accused had the knowledge as required under section 299 of IPC. **Crl.Appeal Nos. 825/2001 and 826/2001** -:30:- 32. Sec. 328 of I.P.C. reads: **"Causing hurt by means of poison, etc. with intent to commit an offence** - Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit of to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". 33. Exts. P28 to P75 are the wound certificates issued from various hospitals. Ext.P28 was issued in the name of one Xavier. The wound certificates would clearly show that all those persons who sustained serious injures had consumed illicit arrack which was mixed up with methyl alcohol. Most of them had also stated to the doctor that they consumed liquor from A1's (Jeena) house. Those facts were noted in the wound certificates issued by the doctors. P.W. 11 has stated that he used to go to the house of A1 for consuming liquor and that he had purchased liquor from A1 Jeena between 2.30 and 3.30 p.m. on the ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:31:- date of incident. P.Ws.13, 17, 19,36,42 and so many other witnesses also stated that they had sustained injuries after consuming liquor from A1. It was found that the liquor mixed up with methyl alcohol is an intoxicating or unwholesome drug the consumption of which was likely to cause death of the person who consumed it. By the consumption of the same, so many persons in respect of whom certificates were issued, sustained hurt. Therefore, the court below has rightly found that the first accused was guilty of the offence under Sec. 328 I.P.C. The verdict of conviction is only to be confirmed. 34. It is argued by the learned counsel for A13 (the appellant in Crl. Appeal No. 825/2001) that though it is contended by the prosecution that A13 had rendered active help to A15 to find out a purchaser for the liquor/spirituous substance brought from Beypore to Fort Kochi, there is no legal evidence to substantiate that plea. The court below has pointed out certain ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:32:- circumstances to hold that A13 was actively involved in bringing methyl alcohol and to effect sale of the same to A3. The evidence given by P.W.31 has been relied upon by the prosecution to prove that two days prior to the incident he (P.W.31) met A13 and at that time A13 was carrying a colourless liquid in a soda bottle. It was stated by P.W.31 that A13 attempted to pour the liquid into the palm of P.W.31. But P.W.31 refused to extent his palm, fearing that the liquor may be an acid or such corrosive substance and so A13 poured the liquid in his own palm in order to convince P.W.31 that it was harmless. It was further stated by P.W.31 that A13 informed him that the aforesaid liquor was obtained from the sea. Therefore, the prosecution contends that this aspect would connect the liquor with A13 since the evidence would show that the barrels which were found floating on the sea were at first brought to Beypore and poured into four cans of a capacity of 35 litres, out of which two cans were brought to ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:33:- Kochi. The further statement made by P.W.31 that A13 had told him that the liquor was found out by fishermen when they went to deep sea for fishing in a fiber boat, would also support the case of the prosecution as stated above. The evidence given by P.W.32 has also been relied upon by the prosecution to prove another connecting link with A13 and the spurious liquor which was supplied to the 14 deceased persons and others. According to P.W.32, two or three days prior to the incident, when P.W.32 and others had been to the tea shop of a lady by name Choochi, A13 was also there having in his possession a soda bottle containing liquid. From there also A13 had told P.W.32 and others that the said liquor was found out from sea. He has further deposed that A13 thereafter poured the liquor on the top of a desk which was placed in the tea shop. It was ignited. The liquor started burning. The owner of the shop then scolded A13 for doing such a dangerous act. The fire was put off by P.W.32 and others ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:34:- by pouring water. It was also stated that from the statement given by A13 it could be discerned that if a person consumes that liquor, he will die. Therefore, the evidence given by P.W.32 would also prove that the liquid which was carried by A13 at the relevant time was the liquid which was brought from the sea in the manner stated earlier. The further fact that A13 had told P.W.32 and others that if one consumes it, he will die, is sufficiently indicative of the fact that A13 was well aware of the fact that the consumption of the liquid is likely to cause the death of the person who consumes it. 35. So far as the role of A13 is concerned, it is contended that apart from the evidence of P.W1, P.W.31, 32 and 33 no evidence has been adduced to show his complicity. The evidence of those three witnesses would only show that A13 was carrying a bottle of liquor which was suspected to be methyl alcohol. Their evidence may also show that A13 had told that that liquor was obtained **Crl.Appeal Nos. 825/2001 and 826/2001** -:35:- from sea and was taken to a fiber boat. But there is nothing to show that the liquor bottle which A13 was carrying was obtained from A1 to A3 or that A13 had supplied the methyl alcohol brought from Beypore and which was transferred into plastic cans of a capacity of 10 litres each to the house of A1 to A3 or that A1 and A13 were seen together meddling with the liquor brought from Beypore. Therefore, there is no nexus between the bottle of liquor which was found in the possession of A13 and the methyl alcohol which was supplied to various customers including the fourteen deceased persons and other injured persons. No liquor bottle was seized from the possession of A13 so as to contend that the said liquor was part of the liquor brought to Beypore or that the said liquor was obtained from the house of A1 to A3. There is no evidence to show that A13 was present in the house of A1 or that A13 was seen supplying the methyl alcohol to any of the customers. Therefore, in the absence of nay material to ## **Crl.Appeal Nos. 825/2001 and 826/2001** -:36:- connect A13 with the noxious substance which was supplied to so many persons from the house of A1 it is difficult to hold that A13 had conspired with A1 or that A13 had acted in concert with A1 in the supply of the methyl alcohol. As such the finding of guilt entered against A13, cannot be sustained. 36. It was already found that methyl alcohol was supplied by A1 from her house to so many persons as mentioned earlier. The contention that she had no knowledge that it was a noxious substance, the consumption of which would result in death, cannot be sustained. As such, the court below was perfectly justified in holding that the petitioner is guilty of the offence of culpable homicide and so the conviction entered against A1 for offence under Sec. 304 - Part II of I.P.C., is only to be confirmed. 37. The learned counsel for the first accused has argued that the first accused/appellant is now an aged **Crl.Appeal Nos. 825/2001 and 826/2001** -:37:- woman and so leniency may be shown. It is a case where she and other accused persons were seen indulged in sale of methyl alcohol with the knowledge that by consuming the same the person who consumes the same would die. 14 persons died in that incident. It is also submitted that the marriage of appellant's son is to take place recently. The fact that the appellant was notorious in the sale of illicit liquor is also to be borne in mind by the Court, the learned Addl. Director General of Prosecution, submits. Since she was sentenced only to undergo R.I. for 10 years for the offence under Sec. 304 Part II read with Sec. 34 I.P.C. and since the sentences awarded for the other offences are to run concurrently, I find no reason to interfere with the sentence awarded by the trial Court. In the result, Crl. Appeal No. 826 of 2001 filed by A1 stands dismissed confirming the conviction and sentence passed against her. Crl. Appeal 825/2001 is allowed setting aside the conviction and sentence passed against A13. The **Crl.Appeal Nos. 825/2001 and 826/2001** -:38:- bail bond executed by him will stand cancelled. A1 is granted two months' time to surrender before the trial Court to serve out the sentence. Dated this the 27th day of November, 2012. Sd/-N.K. Balakrishnan, Judge. ani. /true copy/ P.S. to Judge **Crl.Appeal Nos. 825/2001 and 826/2001** -:39:- N.K. Balakrishnan, J. ................................................. **Crl.Appeal Nos. 825/2001 and 826/2001** .................................................. Dated: 27-11-2012 JUDGMENT