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2005 DIGILAW 824 (PNJ)

Chatra v. State Of Haryana

2005-08-04

MEHTAB S.GILL, PRITAM PAL

body2005
Judgment Mehtab S.Gill, J. 1. By this common judgment, we shall be disposing of two Criminal Appeals bearing Nos. 612-DB of 1999 filed by appellants Chatra and Alamer and Criminal Appeal No. 5-DB of 2000 filed by appellants Suresh and Zile Singh, as they arise out of the same impugned judgment/order dated 10/11.11.1999 passed by Additional Sessions Judge-II, Jind. 2. This is an appeal against the judgment/order dated 10/11.11.1999 of the Additional Sessions Judge-II, Jind, whereby he convicted all the four appellants under Sections 302, 307 and 328 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under Sections 302, 307 and 328 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and to pay a fine of Rs. 1,000/- each. In default of payment of fine, they were directed to undergo rigorous imprisonment for a period of six months each. All the appellants were sentenced to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code and to pay a fine of Rs. 200/- each. In default of payment of fine, they were directed to undergo rigorous imprisonment for a period of one month each. All the substantive sentences were ordered to run concurrently. 3. The case of the prosecution is unfolded by the statement given by complainant Dharamvir, Ex. PW-13/A, which was recorded by Assistant Sub- Inspector Mohinder Singh, PW-47/A in General Hospital, Jind. Complainant stated that he is a resident of Kheri Taloda. He is a labourer. On 4.12.1997 at 7.00 p.m., he, after purchasing one nip of illicit liquor, went to the house of Alamer and consumed it there. He paid Rs. 20/-. Dharam Nath Baba, Pala and Sher Singh also purchased liquor from Alamer and consumed it. Inder and Hari Dass purchased illicit liquor from Chatra and consumed it. Satpal purchased illicit liquor from Suresh and Harpal purchased liquor from Ramesh @ Mahesha. They consumed this liquor. Some other villagers of village Kheri Taloda also purchased illicit liquor from Alamer, Chatra, Ramesh @ Mahesha and Suresh. They also consumed this liquor. Pala, Inder and Har Pal died due to consumption of this spurious liquor. Complainant Dharamvir along with some other persons got seriously ill. Some of them were critical ill. They consumed this liquor. Some other villagers of village Kheri Taloda also purchased illicit liquor from Alamer, Chatra, Ramesh @ Mahesha and Suresh. They also consumed this liquor. Pala, Inder and Har Pal died due to consumption of this spurious liquor. Complainant Dharamvir along with some other persons got seriously ill. Some of them were critical ill. Complainant further stated that Alamer, Chatra, Suresh and Ramesh @ Mahesha hatched a conspiracy and sold illicit liquor to the complainant and other villagers knowing it very well that it was not fit for human consumption. 4. Statement of complainant Dharamvir was recorded on 6.12.1997 in General Hospital, Jind on the basis of which, formal FIR, Ex. PW-47/B, was recorded on 6.12.1997 at 9.30 a.m. Special Report was sent to the Sub-Divisional Judicial Magistrate, Jind on 6.12.1997 at 2.00 p.m. 5. Prosecution, to prove its case, brought into the witness box Dr. Ajay Kumar Goel (PW-1), Dr. Davinder Singh (PW-2), Prem Singh (PW-3), Dr. V.K. Satija (PW-4), Ranbir Singh, Constable (PW-5), Hans Raj, Sub-Inspector (PW-6), Dr. Dhan Kumar (PW-7), Dhan Pat Singh (PW-8), Balbir Singh (PW-9), Kaushalya (PW- 10), Jai Bhagwan (PW-11), Dharam Singh (PW-12), Dharamvir (PW-13), Giasu Ram (PW-14), Suresh Kumar (PW-15), Raj Singh (PW-16), Raghbir (PW-17), Kapur Singh (PW-18), Kala (PW-19), Rajesh (PW-20), Sultan (PW-21), Umed Singh (PW-22), Jai Bhagwan (PW-23), Rajinder (PW-24), Kulwant Rai (PW-25), Rishi Pal (PW-26), Rakesh (PW-27), Randhir Singh (PW-28), Rajinder Singh (PW-29), Mohinder Singh (PW-30), Smt. Prem Chaudhary, ETO (PW-31), Ramesh Kumar (PW-32), Sumer Singh (PW-33), Dharambir Singh (PW-34), Pawan Kumar, Head Constable (PW-35), Ram Mehar (PW-36), Dr. Renu Aggarwal (PW-37), Mrs. Manju Anand (PW-38), Dr. E.P. Gupta (PW-39), Dr. A.S. Ahlawat (PW-40), Ram Pal, Constable (PW-41), Banwari Lal (PW-42), Jai Parkash, Head Constable (PW-43), Mohinder Singh (PW-44), Om Parkash, Constable (PW-45), Chander Bhan (PW-46), Mohinder Singh (PW-47), and Daya Nand, District Inspector (PW-48). 6. Learned counsel for the appellants, at the very outset, has argued that the charges framed against the appellants are defective. E.P. Gupta (PW-39), Dr. A.S. Ahlawat (PW-40), Ram Pal, Constable (PW-41), Banwari Lal (PW-42), Jai Parkash, Head Constable (PW-43), Mohinder Singh (PW-44), Om Parkash, Constable (PW-45), Chander Bhan (PW-46), Mohinder Singh (PW-47), and Daya Nand, District Inspector (PW-48). 6. Learned counsel for the appellants, at the very outset, has argued that the charges framed against the appellants are defective. Under Section 302 of the Indian Penal Code, the charge reads as under :- "You accused Chatra, Alamer, Suresh and Ramesh on the said date, time and place sold spurious liquor to Pala Ram, Hari Dass, Sat Pal, Sher Singh, Har Pal, Inder Singh and Chatter Singh on 4.12.1997 in the area of village Kheri Taloda with intent or knowledge that the consumption of said spurious liquor being unfit for human consumption would cause the death of the consumer...." 7. The second charge framed against the appellants under Section 307 of the Indian Penal Code reads as under :- "You accused Chatra, Alamer, Suresh and Ramesh on the same date, time and place did an act viz. sold spurious liquor, which was unfit for human consumption with such knowledge and under such circumstances...." 8. The third charge framed against the appellants under Section 328 of the Indian Penal Code reads as under :- "You accused Chatra, Alamer, Suresh and Ramesh on the said date, time and place sold spurious liquor to Pala Ram, Hari Dass, Satpal, Sher Singh, Har Pal, Inder Singh, Chatter Singh, Dharam Vir...." 9. Learned counsel has argued that no-where in the charge is it mentioned that the appellants had the intention to commit culpable homicide amounting to murder. In the charge framed under Section 302 of the Indian Penal Code, the words used are "with intent or knowledge". Chemical Examiners report, Ex. PA, has only stated that methyl alcohol and ethyl alcohol were recovered. No poisonous substance was recovered. Appellants, as per the charge, did not have the intention to commit the murder of the deceased. 10. Witnesses examined by the prosecution have stated that liquor was sold to them. None of the witnesses had seen the appellants distilling liquor or mixing poison or spurious substance in the liquor. Nafe Singh, Sarpanch of the village, on the instigation of whom, it is alleged, illicit liquor was being sold, has not been arraigned as an accused, thus, falsifying the whole version of the prosecution. 11. None of the witnesses had seen the appellants distilling liquor or mixing poison or spurious substance in the liquor. Nafe Singh, Sarpanch of the village, on the instigation of whom, it is alleged, illicit liquor was being sold, has not been arraigned as an accused, thus, falsifying the whole version of the prosecution. 11. The alleged occurrence had taken place on 4.12.1997. FIR Ex. PW-47/B, was registered on 6.12.1997, after the statement of complainant Dharamvir was recorded on 6.12.1997 in General Hospital, Jind. Post mortems on the bodies of the deceased were performed by the doctors on 7.12.1997. During the intervening period between 4.12.1997 and 6.12.1997, the deceased were in good health. Some occurrence had taken place on 6.12.1997 and then the appellants were falsely implicated. The testimony of Jai Bhagwan (PW-11), Dharam Singh (PW-12), Giasu Ram (PW-14), Suresh Kumar (PW-15), Raj Singh (PW-16) and Kala (PW-19) is only to the extent that the appellants sold liquor to them. Appellants did not have the intent or knowledge to cause any injury on the persons of the injured or the deceased. Statements of the prosecution witnesses are on the basis of hear-say. Statements of these witnesses should not be taken into consideration for the purposes of the conviction of the appellants under Section 302 of the Indian Penal Code. 12. Learned counsel for the State has argued that there is ample evidence on record that the appellants sold spurious liquor. The two witnesses, i.e., Jai Bhagwan (PW-23) and Rishi Pal (PW-26), have come into the witness box to state that they purchased liquor from the appellants and thereafter, they got ill. Kaushalya Devi (PW-10) has stated that her husband had told her that he had purchased liquor from the appellants. Giasu Ram (PW-14), Suresh Kumar (PW-15), Raj Singh (PW-16) and Kala (PW-19) have stated that all the four appellants sold spurious liquor to them. The case of the appellants falls within the ambit of Section 302 of the Indian Penal Code. 13. We have heard the learned counsel for the parties and perused the record with their assistance. 14. The charge framed against the appellants, as reproduced above, is defective. The learned trial Court has not categorically and clearly stated that the intention of the appellants was to commit culpable homicide amounting to murder. The charge framed under Section 302 of the Indian Penal Code is "with intent or knowledge". 14. The charge framed against the appellants, as reproduced above, is defective. The learned trial Court has not categorically and clearly stated that the intention of the appellants was to commit culpable homicide amounting to murder. The charge framed under Section 302 of the Indian Penal Code is "with intent or knowledge". Charge framed under Sections 307 and 328 of the Indian Penal Code, the intent of the accused is missing. 15. In the Chemical Examiners report, Ex. PA, it has been stated that ethyl alcohol and methyl alcohol were detected, in exhibits sent to the Forensic Science Laboratory, Madhuban, Karnal. No common poison could be detected in the exhibits sent to it. From the Chemical Examiners report, one can safely conclude that the mixture of ethyl alcohol and methyl alcohol was of such strong strength (percentage-wise), that the illicit liquor consumed led to the death of 7 persons and 11 persons were taken ill. No poisonous substance was detected in the illicit liquor. Appellants did not want to extinguish the life of the deceased intentionally. Appellants are poor labourers. They were selling illicit liquor to make money. They had made it a source of income, for their livelihood. 16. Going through the statements of the prosecution witnesses, Dhan Pat Singh (PW-8), Balbir Singh (PW-9), Dharam Vir (PW-13), the propounder of the First Information Report, Raghbir (PW-17), Kapur Singh (PW-18), Rajesh (PW-20), Sultan (PW-21), Umed Singh (PW-22), Kulwant Rai (PW-25), and Rakesh (PW-27), it comes out that they did not support the prosecution case and had to be declared hostile. They have not supported the prosecution case. The other prosecution witnesses, who have come into the witness box, have stated as under :- Kaushalya PW-10 17. This witness has stated that her husband had told her that he had taken liquor from the house of accused Chatra. Thereafter, her husband got unwell. Jai Bhagwan PW-11 18. This witness has stated that Inder and Hari Dass purchased illicit liquor from accused Chatra. After consuming liquor, they fell ill. Further, he has stated that accused Ramesh @ Mahesha sold liquor to Har Pal. Sat Pal purchased liquor from accused Suresh. Accused Alamer sold liquor to Sher Singh. Baba Dharam Nath and Pala purchased liquor from accused Alamer. All of them fell ill. He has further stated that Nafe Singh, Sarpanch, was responsible for the sale of illicit liquor in the village. Sat Pal purchased liquor from accused Suresh. Accused Alamer sold liquor to Sher Singh. Baba Dharam Nath and Pala purchased liquor from accused Alamer. All of them fell ill. He has further stated that Nafe Singh, Sarpanch, was responsible for the sale of illicit liquor in the village. Dhan Pat Singh PW-12 19. This witness has stated that deceased Inder was his uncle. Inder purchased liquor from Chatra. Hari Dass deceased purchased liquor from Chatra. Sat Pal deceased purchased liquor from Suresh. Dharam Bir, Sher Singh and Baba Dharam Nath purchased liquor from accused Alamer. Har Pal purchased liquor from Ramesh @ Mahesha. After consuming this liquor, Inder, Hari Dass and Satpal died. He had also stated that Nafe Singh, Sarpanch, used to sell illicit liquor in the village. 20. Similarly, when we go through the statements of Giasu Ram (PW-14), Suresh Kumar (PW-15), Raj Singh (PW-16), and Kala (PW-19), it comes out that none of the witnesses have stated that they had seen the appellants making illicit liquor or they had gone to them to buy illicit liquor. All these witnesses have given evidence on the basis of hear-say. 21. Jai Bhagwan (PW-23) has stated in his testimony that on 4.12.1997, his brother-in-law had come to his village Khera Taloda. He purchased liquor from accused Alamer for Rs. 60/- and his brother-in-law consumed liquor on 5.12.1997. He purchased liquor from accused Suresh. He along with his brother-in-law and two other persons consumed that liquor. After taking liquor, all of them fell seriously ill. He has further stated that seven persons of the village died due to the consumption of spurious liquor. Rishi Pal (PW-26), has stated that he purchased liquor from accused Ramesh @ Mahesha. Accused Alamer was also sitting by the side of Ramesh. After he had consumed the liquor, he became unwell and was admitted to General Hospital, Jind. Some persons from his village died, after consuming liquor brought from the appellants. Kaushalya (PW-10), has stated that her husband Har Pal told her that on 5.12.1997, he had taken liquor in the house of accused Chatra. After taking liquor, her husband fell ill. Similarly, Giasu Ram (PW-14), Suresh Kumar (PW-15), Raj Singh (PW-16), Kala (PW-19), have also stated that the appellants sold illicit liquor on the asking of Nafe Singh, Sarpanch. Kaushalya (PW-10), has stated that her husband Har Pal told her that on 5.12.1997, he had taken liquor in the house of accused Chatra. After taking liquor, her husband fell ill. Similarly, Giasu Ram (PW-14), Suresh Kumar (PW-15), Raj Singh (PW-16), Kala (PW-19), have also stated that the appellants sold illicit liquor on the asking of Nafe Singh, Sarpanch. Statements of these witnesses in Court coupled with the evidence of Investigating Officer Banwari Lal (PW-42) and Inspector Daya Nand (PW-48), inspire confidence. Their statements are cogent and convincing. 22. It is on the basis of the disclosure statements that the articles for preparation of illicit liquor were recovered. 23. We are in consonance with the argument put forward by the learned counsel for the appellants Shri R.S. Ghai, Senior Advocate that the appellants did not have any intention to commit the murder of the deceased. Though, they had the knowledge that the persons who consume the illicit liquor may die. They definitely did not have the intention to commit the murder of seven deceased. 24. The case of the appellants does not fall under Section 302 of the Indian Penal Code. The appellants did not mix any poisonous substance in the liquor as per the report Ex. PA of the Forensic Science Laboratory, Madhuban, Karnal. In the process of making liquor, they did mix methyl alcohol and ethyl alcohol in very strong quantities, which was not fit for human consumption, which ultimately led to the death of seven persons and also led to eleven persons being hospitalised. 25. The conviction of the appellants is modified from Section 302 to 304 Part-II of the Indian Penal Code. Appellants are sentenced to undergo rigorous imprisonment for seven years under Section 304 Part-II of the Indian Penal Code and to pay a fine of Rs. 1,000/- each. In default of payment of fine, they are directed to undergo rigorous imprisonment for six months each. Appellants are sentenced to undergo rigorous imprisonment for five years under Section 307 of the Indian Penal Code and to pay a fine of Rs. 200/- each. In default of payment of fine, they are directed to undergo rigorous imprisonment for a period of one month each. Appellants are further sentenced to undergo rigorous imprisonment for two years under Section 328 of the Indian Penal Code and to pay a fine of Rs. 200/- each. 200/- each. In default of payment of fine, they are directed to undergo rigorous imprisonment for a period of one month each. Appellants are further sentenced to undergo rigorous imprisonment for two years under Section 328 of the Indian Penal Code and to pay a fine of Rs. 200/- each. In default of payment of fine, they are directed to undergo imprisonment for a period of one month. All the substantive sentences awarded to the appellants shall run concurrently. 26. With the above modifications of conviction and sentence, both the Criminal Appeals bearing Nos. 612-DB and 5-DB of 2000 are dismissed.