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Constitution of India-Arts. 136 and 142-Competency to issue suo motu rule of enhancement of sentence--Plenary jurisdiction under Art. 136-Scope of power under Art. 142.Indian Penal Code, 1860-Sections 326/120-B, 107, 109-Conspiracy to supply spurious liquor--Standard of proof-Supply of liquor by a firm-Adulteration of liquor with poisonous material-Motive to derive wrongful gain-Concurrent findings-Active participation of four accused-70 consumers died and 24 lost eye sights permanently-Award of maximum sentence of life imprisonment. Section 326-Grievous hurt-Supply of adulterated liquor-24 persons having lost their eye sights permanently-Hurt to be regarded as grievous-Conviction u/s 326 upheld-Sentence of imprisonment for life.Section 328-Supply of adulterated liquor by a firm -Liquor consume- Injuries to consumers-Conviction u/s 328 upheld.Kerala Abkari Act-Mixing spirit or water with arrack-illegal.10 persons were charge-sheeted for offences punishable u/ss 120-B, 302, 272 and 328 r/ws 107 and 109 of the Indian Penal Code, as well as some sections of the Kerala Abkari Act. The Sessions Judge acquitted accused 5 to 8 and 10 of all the charges. Accused 1 to 3 and 9 were also acquitted of the offences u/s 302 of the Penal Code as well as under the Abkari Act, but were convicted u/ss 120-B and 328 as well as section 107, 109 and 272 r/ws 34 of the Penal Code. The convicted accused filed appeals and the State challenged the acquittal of all the accused for the offence u/s 302 and the acquittal of accused 5 to 8 and 10 for all the offences. The High Court dismissed the appeals of accused 1 to 3 and 9. The State's appeal was partly allowed by convicting accused 1 to 3, 9 and 10 u/s 326 r/ws 120-B, 107 and 109 and each of them was sentenced to undergo rigorous imprisonment for seven years. The 10th accused was further convicted u/ss 120-B and 328 r/ws 107 and 109 as well as 272 r/ws 34, 107 and 109. For the offence u/s 328, rigorous imprisonment for six years and a fine of Rs. 10,000 and for the offence u/s 272 rigorous imprisonment for six months and a fine of Rs. 1,000 were awarded. Accused 1 to 3 and 10 had filed these appeals with the aid of Article 136 of the Constitution of India. This court after hearing appeals felt that the case of enhancement existed, and so, rules of enhancement were ordered.The prosecution case was that 70 persons died after having consumed liquor from the shops and sub-shops which were catered by a firm and 24 lost eye sights permanently and many other became prey of lesser injuries on the day of Onam; that in this firm initially accused 2 and 10 were partners, in which eight persons including accused 1 and 3 were inducted subsequently; that the liquor licence had been obtained by the firm in the name of accused 1 and 2 alongwith wife of the first accused; accused 9, a chemist being an outsider entered into a conspiracy with the other accused which ultimately culminated in this tragedy; that though accused 10 withdrew from this partnership sometime before this occurrence, he continued his relations with the firm; that accused 9 dealing in varnish and paints purchased 23 barrels of methyl alcohol under fictitious name and entered into conspiracy with other appellants for the supply of 23 barrels of methyl alcohol to be mixed with arrack and water for distribution to the consumers.The appellants alleged that the liquor having been supplied by the firm, the accused could not be held guilty of any criminal offence for the misdeed, even if there be any, of the firm in as much as there could not be any vicarous liability in a case of the present nature; that the mere fact that the accused 1, 2, 3 and 10 were in active management of the firm (which they disputed) would not be sufficient, in the absence of any evidence relating to conspiracy, to hold them guilty of the offences in question; that evidence of PWs 38, 39, 42, /278 and 281, on which High Court principally relied did not support the conclusion arrived at by the High Court and that these witnesses omitted to name accused-10 when they were questioned during investigation; that there was nothing to show about accused 1 being a conspirator and that the only work entrusted to this accused relating to the partnership business was to look after matters with the Government as the financial control was with accused 2 and 10 and all the recoveries were made at the instance of accused 3; that no offence u/s 326 A IPC was committed as the appellant had not caused any hurt 'voluntarily' as the accused had no knowledge that the effect the consumption the adulterated liquor would be so injurious,as it proved to be and all the consumers were not adversely affected ,and secondly the hurt caused was not grievous as for a hurt to be 'grievous' the same must be one which endangers life; that while hearing conviction High Courts do have this power to suo motu issue rule of enhancement under the provisions of the new Code of Criminal Procedure but the same power would not be available to this Court as this Court is not exercising any power conferred or available under the Code, but under Article 136 which has conferred a limited jurisdiction and is confined to the examination of legality or otherwise of the judgment under appeal and that despite what is stated in Article 142 issuance of a suo motu rule for enhancement would not be permissible because that would be violative of Article 21 inasmuch as it would be unfair to the appellant who, having come to this Court for seeking relief, would face peril in case the sentence comes to be enhanced after upholding the conviction and that would be a procedure not mandated by law keeping in view the old age of accused 9 and· his financially weak position, this Court might not enhance the sentence.The respondent stated that there was plethora of materials on record to show that the five accused had acted in concert in adulterating the liquor, consumption of which was responsible for the death and loss of eye sights, apart from causing injuries; that the partners of the firm were those who were in charge of the management and accused 9 had entered into conspiracy either individually or collectively with them and as such all the five accused were guilty of the offences for which they had been convicted by the High Court; that the power conferred on this Court by Article 136 is of wide amplitude and is plenary and that the power of an appellate court is normally co-extensive .with that of the lower court and so, if the High Court could have issued the rule of enhancement, such a power would be available to this Court, when it hears appeal from the judgment of the High Court, and that Article 142 of the Constitution would be available for the purpose at hand, if this Court were to be of the view that to do complete justice the sentence needs to be enhanced. |
