IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.267 of 1998 Decided on : April 29, 2010 State of H.P. …Appellant. Versus Gurmail Singh and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Rajinder Dogra, Additional Advocate General, and Mr. Ramesh Thakur, Assistant Advocate General. For the Respondents : Mr. Ajay Sharma, Advocate. Surjit Singh, J (Oral) State has appealed against Sessions Court judgment, dated 2nd March, 1998, whereby respondents Gurmail Singh, Yash Pal and Sanjeev, who were charged with and tried for offences, under Sections 120-B, 304 (second part) of the Indian Penal Code and Section 61(1)(i) of the Punjab Excise Act, 1914, as applicable to Himachal Pradesh, have been acquitted. 2. Case of the prosecution, which led to the trial of the respondents, may be stated. On 18th January, 1997, marriage of one Kishan Singh of village Dehlan, District Una, took place. Marriage party (Baraat) went to village Kante. Several persons from village Dehlan, including PW-1 Whether reporters of the local papers may be allowed to see the judgment? …2… Mohinder Singh, his brother Piara Singh (deceased), his sister’s husband Amrik Singh (deceased), went to village Kante, as members of the marriage party. At village Kante, PW-1 Mohinder Singh, his brother deceased Piara Singh and brother-in-law deceased Amrik Singh, purchased two bottles of illicit liquor from respondent Gurmail Singh. That liquor was consumed by eight or ten persons. Thereafter, two more bottles of liquor were purchased from the said respondent. That liquor was also consumed by PW-1 Mohinder Singh, his brother Piara Singh and brother-in-law Amrik Singh and a few more persons. In the evening, PW-1 Mohinder Singh, his aforesaid brother and brother-in-law and some other persons returned to their village. 3. Next day, in the evening, one of the persons, who consumed liquor in the company of PW-1 Mohinder Singh, namely deceased Jarnail Singh turned blind. He was taken to a medical practitioner at Mehatpur. Another person by the name of Surinder Singh, who too had partaken in the drinking bout on 18th January, 1997, also turned blind. Both of them died on 20th January, 1997, in the morning. After that Balwinder Singh, Baldev Singh, Piara Singh and Amrik Singh also fell sick and died on 20th January, 1997. PW-1 Mohinder Singh himself started vomiting. His vision became blurred. He was taken to District Hospital, Una, where he remained admitted, as …3… indoor patient, for two days. From there he was shifted to PGI, where he remained admitted for a night. 4. Someone gave a ring at Police Station, Una. Call was attended to by PW-35 Inspector Bidhi Chand, the then SHO of Police Station Una. Information, conveyed telephonically, was to the effect that residents of village Kante and Palkwah had consumed illicit liquor on 18th January, 1997 and that some of those persons had died and the condition of some others was critical and the police should reach the spot and take action. On receiving that information, PW-35 Inspector Bidhi Chand went to village Palkwah. There he came to know that Onkar Singh had purchased liquor from Gurmail Singh on 18th January, 1997 and after consuming that liquor he became sick and ultimately died and his dead body was lying in his house. 5. When PW-35 Inspector Bidhi Chand was at the house of said Onkar Singh, information started pouring in about the death of so many other persons and several persons having been shifted to District Hospital, Una, in critical state. In the evening, he went to District Hospital Una. He was informed by Baldev Singh son of Jeet Singh, resident of Kante, Amrik Singh son of Ajit Singh, resident of Bhadoli, Gurdial Singh son of Raju Ram, resident of Palkwah, who all were admitted to the Hospital at Una, that they had consumed liquor on 18th January, 1997, which had been purchased from respondent Gurmail Singh and that on …4… account of consumption of that liquor they fell sick on 19th January, 1997. The aforesaid three persons lateron died. 6. PW-35 Inspector Bidhi Chand drew up report Ex. PW-31/A, in which he made a mention of the entire information, which he gathered, as also the statements, which were made to him by the persons, who were sick and admitted to the hospital and sent the same to the Police Station, for the formal registration of the case. Case was formally registered vide FIR Ex. PW-31/B. 7. Following persons died and their postmortem was conducted by the doctors of District Hospital Una: 1. Kuldeep Singh son of Jameet Singh, resident of Haroli, 2. Sarvan Singh son of Prabh Dyal, resident of Palkwah, 3. Gurdial Singh son of Raju Ram, resident of Palkwah, 4. Swaran Chand son of Garib Dass, resident of Bhadoli, 5. Gurbax Singh son of Santa Singh, resident of Haroli, 6. Onkar Singh son of Pyara Singh, resident of Palkwah, 7. Parkash Chand son of Teru Ram, resident of Padori, 8. Hukam Singh (a brother of respondent Gurmail Singh), 9. Ashok Kumar son of Mela Ram, resident of Kante, 10. Piara Singh son of Gian Singh, resident of Dehlan, 11. Amrik Singh son of Jeet Singh, resident of Bhadoli, and 12. Tara Singh. Their viscera were observed and sent to the Chemical Examiner. Ten more persons died, but their dead bodies were cremated without postmortem. …5… 8. Some other persons, who had fallen sick, after consumption of liquor, purchased from respondent Gurmail Singh, were treated at District Hospital Una and also at Chandigarh. Their medico legal examination was conducted at Una. Their names are as follows: 1. Mohinder Singh 2. Mussu, 3. Balwinder Singh 4. Naresh Kumar. Their blood samples were taken and were sent to the Chemical Examiner. 9. Chemical Examiner, vide report Ex. PW-18/B, opined that viscera of all the dead persons contained liquor and methyl alcohol. Similarly, blood of all those persons, who were medically examined and whose blood samples were taken and sent to the Chemical Examiner, was opined to contain liquor as also methyl alcohol. 10. Investigation of the case revealed that respondent Sanjeev, who runs a furniture shop as a front to his illegal activities, acquired methyl alcohol (spirit), on the pretext of polishing furniture, from Kartarpur and supplied some quantity of the said spirit to respondent Yash Pal, who then sold the same to respondent Gurmail Singh. 11. All the respondents were challaned. Learned Judicial Magistrate, in whose Court the challan was presented, committed the case to the Sessions Court. …6… Learned Sessions Court charged the respondents, as aforesaid. 12. Prosecution examined a large number of witnesses to bring the charge home to the respondents. Most of the witnesses, examined by the prosecution to prove the allegation that liquor had been purchased from respondent Gurmail Singh, turned hostile. They were cross- examined by the prosecution, with the leave of the Court. Even when cross-examined by the prosecution, they did not say anything favourable to the prosecution. 13. However, PW-1 Mohinder Singh, the brother of deceased Piara Singh and brother-in-law of deceased Amrik Singh, who himself also fell sick, testified, in no uncertain terms, that he was among the members of the marriage party of Kishan Singh and that on reaching village Kante, he, his brother deceased Piara Singh, brother-in-law Amrik Singh, had purchased, initially, two bottles of liquor from respondent Gurmail Singh and that after consuming the said liquor, in the company of five-six other persons, they purchased two more bottles of liquor and that that liquor had also been consumed. He stated that in the evening he, his brother and the brother-in-law and some other persons returned to their village. He also stated that on the night of 19th January, 1997, two of the persons, namely Jarnail Singh and Surinder Singh, who had consumed liquor in their company, started complaining of blindness and by the …7… morning of 20th January, 1997, both of them died. He stated that his brother Piara Singh, brother-in-law Amrik Singh and he himself also became sick. He stated that his own vision started blurring. He stated that he and his aforesaid brother and brother-in-law were taken to the hospital at Una, where his brother Piara Singh and brother- in-law Amrik Singh died, while he was shifted to PGI, after having been kept in the hospital at Una, as an indoor patient, for two days. 14. Suggestions were thrown to PW-1 Mohinder Singh that liquor had been purchased not from respondent Gurmail Singh but his brother Hukam Singh. We may state here that Hukam Singh, a brother of respondent Gurmail Singh, also died on 20th January, 1997, on account of consumption of liquor. The fact is not denied by the defence. 15. No suggestion was put to PW-1 Mohinder Singh that the cause of death of his brother Piara Singh and brother-in-law Amrik Singh, as also for his own sickness, was consumption of liquor, which the witness stated he had purchased from respondent Gurmal Singh, but which, as per suggestion of the defence, had been purchased from Hukam Singh, deceased brother of respondent Gurmail Singh. In view of this position, it can legitimately be concluded that Piara Singh, the brother, and Amrik Singh, the brother-in-law, of PW-1 Mohinder Singh and PW-1 …8… Mohinder Singh himself fell sick, on account of consumption of liquor, on 18th January, 1997, which they purchased and consumed in village Kante. 16. Learned Sessions Judge has disbelieved the testimony of PW-1 Mohinder Singh, with the observation that though he claimed that he had been taken to the hospital at Una and from there to the PGI, on account of his having fallen sick, because of the consumption of liquor, there was no medical evidence, in support of his claim. This observation made by the learned Sessions Court is contrary to the evidence on record. PW-22 Dr. Kiran Kanwar very categorically stated that she had examined, among others, Mohinder Singh and had issued medico legal certificate Ex. PW-22/C. This certificate Ex. PW-22/C pertains to PW-1 Mohinder Singh. As per this certificate, PW-1 Mohinder Singh complained for breathlessness. His pulse was 96 per minute, blood pressure was 140/100 mm of Hg and pupils were semi dilated. His blood sample was taken. 17. Blood sample of PW-1 Mohinder Singh was sent to the Chemical Examiner, who, vide report Ex. PW-18/B, opined that the blood contained 296.60 liquor per mg, besides 18.80 methyl alcohol per mg. In view of this un- assailed evidence led by the prosecution, observation made by the learned Sessions Court is perverse, on the face of it. 18. As a matter of fact, we see no reason to disbelieve the testimony of PW-1 Mohinder Singh that liquor …9… was purchased from respondent Gurmail Singh and that it was consumed by him, his brother deceased Piara Singh and brother-in-law deceased Amrik Singh, deceased Jarnail Singh and deceased Surinder Singh. 19. Learned Sessions Court has also observed that the death of several persons, named above, is not linked to the liquor allegedly consumed by the deceased and PW-1 Mohinder Singh on 18th January, 1997. According to the learned Sessions Court, the deceased would have fallen sick immediately, after consumption of liquor, but according to the testimony of PW-1 Mohinder Singh they fell sick on the next day and that too in the night and this long gap between the consumption of liquor and their falling sick suggests that they had consumed liquor procured from some other source, during the intervening period. This observation of the trial Court is also perverse, because not only that there is no material, indicating to this kind of presumption, but also no suggestion was thrown to any of the witnesses, on these lines. Rather it was suggested that liquor was purchased and consumed on 18th January, 1997 itself, but it was purchased from Hukam Singh, a brother of respondent Gurmail Singh. 20. Testimony of PW-1 Mohinder Singh is corroborated by report Ex. PW-31/A, as also the testimony of PW-35 Inspector Bidhi Chand. As per report Ex. PW-31/A, which PW-35 Bidhi Chand has stated to have …10… drawn, several persons, including some of those who were admitted to the hospital at Una, told him that they had consumed illicit liquor on 18th January, 1997, which was purchased from respondent Gurmail Singh. Some of the persons, who gave this information to PW-35 Bidhi Chand, died on account of the effect of the liquor and, therefore, what they disclosed to PW-35 Bidhi Chand is substantive evidence, in the form of dying declaration. 21. Respondent Gurmail Singh can legitimately be held to have had the knowledge that the spurious liquor, containing methyl alcohol, could have caused death of the consumers. Therefore, his act falls within mischief of Section 304 (second part) of the Indian Penal Code. Also, his act falls within the mischief of Section 328 of the Indian Penal Code, because while selling liquor containing methyl alcohol for human consumption, he knew that the consumption of such liquor was likely to cause hurt. Further, he is also guilty of possessing and selling illicit liquor, punishable under Section 61(1)(i) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh. 22. As regards other two respondents, there is absolutely no evidence, linking them with the methyl alcohol, which was there in the liquor sold by respondent Gurmail Singh to PW-1 Mohinder Singh and other persons, who died after consuming the same. …11… 23. As a consequence of the above discussion, findings and conclusions, we partly accept the appeal, set aside the order of acquittal of respondent Gurmail Singh and hold him guilty of offences, under Sections 304 (second part), 328 of the Indian Penal Code and Section 61(1)(i) of the Punjab Excise Act, 1914, as applicable to the State of Himachal Pradesh. Appeal as against the other two respondents Yash Pal and Sanjeev is dismissed and their acquittal is upheld. Respondent-convict Gurmail Singh be produced in person on 19th May, 2010, for being heard on the question of quantum of sentence. Non-bailable warrant of arrest be also issued against him, immediately. ( Surjit Singh ), J April 29, 2010(sd) ( V.K. Sharma ), J