SHARMA, J. - (1.) THESE criminal appeals by appellants Moti Lal and Dayal Das arise out of the judgment and order dated August 7, 1984 passed by the learned Additional Sessions Judge No. 1, Ajmer, by which the learned trial Judge has convicted and sentenced them in the following manner: Appellants Moti Lal and Dayal Das: For Offence u/s. 54 (a) of the Rajasthan Excise Act: Imprisonment for 3 years with a fine of Rs. 2,000/-, in default thereof, each to further undergo imprisonment for six months; Appellant Dayal Das: 1. For Offence under Sec. 304 Part II IPc Rigorous imprisonment for 10 years with a fine of Rs. 4,000/-, in default thereof, to further undergo rigorous imprisonment for one year; 2. For offence u/s. 328 IPC: Rigorous imprisonment for 10 years with a fine of Rs. 3000/-, in default thereof, to further undergo rigorous imprisonment for ten months;
(2.) ON 26. 8. 1979 at 11. 30 AM, the SHO, Police Station Clock Tower, Ajmer recorded Parcha Bayan, Ex. P. 34 of injured Bheru Lal in J. L. M. Hospital, Ajmer, according to which, on 23. 8. 1979 at about 8. 45 PM while he was standing out side New Magestic Cinema, Hari Singh Band Master and Ram Niwas came out of the shop of Soda Lemon belonging to Dayal Sindhi. Both were known to Bheru Lal. ON being asked by Bheru Lal as to their well being, they replied that they had purchased liquor from Dayal and offered him to consume remaining liquor. Thereafter all the three consumed the remaining liquor and then entered into the shop of Dayal. Bheru Lal stated that Hari Singh Band Master purchased half bottle (Adha) of liquor from Dayal and paid to him Rs. 7/- and all the three consumed the liquor in the shop itself. Thereafter Hari Singh Bank Master again purchased one 1tr. Liquor for Rs. 3. 50 and they came out of the shop and consumed the said liquor while standing opposite cinema. According to Parcha Bayan, while they were consuming liquor in the shop of Dayal, one Lal Chand Sindhi was also busy in consuming liquor in the shop of Dayal. Thereafter all the three left for their houses. Having reached home, Bheru Lal ate bread with curd and went to sleep. In the morning he became unconscious. He regained consciousness in the hospital and came to know that Lal Chand Sindhi died in the hospital because of consuming liquor. Lastly, it was stated that the wine which they purchased from the shop of Dayal and consumed was poisoned and he became unconscious as a result of consuming poisonous liquor. According to him the liquor was illicit and Dayal was selling the liquor without there being valid licence. On the basis of above Parcha Bayan, Police registered a case for offence under Sections 328, 336, 304, 284 IPC and Sec. 8/14 D. D. Act vide FIR, Ex. P. 63 and proceeded with the investigation. After the completion of investigation, the police submitted a charge sheet against 7 accused persons. The prosecution story as unfolded after investigation as enumerated in the charge sheet may be summarised below: Accused Nari Badhumal, Sriya @ Shrilal, Moti and Ganga Ram hatched conspiracy, according to which they manufactured illicit poisonous liquor at Kishangarh (Ajmer) for the purposes of sale through Dayaldas and in furtherence of their conspiracy hatched at the instance of Peshu, accused Nari and Sriya @ Srilal brought the illicit poisonous liquor to Ajmer in a car belonging to accused Sriya, the driver of which was accused Ganga Ram and sold the same to Dayal Das and accused Dayal Das, in turn, sold the said illicit poisonous liquor to various persons. As a result of consuming the poisonous liquor, Arjun, Lal Chand, Bhagwan, Pamman das, Dhanna and Suresh Prakash lost their lives, while Lal Chand lost vision of his one eye. Few persons including Bheru Lal succeeded in saving their lives because of medical aid and treatment. On the basis of charge sheet, the evidence and material collected during investigation and on hearing arguments on the question of framing of charges, the learned trial Court framed charges against the accused. The accused denied the charges and claimed trial. To prove its case, the prosecution examined as many as 46 witnesses and got exhibited numerous documents. After the prosecution evidence was over, the accused were examined under Section 313 Cr. P. C. At the conclusion of trial, the learned trial Court while acquitting accused Ganga Ram and Peshu of the offences charged with, convicted the sentenced the appellants in the manner stated herein above. It may be stated that out of remaining 3 accused, Sriya @ Srilal has expired, while Narumal and Badhuamal are absconding.
(3.) I have heard learned counsel for the accused appellants and learned Public Prosecutor and gone through the impugned judgment and the evidence available on record. Having gone through the impugned judgment, it appears that: (a) Appellant Dayal has been held responsible for the death of Suresh, Pammandas, Arjun, Bhagwan, Lal Chand, Dhanna and Jethanand. According to the trial Court these persons purchased poisonous liquor on or about 23. 8. 1989 from the shop of appellant Dayal Das and as a result of consumption of poisonous liquor, they lost their lives; (b) Appellant Moti has been convicted for offence under Sec. 54 of the Rajasthan Excise Act on the basis of evidence of recovery of one bottle of illicit liquor from is possession in pursuance of information furnished by him. In doing so, the trial Court relied upon the FSL report, according to which the sample of liquor was found to be of illicit liquor; (c) Two bottles of liquor were also recovered from the possession of appellant Dayal on the basis of information furnished by him. But the trial Court did not find him guilty of the offence under Sec. 54 of the Rajasthan Excise Act on the ground that prosecution has not been able to prove information furnished by appellant Dayal. However, the trial Court convicted him for offence under Sec. 54 of the Rajasthan Excise Act for having sold the illicit liquor to various persons; (d) Appellant Dayal das has also been convicted for offence under Sec. 328 IPC; (e) According to the trial Court there was no evidence of conspiracy against Pesumal and Ganga Ram and accordingly acquitted them of the charges, and (f) Accused Badumal and Nari are absconding, while accused Sriya passed away. The findings arrived at by the learned trial Court may be categorised in two parts viz. , (1) the findings arrived at on proper appreciation of evidence and (2) the findings which are perverse being not based on evidence. (i) It is correct that Bhagwan died due to alcohol poisoning as has been proved by the post-mortem report, Ex. P. 41, the chemical examiner's report Ex. P. 42 and by the statement of PW. 15 Dr. A. N. Mathur who conducted autopsy on the dead body. (ii) Similarly, the cause of death of Arjun was also poisoning due to methyle alcohol as is evident from the post mortem report, Ex. P. 45. The doctor who conducted autopsy and prepared PMR opined on the basis of chemical examiners' report that cause of death was poisoning due to methyl Alcohol. The chemical examiner's report Ex. 44 also supports this fact. (iii) Likewise, it stands proved that Pammandas died due to alcohol toxicity. The post mortem report Ex. P. 48 and the opinion, Ex. P. 49 of the Doctor corroborates this fact. The chemical report Ex. P. 50 and the statement of PW. 16 Dr. Kavia further fortifies the fact that death of deceased was due to alcohol toxicity. (iv) The cause of death of Suresh Prakash was also the poisoning of methyle alcoholas is established by the post mortem report, Ex. P. 54, the opinion (Ex. P. 55) of the doctor about the cause of death, the Chemical Examiner's report Ex. P. 56 and by the statement of Dr. R. K. Soni who conducted autopsy. (v) The cause of death of deceased Jethanand was also methyle alcohol poisoning as is proved by the post mortem report Ex. P. 57 and Chemical Examiner's report Ex. P. 58. PW. 17 Dr. R. K. Soni who conducted autopsy also certifies the above fact. (vi) The post mortem report and chemical examiner's report of deceased Dhanna could not be exhibited for the reasons best known to the prosecution. ;