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TMI Blog1995 (1) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1982) thus became a day of disaster to hundreds of families. The magnitude of the calamity swing police into action who, after close of investigation, charge-sheeted 10 persons for offences punishable under Sections 120B, 302, 272 and 328 read with Sections 107 and 109 of the Indian Penal Code, as well as some sections of the Kerala Abkari Act. At one stage, the Sessions Judge at Ernakulam discharged the 4th accused and framed charges against others excluding one under Section 302. This was challenged before the Kerala High Court who confirmed the discharge of the 4th accused but directed the Sessions Judge to frame charge under Section 302 also. In the trial which proceeded thereafter the prosecution examined 324 witnesses and proved 433 documents. At the close of the trial, the Sessions Judge acquitted accused 5 to 8 and 10 of all the charges. In so far as the accused 1 to 3 and 9 are concerned, they were also acquitted to the offences under Section 302 of the Penal Code as well as under the Abkari Act, but were convicted under Sections 120B and 328 as well as Sections 107, 109 and 272 read with Section 34 of the Penal Code. Various sentences were awarded for these of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us had acted in concert in committing the offences for which they have been held guilty by the High Court. Before examining this aspect, it may be stated as the High Court also had not convicted any of the appellants under Section 302 of the Penal Code and as there is no appeal to this Court against the acquittal under Section 302,we are not addressing ourselves, as it is not open to do so, to the question whether the appellants were guilty under Section 302. We, therefore, propose to continue our discussion to the conviction as awarded by the High Court. 6. The licence to vend liquor being in the name of the aforesaid firm (Bee Vee Liquors), it is apposite to mention that in this firm, which was started on 133.1980, initially accused 2 and 10 were partners, in which partnership eight persons including accused 1 and 3 were inducted subsequently. In the relevant year (1982-83) the liquor licence had been obtained by the firm in the name of accused 1 and 2 alongwith wife of the first accused. In so far as accused 9 is concerned, he is an outsider and a chemist who had, according to the prosecution, entered into a conspiracy, inter alia, with the aforesaid accused, which conspiracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... really relevant qua accused 10. As regards him, the High Court has mentioned about the following circumstances to show that despite his withdrawal from the firm of Bee Vee Liquors before the occurrence, he continued to take active part in the management :- (i) operation of bank account upto 31.9.82 (paras 105 and 110 of the judgment); (ii) the continued user of the jeep belonging to this accused by the firm of Bee Vee Liquors (para 109); (iii) dealing with all labour problems and service conditions of the employees of the firm (para 111); (iv) joint management of the firm at hand and Vipin Liquor , in which this accused was admittedly taking leading part, treating them as sister concerns (para 111); (v) continuous money transactions between Bee Vee Liquors and Cochin wines, another firm of this accused (para 112); and (vi) over-draft applications made by this accused along with accused 2 on behalf Bee Vee Liquors in May, 1982 (para 114). 10. The aforesaid circumstances do not leave any manner of doubt in our mind that accused 10 was taking active part in the management. The submission of Shri Sanyal that this accused was a financer only and was looking after f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would be of some interest to note the contents of this Exhibit which reads as below :-. 14. Though the aforesaid Exhibit speaks about Spirit because of which a contention has been advanced on behalf of the appellants that what was ultimately mixed with arrack was spirit (to be more particular, rectified spirit), the same is belied by the several vouchers which were seized by the Investigating Officer, PW. 324, from the office of the firm. These vouchers contain the name of 'SP'. What was indeed supplied was not spirit but methyl alcohol as would appear from the report of the Chemical Examiner brought on record. Samples which were sent for examination revealed that some of the barrels contained methyl alcohol ranging from 67.83% upto 96.4%. In the house of accused 9, three loaded barrels were found which contained methyl alcohol from 88.36%. It is not disputed that methyl alcohol is virtually poison. The quantity supplied by accused 9 was about 20,000 litres, the price of which per litre was 50 naya paisa. As per the afore-noted formula, in total quantity of 200 litres of liquor, spirit was to be 25 litres, water 50 litres and arrack 125 litres as per item 2. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (the Investigating Officer) their evidence should be accepted. Not only this the High Court has dealt with the reasons given by the trial court for disbelieving these witnesses and has adequately met the reasons. We do not propose to traverse this ground over again as we are fully satisfied about this part of High Court's judgment. 18. As, however, Shri Sanyal has taken pains to highlight the omission by some of the witnesses in naming accused 10 during investigation, we propose to say a few words regarding this submission. A perusal of the judgment of the High Court leaves no manner of doubt that the investigating agency had made all efforts to shield accused 10; may be because of the political clout or any other reason. This would be apparent from the fact that though this accused was being shown absconding by the police, he was in constant touch with the police and was having meeting with police who advised him not to surrender because if he did so he ran the risk of his anticipatory bail being rejected. Not only this, the High Court has stated in paragraph 190 that the police was giving secret information to this accused and ultimately they went in for a 'thrilling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprising itself of the reasons given by the trial court in disbelieving the witnesses in question, and it duly met the flaws pointed out. As regards circumstantial evidence, it is clear that those brought on record have duly and sufficiently linked this accused with the offence in question. The chain is complete to fasten him. As to when conspiracy can be taken as established, it has been accepted in the decisions relied on by Shri Sanyal, that there can hardly be direct evidence on this, for the simple reason that conspiracies are not hatched in open; by their very nature they are secretly planned; and so, lack of direct evidence relating to conspiracy by this accused has no significance. 21. Insofar as other appellants are concerned, not much is required to be said by us in view of the concurrent findings of the trial court and the High Court about their involvement. As, however, Shri Lalit appearing for accused 1 made efforts, and sincere efforts at that, to persuade us to disagree with the finding relating to this accused being hand in glove with others, let us deal with the submissions of Shri Lalit. He contends that there is nothing to show about this accused being a cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the appellants have taken pains to convince us that no offence under Section 326 specially was committed. Though some submissions had been advanced about non-applicability of Section 328 also, it is apparent that if we would be satisfied about applicability of Sections 326, 328 would apply proprio vigore. 25. According to Shri Sanyal, mischief of Section 326 would not be attracted for two reasons. First, the appellants had not caused any hurt voluntarily . Secondly, the hurt caused, in any case, was not grievous . 26. To sustain the first submission, Shri Sanyal refers us to the definition of voluntarily as given in Section 39 of the Penal Code which, inter alia, says that a person is said to cause an effect voluntarily when he knew or had reason to believe to be likely to cause it. Learned counsel contends that the accused persons had no knowledge that the effect of the consumption of the adulterated liquor would be so injurious as it proved to be. This submission cannot be accepted because the aforesaid knowledge can well be imputed for two reasons. First, under the Kerala Abkari Act no mixture at all with the liquor as supplied to the firm was per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in clause Eighthly cannot be read in other clauses. To us, this is so apparent that we really did not expect a submission of this nature from a senior counsel. Shri Sanyal, however, persisted and sought to press into service the observation made by a Full Bench of the Bombay High Court in Government of Bombay v. Abdul Wahab 1945 Bom L R 990. That observation is The line between culpable homicide not amounting to murder and grievous hurt is a very thin and subtle one. In the one case the injuries must be such as are likely to cause death; in the other, the injuries must be such as endanger life.... . This has to be read in the context in which it was made; and the same was that the jury in that case had returned a unanimous verdict of the accused not being guilty of culpable homicide not amounting to murder, but only of grievous hurt. A contention was advanced by the State before the High Court that as injuries in question were such which endangered life, the guilt of culpable homicide not amounting to murder was brought home. As, for this offence the injuries must be such as are likely to cause death , the Full Bench drew attention to the difference in between the two. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s drawn to the judgment rendered in Rengta Majhi v. State of Assam (1988)IILLJ534Guj , in which one of us (Hansaria, J.) speaking for a Bench of the Gauhati High Court held that even under the new CrPC the power for issuing a suo motu rule of enhancement exits. That decision is based on certain judgments of this Court noted therein. Shri Lalit conceded that in view of what has been stated in Rengta Majhi's case, the High Courts do have this power even under the new CrPC. Learned counsel, however, urges that 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, according to Shri Lalit, has conferred a limited jurisdiction and is confined to the examination of legality or otherwise of the judgment under appeal. 34. Shri Nambiar does not agree with this submission. According to him the power conferred on this Court by Article 136 is of wide amplitude and is plenary. Learned counsel also submits that the power of an appellate court is normally co-extensive with that of the lower court; and so, if the High Court in a case of the present nature could have issued the rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legislature had not limited its jurisdiction by providing that: such exercise will depend on the existence of any particular state of facts. 37. What was held in the aforesaid two Constitution Bench decisions would indicate that where an appellate authority is conferred with power, without hedging the same with any restriction, the same has to be regarded as one of widest amplitude and the power of such an appellate authority would be co-extensive with that of the lower authority. It is apparent that the appellate power available to this Court under Article 136 is not circumscribed by any limitation. We are, therefore, inclined to think that being a court to whom appeals lie from the judgments of the High Court, it would have the same power which is available to a High Court; and in exercise of such a power the rule of enhancement could have been issued. 38. We do not, however, propose to uphold the legality of the rule issued on the aforesaid ground inasmuch as there can be really no dispute that the power given by Article 136 is plenary in nature. This has been the view of this Court for about four decades by now inasmuch as such a vista was first opened by a Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not permit this as that would be a procedure not mandated by law. In support of this contention, some assistance is sought to be derived from what was stated by a 7-Judge Bench in A.R. Antulay v. R.S. Nayak 1988CriLJ1661 , in which the direction given by a 5-Judge Bench in its first judgment in A.R. Antulay v. R.S. Nayak, transferring the cases to High Court was held to be violative to Article 21 as the larger Bench felt that because of the order in question the appellant would be tried by a procedure not mandated by law. What was stated by the 7-Judge Bench has no relevance, because if a High Court can issue a rule of enhancement, as fairly conceded by Shri Lalit, the power of issuing rule of enhancement cannot be said to be one not mandated by law. 41. The further submission that power to enhance the sentence has to be specifically conferred in case of the present nature has no legs to stand inasmuch as the CrPC has not conferred such a power on High Court when it is seized with an appeal against conviction. This is apparent from Section 386 of the Code, which has been referred by Shri Lalit in this context, as the same gets attracted when a High Court exercises its revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against the judgment of the High Court in the criminal appeal filed by the accused that judgment had become final and the sentence could not be enhanced. The passing observation in paragraph 11 that nothing could be done as regards the sentence cannot be taken to be a decision that power of enhancement is not available to this Court. The judgment in The State of Mysore v. C.N. Vijendra Rao [1976]2SCR321 , which is the last to be referred by Shri Lalit to support this contention has no relevance, as it dealt with a different point altogether. 44. If passing observation has to be borne in mind, what was recently stated in Narayanamma (Kum.) v. State of Karnataka (1994)5SCC728 , is more to the point inasmuch as it was stated in paragraph 6 that though the sentence of 3 years' rigorous imprisonment for the crime of rape was inadequate, it did not wish to enhance the same at this point of time . 45. On the basis of what has been stated above, we entertain no doubt that it was within the competence of this Court to have issued the rules of enhancement. Let it now be examined whether the sentences as awarded merit to be enhanced. 46. Let it now be seen whether the sentenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Being not represented by any counsel, we thought it appropriate to provide him legal aid, to which effect we requested the Supreme Court Legal Aid Society to appoint a counsel for him. Shri R.K. Jain, Sr. Advocate appeared accordingly. We have heard him. 49. We acquainted Shri Jain with what had been stated by us while issuing enhancement notice and the same being that it would be open to this accused even to urge that he is entitled to acquittal. Shri Jain submitted that on the face of dismissal of the Special Leave petition filed by this accused, followed by dismissal of the review petition, he is not in a position to urge that the conviction of this accused was not justified. The learned counsel, however, urged that keeping in view the old age of this accused and his financial weak position, because of which even before the trial court as well as in the High Court he was given legal aid, we may not enhance the sentence. His deafness is also brought to our notice. 50. We have duly considered the aforesaid submissions of Shri Jain. As to the advance age we would say though this is a mitigating circumstance, there exists an aggravating circumstance as well the same being th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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