vikhroli illicit liquor tragedy 2004 case judgement

7/28/2019 Vikhroli illicit liquor tragedy 2004 Case Judgement

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IN THE COURT OF SESSIONS (FAST TRACK) FOR GREATER BOMBAY

AT SEWREE

SESSIONS CASE NO.395 OF 2005

ALONGWITH SESSIONS CASE NO.440 OF 2007

In C.C.No.145/P/2005

THE STATE OF MAHARASHTRA(At the instance of Vikhroli P.Stn.vide C.R.No.249/04 and DCB-CID, Unit-VIIvide C.R.No.152/04)

...Complainant

VERESES

1. Balaram Sukrya MhatreAged- 49 Yrs.R/o.Padle village, Mothi Desai,Shelpada Road, Tal.Kalyan,Dist.Thane.

2. Pandit Shankar KalanAged- 38 Yrs.R/o.B/9, Kisan Apartment,Rambaug Lane No.4, Kalyan(w),Thane.

3. Pradeep Oliver D'meloAged- 27 Yrs.R/o.At/P.Anjur, Tal.Bhiwandi,Dist.Thane.

4. Vishnu Aambo MhatreAged- 43 Yrs.R/o.At-Wadavali (Khurd),Post-Nirje, Tal.Kalyan, Dist.Thane.

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5. Ramesh Dnyaneshwar PokharkarAged- 42 Yrs.R/o.14, Saidham Sangh,Janta Colony, Laxmi Nagar,Ghatkopar(E), Mumbai- 75.

6. Sanjay Dnyaneshwar KolekarAged- 31 Yrs.R/o.Laxmi Nagar, Lane No.7, Near Canara Bank,Pant Nagar, Ghatkopar(E), Mumbai-75.

7. Laxmi @ Velee Selvam Narayan Shettiyar

Aged- 50 Yrs.R/o.L.P.Phansekar Chawl No.3,R.No.2, Vikhroli(E), Mumbai-83.

8. Vadivel Narayan ShettiyarAged- 29 Yrs.R/o.L.P.Phansekar Chawl No.3,R.No.2, Vikhroli(E), Mumbai-83.

9. Ayappa Narayan Shettiyar

Aged- 35 Yrs.R/o.L.P.Phansekar Chawl No.3,R.No.2, Vikhroli(E), Mumbai-83.

10. Chitra Murgesh ShettiyarAged- 30 Yrs.R/o.L.P.Phansekar Chawl No.3,R.No.2, Vikhroli(E), Mumbai-83.

11. Asha @ Saroj Babu KambleAged- 45 Yrs.R/o.Subhash Nagar, Mhada Colony,Nahur, Mumbai.

12. Sunil Somaji KhandareAged- 36 Yrs.R/o.Milind Nagar, Goandevi, Bhandup.

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13. Seema Vasant ShettyAged- 35 Yrs.R/o.Ganesh Nagar, Diva,Dist.Thane.

14. Anand Pandurang ShindeAged- 53 Yrs.R/o.Tagore Nagar, Group No.3,Chawl No.304, R.No.3812,Vikhroli(E), Mumbai-83.

15. Nagamma Rama Shetty @ Kani Aunty

Aged- 50 Yrs.R/o.Shetty Chawl, Near Vikhroli police station,Vikhroli, Mumbai-83.

16. Radha Suresh ShettyAged- 70 Yrs.R/o.Tagor Nagar No.1, Ashok Nagar Hutment,In front of Don Bosco school,Vikhroli(E), Mumbai-83.

17. Kharva Sunkappa Pagadat @ Makadwali AkkaAged- 60 Yrs.R/o.Tagore Nagar, Group No.3,Vikhroli, Mumbai-83.

18. Maya Ibrahim Khan @ JalkiAged- 62 Yrs.R/o.Mhada Bldg., Subhash Nagar,Nahur village, Nahur, Mumbai.

19. Babu Ramappa KambleAged- 48 Yrs.R/o.Mhada Colony, Subhash Nagar,Nahur(w), Mumbai- 400 078. ...Accused

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APPEARANCES :-

Shri.Vaibhav Bagade, learned Spl.P.P. for the State.

Shri.Sudeep Pasbola, ld.Advocate for Accused No.1,5 and 6.

Shri.Mooman @ Shri.V.K.Naik, ld. Advocate for Accused No.2.

Shri.Abdul Wahab Khan @ Shri.Zende, ld. Advocate for

Accused No.3, 4, 7 to 11, 13 to 15 and 17 to 19.

Shri.Santosh Deshpande, ld. Advocate for Accused No.12.

Shri.M.R.Dhanawade(S.A.), ld. Advocate for Accused No.16.

CORAM : H.H.EXTRA-JOINT AD-HOCADDITIONAL SESSIONS JUDGE

SHRI.W.K.KANBARKAR

C.R.No.02Dated : 26th APRIL, 2012

.........................

J U D G E M E N T

01. Brief facts of the prosecution case are as under.

One Mr.Vijay Mahato works in S.K.Chemical

Industries, Navi Mumbai belonging to Mr.Naveen Bhanushali.

Accused No.3 Pradeep D'melo contacted Vijay Mahato who has

played role of commission agent on 20/10/2004 to 23/12/2004

from time to time for supply of 11 drums of methanol from

others. Accordingly, Vijay Mahato contacted Mr.Jignesh

Siddhapura who carries the business of dyes and chemicals

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under the name and style N. J. Dyes and Chemicals and

mainly dealing with dyes, chemicals such as methanol,

acetic acid etc. Accordingly, Jignesh Siddhapura took order

of 11 drums of methanol from accused Pradeep D'melo through

Vijay Mahato and thereby 11 drums of methanol delivered to

accused Pradeep D'melo on different dates right from

25/10/2004 to 23/12/2004 and time to time and payments were

received for the same through Vijay Mahato and in return

Vijay Mahato took his commission out of the said amounts.

Further said, 11 drums of methanol was transported by

accused Pradeep D'melo and that was kept at the place of

accused Pandit Kalan, Pradeep D'melo and Vishnu Mhatre

manufactured illicit liquor and the said methanol was mixed

with illicit liquor and that was transported by accused

Ramesh Pokharkar and Sanjay Kolekar & delivered/supplied to

accused Laxmi Shettiyar, Vadivel Shettiyar, Ayappa

Shettiyar, Chitra Shettiyar, Asha Kamble, Sunil Khandare,

Seema Shetty, Anand Shinde, Nagamma Shetty, Radha Shetty,

Kharva Pagadat, Maya Khan and Babu Kamble. So said accused

Laxmi Shettiyar and others further sold said methanol mixed

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illicit liquor from their dens/shops to the various

customers and on consumption of the said liquor by those

customers, they had suffered and hence they were admitted

at different hospitals but, out of them 87 persons expired

whereas remaining 179 persons suffered various kinds of

injuries.

02. On 27/12/2004 at about 6.45 a.m, PI.Mane who

was attached to Vikhroli police station has received

phone message from Rajawadi hospital that, certain

patients who had consumed liquor are sufferer of health

problem and hence they are admitted there. So PI.Mane

along with PSI.Sayyed and staff immediately went at

Rajawadi hospital and came to know about the death of

some victims. Obviously, PSI.Sayyed has prepared inquest

panchanamas of some dead bodies of victims. In the

process of A.D.R. inquiry statements of some victims were

recorded and in which transpired that, one Mr.Vijay

Dhokale on account of his marriage day as well as one

Mr.Yogesh Sonawane on account of Chrismas day, had

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arranged parties at the dens of accused Asha Kamable and

Babu Kamble and in the process of said parties, the

persons/victims who were invited, they had consumed

illicit liquor mixed with methanol which was supplied by

accused No.1 Balaram Mhatre, No.2 Pandit Kalan, No.3

Pradeep D'melo and No.4 Vishnu Mhatre through accused No.5

Ramesh Pokharkar and No.6 Sanjay Kolekar to accused Laxmi

and others including these accused Asha Kamble and Babu

Kamble. Victims were admitted and treated in different

hospitals including Rajawadi hospital. Subsequently,

PI.Mane has lodged F.I.R. and on the basis of that F.I.R,

Vikhroli police station, C.R.No.249/04 was registered

against the present accused persons. API.Nikam who was

attached to Vikhroli police station went at Rajawadi

hospital and prepared inquest panchanamas of 34 dead bodies

in the process of A.D.R inquiry. Further investigation of

this matter was conducted by PI.Mausamkar the then attached

to Vikhroli police station who has recorded statements of

some persons/victims. Thereafter, accused Asha Kamble was

arrested under the panchanama. Panchanama of scene of

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offence regarding situations at the place/house of accused

Asha and Babu Kamble was also prepared in presence of

panchas. Accused Sunil Khandare and Laxmi Shettiyar

arrested on 28/12/04 but arrest panchanama was prepared

only in respect of accused Laxmi Shettiyar.

03. On 29/12/04 in view of directions from

Dy.Commissioner of police, Detection, Crime Branch, Mumbai,

investigation of the said C.R.No.249/04 of Vikhroli police

station handed over to DCB.CID, Unit-VII, Ghatkopar. So

for the purpose of further investigation team was formed

under the leadership of Sr.P.I.Praful Bhosale and

consisting of API.Shirtode, API.Ashok Khot, PSI.Yogesh

Chavan and PI. Prakash Patil and others. On 30/12/04

investigation of this matter was handed over to

Sr.PI.Bhosale, team incharge of DCB.CID. Thereafter, on

the basis of said investigation papers, DCB.CID, Unit-VII,

Ghatkopar, C.R.No.152/04 was registered under different

provisions of Indian Penal code and Bombay Prohibition Act.

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04. On 31.12.04 accused Ramesh and Sanjay were

arrested under panchanama and during process of their

search found driving licence, visiting cards, notes & the

same were seized under the said panchanama. On 11/01/05

accused Sanjay made disclosure statement in presence of

panchas to point out the place Rambhajan Compound

wherefrom tubes of liquor were loaded in the esteem car

and pointed out the said place and in that regard

panchanama was prepared. On 20/01/05 accused Pradeep

D'melo made disclosure statement in presence of panchas

to point out warehouse and pointed out warehouse of

Bhiwandi and from that place register and slips seized

under panchanama. Meanwhile, accused Pradeep D'melo was

arrested under panchanama on 19/01/05 and during his

personal search key-chain, diary, and paper-slips seized

under the said panchanama. Accused Balaram and Vishnu

were arrested by N.M.Joshi Marg police station & on

transfer warrant, custody of said accused was taken over

by DCBCID. On 03/03/05 accused Maya Khan arrested whereas

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accused Babu Kamble arrested on 14/01/07. On 27/01/07

Babu Kamble made disclosure statement in presence of

panchas to point out the Jagruti Watch Company

wherefrom sim-card was purchased and panchanama was

prepared to that effect. On 31/12/04 search of

dens/houses of accused Sunil Khandare, Seema Shetty,

Anand Shinde was taken and incriminating articles found

at the said places were seized under the panchanama. On

03/01/05 accused Nagamma Shetty and Radha Shetty were

arrested and during the process of search of dens/houses

of accused Nagamma and Radha some incriminating articles

which were found there, were seized under the panchanama.

On 06/01/05 accused Sunil Khandare made disclosure

statement for production of rubber-tubes of liquor etc.

and the same recovered at his instance under panchanama.

Accused Ramesh Pokharkar also made disclosure statement

in presence of panchas to point out the place wherefrom

16 tyre-tubes of liquor were loaded and thereby pointed

out the said place and in that regard panchanama was

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prepared. On 24/01/05 at the instance of accused Vishnu

Mhatre recovered boiler, utensils articles, liquor,

alcometer under the panchanama. On 25/01/05 recovered 2

tyre-tubes containing illicit liquor mixed with methanol

and the sample was collected from the same and panchanama

was also prepared in that regard. So also on 26/01/05 at

the instance of accused Pandit Kalan incriminating

articles seized under the panchanama.

05. Certain doctors attached to different hospitals

including Rajawadi hospital and Sion hospital conducted

postmortem on 87 dead bodies of victims and in that

process blood samples were collected and visceras were

preserved. According to prosecution, 266 persons who had

consumed country liquor mixed with methanol had suffered

and out of them in the process of medical treatment, 87

persons/victims expired and hence their postmortem were

prepared whereas remaining 179 injured victims on

treatment discharged after collected their blood samples.

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Collected samples from the hospitals were sent to

Chemical Analiser along with forwarding letters through

the office of DCB.CId, Unit-VII. On 17/01/05 letter was

sent from DCB.CID addressing to D.C.P., Crime, Mumbai to

collect information about the call details of

mobile/telephone numbers which took place intersay

amongst the accused persons in the context of crime and

hence call details from mobile phones were received. In

the process of investigation, Maruti Esteem car was

seized and report of chance prints was prepared and the

fingerprint expert report was prepared by the Director of

Fingerprints and reflected chance prints of accused

Ramesh Pokharkar and Sunil Kolekar on the glass and

mirror of the said car. From the office of DCB.CID,

opinion was sought from Asstt.Director of Forensic

science on certain points including characteristics of

methanol & in that regard report came to be issued from

the office of said office of Asstt. Director of Forensic

Science. Statements of some persons were recorded. After

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completion of investigation, initial charge-sheet is

filed against accused Balaram Mhatre and 17 others

whereas after arrest of wanted accused No.19 Babu Kamble,

supplementary charge-sheet filed. According to the

prosecution, transpired during the course of

investigation that, accused intersay had hatched criminal

conspiracy and methanol was purchased from different

places and some part of the said methanol was mixed with

country liquor manufactured by accused Balaram Mhatre,

Pandit Kalan, Pradeep D'melo and Vishnu Mhatre and that was

supplied through accused Ramesh Pokharkar and Sanjay

Kolekar to the other 13 co-accused including Laxmi and

others and the very methanol mixed illicit country liquor

was sold from the dens/shops of the said accused Laxmi and

others and that was consumed by the victims/customers in

the process of parties attended by them on account of

Chrismas day and marriage day of Yogesh Sonawane and Vijay

Dhokale respectively at the dens of accused Asha and Babu

Kamble and after consumption of such poisonous liquor, 266

persons had suffered but while under treatment 87 victims

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expired whereas 179 injured/victims discharged after

treatment from different said hospitals and thereby the

present accused are responsible to cause injuries and

deaths of said victims.

06. In the instant case, on hearing prosecution

initial charge was framed on 23/02/06 and thereafter

charge was altered on 28/06/07 under different 14 heads

of Indian Penal Code and Bombay Prohibition Act and

thereafter on alteration charge is finally framed on

04/08/08 below Exh-203 under Sections 302, 304, 328, 326,

324 272, 273 r/w.120(B) of Indian Penal Code and Sec.109

r/w.120(B) of I.P.C as well as Sec.65(b)(d)(e)(f) r/w.81

of Bombay Prohibition Act and the same was read over and

explained to accused No.1 to 19 in the language known to

them but, accused pleaded not guilty and claimed to be

tried for the said offences. Defence of the accused is of

total denial.

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07. On the above controversial contentions, the

following points have arisen for my determination and

findings thereon are as under.

Sr. Points Findings

1 Whether the death of 87 victims/

customers was homicidal ?YES

2 Does prosecution prove that, at the

relevant time accused No.1 to 19 did

commit criminal conspiracy for

adulteration and poisonous substance

i.e.by mixing methanol with illicit

country liquor and to supply/sale the

same to the customers ?

NO

3 Does prosecution prove that at the

relevant time, A/1 Balaram, No.2

Pandit, No.3 Pradeep, No.4 Vishnu,

No.5 Ramesh and No.6 Sanjay, in

furtherance of their common intention

did commit murder of 87 victim by

supplying/administering methanolmixed illicit liquor, poisonous

substance intentionally and knowingly

causing bodily injuries to them ?

NO

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4 Does prosecution in the alternative

prove that, at the relevant time,

accused No.1 to 19 in furtherance of

their common intention committed

culpable homicide not amounting to

murder of 87 victims/ customers by

supplying/selling methanol mixed

illicit country liquor i.e.poisonous

substance to said 87 victims/

customers with intention of causing

death or of causing such bodily

injuries that it was likely to cause

death or did commit said act with the

knowledge that thereby likely to

cause their death by causing bodily

injuries to them ?

In theaffirmative

against accusedNo.1 to 4 and

in the negativeagainst accusedNo.5 to 19.


relevant time accused Nos.1 to 19, in


voluntarily caused grievous hurt to

179 victims by supplying/selling

methanol mixed illicit country liquori.e.poisonous substance to them which

was likely to cause their death ?

NO

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relevant time accused Nos.1 to 19 in


caused hurt to 179 victims/customers

by supplying/selling methanol mixed

illicit liquor, a poisonous substance

to them which was likely to cause

their death ?

In theaffirmative

against accusedNo.1 to 4 andin the negativeagainst accusedNo.5 to 19.




supplied/sold methanol mixed illicit

country liquor i.e.poisonous

substance to 266 victims/customers

with intend to cause hurt to them orwith knowledge thereby likely to

cause hurt to them ?

In theaffirmative

against accusedNo.1 to 4 andin the negativeagainst accused

No.5 to 19.


relevant time accused Nos.1 to 19 in


did commit adulteration of methanol

by mixing with illicit country liquor

i.e.poisonous substance so as to make

it noxious as a drink with intention

of selling such article as a drink or

In theaffirmative

against accusedNo.1 to 4 andin the negative

against accusedNo.5 to 19.

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knowing to be likely that the same

would be sold as drink ?




sold methanol mixed illicit liquor,

poisonous substance as an article of

drink which had become noxious asdrink or which was unfit as drink

knowing or having reason to believe

that same was noxious as drink ?

In theaffirmative

against accusedNo.1 to 4 andin the negative

against accusedNo.5 to 19.


relevant time accused Nos.1 to 19

found committed or abated for using,

keeping or in their possession

materials, still, utensils,

implements or apparatus for the

purpose of manufacturing intoxicant

i.e.methanol mixed illicit liquor ?

In the

affirmativeagainst accusedNo.1 to 4 andin the negativeagainst accusedNo.5 to 19.



found manufacturing intoxicant

methanol mixed illicit liquor, a

poisonous substance ?

NO

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found bottling/re-bottling methanol

mixed illicit liquor, a poisonous

substance ?

In the

affirmativeagainst A/1 to 4and A/7 to 19but, in the

negative againstA/5 and 6.


relevant time accused Nos.1 to 4 and

A/7 to 19, found sold/purchasedintoxicant methanol mixed illicit

liquor, a poisonous substance ?

YES


relevant time accused Nos.5 and 6

have abetted the act of co-accused of

possessing, transporting and

distributing illicit country liquor ?

YES

15 What offences if any the accused have

committed ?

A/1 to 4 U/s.304(Part-I), 324,328, 272, 273

r/w.34 of I.P.C.and U/s.65(d),

65(e) & 65(f) ofBombay Probn.Act.

A/5 & A/6 U/s.65(e) r/w.81 ofBombay Prohbn.Act. A/7 to 19

U/s.65(d) & 65(e)of Bombay

Prohibition Act.

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16 What order ? As per finalorder

R E A S O N S

AS TO POINT NO.1 :-

08. Initial burden lies upon the prosecution to

prove that, the death of 87 victim customers was

homicidal. According to prosecution, the death of 87

victim customers occurred because of consumption of

methanol mixed illicit liquor i.e.poisonous substance

which was unfit for consumption and thereby they had

suffered bodily injuries before their death. Of course,

at the instance of the defence canvased argument that,

occurrence of death of said 87 victim customers was not

due to consumption of methanol mixed illicit liquor but

that might have caused due to various reasons like food

etc. In this context, prosecution has relied upon the

evidence of PW.2 Shankar Javale, Asstt.Director of

Forensic Science. This witness states in his evidence

the characteristics of methanol as the same is highly

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inflammable liquid and the same is highly poisonous and

unfit for human consumption and the opinion report

(Exh-71) is placed in that regard.

09. Postmortems were conducted on the dead bodies

of the victim/customers by PW.89 Dr.Pravin Bagul, PW.90

Dr.Shivaji Kacahre, PW.91 Dr.Bhimrao Brahmane, PW.92

Dr.P.M.Shinde, PW.93 Dr.Ramesh Savardekar, PW.94

Dr.Janardan Nimbhori, PW.95 Dr.Sunik Kadam, PW.96

Dr.Rajesh Sukhadeve, PW.98 Dr.Rajesh Dere, PW.99

Dr.Shishir Ruia, PW.100 Dr.Harish Pathak and PW.102

Dr.Baban Shinde and they have referred in their evidence

postmortem reports and medical papers including C.A

reports which are indicating that, the samples detected

methyl alcohol of certain percentage. Moreover, some

prosecution witnesses have clearly stated in their

evidence that, because of consumption of illicit country

liquor by them at the dens/shops of certain accused, they

had suffered bodily injuries. Moreover, some other

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witnesses of the prosecution also stated in their

evidence that, their family members, relatives or friends

had consumed illicit liquor at the dens of certain

accused and because of that they had suffered bodily

injuries and consequently while under treatment, they had

expired. Obviously, the evidence brought on record by

prosecution is so clear to prove that, the victim/

customers who had consumed methanol mixed illicit liquor

had suffered bodily injuries and resulted into their

deaths. Therefore, the contention of the defence that,

there are various reasons for poisoning and death of

victims was not because of consumption of poisonous

substance i.e.methanol mixed illicit country liquor, but

otherwise is not acceptable. Hence, point No.1 is

answered in the affirmative.

AS TO POINT NO.2 :-

10. Prosecution has to establish that, accused No.1

to 19 did commit criminal conspiracy for adulteration of

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poisonous substance by mixing methanol with illicit

liquor and to supply and sale the same to the customers.

In order to attract the provisions of Sec.120(B) of

I.P.C, the prosecution must establish that, the present

accused or some of them did commit the act of criminal

conspiracy for adulteration of poisonous substance i.e.

Methanol by mixing with illicit country liquor and to

supply or sale the same to various customers by illegal

means as embodied in Sec.120(B) of I.P.C. At the

instance of prosecution made submissions that, the

accused had intersay phone calls for hatching criminal

conspiracy of purchasing methanol, manufacturing illicit

country liquor and mixing methanol with country liquor

and thereby to supply the same to various customers for

profit motive. Admittedly, there is no direct evidence

on this point. Therefore, on behalf of prosecution made

submissions that, even though there is no direct evidence

on the point of criminal conspiracy looking to the given

circumstances on record the criminal conspiracy needs to

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be inferred and in this context referred -

1) AIR 1995 SUPREME COURT 1066, E.K.Chandrasenan

V/s.State of Kerala.

2) 1996 S.C.C. (4) 659, State of Maharashtra V/s.Som

Nath Thapa etc.

11. In AIR 1995 SUPRRE COURT 1066 observed that,

there can not be direct evidence but absence of direct

evidence as regards particular accused relating to

conspiracy. Direct evidence is not expected with

conspiracy are secretly planned. In the instant case,

there is no evidence that, about what was the nature of

conversation took place intersay amongst accused. On

behalf of prosecution placed phone call details record.

At the instance of the prosecution further made

submissions that, PW.101 Santosh Bhandari who is turned

hostile and whose statement U/s.164 of Cr.P.C recorded

vide Exh-73 knows details of criminal conspiracy which

was hatched in between the accused. The adulteration of

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methanol with illicit liquor or sale of illicit liquor or

business of illicit liquor which is contraband articles

and causes harm to the health of the customers, itself

amounts to criminal conspiracy and the same needs to be

inferred as aforesaid. PW.101 Santosh Bhandari simply

states in his evidence that, once accused Pandit Kalan

approached him and suggested him to join in the liquor

business. However, evidence of PW.101 Santosh not

reflecting that, there was any sort of criminal

conspiracy between the accused. On behalf of prosecution

examined PW.117 Vikas Phulkar, a Nodal Officer from

Vodafone and information related to S.D.R of accused

Ramesh Phokharkar and Vadivel Shettiyar and one Ashok

Jadhav at Exh-808, 809 and 810 respectively. PW.120

Avinash Ramdasi who has produced documents(Exh-834

colly.) relating to phone No.25741664 in the name of

accused Babu Kamble. PW.121 Devesh Rai from Reliance

mobile company has produced documents (Exh-841 colly.)

relating to mobile No.9324620487 in the name of accused

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Pandit Kalan. However, PW.122 Sachin Kondilkar from

mobile company has placed on record call details of

Santosh Bhandari, prosecution witness and call details of

accused Ayappa Shettiyar towards certain mobile number at

Exh-846, 850, 852 and 853 colly.).

12. At the instance of defence in the context of

record of call details of mobile phones, made submissions

that, mere use of mobile intersay between the accused is

no ground to infer, hatching of criminal conspiracy

because now a days mobiles are available with everyone

rich or poor and electronic data can be tampered and

because of lacking of requisite certificate from Nodal

Officers and Nodal Officers are not the suppliers of sim-

card but simply supplier of S.D.R as well as applications

relating to said mobile numbers are not on record and

hence not established by the prosecution that, mobile

numbers or telephone numbers referred in the record are

belonging to the accused and none else. Just to mention

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that, documentary evidence brought on record is not

clear, sufficient and authentic with requisite

certification that, the said mobile numbers are belonging

to accused and none else and there was conversation

intersay in between the accused at the relevant time for

hatching criminal conspiracy and referred -

1) 2011(3) Supreme 33, Chandran @ Manichan @ Maniyan

V/s. State of Kerala.

2) 2005 Supreme Court Cases (Cri) 1715, STATE (NCT OF

DELHI) V/s.NAVJOT SANDHU @ AFSAN GURU.

Therefore, the evidence brought on record by

the prosecution is not clear, satisfactory and sufficient

to prove that, the present accused or some of them had

hatched the criminal conspiracy as alleged agaisnt them.

Hence, point No.2 is answered in the negative.

AS TO POINT NOS.3 AND 4 :-

13. Prosecution has to prove that, accused No.1 to

6 i.e.Balaram Mhatre, Pandit Kalan, Pradeep D'melo, Vishnu

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Mhatre, Ramesh Pokharkar and Sanjay Kolekar in furtherance

of their common intention did commit murder of 87 victim/

customers by manufacturing, distributing and administering

methanol mixed illicit country liquor, a poisonous

substance intentionally and knowingly causing bodily

injuries to them. So also burden lies on the prosecution

to prove in the alternative that, accused No.1 to 19 in

furtherance of their common intention committed culpable

homicide not amounting to murder of said 87

victim/customers by manufacturing, distributing and selling

methanol mixed illicit country liquor i.e.poisonous

substance to said customers with intention of causing death

or of causing such bodily injuries that was likely to cause

death or did commit said act with the knowledge that

thereby likely to cause their death by causing bodily

injuries to them.

14. Under Section 299 of Indian Penal Code,

Culpable homicidedescribes as Whoever causes death by

doing an act with the intention of causing death, or with

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the intention of causing such bodily injury as is likely

to cause death, or with the knowledge that he is likely

by such act to cause death, commits the offence of

culpable homicide.

Section 300 of I.P.C. speaks Except in the cases

hereinafter excepted, culpable homicide is murder, if the

act by which the death is caused is done with the

intention of causing death, or if it is done with the

intention of causing such bodily injury as the offender

knows to be likely to cause the death of the person to

whom the harm is caused or if it is done with the

intention of causing bodily injury to any person and the

bodily injury intended to be inflicted is sufficient in

the ordinary course of nature to cause death or if the

person committing the act knows that it is so imminently

dangerous that it must, in all probability, cause death

or such bodily injury as is likely to cause death, and

commits such act without any excuse for incurring the

risk of causing death or such injury as aforesaid.

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However, as per Section 304 of I.P.C, Whoever

commits culpable homicide not amounting to murder, if the

act by which the death is caused is done with the

intention of causing death, or of causing such bodily

injury as is likely to cause death.

15. According to the prosecution, accused in

furtherance of their common intention did commit criminal

conspiracy and in pursuance of said criminal conspiracy,

accused No.1 to 6 committed murder of 87 victim customers

by manufacturing and distributing methanol mixed illicit

country liquor i.e.poisonous substance which was unfit

for human consumption. So also prosecution further

submits in the alternative that, accused No.1 to 19 in

furtherance of their common intention did commit criminal

conspiracy and committed culpable homicide not amounting

to murder of 87 victim customers by manufacturing,

distributing and selling poisonous substance i.e.methanol

mixed illicit liquor to said 87 victim customers as

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aforesaid. Of course, in the instant case, prosecution

has failed to establish by clear, sufficient,

satisfactory and clinching evidence that, the accused did

commit criminal conspiracy for the purpose of

manufacturing, distributing and selling poisonous

substance i.e.methanol mixed illicit country liquor to

victim customers. On the other hand, on behalf of defence

made submissions that, provisions of Indian Penal Code do

not attract to the facts of the instant case but certain

provisions are wrongly made applicable in this case when

on the part of the accused there was neither mensrea nor

intention or knowledge and referred 2011(3) Supreme 33,

Chandran @ Manichan @ Maniyan V/s. State of Kerala.

16. In the reported case, certain provisions of

Indian Penal Code including 302, 307, 328 were made

applicable where there was mixing of poisonous methyl

spirit with illicit liquor by conscienceless bootleggers

to create drink kalapani and accused in the said case

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were convicted under certain provisions of Indian Penal

Code but finally came to be acquitted under the said

provisions but they were convicted under the provisions

of Abakari Act, Kerala wherein punishment provided upto

death. In the instant ase, charges are framed against

the accused under certain provisions of Indian Penal Code

as well as Bombay Prohibition Act. Provisions embodied

in Abakari Act, Kerla and provisions embodied in Bombay

Prohibition Act are not at par because stringent

provisions are made in the Abakari Act, Kerla but similar

such provisions are not made in the Bombay Prohibition

Act. When the standard and healthy alcohol in the form

of liquor is not available or is too costly for a common

man, the poor section of the society goes for illicitly

distilled liquor which is sold by the bootleggers.

Accused involved in this case are from poor sections of

the society and they are indulged in the business of

selling illicit country liquor. In order to ascertain

the role of the accused in the context of provisions of

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Sec.302 or 304 of I.P.C if any, evidence on record needs

to be scrutinized.

17. One more submission made on behalf of defence

that, methanol is not alcohol as intoxicant substance and

therefore there is no crime as such of possession,

distribution and sale of methanol under the provisions of

Bombay Prohibition Act. So also made submissions on

behalf of defence that, mens-rea not to infer even from

conduct or to cause harm to customers even remotely

because lacs intention or knowledge as it was simply

liquor business and hence any of the provisions of Indian

Penal Code do not attract as aforesaid. Of course, in

order to ascertain the role of the present accused if any

within the scope and ambit of Sec.302 and or 304 of

Indian Penal Code or not evidence needs to be scrutinized

as aforesaid.

18. Evidence of PW.3 Vijay Mahato who has played

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role as commission agent in between the accused No.3

Pradeep D'melo and PW.5 Jignesh Siddhapura to make

arrangement to provide 11 drums of methanol on the orders

of accused No.3 Pradeep D'melo. So PW.3 Vijay Mahato can

be called as a star witness in the present scenario.

Evidence of PW.3 Vijay Mahato reflects that, he works

with S.K.Chemicals Industries, Navi Mumbai run by

Mr.Naveen Bhanushali and in between period from

20/10/2004 to 23/12/2004, time to time accused No.3

Pradeep D'melo contacted on telephone to PW.3 Vijay

Mahato and placed orders for 11 drums of methanol through

this witness and hence this witness has further contacted

to PW.5 Jignesh Siddhapura, in return who has supplied 11

drums of methanol time to time. PW.3 Vijay Mahato has

specifically stated in his evidence that, on 25/10/04 he

himself and accused No.3 Pradeep D'melo went to Purav

warehouse, Bhiwandi and delivery of 2 drums of methanol

from the said warehouse was taken by accused No.3 Pradeep

D'melo on payment of Rs.8,000/-. This witness however

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speaks on 02/11/2004 that, he himself and accused No.3

Pradeep D'melo went to Shreeji warehouse, Bhiwandi and

then accused Pradeep took delivery of 2 drums of methanol

for Rs.8,000/- and on 27/11/2004 again both of them went

to Gajanan warehouse, Bhiwandi and accused Pradeep took

delivery of 5 drums of methanol on payment of Rs.20,000/-

and on further Dt.21/12/04 accused Pradeep took delivery

of 2 drums of methanol from Rambhajan warehouse, Bhiwandi

on payment of Rs.8,000/-. PW.3 Vijay Mahato has

identified some such said drums recovered as Art.1 to 5.

19. PW.5 Jignesh Siddhapura states in his evidence

that, he carries business of dyes and chemicals under

the name and style as N.J.Chemi Dyes and Chemicalsand

since the month of October,04 onwards time to time, he

was contacted by PW.3 Vijay Mahato and orders of 11 drums

of methanol was placed on certain payment as detailed in

the evidence and delivery of 11 drums of methanol was

arranged. This witness referred certain zerox copies of

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purchase and sales and payments receipts(Art.A,B and C).

Evidence of PW.3 Vijay Mahato and PW.5 Jignesh Siddhapura

is consistent to each other about the supply of 11 drums

of methanol as per orders received. Of course, evidence

of PW.5 Jignesh is silent that, he has made delivery of

11 drums of methanol directly to accused No.3 Pradeep.

20. Evidence of PW.4 Vinod Ware also plays some

significant role in the context of delivery of 5 drums of

methanol from Gajanan warehouse, Bhiwandi to accused No.3

Pradeep on 29/11/04. The weight slip book and register

concerned are seized. PW.104 Arun Sonawane, a panch

states in his evidence that, at the instance of accused

No.3 Pradeep D'melo seized stock register and entry in

that regard on Dt.29/11/04 which is made and identified

at Exh-1414 and weight slip book delivery receipt at

Exh-1413 which bears the signature of accused Pradeep

D'melo. So also PW.107 Ramesh Shinde, panch speaks in

his evidence that, weight slip of transportation of 5

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drums of delivery challan seized under panchanama

(Exh-663) vide Art.128 and 129 drawn by PW.138

API.Chavan. So also PW.131 API.Khot states in his

evidence that, in pursuance of disclosure statement of

accused Pradeep D'melo recovered register and weight slip

from warehouse vide Exh-639 and 640.

21. Moreover, evidence of PW.109 Rajesh Kadam,

panch speaks that, 2 barrels of methanol was recovered at

the instance of accused No.3 Pradeep and one more barrel

of methanol from the possession of one Mr.Patil was

recovered at the instance of accused No.3 Pradeep vide

panchanama(Exh-675 and 674) respectively. One more thing

has to be noted that, said drums are identified by PW.3

Vijay Mahato and PW.4 Vinod Ware. Apart from aforesaid

evidence, as per the evidence of PW.138 API.Chavan,

accused No.3 Pradeep D'melo was arrested under panchanama

(Exh-663) and under that panchanama in the process of

personal search, seized paper-slip, diary and key chain.

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All such aforesaid evidence is clear and sufficient to

prove that, accused No.3 Pradeep D'melo had purchased 11

drums of methanol through PW.3 Vijay Mahato on certain

dates with a view to mix the same with illicit liquor.

Of course, on behalf of defence submission is made that,

PW.3 Vijay Mahato, PW.4 Vinod Ware and PW.5 Jignesh

Siddhapura who were accomplish or abettors ought to have

been impleaded in this matter and therefore their

evidence as such can not be relied upon and referred 1979

Supreme Court Cases (Cri) 1029, CHONAMPARA CHELLAPPAN

V/s.STATE OF KERALA. In this context made submissions at

the instance of prosecution that, at the relevant time,

there was no prohibition for stock and sale of methanol

and therefore PW.3 Vijay Mahato and PW.4 Vinod Ware and

PW.5 Jignesh Siddhapura or either all of them can not be

called as accomplish or abettors, as the case may be but,

has to be accepted their evidence as evidence of an

independent witness as such.

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22. According to the prosecution, purchase delivery

of 11 drums of methanol took by accused No.3 Pradeep

D'melo in furtherance of common intention with co-accused

No.1 to 6 and the said methanol was mixed with illicit

country liquor manufactured by them and further that was

distributed through accused No.5 Ramesh and 6 Sanjay to

other co-accused No.7 to 19 for the purpose of sale to

various customers.

23. In the context of accused No.1 Balaram Mhatre

and No.2 Pandit Kalan, PW.3 Vijay Mahato states in his

evidence that, after delivery of certain drums of

methanol, it was taken by accused No.3 Pradeep D'melo and

the same was being transported in tempo from warehouse to

village Hedutane from the way near Katai Junction. He

further states that, these two accused Balaram and Pandit

who were on motor-cycle, were introduced to this witness

by accused No.3 Pradeep and then these two accused on

motor-cycle followed the tempo and all of them went to

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the house of accused Pandit Kalan. PW.3 Vijay Mahato

further speaks that, accused Pandit Kalan made payment to

accused No.3 Pradeep D'melo. PW.3 Vijay Mahato further

states in his evidence that, he saw the process of mixing

the methanol with country liquor by accused No.1 Balaram

with the help of pipe in one pot from the said drum of

methanol and then he saw accused No.2 Pandit and one

person Santosh Bhandari were also present there and

because of that, he made inquiry with them as to why they

were mixing methanol with liquor, then accused Balaram

told him that, mixing methanol with liquor would give

better quality and because of that exchange of words in

between himself and accused took place in that regard.

24. PW.101 Santosh Bhandari has turned hostile and

has not supported the case of the prosecution. According

to the prosecution PW.101 Santosh who is one of the star

witness and who knows that, accused No.1 to 6

i.e.Balaram, Pandit, Pradeep, Vishnu, Ramesh and Sanjay

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in the process of manufacturing illicit country liquor

and mixing methanol with the said liquor and further

distribution and sale of the same. PW.101 Santosh simply

states in his evidence that, he knows accused Pandit

Kalan who asked him to join him in the business of

liquor. However, this witness does not admit about

knowing of other accused including accused Balaram. One

more point urged at the instance of the prosecution that,

statement of this witness PW.1 Santosh Bhandari is

recorded U/s.164 of Cr.P.C. at Exh-73 by learned

Metropolitan Magistrate and which gives clear picture of

the involvement of accused No.1 to 5 in the said crime as

such. Just to mention that, statement U/s.164 of Cr.P.C

can be used for limited purpose and legal position in

that regard is well settled.

25. Apart from aforesaid evidence, at the instance

of accused No.1 Balaram, tyre-tubes containing methanol

mixed country liquor recovered from the house of his

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mother in law which was concealed and which was within

his knowledge and in pursuance of his disclosure

statement (Exh-667 and 697 respectively) and in that

regard evidence of PW.113 Sanjay Khatri and PW.141

Sr.PI.Patil gives clear picture. So also PW.112 Chandan

Surve, panch states in his evidence that, accused

Balaram Mhatre has made disclosure statement(Exh-685) and

pointed out the place of manufacturing liquor and

thereafter at his instance recovered rubber tubes,

alcometer, tyre-tubes, drum and other articles which are

being used for manufacturing, under panchanama(Exh-686).

Apart from such position, PW.125 Ajit Thomas states in

his evidence that, some old tubes were purchased by

accused Balaram for Rs.60/-. On the other hand, PW.108

Harish Yadav, panch states in his evidence that, at the

instance of accused No.2 Pandit Kalan in pursuance of

disclosure statement, recovered tyre-tubes with country

liquor and also recovered one empty drum and lid under

panchanama (Exh-665 and 666). Evidence of PW.108 Harish

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was supported by PW.123 PI.Kale and PW.141 Sr.PI.Patil.

One of the argument advanced on behalf of the defence

relating to alleged recovery of tyre-tubes containing

illicit liquor and other materials and utensils, drums

etc. the places wherefrom the same were seized were

already known to the investigating agency and hence the

same can not strictly come within the scope of recovery

as contemplated U/s.27 of Evidence Act. On this point,

on behalf of prosecution argued that, some such argument

advanced on behalf of defence does not hold any water

because the recovery was strictly made in accordance with

the law and the places were not known to the

investigating officers well in advance. Of course, one

more submission made on behalf of defence that,

investigating agency has deliberately suppressed to place

on record extracts of lock-up register and log book

register. Suffice it say that, merely because the

investigating agency had visited the said places earlier

in different contexts, can not be said that, non

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production of extract of register and the evidence

brought on record by the prosecution relating to

aforesaid recovery can not be relied upon and the same

does not come within the scope and ambit of Sec.27 of

Evidence Act.

26. As regards accused No.4 Vishnu Mhatre, at his

instance also recovered 4 drums, boiler, plastic can etc.

and the same seized under panchanama(Exh-331) and in this

context evidence of PW.83 Vinod Singh and PW.141 PI.Patil

speaks. So also PW.112 Chandan Surve, panch has deposed

in his evidence that, accused No.4 Vishnu has pointed out

the place of distillery and at his instance recovered

material including one drum under panchanama (Exh-686).

In the context of accused No.4 Vishnu Mhatre also

advanced similar such argument by defence that,

investigating agency since before alleged recovery was

knowing the place and hence the same also can not called

as recovery. Of course, proper observations are made in

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this regard as aforesaid. Apart from aforesaid evidence,

prosecution has examined PW.101 Santosh Bhandari, PW.85

Sunil Bhoir but both of them have turned hostile and not

supported the prosecution story.

27. On behalf of prosecution canvased argument

that, PW.101 Santosh Bhandari was the star witness who

was knowing the details about the process of

manufacturing country liquor and of mixing methanol with

such country liquor and distribution of the same but

unfortunately the said witness has turned hostile and

hence there is no direct evidence as such on record in

the context of manufacturing of illicit liquor by any of

the accused. However, further argument advanced for the

prosecution that, certain materials still, utensils

including boiler etc. are recovered from the possession

of accused No.1 to 4 and hence can be safely inferred

that, they had indulged in the process of running

distillery and manufacturing illicit country liquor.

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Just to mention that, admittedly lacks direct evidence on

record regarding running distillery and process of

manufacturing illicit country liquor but the

circumstantial evidence brought on record about the

recovery/seizure of boiler, implements etc. itself is not

sufficient to draw inference that, the said accused had

indulged in the business of manufacturing illicit liquor.

One thing is established by the prosecution that, these

accused Nos.1 to 4 were found in possession of drums

containing methanol and further found in possession of

methanol mixed illicit country liquor even though clear

evidence lacks on record about manufacturing process of

illicit liquor by the said accused.

28. Present case is based on direct as well as

circumstantial evidence. However, inspite of such

position at the instance of accused No.2 Padit Kalan made

submissions that, when case is entirely based upon

circumstantial evidence, the prosecution has to establish

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each and every circumstance on which the prosecution

relies and the circumstances should be of conclusive

nature and must have a definite tendency of incriminating

the accused and referred 2611 ALL MR (Cri) 2168 Hanma @

Hanmanta Ishvarappa Budane V/s.State of Maharashtra. Of

course, it is settled position of law that, if the case

is purely based on circumstantial evidence, then the

prosecution has to be prove each and every circumstance

on which the prosecution relies but if the case is based

on direct as well as circumstantial evidence the concept

differs.

29. Expert evidence is an opinion evidence and has

its limitation and expert evidence may not be conclusive

evidence but depends upon the nature of expert evidence

and other corroborative evidence on record. In the

instant case prosecution comes with a case that, methanol

is a highly inflammable and poisonous substance and the

same mixed with illicit liquor and distributed to various

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customers and resulted to death of 87 victim/customers

and injuries to 179 customers. Of course, on behalf of

defence also raised plea that, methanol alcohol is not

poisonous but even if methanol mixed country liquor is

consumed, the same metabolize by lapse of time and

depends upon many factors such as food etc. and hence

contention of prosecution that the use of poisonous

substance i.e.methanol alcohol is not just and proper.

PW.2 Shankar Javale, Asstt.Director of Forensic Science

speaks in his evidence about the characteristics of

methanol vide opinion report(Exh-71) such as methanol is

highly inflammable liquid and methanol is highly

poisonous and unfit for human consumption. So in regard

with the evidence of PW.2 Shankar Javale, one contention

raised by the defence that, this witness was not

specially trained with any course and hence his evidence

not to accept as an expert's evidence. Just to mention

that, PW.2 Shankar Javale works as Asstt. Director of

Forensic Science since year 2000 and who has passed B.Sc.

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examination and who is well trained by his superiors and

thereby he enjoys the status of expert and hence his

opinion report can be safely relied upon.

30. Section 300 of Indian Penal Code clause- 4

speaks If the person committing the act knows that it is

so imminently dangerous that it must, in all probability,

cause death or such bodily injury as is likely to cause

death, and commits such act without any excuse for

incurring the risk of causing death or such injury as

aforesaid. However under Section 304 of I.P.C, provision

is contemplated as Whoever commits culpable homicide not

amounting to murder, if the act by which the death is

caused is done with the intention of causing death, or of

causing such bodily injury as is likely to cause death.

31. Obviously there is a line of distinction in

between the nature and degree of intention and knowledge

which is embodied in Section 300 clause 4 of I.P.C. and

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Section 304 of I.P.C. Just to mention that, severity/

degree of intention and knowledge as embodied under

Section 300 clause 4 is higher whereas severity/degree of

such intention and knowledge is always lesser under

Section 304 of I.P.C

32. According to the prosecution, distribution of

methanol mixed illicit country liquor and thereby

resulting into many deaths and considering the nature of

poisonous substance mixed has to be inferred that,

persons who are responsible for mixing, had knowledge

that consumption of liquor distributed by them was likely

to cause very serious adverse effects and referred AIR

1995 SUPREME COURT 1066, E.K.Chandrasenan V/s.State of

Kerala. So on behalf of defence argued that, factual

position of each and every case differs and the criminal

cases are decided on evidence rather than on case laws

and precedents and referred -

1) 2007(1) Bom.C.R. (Cri.) 843, (SUPREME COURT),

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Sayarabano @ Sultanbegum V/s.State of Maharashtra.

2)2005 DGLS (Soft.) 653, (SUPREME COURT), Kalyan

Chandra Sarkar V/s.Rajesh Ranjan @ Pappu Yadav

33. Just to mention that, the facts differs from

case to case. In the instant case, the accused persons

who are practically illiterate, coming from very poor

families and they are indulging in the business of

country liquor. So in this context made submissions on

behalf of defence that, the accused are indulged in the

business of country liquor because of their poverty and

illiteracy. They were not knowing the methanol was

poisonous substance or inflammable substance or otherwise

but just to give alcoholic kick and to increase the

quantity of country liquor and to sale the same at

cheaper rate, they must had mixed methanol with country

liquor without knowing the characteristics of methanol

mixed with country liquor and therefore the act does not

come within the purview of Sec.300 and or 304 of I.P.C.

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and referred -

1) 1998 Supreme Court Cases (Cri) 972, State of Bihar

V/s.Ramnath Prasad and ors.

2) 1996 Supreme Court Cases (Cri) 1124, Keshub Mahindra

V/s.State of M.P.

34. On behalf of prosecution further argued that,

if the act by which death is caused is done with the

intention of causing or or causing such bodily injury as

is likely to cause death as culpable homicide, it is not

murder unless the act is so imminently dangerous, that

death or a bodily injury likely to cause death, must in

all probability occur and referred AIR 1959 MADRAS 323,

Public Prosecutor V/s.Somasundaram and ors. In the

instant case, the act of mixing methanol with illicit

liquor comes within the scope and ambit of Sec.304 of

I.P.C and not under Section 300 or 302 of I.P.C. looking

to the given circumstances and evidence on record because

accused had no mensrea or intention to cause death or

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they were not knowing that, their act was so imminently

dangerous, that death or a bodily injury likely to cause

death as contemplated U/s.300 of I.P.C even though that,

they had knowledge that, their act may lead to cause harm

or bodily injury to the customers by mixing methanol with

the illicit liquor as poisonous substance just to bring

alcoholic kick and to increase quantity of liquor.

Evidence of PW.3 Vijay Mahato indicates that, there was

exchange of words in between himself and accused No.1 to

4, when he prevented them in the process of mixing

methanol with illicit country liquor that itself speaks

the conduct on the part of the accused to draw intention

of causing bodily injury as envisaged U/s.304 (Part-I) of

I.P.C. So to say that, the accused were knowing that,

they had mixed methanol with illicit liquor i.e.poisonous

substance as unfit for human consumption and likely to

cause harm or bodily injury to customers even though they

were not knowing that, their act was so imminently

dangerous that, death or a bodily injury likely to cause

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death. Therefore, this is suitable case to safely infer

that, intention on the part of the accused as

contemplated under Section 304 (Part-I) of I.P.C. even

though their act does not attract within the purview of

Section 300 of I.P.C.

35. Medical evidence plays secondary role in the

light of direct evidence. In the present case, as per

the case of the prosecution, death occurred of 87 victim/

customers who had consumed methanol mixed illicit country

liquor and in this regard PW.89 Dr.Pravin Bagul, PW.90

Dr.Shivaji Kacahre, PW.91 Dr.Bhimrao Brahmane, PW.92 Dr.

P.M.Shinde, PW.93 Dr.Ramesh Savardekar, PW.94 Dr.Janardan

Nimbhori, PW.95 Dr.Sunik Kadam, PW.96 Dr.Rajesh Sukhadeve

PW.98 Dr.Rajesh Dere, PW.99 Dr.Shishir Ruia, PW.100

Dr.Harish Pathak, PW.102 Dr.Baban Shinde and PW.133

Dr.Bhalepatil speaks that, they have conducted

postmortems on the dead bodies of said 87 victim/

customers as referred in postmortem reports and C.A

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reports vide Exh-384 to 390, 417 to 426, 453 to 475, 506

to 525, 538, 539, 545, 546, 562, 567, 569, 575, 579 to

582, 587 to 589, 599 to 603, 620 to 623, 1020 to 1029.

Such evidence brought through the mouth of said witnesses

and the said documentary evidence clearly transpiring

that, the death of said victim/customers occurred/

resulted because of consumption of methanol mixed illicit

country liquor and in this context referred on behalf of

prosecution AIR 1988 SUPREME COURT 1011, Bhupinder Singh

V/s.State of Punjab.

36. On behalf of defence submission was made that,

as per the medical evidence found liver of most of the

victims were damaged. This position itself indicates

that, the said victims had indulged in consumption of

liquor and because of that due to consumption of methanol

mixed illicit liquor, they must had bodily suffered

severely and succumbed to death. Apart from this

aforesaid position, evidence of PW.12 Padma Dhangar, PW.

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13 Indumati Bhalerao, PW.14 Suman Agam, PW.15 Laxmi

Gunjal, PW.16 Nilesh Aiyangar, PW.17 Suhas Dalvi, PW.18

Radheshyam Bharadwaj, PW.19 Ganesh Gaikwad, PW.21 Saroj

Salaskar, PW.23 Suman Kharwi, PW.24, Satish Bagul, PW.26

Lalbi Shaikh, PW.27 Babamma Dornal, PW.28 Padma Naik, PW.

32 Shashikala Sabale, PW.34 Lata Gudekar, PW.35 Surekha

Ogania, PW.36 Manga Parmar, PW.37 Kailas Chakeliya, PW.38

Kushal Shetty, PW.39 Ankush Bait, PW.41 Kalawati Jadhav,

PW.42 Sagar Pol, PW.43 Vijaya Kolabkar, PW.44 Shobha

Jadhav, PW.45 Bhimmai Jadhav, PW.46 Motilal Vishwakarama,

PW.47 Abdul Ansari, PW.48 Govind More, PW.49 Faisalali

Khan, PW.50 Chotelal Guopta, PW.53 Sulochana Reddy, PW.55

Madhukar Bansode, PW.58 Kasturabai Tare, PW.59 Shobha

Sonare, PW.60 Asha Jadhav, PW.62 Bharti Singh, PW.63

Saludo Viera, PW.64 Girish Mohare, PW.65 Nasim Qureshi,

PW.66 Suresh Pednekar, PW.67 Babai Shishupal, PW.111 Rupa

Pardeshi whose husbands, relatives, friends or family

members died because of consumption of methanol mixed

illicit country liquor and some of the said witnesses

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stated that, victims told to them about the consumption

of liquor at the dens of accused No.7 to 19 as the case

may be and victims started suffering health problems and

87 victim/customers died in the process of treatment.

Therefore, on behalf of prosecution made submissions

that, evidence of oral dying declarations/dying

declarations can be relied upon and referred -

1) A.I.R. 1958 Supreme Court, 22, Khushal Roa V/s.State

of Bombay.

2) 1981 CRI. L.J.852, State of Rajasthan V/s.Mangi Lal

and others.

37. Reliability of oral dying declaration/dying

declaration depends upon the nature of evidence brought

on record where the same is in the words of victims or

otherwise. So to say evidentiary value of dying

declaration depends upon the nature of evidence brought

on record. In the instant case, there is no reference in

the evidence of said witnesses that, the victims had

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consumed country liquor at the dens/houses/places of any

of the accused No.1 to 6 even though their evidence

speaks as regards to accused No.7 to 19 as the case may

be. However, the direct and circumstantial evidence

brought on record establishes that, the act committed by

accused No.1 to 4 comes within the scope and ambit of

Section 304 of I.P.C. even though their act does not come

under the provisions of Section 300 r/w.302 of I.P.C. As

regards the co-accused No.5 to 19, their role in the

crime context of evidence on record is scrutinized

hereinafter.

38. According to the prosecution, accused No.5

Ramesh Pokharkar and No.6 Sanjay Kolekar also had

indulged in the criminal conspiracy and the process of

mixing methanol with illicit country liquor and

distribution of the same to co-accused and thereby they

had intentionally and or knowingly participated in the

said process and hence their act also comes within the

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scope of Sec.300 r/w.302 of I.P.C and in the alternative

U/s.304 of I.P.C. Admittedly, there is no direct evidence

on record that, accused No.5 Ramesh and No.6 Sanjay had

any active participation in the process of manufacturing

illicit liquor, mixing methanol with illicit country

liquor with accused No.1 to 4. So on behalf of

prosecution made submission that, even though there is no

direct evidence against these accused, from very conduct

the same has to be inferred about their active

participation in the said crime of mixing methanol with

country liquor. So just and proper to scrutinize the

evidence of prosecution in the context of accused No.5

Ramesh and No.6 Sanjay.

39. Admittedly, PW.101 Santosh Bhandari who is a

star witness of the prosecution has turned hostile and

has not supported the case of prosecution. Evidence of

PW.115 Ganesh Ghatisalve speaks that, he saw accused No.7

Laxmi, No.8 Vadivel and No.9 Ayappa took delivery of

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tyre-tubes of country liquor brought in the vehicle of at

Rambhajan compound. This witness also speaks about the

sale and purchase of liquor by accused No.10 Chitra

Shettiyar, No.11 Asha Kamble, No.12 Sunil Khandare, No.13

Seema Shetty, No.15 Nagamma Shetty, No.16 Radha Shetty,

and No.19 Babu Kamble. This witness further speaks that,

on 24/12/04, he saw one blue colour Esteem car and

accused No.5 Ramesh was driver in the said car and his

companion accused No.6 Sanjay was also in the said car

and 15-16 potlas i.e.tyre-tubes of country liquor were

transported and the same were taken by accused No.7

Laxmi, No.8 Vadivel and No.9 Ayappa. This witness also

states that, he has identified accused No.5 Ramesh, No.6

Sanjay at the T.I parade as the same had transported

liquor in Maruti Esteem car and that was brought at

Rambhajan compound on 24/12/04.

40. Thus, from the evidence of PW.115 Ganesh

Ghatisalve, case of the prosecution simply speaks that,

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accused No.5 Ramesh and No.6 Sanjay had simply

transported the liquor from Maruti Esteem car. There is

no other evidence on record brought against either

accused No.5 Ramesh or No.6 Sanjay that, they had any

knowledge that, the said country liquor was mixed with

methanol which was transported by them. Just to mention

that, evidence on record lacks that, accused No.5 Ramesh

and No.6 Sanjay were knowing the characteristics of

liquor which was transported by them in the vehicle upto

Rambhajan compound and that was distributed to said other

co-accused. On behalf of defence made submissions that,

there is no linking evidence that, the very methanol

mixed country liquor by accused No.1 to 4 or any one of

them was transported in the said vehicle by accused No.5

Ramesh and No.6 Sanjay. So in this regard, argued at the

instance of the prosecution that, mobile conversation

made by accused No.5 Ramesh and No.6 Sanjay with co-

accused No.1 to 4 has to be taken into consideration as

linking evidence. If it is treated that, there was mobile

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conversation that accused No.5 Ramesh and No.6 Sanjay

with Co-accused No. 1 to 4 or others, still then there is

no evidence about the nature of conversation which took

place between them. As regards the accused No.5 Ramesh

and No.6 Sanjay on behalf of prosecution examined PW.117

Vikas Phulkar, a Nodal Officer from Vodafone in order to

point out the mobile calls details regarding S.D.R. Even

if it is treated that country liquor is transported by

accused No.5 and No.6 from the place of accused No.1 to

4 to Rambhajan Compound, still then evidence lacks on

record that they had knowledge about the characteristic

of country liquor as the same mixed with methanol.

Therefore, the role of accused No.5 and 6 simply reflects

that, they have transported illicit liquor from village

Hidutane to Rambhajan compound. So to say accused No.5

and 6 has played role at the most possessing,

transporting and distributing illicit liquor in the

vehicle from the place of accused No.1 to 4 to Rambhajan

compound & to deliver to other co-accused, as aforesaid.

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41. Apart form the aforesaid position, evidence of

PW.88 Pravin Sakharkar, PW.123 PI.Kale and PW.138

API.Chavan speaks that, in pursuance of discloser

statement made by accused No.5 Ramesh to point out Maruti

Esteem car and thereby Maruti Esteem Car Seized under

panchanama(Exh. 368 & 368A) and chance prints found on

the said car and fingerprint experts report prepared to

that effect. The evidence of PW.127 Vinayak Palav, a

fingerprint expert prepared report(Exh.941 & 942) were

discloses of accused No.5 and 6. So also prosecution has

examined PW.114 Sandesh Bagul, PW.119 PI Shirtode, PW.141

PI.Patl that, in the process of search of persons of

accused No.5 Ramesh No.6 Sanjay, seized Mobile Phone,

visiting Card, Key of Car under panchanama(Exh.701). One

of the argument advanced at the instance of prosecution

that, methanol detected on the floor of matin of Maruti

Car and the same reflects in the C.A.Report(Exh.1397 and

1407). PW.75 Nandkishor Patil, a Bank Finance Agent, in

the month of June,04 got sanctioned bank loan to one Ajit

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Sarang for Uno Car No.MH-01-U-5963 and got transferred

said vehile in his name from R.T.O. Evidence on record

is silent that, the said Maruti Car belongs either to

accused No.5 Ramesh or accused No.6 Sanjay. PW.6 Anil

Kadulkar, also states that he knows transportation of

some 15 potlas of liquor in the Maruti car and identified

the same at T.I. Parade. PW.110 Ramesh Gaikwad states

that, accused No.6 Sanjay made disclosure statement and

pointed out Rambhajan compound and in that regard

panchanama (Exh.678 & 679) prepared, drawn by PW.131 API

Khot. So also PW.119 PI Shirtode, has prepared arrest

cum search panchanama of accused No.5 Ramesh and accused

No.6 Sanjay vide Exh.701 as aforesaid. Moreover evidence

of PW.141 PI.Patil also indicates in pursuance of

disclosure statement of accused No.5 Ramesh pointed out

the place, where 16 potlas of liquor were loaded and

panchanama(Exh.678) in that regard prepared. So taking

into consideration, the entire evidence on record against

accused No.5 and 6 in totality, their role in the crime

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reflects as they had simply transported country liquor

from the place of accused No.1 to 4 that is village

Hidutne to Rambhajan Compound. Thus the evidence on

record is not clear, sufficient and satisfactory to prove

the role of accused No.5 and 6 within the scope and

provisions of Section 300 r/w.302 of IPC. but at the most

their role comes U/s.65 of Bombay Prohibition Act,1949.

42. Evidence on record needs to be scrutinized in

the context of role in the crime comes within the purview

of accused No.7 to 19 to determine their role in the

crime comes within the purview of Section 304 of I.P.C or

not or their role comes otherwise. According to the

prosecution, methanol mixed illicit country liquor

manufactured and distributed by accused No.1 to 4 on

transport through accused No.5 and 6 and was further sold

through accused No.7 to 19 to various customers including

87 dead victim/customers and therefore these accused No.7

to 19 had role in the conspiracy in that regard and

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therefore, their role comes under Section 304 of I.P.C.

On the other hand, at the instance of the defence made

submissions that, accused No.7 to 19 who are illiterate

and poor persons and they had even not remotely any

concerned in the criminal conspiracy but, they had at the

most simply sold the illicit country liquor without

knowing the characteristics of the same that, the said

liquor is mixed with methanol.

43. PW.115 Ganesh Ghatisalve states in his evidence

that, 15-16 potlas of liquor which were brought in Maruti

Esteem car at Rambhajan compound on 24/12/04 was

delivered to accused No.7 to 9 and that was shifted by

them to their house. So also PW.115 Ganesh further states

in his evidence that, he knows accused No.10 Chitra who

is indulged in the business of purchase and sale of

illicit liquor. Moreover, PW.6 Anil Kadulkar also states

in his evidence that, on 24/12/04 Maruti Esteem car with

sticker of Goddess was standing near Rambhajan compound

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and 2 persons got down from the said car and standing

there and accused No.7 Laxmi, No.8 Vadival and No.9

Ayappa went to them and took delivery of 14-15 tyre-

tybes(potlas) and the same were kept on the ground and he

has identified the said car vide Art.6.

44. PW.7 Ravindra Shejwal also states in his

evidence that, on 24/12/04 he had consumed liquor for Rs.

10/- at the shop of accused No.13 Seema and then he saw

accused No.7 Laxmi and No.8 Vadival had brought potlas/

bags of liquor and delivered to accused No.13 Seema. PW.

9 Yogesh Sonawane states in his evidence that, on

25/12/04, party was arranged by him on account of

Chrismas day at the den of accused No.11 Asha and No.19

Babu Kamble and then he saw accused No.7 Laxmi and No.8

Vadival had brought bags of liquor and the same were

delivered to accused No.11 Asha and No.19 Babu and the

said liquor was consumed by them and further consumed on

27th and 28/12/04 and suffered. PW.81 Sanjay Tavade who

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45. As regards accused No.10 Chitra, PW.34 Lata

Gudekar, PW.35 Surekha Ogania, PW.36 Manga Parmar, PW.37

Kailas Chakeliaya have stated in their evidence that,

deaths of their relatives, husband, friends after

consumption of country liquor from the shop of accused

No.10 Chitra, occurred. So also as per the evidence of

PW.123 PI.Kale recovery of tyre-tubes/potlas were made

from accused No.10 Chitra and the same seized under

panchanama in pursuance of disclosure statement(Exh-463

and 650) and evidence of this witness corroborated by the

evidence of PW.105 Prakash Karia. So the evidence on

record indicates that, accused No.7 Laxmi, No.8 Vadivel,

No.9 Ayappa and No.10 Chitra had simply played a role of

purchase and sale of illicit country liquor but the

evidence on record is silent that, these accused had any

knowledge that, the said liquor is mixed with methanol or

with any poisonous substance.

46. As regards accused No.11 Asha and No.19 Babu

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Kamble who are the wife and husband respectively, PW.8

Alex Joseph, PW.9 Yogesh Sonawane and PW.10 Bhaskar

Bankar, PW.82 Kashmirsingh Suri, PW.84 Mukhtar Shaikh and

PW.103 Avinash Jadhav speak in their evidence that, they

had consumed illicit liquor at the dens of accused No.11

Asha and No.19 Babu at the relevant time. Moreover, PW.9

Yogesh also speaks that, on account of Chrismas day,

party was arranged at the shop of accused No.11 Asha and

No.19 Babu on 25/12/04 and they had consumed illicit

liquor at the said shop and then he saw accused No.7

Laxmi and No.8 Vadivel brought the bags of liquor and

then bags were delivered to these accused No.11 Asha and

No.19 Babu. So also evidence of PW.12 Padma Dhangar, PW.

13 Indumati Bhalerao, PW.14 Suman Agam, PW.15 Laxmi

Gunjal, PW.16 Nilesh Aiyangar, PW.17 Suhas Dalvi, PW.18

Radheshyam Bharadwaj and PW.19 Ganesh Gaikwad reflects

that, due to consumption of illicit liquor at the

dens/shops of accused No.11 Asha and No.19 Babu, their

family members suffered and succumbed to death and they

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have identified these accused. On behalf of accused No.

11 Asha @ Saroj Kamble argued that, she has nothing to do

with the crime. Just to mention that, the role of

accused No.11 Asha @ Saroj is clearly transpiring in the

crime as aforesaid and she has been appropriately

identified by the aforesaid witnesses. So also PW.115

Ganesh Ghatisalve speaks in his evidence who claims to be

eye witness that, accused No.11 Asha and No.19 Babu are

indulged in the business of sale and purchase of illicit

liquor. Moreover, at the instance of accused No.11 Asha

in pursuance of her disclosure statement, bags of liquor

recovered and the same seized under the panchanama

(Exh-103 and 103A) and PW.11 Manojkumar Singh, PW.123

PI.Kale and PW.141 Sr.PI.Patil also speak to that effect.

47. So also PW.138 API.Chavan speaks in his

evidence that, he arrested accused No.19 Babu Kamble

under arrest panchanama(Exh-1354) and recovered sim-card

etc. in pursuance of disclosure statement of A/19 Babu,

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under panchanamas(Exh-1355 and 1356). PW.120 Avinash

Ramdasi also states in his evidence about the telephone

No.25741664 which was in the name of accused No.19 Babu

Kamble as per document(Exh-834 colly.). Moreover, PW.1

PI.Mane speaks in his evidence that, he took search of

accused No.19 Babu as well as he has also recorded dying

declaration(Exh-66) of victim Bharat. Such evidence

discussed above indicates that, accused No.11 Asha and

No.19 Babu Kamble, wife and husband respectively, both

had played role in the crime of purchase and sale of

illicit liquor to various customers and because of that

various customers suffered and some of them succumbed to

death and other customers after treatment discharged from

the hospitals. One of the argument advanced on behalf of

accused No.19 Babu Kamble that, he works in B.M.C and at

the relevant time, on a particular day, he was on duty

and in spite of such position, he has been falsely

implicated in this case. Just to mention that, evidence

on record is so clear and satisfactory to prove the role

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of accused No.19 Babu about his indulgence in the crime

of purchase and sale of illicit liquor to various

customers along with accused No.11 Asha and hence can not

be said that, accused No.19 Babu is innocent and he has

nothing to do with the crime and wrongly implicated in

this matter.

48. As regards the accused No.12 Sunil Khandare,

PW.4 Vinod Ware, PW.68 Vishwas Howale, PW.69 Arjun

Jakodia, PW.70 Deepak Kharwa and PW.71 Raju Gaikwad had

stated in their evidence that, they had consumed illicit

liquor at the den of accused No.12 Sunil and they had

suffered and thereafter treated and discharged from the

hospital. Moreover, PW.63 Saludo Viera, PW.64 Girish

Mohare, PW.65 Nasim Qureshi, PW.66 Suresh Pednekar and

PW.67 Babai Shishupal have also deposed in their evidence

that, their family members had consumed liquor at the den

of accused No.12 Sunil and they had suffered and while

under treatment, succumbed to death. So evidence of these

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witnesses clearly indicating that, some of the said

customers who had consumed liquor mixed methanol at the

shop of accused No.12 Sunil Khandare had suffered and

succumbed to death whereas some of the other customers on

consumption of illicit liquor at the den of this accused,

on treatment discharged from the hospitals. So also

evidence of PW.72 Prakash Surve, PW.76 Narendra Patil and

PW.139 Sr.PI.Bhosale denotes that, during the process of

search of den of accused No.12 Sunil Khandare, certain

articles found and in that process seized articles such

as plastic bucket, still bag, glasses under panchanama

(Exh-259). So also PW.141 PI.Patil states in his evidence

that, liquor bottles, glasses, buckets, electric bills,

plastic bags(Art.32-A, 33-A, 34-A, 35 to 38) as well as

electric bill(Art.39), seized from shops/houses of

accused No.12 Sunil Khandare under panchanama (Exh-259).

So also in pursuance of memorandum(Exh-341) of accused

Sunil Khandare seized two tyre-tubes, alcometer smelling

of alcohol under panchanama(Exh-341-A) & this evidence is

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corroborated by the evidence of PW.86 Ramesh Salve. So

under panchanama(Exh-259) liquor bottles were seized as

well as under panchanama(Exh-341) tyre-tubes etc. seized

at the instance of accused No.12 Sunil. So the aforesaid

evidence indicates that, accused No.12 Sunil Kha

vikhroli illicit liquor tragedy 2004 case judgement

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