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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-VII vide C.R.No.152/04) ...Complainant VERESES

1. Balaram Sukrya Mhatre Aged- 49 Yrs. R/o.Padle village, Mothi Desai, Shelpada Road, Tal.Kalyan, Dist.Thane. 2. Pandit Shankar Kalan Aged- 38 Yrs. R/o.B/9, Kisan Apartment, Rambaug Lane No.4, Kalyan(w), Thane. 3. Pradeep Oliver D'melo Aged- 27 Yrs. R/o.At/P.Anjur, Tal.Bhiwandi, Dist.Thane. 4. Vishnu Aambo Mhatre Aged- 43 Yrs. R/o.At-Wadavali (Khurd), Post-Nirje, Tal.Kalyan, Dist.Thane.

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5. Ramesh Dnyaneshwar Pokharkar Aged- 42 Yrs. R/o.14, Saidham Sangh, Janta Colony, Laxmi Nagar, Ghatkopar(E), Mumbai- 75. 6. Sanjay Dnyaneshwar Kolekar Aged- 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 Shettiyar Aged- 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 Shettiyar Aged- 30 Yrs. R/o.L.P.Phansekar Chawl No.3, R.No.2, Vikhroli(E), Mumbai-83. 11. Asha @ Saroj Babu Kamble Aged- 45 Yrs. R/o.Subhash Nagar, Mhada Colony, Nahur, Mumbai. 12. Sunil Somaji Khandare Aged- 36 Yrs. R/o.Milind Nagar, Goandevi, Bhandup.
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13. Seema Vasant Shetty Aged- 35 Yrs. R/o.Ganesh Nagar, Diva, Dist.Thane. 14. Anand Pandurang Shinde Aged- 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 Shetty Aged- 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 Akka Aged- 60 Yrs. R/o.Tagore Nagar, Group No.3, Vikhroli, Mumbai-83. 18. Maya Ibrahim Khan @ Jalki Aged- 62 Yrs. R/o.Mhada Bldg., Subhash Nagar, Nahur village, Nahur, Mumbai. 19. Babu Ramappa Kamble Aged- 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-HOC ADDITIONAL SESSIONS JUDGE SHRI.W.K.KANBARKAR C.R.No.02 Dated : 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. was

On 27/12/2004 at about 6.45 a.m, PI.Mane who attached message to Vikhroli police station has that, received certain

phone

from

Rajawadi

hospital

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 who the were process of said they parties, had the

persons/victims

invited,

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 Rajawadi and treated in different

hospitals

including

hospital.

Subsequently,

PI.Mane has lodged F.I.R. and on the basis of that F.I.R, Vikhroli against attached police the to station, C.R.No.249/04 persons. station was registered who was

present Vikhroli

accused police

API.Nikam 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 and in presence of

panchas. arrested

Accused on

Sunil but

Khandare arrest

Laxmi was

Shettiyar prepared

28/12/04

panchanama

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 PI. of of Sr.P.I.Praful API.Ashok and Bhosale and

consisting Chavan and

API.Shirtode, Prakash this

Khot,

PSI.Yogesh On 30/12/04 over to

Patil matter

others.

investigation

was

handed

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 Pradeep

panchanama

was

prepared.

On

20/01/05

accused

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. arrested under Meanwhile, accused Pradeep D'melo was on 19/01/05 and during his

panchanama

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 to made point disclosure out was the statement “Jagruti and in presence of

panchas wherefrom prepared

Watch

Company” was of

sim-card to of that

purchased On

panchanama search

effect. Sunil

31/12/04

dens/houses

accused

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. the instance of accused Pandit So also on 26/01/05 at 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 took details of

mobile/telephone

numbers

which

place

intersay

amongst the accused persons in the context of crime and hence call details from mobile phones were received. the process of investigation, Maruti Esteem car In was

seized and report of chance prints was prepared and the fingerprint expert report was prepared by the Director of Fingerprints Ramesh and reflected and Sunil chance Kolekar prints on the of accused and

Pokharkar

glass

mirror of the said car. opinion was sought from

From the office of DCB.CID, 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 filed

of

investigation, accused Balaram

initial Mhatre

charge-sheet and 17

is

against

others

whereas after arrest of wanted accused No.19 Babu Kamble, supplementary prosecution, charge-sheet transpired filed. during According the to the of

course

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 Kolekar through to the accused 13 Ramesh Pokharkar including and Sanjay and

other

co-accused

Laxmi

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 treatment present

whereas from

179

injured/victims said hospitals to

discharged and

after the and

different are

thereby injuries

accused

responsible

cause

deaths of said victims.

06. initial

In

the

instant was

case, on

on

hearing and

prosecution thereafter

charge

framed

23/02/06

charge was altered on 28/06/07 under different 14 heads of Indian Penal on Code and Bombay charge Prohibition is finally Act and on

thereafter

alteration

framed

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. 1 Whether

Points
the death of 87 victims/

Findings YES

customers was homicidal ?

2

Does prosecution prove that, at the relevant time accused No.1 to 19 did commit i.e.by criminal mixing conspiracy with for adulteration and poisonous substance methanol illicit country liquor and to supply/sale the same to the customers ?

NO

3

Does

prosecution time, No.3 and

prove A/1

that No.4

at

the No.2 in by

relevant Pandit, No.5 did

Balaram, Sanjay, 87

Pradeep, No.6 of

Vishnu,

Ramesh commit

furtherance of their common intention murder victim

NO

supplying/administering mixed illicit liquor,

methanol poisonous

substance intentionally and knowingly causing bodily injuries to them ?

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4

Does prove their

prosecution that, at

in the

the

alternative time,

relevant

accused No.1 to 19 in furtherance of common of 87 intention not victims/ committed to by culpable murder homicide amounting customers

In the affirmative against accused illicit country liquor i.e.poisonous No.1 to 4 and substance to said 87 victims/ in the negative customers with intention of causing against accused No.5 to 19.
supplying/selling methanol mixed 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 ?

5

Does prosecution prove that, at the relevant time accused Nos.1 to 19, in furtherance of their common intention voluntarily 179 caused by grievous hurt to victims supplying/selling

NO

methanol mixed illicit country liquor i.e.poisonous substance to them which was likely to cause their death ?

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6

Does prosecution prove that, at the relevant time accused Nos.1 to 19 in

In the affirmative caused hurt to 179 victims/customers against accused No.1 to 4 and by supplying/selling methanol mixed in the negative illicit liquor, a poisonous substance against accused No.5 to 19.
furtherance of their common intention to them which was likely to cause their death ?

7

Does prosecution prove that, at the relevant time accused Nos.1 to 19, in furtherance of their common intention supplied/sold methanol mixed illicit country substance with liquor to 266 i.e.poisonous victims/customers likely to

with intend to cause hurt to them or knowledge thereby cause hurt to them ?

In the affirmative against accused No.1 to 4 and in the negative against accused No.5 to 19.

8

Does prosecution prove that, at the relevant time accused Nos.1 to 19 in furtherance of their common intention 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 the affirmative against accused No.1 to 4 and in the negative against accused No.5 to 19.

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knowing to be likely that the same would be sold as drink ?

9

Does prosecution prove that, at the relevant time accused Nos.1 to 19, in furtherance of their common intention sold drink drink methanol which or mixed had illicit liquor, as poisonous substance as an article of become was noxious as which unfit drink

In the affirmative against accused No.1 to 4 and in the negative against accused No.5 to 19.

knowing or having reason to believe that same was noxious as drink ?

10 Does prosecution prove that, at the
relevant

In the affirmative against accused keeping or in their possession No.1 to 4 and materials, still, utensils, in the negative implements or apparatus for the against accused No.5 to 19.
found committed or abated for using, purpose of manufacturing intoxicant i.e.methanol mixed illicit liquor ?

time

accused

Nos.1

to

19

11 Does prosecution prove that, at the
relevant found methanol time mixed accused Nos.1 to 19 a manufacturing illicit intoxicant liquor,

NO

poisonous substance ?
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12 Does prosecution prove that, at the

In the affirmative relevant time accused Nos.1 to 19 against A/1 to 4 found bottling/re-bottling methanol and A/7 to 19 but, in the mixed illicit liquor, a poisonous negative against A/5 and 6. substance ?

13 Does prosecution prove that, at the
relevant time accused Nos.1 to 4 and A/7 to 19, found sold/purchased mixed illicit YES intoxicant methanol

liquor, a poisonous substance ?

14 Does prosecution prove that, at the
relevant time accused Nos.5 and 6 YES have abetted the act of co-accused of possessing, transporting and distributing illicit country liquor ?

15 What offences if any the accused have A/1 to 4 U/s.304
committed ?

(Part-I), 324, 328, 272, 273 r/w.34 of I.P.C. and U/s.65(d), 65(e) & 65(f) of Bombay Probn.Act. A/5 & A/6 U/s. 65(e) r/w.81 of Bombay 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 final order

R E A S O N S
AS TO POINT NO.1 :08. prove Initial that, the burden death to lies of upon 87 the prosecution customers death of to was 87 of

victim the

homicidal. victim methanol which was

According

prosecution, because

customers mixed unfit

occurred

of

consumption

illicit for

liquor

i.e.poisonous and thereby

substance they had

consumption

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 of PW.2 Shankar Javale, Asstt.Director of

evidence

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 PW.94 PW.96 PW.99 PW.102

Dr.P.M.Shinde, Dr.Janardan Dr.Rajesh Dr.Shishir

PW.93

Dr.Ramesh PW.95 PW.98

Savardekar, Kadam, Dere, and

Nimbhori, Sukhadeve, Ruia,

Dr.Sunik Dr.Rajesh

PW.100

Dr.Harish

Pathak

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. prosecution witnesses have clearly Moreover, some 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 and illicit because liquor of that at they the had dens of certain bodily

accused

suffered

injuries and consequently while under treatment, they had expired. Obviously, the evidence brought on record by is so clear to prove that, the victim/

prosecution

customers who had consumed methanol mixed illicit liquor had suffered bodily injuries and resulted into their

deaths. there

Therefore, the contention of the defence that, various not reasons because for of poisoning and of death of

are

victims

was

consumption

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 of in Sec.120(B) made of I.P.C. At that, the the

instance

prosecution

submissions

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. on this point. Admittedly, there is no direct evidence 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 Direct particular evidence is accused not relating to with

conspiracy.

expected

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. reflecting However, that, evidence was of any PW.101 sort Santosh of not

there

criminal

conspiracy between the accused. examined Vodafone PW.117 and Vikas Phulkar,

On behalf of prosecution a Nodal to Officer of from

information

related

S.D.R

accused

Ramesh Phokharkar and Vadivel Shettiyar and one Ashok Jadhav Avinash colly.) accused at Exh-808, 809 and 810 respectively. PW.120

Ramdasi relating Babu

who to

has phone

produced No.25741664 Devesh

documents(Exh-834 in the from name of

Kamble.

PW.121

Rai

Reliance

mobile company has produced documents (Exh-841 colly.) relating to mobile No.9324620487 in the name of accused

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Pandit mobile

Kalan. company

However, has

PW.122 on

Sachin

Kondilkar

from of

placed

record

call

details

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 simcard 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, clear,

documentary sufficient

evidence and

brought authentic

on

record with

is

not

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

...27

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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 substance mixed illicit country and liquor, a poisonous bodily

intentionally

knowingly

causing

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 to said act with death the by knowledge causing that

thereby

likely

cause

their

bodily

injuries to them.

14.

Under

Section

299

of

Indian

Penal

Code,

“Culpable homicide” describes as “Whoever causes death by doing an act with the intention of causing death, or with
...28

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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. has failed

Of course, in the instant case, prosecution to establish by clear, sufficient,

satisfactory and clinching evidence that, the accused did commit criminal conspiracy distributing for and the selling purpose of

manufacturing,

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. Indian

In Penal

the

reported

case,

certain 307,

provisions 328 were

of

Code

including

302,

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

...31

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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 because or to cause harm or to customers as even it remotely simply

lacs

intention

knowledge

was

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 D'melo and

agent PW.5

in

between

the

accused to

No.3 make

Pradeep

Jignesh

Siddhapura

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 Bhanushali to Industries, and in time on Navi Mumbai run by from No.3 Vijay

Mr.Naveen 20/10/2004 Pradeep

between to time

period accused to PW.3

23/12/2004, contacted

D'melo

telephone

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 under

that, he carries business of dyes and chemicals

the name and style as “N.J.Chemi Dyes and Chemicals” and 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

...35

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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 states in are seized. PW.104 Arun Sonawane, a panch

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

...36

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(J)S.C.395/05 @ 440/07

drums

of

delivery vide So

challan and

seized 129

under drawn

panchanama by PW.138 in his

(Exh-663) API.Chavan.

Art.128 also

PW.131

API.Khot

states

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. evidence, as per the evidence of Apart from aforesaid 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

...39

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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 According

has not supported the case of the prosecution.

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

...40

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(J)S.C.395/05 @ 440/07

in the process of manufacturing illicit country liquor and mixing methanol with the said liquor and further

distribution and sale of the same. states Kalan in who his evidence him to that, join he him

PW.101 Santosh simply knows in accused Pandit of

asked

the not

business admit

liquor.

However,

this

witness

does

about One

knowing of other accused including accused Balaram.

more point urged at the instance of the prosecution that, statement recorded of this witness of PW.1 at Santosh Exh-73 Bhandari by is

U/s.164

Cr.P.C.

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

...41

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(J)S.C.395/05 @ 440/07

mother in law which was concealed and which was within his knowledge and in and pursuance 697 of his disclosure in that

statement regard

(Exh-667 of

respectively) Sanjay Khatri

and and

evidence

PW.113

PW.141

Sr.PI.Patil gives clear picture. Surve, panch states in his

So also PW.112 Chandan evidence that, accused

Balaram Mhatre has made disclosure statement(Exh-685) and pointed out at the his place of manufacturing recovered liquor and

thereafter

instance

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

...42

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(J)S.C.395/05 @ 440/07

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. more submission made on behalf of

Of course, one defence that,

investigating agency has deliberately suppressed to place on record extracts Suffice of it lock-up say register merely and log book the

register.

that,

because

investigating agency had visited the said places earlier in different contexts, can not be said that, non

...43

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(J)S.C.395/05 @ 440/07

production brought on

of

extract by

of

register

and

the

evidence to

record

the

prosecution

relating

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 similar of accused such No.4 Vishnu by Mhatre also that,

advanced

argument

defence

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

...44

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(J)S.C.395/05 @ 440/07

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. prosecution However, further argument advanced for the 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 and indulged in the process of running liquor.

distillery

manufacturing

illicit

country

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Just to mention that, admittedly lacks direct evidence on record regarding running distillery country brought on and process but about of the the

manufacturing circumstantial

illicit evidence

liquor record

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 of

as

circumstantial

evidence.

However,

inspite

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 the

circumstance circumstances

on

which

the be of

prosecution conclusive

relies

and

should

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

...47

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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

...49

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Section 304 of I.P.C. degree of intention

Just to mention that, severity/ 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. methanol

According to the prosecution, distribution of 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 In the instant case, the accused persons

case to case.

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 of give alcoholic liquor kick and and to to increase the same the at

quantity

country

sale

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

...52

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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. that,

Therefore, this is suitable case to safely infer intention on the part of the accused as even

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

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 Pathak, Dere, PW.99 Dr.Shishir Shinde have said 87 Ruia, and PW.100 PW.133

Dr.Harish

PW.102

Dr.Baban they of

Dr.Bhalepatil postmortems customers as on

speaks the

that,

conducted victim/ and C.A

dead in

bodies

referred

postmortem

reports

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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 of said evidence clearly transpiring occurred/

that,

the

death

victim/customers

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 and liquor, succumbed they to must death. had bodily Apart suffered this

severely

from

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 Sonare, Bansode, PW.60 PW.58 Kasturabai PW.62 Tare, Bharti PW.59 Singh, Shobha PW.63

Asha

Jadhav,

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

...56

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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, that, on behalf of of prosecution dying made submissions

evidence

oral

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. the In the instant case, there is no reference in of said witnesses that, the victims had

evidence

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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. Ramesh

According Pokharkar

to and

the No.6

prosecution, Sanjay

accused also

No.5 had

Kolekar

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 liquor, with mixing methanol No.1 to with 4. So illicit on country of

accused

behalf

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. sale and purchase This witness also speaks about the 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. on 24/12/04, he saw This witness further speaks that, 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 There is either

transported the liquor from Maruti Esteem car. no other evidence on record brought

against

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. there is no On behalf of defence made submissions that, 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. instance of the So in this regard, argued at the that, mobile conversation

prosecution

made by accused No.5 Ramesh and No.6 Sanjay with coaccused 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. and 6 has played and role at So to say accused No.5 the most possessing, in the

transporting

distributing

illicit

liquor

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. PW.88

Apart form the aforesaid position, evidence of Pravin Sakharkar, that, PW.123 in PI.Kale of and PW.138

API.Chavan

speaks

pursuance

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. of PW.141 PI.Patil also indicates Moreover evidence 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. illicit by accused According country No.1 to to the

prosecution, manufactured

methanol and

mixed

liquor 4 on

distributed

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 tyretybes(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. 9 Yogesh Sonawane party was states in his by evidence him on that, account PW. on of

25/12/04,

arranged

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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(J)S.C.395/05 @ 440/07

has

turned

hostile

and

not

supported

the

case

of

prosecution and not admitted that, accused No.7 to 9 are indulged in the business of illicit country liquor. PW.

129 PI.Mausamkar has drawn arrest panchanama(Exh-977) of accused No.7 Laxmi. PW.130 PI.Tamboli states in his

evidence that, recovery of country liquor was made at the instance of accused statement No.7 and Laxmi the in pursuance was seized of her

disclosure

same

under

panchanama(Exh-350 and 350-A) and in that regard the same is corroborated by the evidence of PW.87 Rajesh Khambale. Of course, PW.123 PI.Kale deposed in his evidence that, accused No.8 Vadivel, No.9 Ayappa and No.10 Chitra were arrested by him. Shailesh Ghag, As regards accused No.8 Vadivel, PW.106 panch and PW.141 PI.Patil both have

deposed in their evidence that, at the instance of this accused No.8 Vadivel, in pursuance of his disclosure

statement, recovery was made of 3 potlas of liquor and the same seized under panchanama(Exh-654 and 665).

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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. Yogesh also speaks that, on account of Moreover, PW.9 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. 13 Indumati So also evidence of PW.12 Padma Dhangar, PW. 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 So also PW.115

identified by the aforesaid witnesses.

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. evidence

So

also he

PW.138 arrested

API.Chavan accused

speaks Babu

in

his

that,

No.19

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, and in spite of such position, he has he was on duty 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. PW.4

As Vinod

regards the Ware, PW.68

accused No.12 Vishwas

Sunil Khandare, PW.69 Arjun

Howale,

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 Khandare had also played role of purchase and sale of illicit liquor to various customers and on consumption of the same, some of the customers suffered and died whereas some of the customers suffered and on treatment discharged from the hospitals. However, evidence on record not disclosing

that, accused No.12 Sunil had any knowledge about the methanol mixed illicit liquor purchased and sold by him. So in absence of evidence to that effect, not just and proper to draw any inference against this accused also about his role in the crime under Section 304 of I.P.C. At the most, role of this accused No.12 Sunil comes under Section 65 of Bombay Prohibition Act,1949 and not under Section 304 of I.P.C, as aforesaid.

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49.

As

regards

the

role

of

accused

No.14

Anand

Shinde, prosecution has examined PW.72 Praksh Surve, PW. 73 Kailash Barve, PW.74 Shaikh Udbal, PW.75 Nandkishor Patil, PW.76 Narendra Ayare and PW.130 PI.Tamboli. As

per the evidence of PW.72 Praksh Surve that, he was in habit of consuming liquor and he had consumed liquor on Chrismas day, 2004 in the shop of accused No.14 Anand and had suffered and was hospitalized at K.E.M hospital and on treatment discharged. PW.73 Kailash Barve and PW.74

Shaikh Udbal also stated in their evidence that, they had suffered bodily injuries due to consumption of liquor at the den of accused No.14 Anand and on treatment

discharged from the hospital.

Accused No.14 Anand Shinde

arrested along with one Brijlal vide panchanama(Exh-996) drawn by PW.130 PI.Tamboli. As per the evidence of PW.72

Prakash Surve and PW.76 Narendra Ayare, liquor, plastic can of 10 ltrs. Electricity bills etc. seized from the house of accused No.14 Anand under panchanama(Exh-259) and these witnesses have clearly identified this accused

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Anand Shinde.

At the instance of this accused Anand

advanced argument that, accused Anand is still behind the bars since many years and he is totally innocent but wrongly implicated in this matter and absolutely there is no evidence about his role in the crime and none of the witnesses have identified this accused. Just to mentin

that, PW.73 Kailash Barve clearly states that, liquor was consumed from the shop of accused No.14 Anand. So also

PW.72 Prakash Surve and PW.76 Narendra Ayare also states in their evidence that, liquor and other articles were seized from the house in of accused No.14 Anand Of vide

panchanama(Exh-259)

their

presence.

course,

evidence on record is not disclosing that, accused No.14 Anand Shinde has role in the crime as contemplated under Section 304 of I.P.C but at the most his role comes under Section 65 of Bombay Prohibition Act,1949.

50.

As regards the accused No.13 Seema Shetty, No.

15 Nagamma Shetty and No.16 Radha Shetty, PW.115 Ganesh

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Ghatisalve has deposed in his evidence that, he knows these accused are indulged in the business of purchase and sale of illicit liquor. PW.25 Ravindra Chawande, Moreover, PW.17 Suhas Dalvi, PW.29 Ananta Gaikar, PW.30

Hanumanta Korban and PW.31 Iliyas Shaikh have deposed in their evidence that, they had consumed liquor at the shop of accused No.13 Seema and they had suffered and on

treatment, they have been discharged from the hospital. So also PW.7 Ravindra Shejwal further states in his

evidence that, at the time when he had consumed liquor at the shop of accused No.13 Seema, then he saw accused No.7 Laxmi and No.8 Vadevel brought bags/potlas containing

liquor and the same was delivered to accused No.13 Seema. So also PW.26 Lalabi Shaikh, PW.27 Babamma Dormal, PW.28 Padma Naik, PW.29 Ananta Gaikar, PW.41 Kalawati Jadhav and PW.111 Rupa Pardeshi have stated in their evidence that, their family members had consumed liquor at the den of accused No.13 Seema at the relevant time and they had suffered and under treatment succumbed to death. Apart

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from the aforesaid evidence, at the instance of accused No.13 Seema, recovered liquor bottles and other articles in pursuance of disclosure statement and the same seized under panchanama(Exh-259, 136 and 136-A) and evidence of PW.33 Sudhir Auty, PW.72 Prakash Surve and PW.123 PI.Kale to that effect reflects. As regards accused No.15 Nagamma Shetty also

evidence of PW.38 Kushal Shetty, PW.39 Ankush Bait and PW.42 Sagar Pol denoting that, their family members had consumed illicit liquor at the relevant time at the shop of accused No.15 Nagamma and they had suffered and in the process of treatment, succumbed to death. So also

evidence of PW.40 Vinayak Mahadik further denotes that, he on consumption of illicit liquor at the shop of

accused No.15 Nagamma, had also suffered and discharged from the hospital after treatment. Apart from aforesaid evidence, at the instance of accused No.15 Nagamma, in the process of house search of this accused, certain

articles seized under panchanama (Exh-120) and evidence

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of these witnesses is corroborated by evidence of PW.141 PI.Patil. As regards accused No.16 Radha Shetty, the evidence of PW.20 Joseph Pious and PW.22 Mahipal Sabale does

indicate that, they had consumed liquor at the den/shop of accused No.16 Radha at the relevant time and they had suffered and were hospitalized and on treatment

discharged.

So also evidence of PW.21 Saroj Salaskar and

PW.23 Suman Kharwi speaks that, their family members had consumed liquor at the den of accused No.16 Radha and suffered and in the process of treatment, they succumbed to death. took house So also PW.123 PI.Kale and PW.141 PI.Patil search of accused under Radha and seized some So

incriminating

articles

panchanama(Exh-120).

evidence on record brought against accused No.13 Seema Shetty, No.15 Nagamma Shetty and No.16 Radha Shetty

disclosing their role to the extent of purchase and sale of liquor and not more than that but not transpiring in the crime as contemplated under Section 304 of I.P.C.

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51.

As

regards

accused

No.17

Kharwa

Pagadat,

evidence of PW.43 Vijaya Kolabkar, PW.44 Shobha Jadhav, PW.45 Bhimmai Jadhav, PW.46 Motilal Vishwakarma, PW.47 Abdul Ansari, PW.48 Govind More, PW.49 Faisalali Khan, PW.50 Chotelal Gupta, PW.51 Rehamanuddin Shaikh, PW.53 Sulochana Reddy and PW.55 Madhukar Bansode speaks that, their family members had consumed liquor at the relevant time at the shop of accused No.17 Kharwa and seriously suffered and in the process of treatment succumbed to death. Moreover, evidence of PW.51 Rehamanuddin Shaikh,

PW.52 Rajendra Kedare and PW.56 Salim Shaikh shows that, they had consumed liquor at the relevant time from the shop of accused No.17 Kharwa and they had also suffered and discharged from the hospital after treatment. Apart

from aforesaid evidence, as per the evidence of PW.54 Dipak Ahire and PW.123 of PI.Kale, accused in pursuance Kharwa, of

disclosure

statement

No.17

seized

utensils which were used for sale of liquor and some other articles. Thus, evidence brought on record against

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accused No.17 Kharwa also reflecting that, her role in the crime to the extent of purchase and sale of illicit country liquor to various customers and some of them had suffered severely and in the process of treatment died whereas others on treatment discharged from the hospital but role of this accused not disclosing that, she had knowledge of methanol mixed with this country liquor and hence her role does not come within the purview of

Section 304 of I.P.C.

52. Pw.42

As regards accused No.18 Maya Khan, evidence of Sagar Pol, PW.58 Kasturabai Tare, PW.59 Shobha

Sonare, PW.60 Asha Jadhav, PW.62 Bharti Singh indicating that, their family members on consumption of illicit

country liquor from the den of accused No.18 Maya Khan and they had severely suffered and in the process of treatment succumbed to death. So also PW.61 Vinod Tayade

speaks in his evidence that, he had consumed liquor at the den of accused No.18 Maya and had suffered and on

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treatment discharged from the hospital. PW.138 API.Chavan simply states that, he arrested accused Maya Khan. Thus,

aforesaid evidence brought on record disclosing the role of accused Maya Khan in the crime to the extent of

purchase of illicit liquor and sale and not more than that and not reflecting within the purview of section 304 of I.P.C.

53. case by

Thus, prosecution has failed to establish its clear, cogent, sufficient and satisfactory

evidence on record that, accused No.1 to 6 in furtherance of their common intention had committed murder of 87

victim/customers by distributing methanol mixed illicit liquor i.e.poisonous substance intentionally and

knowingly causing bodily injuries to them as contemplated under Section 300 r/w.302 of I.P.C. However, prosecution

in the alternative has established that, accused No.1 to 4 in furtherance of their common intention committed

culpable homicide not amounting to murder of 87 victim/

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customers by supplying and selling methanol mixed illicit country liquor i.e.poisonous substance through co-accused to various customers knowing that, the said methanol

mixed illicit country liquor was harmful to human being and thereby caused bodily injuries to them resulted into the death of 87 victim/customers as contemplated under Section 304 of I.P.C. establish its case However, prosecution has failed to that, accused No.5 to 19 in

furtherance of their common intention or otherwise, they had role in the crime of committing culpable homicide not amounting to murder of 87 victim/customers by purchase, sale, distribution of illicit country liquor to said 87 victim/customers as embodied under Section 304 of I.P.C. Thus, point Nos.3 and 4 are answered accordingly.

AS TO POINT NOS.5 AND 6 :54. Prosecution has established that, Accused No.1

Balaram Mhatre, No.2 Pandit Kalan, No.3 Pradeep D'melo and No.4 Vishnu Mhatre did commit culpable homicide as

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provided under Section 304 of I.P.C as regards the 87 victim/customers. So also prosecution has further

established that, accused No.5 Ramesh Pokharkar and No.6 Sanjay Kolekar possessed, transported and distributed the illicit liquor to other co-accused which was supplied by accused No.1 to 4 and further established that, accused No.7 Laxmi Shettiyar, No.8 Vadivel Shettiyar, No.9 Ayappa Shettiyar, No.10 Chitra Shettiyar, No.11 Asha @ Saroj Kamble, No.12 Sunil Khandare, No.13 Seema Shetty, No.14 Anand Shinde, No.15 Nagamma Shetty, No.16 Radha Shetty, No.17 Kharva Pagadat, No.18 Maya Khan and No.19 Babu

Kamble had purchased and sold said illicit country liquor to various customers to the extent of 266 in numbers including 87 victim/customers died and 179 injured but, prosecution has failed to prove the role of accused No.5 to 19 either under Section 302 of I.P.C or under Section 304 of I.P.C as the case may be.

55.

According to the prosecution that, some of the

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customers have suffered grievous hurt including Babayya Ramswami and others. At the instance of defence argued

that, none of the injured customers had suffered grievous hurt as provided under Section 320 of I.P.C. Under

Section 320 of I.P.C. “Grievous hurt” is described in clause 8 that, “Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits”. As per the evidence brought on record, none

of the injured customers had suffered grievous hurt as provided under Section 320 of I.P.C, except victim

Babayya Ramswami vide document Exh-1069 colly. as he was hospitalized for 22 days. Admittedly, Babayya Ramswami

is not examined on behalf of prosecution even though he is injured and his presence could have been secured. the evidence of PW.134 Dr.Oroskar, medical papers In of

Babayya Ramswami are referred at Exh-1069 colly. the evidence of this witness and his

As per the

affidavit,

patient Babayya Ramswami was admitted as indoor patient

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on 27/12/04 and discharged on 17/01/05 but evidence is not indicating that, what was grievous hurt suffered if any by patient Babayya Ramswami even though he was

treated in the hospital for the above period.

Therefore,

the evidence brought on record by the prosecution even in the context of patient Babayya Ramswami is that way not clear, sufficient and satisfactory to prove that, the said patient had suffered grievous hut as provided under Section 320 of I.P.C. Of course, much is canvased at the

instance of prosecution that, most of the customers had suffered grievous hurt but not established that, any of the said 179 customers had suffered grievous in hurt that

including

Babayya

Ramswami

because

evidence

regard on record is not clear and satisfactory to prove the case under Section 320 r/w.326 of I.P.C.

56.

Just

to

mention had

that,

the

said as

179

patients/customers

suffered

injuries

provided

under Section 324 of I.P.C.

In order to attract the

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provisions

of

Section

324

of

I.P.C,

there

must

be

voluntarily causing hurt by dangerous weapons or means. Just to mention that, methanol mixed illicit liquor is a poisonous I.P.C. substance as provided under Section 324 of

Some of the witnesses as discussed above have

clearly stated in their evidence that, they had consumed liquor at the dens of accused No.7 to 19 which was

provided/supplied by accused No.1 to 4 through accused No.5 and 6. However, in order to attract the provisions

of Section 324 of I.P.C what is expected that, there must be voluntarily causing hurt to others. Evidence on

record is silent that, accused No.5 to 19 voluntarily caused hurt to any of the victim/customers knowing well that, they have possessed, sold and distributed methanol mixed illicit country liquor. Obviously, present case

does not come under the purview of Section 324 of I.P.C against accused No.5 to 19. However, present case comes

under Section 324 of I.P.C against accused No.1 to 4 only.

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57.

Testimonies PW.135 and

of

PW.126 PW.136

Dr.Karnik, Dr.Karnad, in whose

PW.134 PW.137

Dr.Oroskar,

Dr.Doshi, PW.140

Dr.Chikhalikar

Dr.Shukla

evidence

referred and relied upon the medical papers of various victim/customers who had consumed methanol mixed illicit country liquor and suffered vide Exh-886 to 931, 1050 to 1158, 1178 to 1264, 1275 to 1285, 1294 to 1302 and 1442 to 1449 colly. and thereby entire evidence including

affidavit of evidence of said witnesses clearly speaking that, victim/customers who had consumed methanol mixed illicit country liquor had suffered and they were treated in various hospitals including Rajawadi and Sion

hospital. that, there

One more argument advanced for the defence is no linking evidence was that, supplied the very

methanol

mixed

illicit

liquor

through

accused No.5 & 6 and the same was sold by accused No.7 to 19 to said victims. Just to mention that, evidence in this context is very clear, sufficient & satisfactory as already discussed & hence needless to repeat the same.

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58. that,

One more point urged at the instance of defence victim/customers is not are not examined but such has

contentions examined

proper

because

prosecution who had

various

victims/customers

suffered

because of consumption of methanol mixed illicit country liquor above. and evidence in that regard is also discussed

So also further argued at the instance of defence

that, no clear evidence that, samples of stomach wash, urine etc were collected. Just to mention that, blood

samples were collected as well as viscera was preserved and the same was appropriately sent to C.A and that was analyzed and found/detected cases of methanol. One more

point also urged at the instance of defence that, there is no evidence that, how much quantity of illicit liquor even though mixed with methanol was consumed by victim/ customers and therefore reports of C.A regarding analysis and tests not to be relied upon. Just and proper to

mention that, it was the proximate result that, because of consumption of methanol mixed illicit liquor 87 victim

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/customers and 179 injures customers suffered and because of that, they were immediately admitted and treated at various hospitals and hence can not be said that, there is any force in the contention of the defence in that regard. One more point raised at the instance of defence

that, investigating agency has not properly followed the procedure of sealing, labeling and dispatching the

articles to C.A. Police officers and panchas concerned have categorically stated in their evidence about the appropriate sealing, labeling and seizure of articles and further about the process of sending articles to C.A. Here in the instant case not pointed out that which of the articles were tampered at any time till the same were delivered at the office of on C.A. record, Thus, taking into has

consideration

evidence

prosecution

established its case against accused No.1 to 4 only u/S. 324 of I.P.C. but prosecution has failed to establish its case against accused No.1 to 19 u/S.326 of I.P.C. point No.5 is answered in negative & No.6 accordingly. So

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AS TO POINT NOS.7 TO 9 :59. Prosecution has proved that, accused No.1 to 4

were knowing well that methanol mixed with illicit liquor which is a poisonous substance and which was unfit for human consumption and further knowing that thereby likely to cause hurt to the customers and did adulteration with intention to supply and sale the same as a drink and thereby supplied and sold the said noxious drink. So

such act of accused No.1 to 4 obviously comes under the provisions of Section 328, 272 and 273 of I.P.C.

However, prosecution has failed to prove that, accused No.5 to 19 had intended or any knowledge in the process of purchase, sale, distribution of said illicit liquor that, the same was mixed with methanol and hence, case of the prosecution further does not attract within the

purview of Section 328, 272 and 273 of I.P.C against accused No.5 to 19.

60.

Section

34

of

I.P.C.

does

not

create

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substantive offence but is merely a rule of evidence for determination of criminal liability when the criminal act is done by several persons in furtherance of common

intention of all.

So even in absence of charge under

Section 34 of I.P.C, the provisions of section 34 of I.P.C can be applied if the evidence on record

establishes.

Moreover, in the present case and under the

given circumstances and evidence brought on record, even in the absence of charge under Section 34 of I.P.C, by itself can not be said to be fatal and can not be said that prejudice would be caused to accused as referred in Ashok Kumar AIR 1977 S.C. 109 and Narinder Singh AIR 2000 S.C.2212. Section So also in order to invoke the provisions of 34 I.P.C, prosecution must prove beyond

reasonable doubt that, the criminal act was done by one or more accused in furtherance of common intention of all. Concept of criminal conspiracy and common intention Evidence brought on record does attract the

differs.

provisions of Section 34 of I.P.C even though evidence is

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not attracting the criminal conspiracy as contemplated under Section the 120-A r/w.120-B of of I.P.C. liability Section in 34

embodies

principle

joint

doing

criminal act and that liability being the existence of common intention. Provisions of Section 109 of I.P.C do

attract when the act of crime is aided, instigated or encouraged to others and thereby abetting. In the instant case provisions of Section 109 of I.P.C. do not attract against any of the accused. So further just to mention that, the act of accused No.1 to 4 attracts within the provisions of Section 34 of I.P.C. So to say, the

prosecution has established its case against accused No.1 to 4 under Sections 304, 324, 328, 272 and 273 r/w.34 of I.P.C. the Hence, point Nos.7 to 9 are partly answered in to the extent of accused No.1 to 4

affirmative

whereas in the negative towards accused No.5 to 19.

AS TO POINT NOS.10 TO 16 :61. Under section 65(f) of Bombay Prohibition Act,

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1949 offence is contemplated if the person found using, keeping utensils, or has in possession or any materials, the still, of

implements

apparatus

for

purpose

manufacturing any intoxicant (other than opium). instant accused case, No.1 there to 4 is were no evidence on record while

In the that,

actually

found

running

distillery or actually found while manufacturing illicit liquor but the evidence on record against them clearly establishes that, these accused found in possession utensils, implements, apparatus including boiler of etc.

which are bing used for the purpose of manufacturing of country liquor. On the other hand, evidence brought on

record by the prosecution does not disclose that, accused No.5 to 19 found using, keeping or possessing any such materials, still, utensils or apparatus for the purpose of manufacturing any intoxicant i.e.country liquor and hence provisions of Section 65(f) of the Bombay

Prohibition Act do not attract against these accused No.5 to 19.

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62.

In order to attract the provisions of Section

65(b) of Bombay Prohibition Act, prosecution must prove that the person manufacturing of any intoxicant (other than opium). Evidence on record not indicating that, any

of the accused found actually while running distillery or while manufacturing illicit country liquor and hence

provisions of Section 65(b) do not attract against any of them.

63.

In order to attract the provisions of Section

65(d) of Bombay Prohibition Act, the prosecution has to establish that, the accused found bottling or re-bottling the illicit liquor. In the instant case, evidence is

clear that, accused No.1 to 4 and 7 to 19 found bottling and rebottling the illicit country liquor for the purpose of supply, distribution and sale the same and hence

provisions of Section 65(d) of Bombay Prohibition Act do apply only against accused No.1 to 4 and accused No.7 to 19 whereas same do not attract against accused No.5 & 6.

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64.

In order to attract the provisions of Section

65(e) of Bombay Prohibition Act, the prosecution must prove the person sells or buys any intoxicant (other than opium) or hemp. is clear, In the present case evidence on record and satisfactory to prove that,

sufficient

accused No.1 to 4 and accused No.7 to 19 found supplying, possessing, distributing and selling the illicit country liquor and therefore the provisions of Section 65(e) of Bombay Prohibition Act do attract against accused No.1 to 4 and 7 to 19. Moreover, the prosecution has further

succeeded in proving that, accused No.5 and 6 who have abetted the act of co-accused of possessing, transporting and distributing under Act the illicit 65(e) country r/w.81 liquor of as

contemplated Prohibition

Section by

Bombay and

possessing,

transporting

distributing the said illicit liquor.

65.

Thus, the prosecution has established its case

against accused No.1 to 4 under Sections 304 (Part-I),

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324, 328, 272, 273 r/w.34 of I.P.C. as well as under Sections 65(d), 65(e) and 65(f) of Bombay Prohibition Act. Further accused No.5 and No.6 found guilty for the

offence punishable under Section 65(e) r/w.81 of Bombay Prohibition Act. So also accused No.7 to 19 are found guilty for the offence punishable under Sections 65(d) and 65(e) of Bombay Prohibition Act.

66.

Of course, accused No.1 to 4 not found guilty

for the offences punishable under Sections 302 and 326 r/w.109 and 120(B) of I.P.C. as well as under Sections 65(b) of Bombay Prohibition Act. So also accused No.5 and 6 are not held guilty for the offence punishable under Sections 302, 304, 326, 324, 328, 272, 273 r/w.109 and 120(B) I.P.C as well as under Sections 65(b), 65(d) and 65(f) of the Bombay Prohibition Act. Moreover, accused

No.7 to 19 are not held guilty for the offence u/S.304, 326, 324, 328, 272, 273 r/w.109 and 120(B) of I.P.C and u/S.65(b) and 65(f) of Bombay Prohibition Act.

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67.

Thus, accused No.1 Balaram Mhatre, No.2 Pandit

Kalan, No.3 Pradeep D'melo and No.4 Vishnu Mhatre heard on the point of quantum of sentence for the offence

punishable under Sections 304 (Part-I), 324, 328, 272, 273 r/w.34 of I.P.C. as well as under Sections 65(d), 65(e) and 65(f) of Bombay Prohibition Act. They made

submissions that, they have come from very poor families and they are the only earning members in their families and their family members are depending upon them for

their maintenance.

68.

So also heard accused No.5 Ramesh Pokharkar and

No.6 Sanjay Kolekar on the point of quantum of sentence for the offence punishable under Section 65(e) r/w.81 of Bombay Prohibition Act and they also made submissions that, the livelihood of their family members are

depending on them and prayed for leniency.

69.

Further heard accused No.7 Laxmi Shettiyar, No.

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8 Vadivel Shettiyar, No.9 Ayappa Shettiyar, No.10 Chitra Shettiyar, No.11 Asha Kamble, No.12 Sunil Khandare, No.13 Seema Shetty, No.14 Anand Shinde, No.15 Nagamma Shetty, No.16 Radha Shetty, No.17 Kharva Pagadat, No.18 Maya Khan and No.19 Babu Kamble on the point of quantum of sentence for the offene punishable under Section 65(d) and 65(e) of Bombay Prohibition Act and they have made submissions that, they are from poor families and prayed for

leniency.

70.

Heard

learned

special

public

prosecutor

Shri.Vaibhav Bagade for the State who made submissions that, the accused have committed the offence of very

heinous in nature and because of that 87 innocent persons have lost their life and 179 injured persons had suffered bodily injuries and therefore this is not fit case to take any lenient view. On the other hand, heard learned

advocates for the accused on the point of quantum of sentence and they have made submissions that, accused

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have

come

from

very

poor

families

and

prayed

for

leniency.

71.

Accused No.1 to 4 have committed crime of very

serious in nature and because of their act, 87 victim/ customers have lost their life as well as 179 victim/ customers also have suffered lot and thereby life of

their family members also suffered and the act committed by these accused is anti-social in nature and thus these accused do not deserve for any sympathy. Therefore, just

and proper to award sentence against accused No.1 to 4 for the offence punishable under Section 304 (Part-I) r/w.34 of I.P.C., to suffer imprisonment for Life by each and to pay fine of Rs.10,000/- by each, in default to suffer rigorous imprisonment for 2 years by each, as well as under Section 328 r/w.34 of I.P.C. to suffer rigorous imprisonment for 7 years by each and to pay fine of Rs. 5,000/by each, in default to suffer rigorous

imprisonment for 1 year by each, as well as under Section

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324 r/w.34 of I.P.C. to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each, as well as under Section 272 r/w.34 of I.P.C. to suffer rigorous imprisonment for 6 months by each and to pay fine of Rs.500/by each, in default to suffer

rigorous imprisonment for 2 months by each, as well as under Section 273 r/w.34 of I.P.C. to suffer rigorous imprisonment for 6 months by each and to pay fine of Rs. 500/- by each, in default to suffer rigorous imprisonment for 2 months by each. sentence against Further just and proper to award No.1 to 4 for the offence

accused

punishable under Section 65(d) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. As well as

under Section 65(e) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/by each, in default to suffer rigorous

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imprisonment Section

for of

4

months Bombay

by

each.

As

well Act

as to

under suffer

65(f)

Prohibition

rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/by each, in default to suffer rigorous

imprisonment for 4 months by each.

72.

So also accused No.5 to 19 have indulged in the

crime of serious and anti-social in nature and they also do not deserve for any sympathy and therefore, just and proper to award sentence against accused No.5 and 6 for the offence punishable under Section 65(e) r/w.81 of

Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. So also just to and 19 proper for to award

sentence

against

accused

No.7

the

offence

punishable under Section 65(d) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer

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rigorous imprisonment for 4 months by each as well as for the offence punishable under Section 65(e) of Bombay

Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each.

73.

Learned

defence

advocates Wahab Khan

including and

and

especially

Adv.Shri.Abdul

Shri.M.R.

Dhanawade have strongly made submissions that, illicit country liquor was supplied, transported and distributed from village Hedutane, Dist.Thane within the jurisdiction of Vikhroli police station, Mumbai and the said act of the accused must and had taken of place police with the blessings, and State

supervision

control

officers

excise officers concerned in form of monetary benefits or otherwise as they had directly aided the said act by supervising and controlling and blessings and hence they ought to have been impleaded as co-accused being abettors

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for the said crime but, they have been deliberately sided without any action against them but, inspite of such

position, present accused who are innocent persons have been falsely implicated in this matter. So also further

made submissions by them that, some of the dens which were working in of highly Vikhroli and populated police State areas within the the said had

jurisdiction police

station excise

but

officers

officers

deliberately neglected and if appropriate steps in that regard for prevention would have been taken place

promptly, then no such scenario would have occurred and hence the role of police officers/State excise officers directly attributed for the said unfortunate episode and because of that they ought to have been impleaded as coaccused in this matter. submission by learned On behalf of prosecution made Special Public Prosecutor

Shri.Bagade that, some 57 police officers including few I.P.S. officers are put under suspension but,

surprisingly further made submission that, it was the

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sweet choice of the investigating agency to whom they should implicate as an accused.

74.

Apart from such position, in one of the matter

reported in 2011(3) Supreme 33, Chandran @ Manichan @ Maniyan V/s. State of Kerala the Hon'ble Apex Court has made observations facts that, which “We have must been note some from very the

disturbing

revealed

voluminous evidence by the prosecution.

Here, was a

person who was unabashedly running his empire of spurious liquor trade and for that purpose had purchased

politicians including the public representatives, police officers and other officers belonging to the Excise

Department. The trade was going unabated.

Unfortunately, of the

it is the elite of the society or the “haves”

society who never purchase this kind of spurious liquor for the obvious reasons. It is only the poor section of

the society which becomes the prey of such obnoxious trade and ultimately suffers.”

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75.

Deliberate inaction or negligence/blessings in

any form including monetary benefits or otherwise for the said commission of the crime of accused certainly amounts to abetment as provided u/S.107 r/w.109 of I.P.C. Such

police officers/State excise officers are equally liable for the commission of crime committed by the accused

concerned. So such police officers/State excise officers ought to have been prosecuted/implicated as co-accused

in this matter in order to eradicate deep rooted corrupt practices & that too in the wider interest of society but the same is not done in the instant case. So to say, it

was not sweet choice of the investigating agency to whom they should implicate as an accused but it is the sweet choice of the statute that who should be the accused. So

investigating agency/Government still is at liberty to initiate appropriate prosecution against such erring

police officers/State excise officers in accordance with law because mere putting them under suspension will not serve the purpose, in the interest of the society.

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76.

Thus, under such circumstances, point Nos.10 to

16 are answered accordingly. In the result pass following order.

ORDER
1. Accused No.1 Balaram Sukrya Mhatre, No.2 Pandit

Shankar Kalan, No.3 Pradeep Oliver D'melo, No.4 Vishnu Aambo Mhatre are held guilty for the offence punishable under Sections 304 (Part-I), 328, 324, 272, 273 r/w.34 of Indian Penal Code as well as under Sections 65(d), 65(e) and 65(f) of Bombay Prohibition Act and they are hereby sentenced for the offence punishable under Section 304 (Part-I) r/w.34 of I.P.C. to suffer Imprisonment for Life by each and to pay fine of Rs.10,000/-by each, in default to suffer rigorous imprisonment for 2(two) years by each. 2. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 328 r/w.34 of I.P.C. to suffer rigorous imprisonment for 7(seven) years by each and to pay fine of Rs.5,000/- by each, in default to suffer rigorous imprisonment for 1(one) year by each. 3. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 324 r/w.34 of I.P.C. to suffer rigorous imprisonment for 2 (two) years
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by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 4. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 272 r/w.34 of I.P.C. to suffer rigorous imprisonment for 6 months by each and to pay fine of Rs.500/- by each, in default to suffer rigorous imprisonment for 2 months by each. 5. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 273 r/w.34 of I.P.C. to suffer rigorous imprisonment for 6 months by each and to pay fine of Rs.500/- by each, in default to suffer rigorous imprisonment for 2 months by each. 6. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 65(d) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 7. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 65(e) of Bombay Prohibition Act to suffer rigorous imprisonment for 2
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years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 8. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 65(f) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 9. Substantive sentence passed against accused

Nos.1 to 4 under Sections 328, 324, 272, 273 r/w.34 of I.P.C. as well as under Sections 65(d), 65(e) and 65(f) of Bombay Prohibition Act shall run concurrently and they shall entitled to set-off for the period undergone by them U/s.428 of Cr.P.C. 10. Accused No.5 Ramesh Dnyaneshwar Pokharkar and

No.6 Sanjay Dnyaneshwar Kolekar are hereby held guilty for the offence punishable under Section 65(e) r/w.81 of Bombay Prohibition Act and they are sentenced to suffer rigorous imprisonment for 2 (two) years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each.
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11.

Accused No.5 and 6 shall entitled to set-off

for the period undergone by them U/s.428 of Cr.P.C. 12. Accused Nos.7 Laxmi @ Velee Selvam Narayan

Shettiyar, No.8 Vadivel Narayan Shettiyar, No.9 Ayappa Narayan Shettiyar, No.10 Chitra Murgesh Shettiyar, No.11 Asha @ Saroj Babu Kamble, No.12 Sunil Somaji Khandare, No.13 Seema Vasant Shetty, No.14 Anand Pandurang Shinde, No.15 Nagamma Rama Shetty @ Kani Aunty, No.16 Radha Suresh Shetty, No.17 Kharva Sunkappa Pagadat @ Makadwali Akka, No.18 Maya Ibrahim Khan @ Jalki and No.19 Babu Ramappa Kamble are hereby held guilty for the offence punishable under Section 65(d) of Bombay Prohibition Act and they are sentenced to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 13. Further accused No.7 to 19 are hereby sentenced

for the offence punishable under Section 65(e) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each.

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14.

Accused No.7 to 19 shall be entitled to set-off

in the substantive sentence for the period undergone by them U/s.428 of Cr.P.C. and their substantive sentence under Section 65(d) and 65(e) of Bombay Prohibition Act shall run concurrently. 15. However, accused No.1 to 4 are hereby acquitted

for the offences punishable under Sections 302 and 326 r/w.109 and 120(B) of I.P.C. as well as under Sections 65(b) of Bombay Prohibition Act. 16. Accused No.5 and 6 are hereby acquitted for the

offence punishable under Sections 302, 304, 326, 324, 328, 272, 273 r/w.109 and 120(B) I.P.C as well as under Sections 65(b), 65(d) and 65(f) of the Bombay Prohibition Act. 17. Accused No.7 to 19 are hereby acquitted for the

offence punishable under Sections 304, 326, 324, 328, 272, 273 r/w.109 and 120(B) of I.P.C as well as under Sections 65(b) and 65(f) of Bombay Prohibition Act. 18. Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11, 12,

13, 15, 16, 17, 18 and 19 shall surrender to their bail
and they be taken in custody.
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19.

Bail bonds of accused No.5 to 13 and 15 to 19

are hereby stand cancelled. 20. as per Muddemal list of properties at Sr.No.1 being to 9 to the the

extent of telephone diary and Sr.No.10,12,13 and 15 to 19 articles(Exh-56) worthless, same shall be destroyed, after the appeal period is over or in case if the appeal is preferred, after its decision whichever event happens later. Further two mobile instruments(Art.9) shall be sold in public auction and its sale proceeds shall be credited to Government and currency note of Rs.100/- is confiscated and the same shall be credited to Government and key of Maruti car and Maruti Car(Art.11) shall be returned to the registered owner concerned after the appeal period is over or in case if the appeal is preferred, after its decision whichever event happens later. (Judgment dictated and pronounced in open Court)

Dt.26/04/2012

(W.K.KANBARKAR) Extra Joint Ad-hoc Additional Sessions Judge C.R.No.2, Sewree, Mumbai.

vsp/-

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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-VII vide C.R.No.152/04) ...Complainant VERESES

1. Balaram Sukrya Mhatre Aged- 49 Yrs. R/o.Padle village, Mothi Desai, Shelpada Road, Tal.Kalyan, Dist.Thane. 2. Pandit Shankar Kalan Aged- 38 Yrs. R/o.B/9, Kisan Apartment, Rambaug Lane No.4, Kalyan(w), Thane. 3. Pradeep Oliver D'melo Aged- 27 Yrs. R/o.At/P.Anjur, Tal.Bhiwandi, Dist.Thane. 4. Vishnu Aambo Mhatre Aged- 43 Yrs. R/o.At-Wadavali (Khurd), Post-Nirje, Tal.Kalyan, Dist.Thane.

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5. Ramesh Dnyaneshwar Pokharkar Aged- 42 Yrs. R/o.14, Saidham Sangh, Janta Colony, Laxmi Nagar, Ghatkopar(E), Mumbai- 75. 6. Sanjay Dnyaneshwar Kolekar Aged- 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 Shettiyar Aged- 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 Shettiyar Aged- 30 Yrs. R/o.L.P.Phansekar Chawl No.3, R.No.2, Vikhroli(E), Mumbai-83. 11. Asha @ Saroj Babu Kamble Aged- 45 Yrs. R/o.Subhash Nagar, Mhada Colony, Nahur, Mumbai. 12. Sunil Somaji Khandare Aged- 36 Yrs. R/o.Milind Nagar, Goandevi, Bhandup.
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13. Seema Vasant Shetty Aged- 35 Yrs. R/o.Ganesh Nagar, Diva, Dist.Thane. 14. Anand Pandurang Shinde Aged- 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 Shetty Aged- 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 Akka Aged- 60 Yrs. R/o.Tagore Nagar, Group No.3, Vikhroli, Mumbai-83. 18. Maya Ibrahim Khan @ Jalki Aged- 62 Yrs. R/o.Mhada Bldg., Subhash Nagar, Nahur village, Nahur, Mumbai. 19. Babu Ramappa Kamble Aged- 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-HOC ADDITIONAL SESSIONS JUDGE SHRI.W.K.KANBARKAR C.R.No.02 Dated : 26th APRIL, 2012 .........................

OPERATIVE ORDER
1. Accused No.1 Balaram Sukrya Mhatre, No.2 Pandit

Shankar Kalan, No.3 Pradeep Oliver D'melo, No.4 Vishnu Aambo Mhatre are held guilty for the offence punishable under Sections 304 (Part-I), 328, 324, 272, 273 r/w.34 of Indian Penal Code as well as under Sections 65(d), 65(e) and 65(f) of Bombay Prohibition Act and they are hereby sentenced for the offence punishable under Section 304 (Part-I) r/w.34 of I.P.C. to suffer Imprisonment for Life by each and to pay fine of Rs.10,000/-by each, in default to suffer rigorous imprisonment for 2(two) years by each. 2. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 328 r/w.34 of I.P.C. to suffer rigorous imprisonment for 7(seven) years
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by each and to pay fine of Rs.5,000/- by each, in default to suffer rigorous imprisonment for 1(one) year by each. 3. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 324 r/w.34 of I.P.C. to suffer rigorous imprisonment for 2 (two) years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 4. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 272 r/w.34 of I.P.C. to suffer rigorous imprisonment for 6 months by each and to pay fine of Rs.500/- by each, in default to suffer rigorous imprisonment for 2 months by each. 5. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 273 r/w.34 of I.P.C. to suffer rigorous imprisonment for 6 months by each and to pay fine of Rs.500/- by each, in default to suffer rigorous imprisonment for 2 months by each. 6. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 65(d) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in
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default to suffer R.I. for 4 months by each. 7. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 65(e) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer R.I. for 4 months by each. 8. Further accused No.1 to 4 are hereby sentenced

for the offence punishable under Section 65(f) of Bombay Prohibition Act to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer R.I. for 4 months by each. 9. Substantive sentence passed against accused

Nos.1 to 4 under Sections 328, 324, 272, 273 r/w.34 of I.P.C. as well as under Sections 65(d), 65(e) and 65(f) of Bombay Prohibition Act shall run concurrently and they shall entitled to set-off for the period undergone by them U/s.428 of Cr.P.C. 10. Accused No.5 Ramesh Dnyaneshwar Pokharkar and

No.6 Sanjay Dnyaneshwar Kolekar are hereby held guilty for the offence punishable under Section 65(e) r/w.81 of Bombay Prohibition Act and they are sentenced to suffer
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rigorous imprisonment for 2 (two) years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 11. Accused No.5 and 6 shall entitled to set-off

for the period undergone by them U/s.428 of Cr.P.C. 12. Accused Nos.7 Laxmi @ Velee Selvam Narayan

Shettiyar, No.8 Vadivel Narayan Shettiyar, No.9 Ayappa Narayan Shettiyar, No.10 Chitra Murgesh Shettiyar, No.11 Asha @ Saroj Babu Kamble, No.12 Sunil Somaji Khandare, No.13 Seema Vasant Shetty, No.14 Anand Pandurang Shinde, No.15 Nagamma Rama Shetty @ Kani Aunty, No.16 Radha Suresh Shetty, No.17 Kharva Sunkappa Pagadat @ Makadwali Akka, No.18 Maya Ibrahim Khan @ Jalki and No.19 Babu Ramappa Kamble are hereby held guilty for the offence punishable under Section 65(d) of Bombay Prohibition Act and they are sentenced to suffer rigorous imprisonment for 2 years by each and to pay fine of Rs.2,000/- by each, in default to suffer rigorous imprisonment for 4 months by each. 13. Further accused No.7 to 19 are hereby sentenced

for the offence punishable under Section 65(e) of Bombay Prohibition Act to suffer rigorous imprisonment for 2
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years by each and to pay fine of Rs.2,000/- by each, in default to suffer R.I. for 4 months by each. 14. Accused No.7 to 19 shall be entitled to set-off

in the substantive sentence for the period undergone by them U/s.428 of Cr.P.C. and their substantive sentence under Section 65(d) and 65(e) of Bombay Prohibition Act shall run concurrently. 15. However, accused No.1 to 4 are hereby acquitted

for the offences punishable under Sections 302 and 326 r/w.109 and 120(B) of I.P.C. as well as under Sections 65(b) of Bombay Prohibition Act. 16. Accused No.5 and 6 are hereby acquitted for the

offence punishable under Sections 302, 304, 326, 324, 328, 272, 273 r/w.109 and 120(B) I.P.C as well as under Sections 65(b), 65(d) & 65(f) of Bombay Prohibition Act. 17. Accused No.7 to 19 are hereby acquitted for the

offence punishable under Sections 304, 326, 324, 328, 272, 273 r/w.109 and 120(B) of I.P.C as well as under Sections 65(b) and 65(f) of Bombay Prohibition Act. 18. Accused Nos.2, 3, 4, 5, 6, 7, 8, 10, 11, 12,
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13, 15, 16, 17, 18 and 19 shall surrender to their bail
and they be taken in custody.

19.

Bail bonds of accused No.5 to 13 and 15 to 19

are hereby stand cancelled. 20. as per Muddemal list of properties at Sr.No.1 being to 9 to the the

extent of telephone diary and Sr.No.10,12,13 and 15 to 19 articles(Exh-56) worthless, same shall be destroyed, after the appeal period is over or in case if the appeal is preferred, after its decision whichever event happens later. Further two mobile instruments(Art.9) shall be sold in public auction and its sale proceeds shall be credited to Government and currency note of Rs.100/- is confiscated and the same shall be credited to Government and key of Maruti car and Maruti Car(Art.11) shall be returned to the registered owner concerned after the appeal period is over or in case if the appeal is preferred, after its decision whichever event happens later. (Judgment dictated and pronounced in open Court) Dt.26/04/2012 (W.K.KANBARKAR) Extra Joint Ad-hoc Addl.Sess.Judge C.R.No.2, Sewree, Mumbai.

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