SAJEEVversusSTATE OF KERALA

                 [2023] 15 S.C.R. 241 : 2023 INSC 998



                            CASE DETAILS

                                 SAJEEV
                                     v.
                          STATE OF KERALA
                   (Criminal Appeal No. 1134 of 2011)
                          NOVEMBER 09, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]
                             HEADNOTES
      Issue for consideration: Whether the conviction and sentence of the
accused-A10 and A11 u/ss. 302, 307, and 326/120B IPC and s.55(a), (h),
(i) and s. 57 (A)(1)(ii) of the Abkari Act by the courts below is sustainable
in law.
      Penal Code, 1860 – ss. 302, 307 and 326/120B – Akbari Act – ss.
57(A)(1)(ii) and 55 – Conspiracy of alcohol poisoning – A1, kingpin
of the illicit liquor business alongwith A3, A10, and A11 hatched a
conspiracy to mix methyl alcohol with spirit to sell the same for an
unlawful gain through the outlet operated by A1, and the consumption
of the same resulted in the death of 7 innocent people, blindness in 11
people, and injuries to 40 people – Conviction qua A1 upheld right up
to this Court – Conviction of the accused-A10 and A11 u/ss. 302, 307
and 326/120 B and s. 55(a), (h), (i) and s. 57 (A)(1)(ii) of the Abkari
Act and sentenced to imprisonment for life for the offence u/s. 302
and s. 57(A)(1)(ii), along with other sentences, by the courts below –
Interference with:
      Held: Not called for – Relationship between A10 and A11, and their
relationship with A1; and the role played by each one of them in hatching
a conspiracy, if any, supply of Biosole and subsequent malice in the supply
and sale of illicit liquor established – Cause of death of the deceased
persons was poisoning caused by methyl alcohol, so also the persons
sufferred injuries on their body parts as a result of such consumption –
Prosecution succeeded in establishing the offence of criminal conspiracy
of A10 and A11 with A1 – Accused failed to justify the incriminating
                                    241
242          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


circumstances appearing against them – Offence u/s. 57(A)(1)(ii) of
mixing noxious substance likely to endanger human life, attributable
to them – Also, in res gestae ss. 6 and 8 of the Evidence Act applicable
– Furthermore, there is evidence relating to the transport, bottling and
sale of methyl alcohol – Accused persons have been established to be in
conspiracy for common objectives throughout – Conviction of A10 and
A11 u/s. 55(a), (h) and (i) upheld – Thus, the involvement of the accused
persons in the sale and mixing of methyl alcohol with spirit as part of
the conspiracy, resulting in deaths and injuries to many innocent persons
proved – Conviction of A10 and A11 u/ss. 302, 307, 326 and 120B IPC
and 57(A)(1)(ii) of the Abkari Act, by the courts below upheld. [Para 16,
37, 41, 42, 45, 46, 48-50]
    Criminal Law – Concurrent convictions – Interference – When
warranted:
     Held: It is when the finding is perverse; finding is based or built on
inadmissible evidence; and the courts below have not considered or wrongly
discarded vital pieces of evidence that would tilt the balance in favor of the
accused. [Para 51]
     Penal Code, 1860 – s. 120B – Criminal conspiracy – Necessary
ingredients to constitute a criminal conspiracy – Elucidated. [Para 35]
    Supreme Court Rules, 2013 – Order XX, r. 5, sub rules 2 and 3 –
Criminal Appeals – Suggestion for amendment of sub-rule 3:
      Held: Perusal of sub-Rules 2 & 3 of r. 5 shows that physical copies
of the original records are to be called for, in criminal appeals involving
sentence of life or the death penalty – It is suggested that sub-rule 3
be amended to insert the words ‘soft copy’ before the words ‘original
records’, resulting in e-copies of the Original Records being requisitioned
– This would facilitate a much quicker availability of such records to the
court as also further a more environmentally conscious approach – Such
requisition of the soft copy of the record be extended to cases where
leave is granted against an order of acquittal or conviction – Also, soft
copy of the records, once received be provided to the counsel appearing
for the parties. [Para 58]
                 SAJEEV v. STATE OF KERALA                               243


     Judicial deprecation – Practice of depositions of material witnesses
not being placed on record – Effect:
     Held: Such practice often cause repeated adjournments, which
goes to the root of pendency and delay in disposing of appeals – Thus, a
suggestion to amend sub rule 3 of rule 5 of Order XX of the Supreme Court
Rules, 2013 by inserting the words ‘soft copy’ before the words original
records resulting in e-copies of the original records being requisitioned, at
a quicker pace – Supreme Court Rules, 2013 – Order XX, r. 5, sub rules
2 and 3. [Para 56]
       LIST OF CITATIONS AND OTHER REFERENCES
      Ramanarayan Popli v. CBI (2003) SCC (Crl.) 869; P.K. Narayanan v.
State of Kerala (1995) 1 SCC 142; Mohd. Naushad v. State (NCT of Delhi)
2023 SCC Online SC 784; Hari and Anr. v. State of UP. 2021 SCC Online
SC 1131; Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC
624; State through Superintendent of Police v. Nalini & Ors. (1999) 5 SCC
253: 1999 ( 3 ) SC 1; Yakub Abdul Razak Memon v. State of Maharashtra
(2013) 13 SCC 1: 2013 (15 ) SCR 1; Arvind Singh v. State of Maharashtra
(2021) 11 SCC 1; State of Haryana v. Krishan (2017) 8 SCC 204: [2017] 7
SCR 251; Phula Singh v. State of Himachal Pradesh AIR 2014 SC 1256:
[2014] 3 SCR 551; Indrakunwar v. State of Chhattisgarh 2023 SCC Online
1364; Chandran v. State of Kerala (2011) 5 SCC 161: [2011] 8 SCR 273;
P.N. Krishna Lal v. Govt. of Kerala 1995 Supp (2) SCC 187: [1994] 5 Suppl.
SCR 526; Mekala Sivaiah v. State of A.P. (2022) 8 SCC 253; Ravasaheb
and Ors. v. State of Karnataka (2023) 5 SCC 391 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1134 of 2011.
     From the Judgment and Order dated 23.07.2010 of the High Court of
Kerala at Ernakulam in CRLA No.792 of 2004.
     With
     Criminal Appeal No.567 of 2015.
244            SUPREME COURT REPORTS                        [2023] 15 S.C.R.


      Appearances:
      R Basant, Sr. Adv., Renjith B. Marar, Ms. Lakshmi N. Kaimal,
Santhosh M. J., Harsh Vardhan Shah Shyam, Arun Poomulli, Davesh Kumar
Sharma, Vishnu Pazhanganat, Ms. Ashu Jain, M Gireesh Kumar, Ankur
Kulkarni, Sharath S Janarathanan, Vijay Kumar, Gaurav Agrawal, Advs.
for the Appellant.
    Jayanth Muth Raj, Sr. Adv., Harshad V. Hameed, Dileep Poolakkot,
Subhash Chandran K.R., Mrs. Ashly Harshad, Advs. for the Respondent.
           JUDGMENT / ORDER OF THE SUPREME COURT
                               JUDGMENT
      SANJAY KAROL, J.
      1. The present appeals arise from the final judgment and order dated
23.07.2010 passed by the High Court of Kerala at Ernakulam in Criminal
Appeal No.72 of 2004, which confirmed the judgment and order dated
02.04.2004 passed by Sessions Judge, Kollam in Sessions Case No.1308 of
2003 vide which the present Appellants, two in number, namely,(i) Sajeev
(Accused No. 10) and (ii) Roy (Accused No.11) were convicted under
Sections 302, 307 and 326 read with Section 120B of the Indian Penal Code
(hereinafter ‘IPC’), Section 55(a), (h), (i) and Section 57 (A) (1) (ii) of the
Abkari Act. They were awarded imprisonment for life for the offence under
Section 302 and Section 57(A)(1)(ii), along with other sentences, ordered
to run concurrently.
     2. The incident in question relates to alcohol poisoning, resulting in
the death of 7 innocent people, blindness in 11 people, and more than 40
people sustaining injuries.
     3. The prosecution case emerging from the record, as also set out by
the Courts below, is as follows:
      i.     On 04.04.2003, at about 7 PM, A1, A3, A10, and A11 hatched
             a conspiracy to mix methyl alcohol with spirit to sell the same
             for an unlawful gain through the outlet operated by A1. In
             furtherance of this conspiracy, A10 and A11 brought 21 cans
             (each of 5L) containing methyl alcohol labeled as ‘Biosole’ in
                      SAJEEV v. STATE OF KERALA                                  245
                          [SANJAY KAROL, J.]

              the Maruti car owned by A10 to the residence of A1 and A3 on
              05.04.2003.
       ii.    Thereafter, A2, A7, and A8 brought spirit to the residence of A1
              and A3 in the Ambassador car owned by A2. Methyl Alcohol
              supplied by A10 and A11 was mixed with this spirit by A1 and
              A3 and sold through A1’s outlet. A4, A5, A6, A9 and A12 assisted
              A1 in this sale.
       iii.   Seven persons, including A4 and A12, died after consuming the
              spurious liquor on 09.04.2003 – 10.04.2003. PWs 1 – 9 and 11
              -12 also fell ill after consuming the said liquor. PW70, DYSP,
              received information about the incident and commenced the
              investigation with PW67, Addl. Sub-Inspector, Anchalummode
              Police Station. After recording statements, PW67 registered FIR
              (Ex.P186) under Sections 302, 307 read with Section 34 of IPC
              and Section 57A of the Abkari Act.
       iv.    The prosecution examined 76 witnesses and marked Exhibits P1
              to P259 along with material objects (hereinafter ‘MO’)MO 1 to
              MO 29. The defence did not adduce oral evidence. After carefully
              considering the evidence produced, the Trial Court convicted the
              accused persons in the manner discussed above.
     4. The Trial Court, after elaborate consideration, vide common
judgment dated 02.04.2004, convicted the accused persons facing trial for
different offences and awarded sentences therefor. Accused No.1, 2, 5-9,
10 and 11 preferred appeals from the Trial Court to the High Court. The
High Court confirmed the judgment of the Trial Court against these accused
persons. The picture emerging is depicted in the chart below:
                                       Trial Court                    High Court
 No.          Name
                            Crime        Punishment Awarded                 -
 1.     A1 – Thampi      IPC – S.302    Imprisonment for life        Conviction
                         and 120B       (302) and RI for 10 years    affirmed for all
                                        (120B); Rs.50,000 fine        offences
                         IPC - S.307    RI for 7 years; Rs. 50,000
                                        fine
                         IPC – S.326    RI for 7 years; Rs. 50,000
                                        fine
246           SUPREME COURT REPORTS                                 [2023] 15 S.C.R.



                         Abkari Act –    Imprisonment for life; Rs.
                         S.57 (A) (1)    50,000 fine
                         (ii)
                         Abkari Act –    R.I. for 7 years;
                         S.55(a), (h)    Rs.7,00,000 fine
                         and (i)
 2.    A2 – Saji @       Abkari Act –    R.I. for 10 years; Rs.       Conviction
       Parippally Saji   S.55(a)(i)      2,00,000 fine                 affirmed for all
                                                                      offences
 3.    A3 – Shobhana     Abkari Act –    R.I. for 1 year; Rs.         No appeal
       @ Maya            S.55(a)         1,00,000 fine                 preferred
 4.    A4 – Shaji @      Died
       Jinu Shaji
 5.    A5 – Rajesh @
       Bai
 6.    A6 - Hussain
                                                                      Conviction
 7.    A7 – Sony         Abkari Act –    R.I. for 10 years; Rs.
                                                                      affirmed for all
                         S.55(a)(i)      2,00,000 fine
                                                                      offences
 8.    A8 – Vipin B.
       Nair
 9.    A9 – Santhosh

 10.   A10 - Sajeev      IPC – S.302     Imprisonment for life
                         and 120B        (302) and RI for 5 years
       A11 - Roy
                                         (120B); Rs.25,000 fine
                         IPC - S.307     RI for 5 years; Rs. 25,000
                                         fine
                         IPC – S.326     RI for 5 years; Rs. 25,000 Conviction
                                         fine                        affirmed for all
                                                                    offences
                         Abkari Act –    Imprisonment for life; Rs.
                         S.57 (A) (1)    25,000 fine
                         (ii)
 11.                     Abkari Act –    R.I. for 5 years;
                         S.55(a), (h)    Rs.5,00,000 fine
                         and (i)
 12.   A12 –             Died during Trial
       Prasanthan

      5. Accused No.1 had filed SLP (Crl.)mDiary No.2018/2016 against
the order of the High Court, which came to be dismissed by this Court vide
                     SAJEEV v. STATE OF KERALA                            247
                         [SANJAY KAROL, J.]

order dated 29.01.2016. Therefore, the conviction qua A1 stands affirmed.
No other accused preferred appeal to this Court.
     6. Accused Nos.10 and 11 have filed instant separate appeals by special
leave against the final judgment and order of the High Court of Kerala,
upholding their conviction, which were registered as Criminal Appeal
No.1154 of 2011 and Criminal Appeal No.567 of 2015.
     7. The question which arises for consideration before this Court is
whether the conviction and sentence imposed by the Trial Court and High
Court on A10 and A11 are sustainable in law or not.
      Trial Court and High Court Findings
     8. The Trial Court in Sessions Case No.1308 of 2003, after a detailed
consideration of the voluminous evidence, gave the following findings while
convicting A10 and A11:
      i.     Given the testimonies of the injured persons and family members
             of the deceased and the doctors who proved the post-mortem
             reports, the Trial Court held the prosecution to have proved
             beyond all reasonable doubt that the cause of death and the
             persons suffering injuries (except PW21) were only due to the
             consumption of spurious liquor mixed with methyl alcohol.
      ii.    There is overwhelming evidence on record that A1 ran an illicit
             liquor business.
      iii.   Reliance was placed on Ramanarayan Popli v. CBI1 and P.K.
             Narayanan v. State of Kerala2 to bring home the charge of
             conspiracy and from the material testimonies of PW23, PW24,
             PW11 and PW18, it is evident that on 04.04.2003, all three, i.e.,
             A1, A10 and A11, hatched a conspiracy and in furtherance thereof,
             21 cans containing methyl alcohol (Biosole) were delivered at
             the house of A1. Further, on consideration of witnesses,PW25
             to 35 and PW76, the Trial Court adduced that it can be safely
             held that 21 cans of Biosole transported to the house of A1 and


1   (2003) SCC (Crl.) 869
2   (1995) 1 SCC 142
248           SUPREME COURT REPORTS                        [2023] 15 S.C.R.


            A3 contained methyl alcohol. It was also observed that A11 was
            running the firm RR Distributors which supplied the methyl
            alcohol, on behalf of his brother. Reliance was also placed on the
            forensic examination conducted by PW44 in which it was opined
            that the 21 cans recovered by PW76 (IO) from the residence of
            A1, MO15 series and MO31 series (Biosole cans produced by
            PW27) are cast from the same mould.
      iv.   The recovery of burnt plastic materials from the paramba (lawn)
            of the house of A11, wherein methyl alcohol was detected, cannot
            be connected with the occurrence.
      9. The High Court observed that the testimony of PW11establishes
A10 and A11 having delivered Biosole at the residence of A1 in 21 cans
in a maruti car in furtherance of the conspiracy hatched with A1. Also,
records of RR Distributors, an enterprise of A11, were falsified by making
specific entries with an endeavor to conceal the delivery of 21 cans of
Biosole to A1. Further, the Court found that on an overall perusal of the
materials on record, it cannot be said that there was any serious infirmity
or illegality in the investigation. In view of the above findings, vide the
impugned judgment, the conviction and sentence handed down to A10 and
A11 were confirmed.
      Submissions on behalf of accused persons
     10. Learned senior counsel and learned counsel for both these
convicts (Appellants) submit that by no stretch of imagination can the act
of conspiracy be attributable towards them.
      11. Assuming hypothetically, these convicts can be said to have
supplied spirit, which is ethanol, as an independent business transaction.
Even then, the factum of mixing and illegally selling the end product is not
attributable to them,more so, in the absence of any element of conspiracy
established beyond a reasonable doubt; hence, there is no question of
conviction under the penal laws of the land.
     12. In so far as Section 57(1)(a) of the Abkari Act is concerned, it was
submitted the same is not applicable, for they have neither sold nor mixed
the banned product.
                  SAJEEV v. STATE OF KERALA                                 249
                      [SANJAY KAROL, J.]

     Submissions on behalf of the State of Kerala
       13. On behalf of the State of Kerala, learned senior counsel has
submitted that the prosecution has placed sufficient evidence on record to
bring home the charge of conspiracy against A10 and A11. A10 is a close
associate of A11 and together, in a conspiracy, they sold methyl alcohol to
A1, with full knowledge of the material being sold illegally and the purpose
of its purchase.
     Submissions on behalf of Amicus Curiae
      14. Learned Counsel, Mr. Gaurav Aggarwal, was appointed by this
Court as an Amicus Curiae vide order dated 20.07.2023 to assist the Court.
The Amicus Curiae has submitted his submissions in four parts, placing on
record: (a) the relevant testimonies; (b) the relevant exhibits; (c) the relevant
portion of the testimonies; and (d) a chart indicating the role played by A10
and A11.
     Our View
     15. The Courts below have held A1 to be the kingpin of the illicit liquor
business. The conviction qua A1 has come to be confirmed right up to this
Court. Hence, the issues requiring consideration are: (a) the relationship
between A10 & A11, and their relationship with A1; and (b) the role played
by each one of them in hatching a conspiracy, if any, supply of Biosole and
subsequent malice in the supply and sale of illicit liquor.
     16. Undisputedly, the cause of death of the deceased is poisoning
caused by methyl alcohol. So also the persons suffering injuries on their
body parts as a result of such consumption.
      17. Against this backdrop, we now proceed to examine the case of
the prosecution with respect to A10 and A11, as has unfurled through the
testimonies of the prosecution witnesses.
      18. PW11, Rajesh in his testimony, has deposed that he knew A1
for having worked with him as a mason. On 05.04.2003, he was present
at the residence of A1, for doing such work. At that time, A10 (whom he
had also seen earlier) and A11 arrived at the residence at around 7 PM in
an ash-coloured maruti car. From the car, 3-4 cardboard boxes were taken
out. Also, A3 and A4 brought 3 cans of 35L each, which were filled up with
250             SUPREME COURT REPORTS                       [2023] 15 S.C.R.


the contents of the cans taken out from the cardboard boxes taken out by
A3 and A4 from the car. After this process was over, PW11 assisted A4,
in carrying the cans to the property of Kamalamma. Further, A10 and A11
received cash from the residence of A1 and left. Pertinently, PW11 was one
of the injured as a result of the incident and has identified A10 and A11 in
Court. He correctly identifies the big vessel in which the cans were emptied,
marked as MO14 series; the cans from the cardboard box, marked as MO15
series (21 in number) and the maruti car of A10, marked as MO16. Nothing
material or significant is brought out in the cross-examination part of his
testimony, rendering his version to be doubtful in any manner.
      19. PW18, Vincent is a neighbor of A1. Even though this witness turned
hostile, for not remembering having seen A10 and A11, yet, pertinently, he
identified the car (MO16) of A10 in which the methyl alcohol was brought at
the residence of A1 by the appellants. It is the settled law that the testimony
of a hostile witness can be accepted to the extent that the version is found to
be dependable on careful scrutiny thereof. Testimony of such a witness can
be relied upon and cannot be treated as being washed off the record. [Refer:
Mohd. Naushad v. State (NCT of Delhi)3 (3-Judge Bench); Hari and Anr.
v. State of UP.4 (3-Judge Bench) and Koli Lakhmanbhai Chanabhai v.
State of Gujarat5 (2-Judge Bench)]
      20. PW23, Vinod is an acquaintance of A1. He testified being privy to
the process of procuring the spirit and converting it into arrack and seeing
A10 and A11 at the residence of A1 multiple times. Further, he corroborates
the version of PW11 to the effect that both A10 and A11 brought cardboard
boxes at the residence of A1 on 05.04.2003. Also, out of these cardboard
boxes, cans containing spirit, resembling the MO15 series were emptied into
huge cans. Also, he correctly identified all the accused present in the Court.
     21. PW24, Saros, a friend of A1, fully corroborates the version of
PW11 and PW23, with respect to the visit of A10 and A11 to the residence
of A1 and delivery of M015 series cans, which were poured into 3 larger
cans containing methanol, measuring 35L each.


3     2023 SCC Online SC 784
4     2021 SCC Online SC 1131
5     (1999) 8 SCC 624
                  SAJEEV v. STATE OF KERALA                              251
                      [SANJAY KAROL, J.]

       22. From a conjoint reading of the testimonies of the above witnesses,
what comes to be established is that: (a) A10 and A11 were known to A1;
(b) A10 and A11 visited the residence of A1 on 05.04.2003, in the presence
of other accused persons/independent persons; and (c) some material which
is alleged to be methyl alcohol was supplied in 21 cans, which were emptied
into 3 cans of 35L each and stored at the residence of A1. Keeping this in
mind, we proceed to examine the next set of witnesses.
     23. PW25 Sheeja, in her testimony, states that she provided her
pharmacy license to A11, which enabled him to start his firm RR Distributors.
      24. PW26, Violet worked as a receptionist in the firm of A11 by the
name of, RR Distributors at Attingal. As per her version, though A11 is
running this firm but the license is in the name of his brother Roni (PW35).
In Court, he correctly identifies A11, who is in the business of distribution
of surgical spirit, chemicals, needles and lab equipment for which a stock
register was maintained. The firm had purchased 24 cans, being 5L each of
Biosole from anotherfirm in Veli. She testifies to the order book (Ex.P4),
the stock register (Ex.P5) and the bill book (Ex.P6) and to the following
transactions being recorded in the bill book concerning Biosole (21 cans
in total):
     i.     Medical Lab purchased 5 cans on 01.03.2003, Ex.P6(a).
     ii.    Southern Lab purchased 2 cans on 06.03.2003, Ex.P6(b).
     iii.   Saj Hospital purchased 1 can on 08.03.2003, Ex.P6(c).
     iv.    KV Hospital purchased 2 cans on 12.03.2003, Ex.P6(d).
     v.     Holy Cross purchased 1 can on 14.03.2003, Ex.P6(e).
     vi.    Parvathy Lab purchased 4 cans on 15.03.2003, Ex.P6(f).
     vii. Koshy Dental Clinic purchased 1 can on 22.03.2003, Ex.P6(g).
     viii. City Hospital purchased 2 cans on 26.03.2003, Ex.P6(h).
     ix.    Metro Lab purchased 1 can on 31.03.2003, Ex.P6(i).
     x.     Cosmos Lab purchased 1 can on 02.04.2003, Ex.P6(j).
     xi.    Modern Lab purchased 1 can on 04.04.2003, Ex.P6(k).
252          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      25. PW27 Ramesan is the owner of the firm that sold Biosole to RR
Distributors firm as deposed by PW26. He testifies the factum of placing
the order of and delivery of 24 cans of 5L each to the said firm, vide bill
(Ex.P12). He unrefutedly identified A11 in Court and pertinently, testified
that the Biosole delivered by him was in the cans similar to MO15 series,
which were marked as MO31 series, being the sample jar containing Biosole
containing 100% methyl alcohol.
      26. With the transaction of purchase and delivery of Biosole having
been established beyond reasonable doubt, what needs to be examined
further is also whether the record maintained by the firm of A11 was
fabricated or not. In doing so, we examine the testimonies of the alleged
purchasers, as depicted in the record.
      27. PW28, Dr. Neelananda Sarma, running Ansar Hospital, denies
having purchased Biosole from RR Distributors. On similar lines, PW29 Dr.
A.M. Abdul Kuthoor, running City Hospital; PW30, Dr. Vijaya Chandran
Nair, running KV Hospital; PW31 Sunil, running Cosmos Lab; PW32
Biji B, assistant at Koshy Dental Clinic and PW33 Dr. Roy George deny
having made any purchase of Biosole from RR Distributors and denied
the bill receipts marked by PW26. Thus, belying the defence set up by the
appellants of having supplied the goods to these persons, rendering such
entries being fictitious.
      28. PW35, Roni is the elder brother of A11. He deposed that he
is running a firm called RR Distributors, for which he has obtained a
license. PW26 is the receptionist. This witness denies having made an
earlier statement to the police and is declared hostile. Hence, in the cross-
examination part of his testimony, it is revealed that the stamp paper of the
Rent Deed (Ex.P14) was purchased in the name of A11.
      29. The above witnesses bring to light the fact that actually it is A11,
who is running and managing the firm RR Distributors. Further, Biosole,
which contains 100% methyl alcohol was procured by A11 through his firm,
RR Distributors. This methyl alcohol is shown to be sold to several different
entities. However, PW28 to PW33, the alleged buyers, have denied making
any such transactions or taking delivery of the alleged cans containing
methyl alcohol.
                   SAJEEV v. STATE OF KERALA                               253
                       [SANJAY KAROL, J.]

      30. Therefore, it is entirely clear that the transactions reflected in the
register of RR distributors (Ex.P6) were fictitious and the record prepared
was only to show sales ostensibly to genuine customers, as per the process of
law. The natural corally, thereto, being that A11, through his firm purchased
Biosole but failed to provide any valid source to whom it was supplied or
where it was used, which fact he failed to rebut.
      31. We now discuss the forensic evidence against these accused persons
at this stage.
      32. PW44, James Philipose is the Joint Director (General) at FSL,
Trivandrum. He verified having prepared the FSL Report (Ex.P30), which
bears his signature. His examination of the plastic cans of MO15 and
MO31 series revealed the same to have been cast from the same mould.
Significantly, this fact remains unrebutted on record. Also, from this
testimony, it is seen that the cans of MO15 series [recovered from the
residence of A1 by PW76], which, as discussed above, stand proved to
have been supplied by A10 and A11 to the residence of A1 and the cans of
MO31 series, which is the sample of the cans provided by PW27 in the sale
of Biosole, are of the same make and mould.
      33. The next witness to be discussed is PW51, Sindhu. In his testimony,
he states that he conducted the FSL examination of MO33 series cans (35L
each). Out of the 5 cans tested, ethyl + methyl alcohol was found in 2 cans
and methyl alcohol was found in 3 cans.
     34. These witnesses reveal two pertinent facts: (a) The cans supplied
by A11 to A1 are from the same mould of cans that were supplied by PW27
to A11, on purchase of methyl alcohol; and (b) 3 out of 5 cans recovered
from the residence of A1 tested positive for methyl alcohol.
      35. After consideration of these depositions, we must decide whether
the evidence on record is sufficient to establish a conspiracy under Section
120B, IPC. The ingredients to constitute a criminal conspiracy were
summarised by this Court in State through Superintendent of Police v.
Nalini & Ors.6 (3-Judge Bench). They are as follows:



6   (1999) 5 SCC 253
254              SUPREME COURT REPORTS                        [2023] 15 S.C.R.


       i.     Conspiracy is when two or more persons agree to do or cause to
              be done an illegal act or legal act by illegal means.
       ii.    The offence of criminal conspiracy is an exception to the general
              law, where intent alone does not constitute crime. It is the
              intention to commit a crime and join hands with persons having
              the same intention.
       iii.   Conspiracy is hatched in private or in secrecy. It is rarely
              possible to establish a conspiracy by direct evidence. Usually,
              the existence of the conspiracy and its objects have to be inferred
              from the circumstances and the conduct of the accused.
       iv.    Where in pursuance of the agreement, the conspirators commit
              offenses individually or adopt illegal means to do a legal act that
              has a nexus to the object of the conspiracy, all of them will be
              liable for such offenses even if some of them have not actively
              participated in the commission of those offenses.
      36. These principles were followed in Yakub Abdul Razak Memon v.
State of Maharashtra7 (2-Judge Bench), wherein this Court reiterated that
to establish conspiracy it is necessary to establish an agreement between the
parties. Further, the offence of criminal conspiracy is of joint responsibility,
all conspirators are liable for the acts of each of the crimes which have been
committed as a result of the conspiracy. [See also: Arvind Singh v. State
of Maharashtra8 (3-Judge Bench); Mohd. Naushad (supra)]
       37. Applying these principles to the case at hand, as discussed above,
it is established that (a) A10 and A11 were known to A1; (b) A10 and A11
visited the residence of A1 on 05.04.2003, in the presence of other accused
persons; (c) Methyl alcohol was supplied to and stored at the residence of A1,
with the knowledge that the substance being sold was harmful; (d) A11 was
running the affairs of the firm RR distributors which procured methyl alcohol
at the first instance and fabricated record of its sale to different entities; (e)
There is no dispute about the causation of deaths and injuries. Hence, the
argument on behalf of the present appellants that they did not know A1 and


7     (2013) 13 SCC 1
8     (2021) 11 SCC 1
                   SAJEEV v. STATE OF KERALA                               255
                       [SANJAY KAROL, J.]

were nowhere connected with the present crime is untenable and cannot
be accepted. Therefore, the prosecution has succeeded in establishing the
offence of criminal conspiracy of A10 and A11 with A1 (conviction of
whom stands affirmed).
     38. Another aspect to be considered is the destruction of evidence by
A11, as submitted by both the learned Amicus Curiae and the State of Kerala.
      39. K.J. Devasia (PW76), the Investigating Officer, has deposed that in
his presence, PW51 collected materials/samples from land at the southern
side of the residence of A11 which was marked as MO49 to MO53. This
was in furtherance of information given by A11.
       40. PW51, FSL Assistant Director tested these samples, who in his
deposition stated that except for MO52, these samples consisted of burnt
plastic and soil, which all pertinently tested positive for methyl alcohol. This
supplements the prosecution story that A11 attempted to destroy evidence
at his residence by burning the incriminating material connecting him to the
crime. In similar circumstances, this Court in State of Haryana v. Krishan9
(2-Judge Bench) while convicting the respondents therein placed reliance on
the conduct of those accused in attempting to destroy evidence to connect
them to the larger conspiracy. Applying this reasoning to the evidence at
hand, we disagree with the Trial Court observation that A11’s firm had a
license for methyl alcohol and there is no connection between this piece of
evidence and the occurrence of the incident. Per contra, there is no reason
for the soil sample drawn from the residence of A11 to test positive for
burnt plastic residue and methyl alcohol, connecting this material to the
incident in question.
      41. Notably, no less than 627 questions/circumstances were put to A10
and A11 each under Section 313 of the Code of Criminal Procedure, 1973.
This Court has clarified on numerous occasions that in law, the accused
has a duty to furnish some explanation of an incriminating circumstance,
with the prosecution crossing the threshold of proving its case beyond
reasonable doubt. However, no explanation, much less, a plausible one,is
put forth. In the event of complete denial or silence, the Court is entitled


9   (2017) 8 SCC 204
256           SUPREME COURT REPORTS                           [2023] 15 S.C.R.


to draw an adverse inference against the accused. [Ref: Phula Singh v.
State of Himachal Pradesh10 (2-Judge Bench); Indrakunwar v. State
of Chhattisgarh11 (2-Judge Bench)] Applying this to the case at hand, in
the statements under Section 313, the accused persons failed to justify the
incriminating circumstances appearing against them.
      42. Apart from the offences under the Penal Code, the accused stand
convicted under provisions of the Abkari Act. Thus, it is pertinent to discuss
the relevant Sections of the Abkari Act under which these accused persons
have been convicted. The relevant portion of Section 57A of the Abkari
Act reads as follows:
           “S.57A - For adulteration of liquor or intoxicating drug with
      noxious substances, etc. -
            (1)Whoever mixes or permits to be mixed any noxious substance
      or any substance which is likely to endanger human life or to cause
      grievous hurt to human beings, with any liquor or intoxicating drug
      shall, on conviction, be punishable-
           (i) if, as a result of such act, grievous hurt is caused to any person,
      with imprisonment for a term which shall not be less than two years
      but which may extend to imprisonment for life, and with a fine which
      may extend to fifty thousand rupees;
           (ii) If, as a result of such act, death is caused to any person, with
      death or imprisonment for a term which shall not be less than three
      years but which may extend to imprisonment for life, and with fine
      which may extend to fifty thousand rupees;
            …..
            (5) Notwithstanding anything contained in the Indian Evidence
      Act, 1872 (1 of 1872),- (a) where a person is prosecuted for an offense
      under sub-section (1) or sub-section (2), the burden of proving that
      he has not mixed or permitted to be mixed or, as the case may be,
      omitted to take reasonable precautions to prevent the mixing of, any


10 AIR 2014 SC 1256
11 2023 SCCOnline 1364
                   SAJEEV v. STATE OF KERALA                               257
                       [SANJAY KAROL, J.]

      substance referred to in that sub-section with any liquor or intoxicating
      drug shall be on him”
                                                         (Emphasis supplied)
     43. This Court extensively dealt with Section 57(A)(1) of the Abkari
Act in Chandran v. State of Kerala12 (2-Judge Bench). It is observed that
the offence under Section 57A is not limited to the holders of the license
under the Act, but refers to anybody who mixes or permits to be mixed
any noxious substance, likely to endanger human life with any liquor. The
burden of proof on the accused person under sub-Section 5 of Section 57A
stands constitutionality upheld of which has been upheld by this Court in
P.N. Krishna Lal v. Govt. of Kerala13 (2-Judge Bench).
      44. This Court in Chandran (supra) also dealt with the question of
conspiracy and mens rea for a conviction under Section 57A of the Abkari
Act. While confirming the conviction of one of the co-accused persons along
with the main accused, it was held that the conviction under Section 57(A)
(1)(ii) of the Abkari Act is independently affirmed, as he was not only part
of the business of mixing methanol but had actively taken part in it. Such
taking part was held to be sufficient to infer the knowledge about the mixing
of the spirit. We find it pertinent to reiterate one of the observations therein,
relevant to the case at hand:
      “117. There can be no question about the absence of conspiracy. The
      whole business itself was a conspiracy. It may not be the conspiracy
      to mix the noxious substance but the fact of the matter is that in order
      to succeed in the business which itself was a conspiracy they mixed
      or allowed to be mixed methanol and used it so freely that ultimately
      31 persons lost their lives. We are not at all impressed by the argument
      regarding knowledge.”
                                                         (Emphasis supplied)
      45. Therefore, the argument on behalf of the appellants that the offence
under Section 57(A)(1)(ii) of the Abkari Act is not attributable to them has
to be rejected.


12 (2011) 5 SCC 161
13 1995 Supp (2) SCC 187
258          SUPREME COURT REPORTS                           [2023] 15 S.C.R.


      46. Keeping in view the above conspectus and position of law, in res
gestae Section 6 and Section 8 of the Evidence Act applies, inasmuch as:
(a) testimonies of the witnesses highlighted by the Amicus Curiae indicate
the presence of the accused/convicts on the spot at least few days prior to
the occurrence of the incident; (b) the accused/convicts being present on the
spot in relation to the supply of the spirit; (c) the accused/convicts knowing
that they were being in full knowledge of the substance supplied by them to
be of poisonous/prohibited in nature and permitted the noxious substance
to be mixed with liquor, likely to endanger human life (d) the convict A11
having forged the record concerning the supply of the poisonous/prohibited
substance.
      47. Lastly, the relevant portion of Section 55 of the Abkari Act reads:
           “55. For illegal import, etc. - Whoever in contravention of this
      Act or of any rule or order made under this Act:
           (a)   imports, exports, [transports, transits or possesses] liquor
                 or any intoxicating drug; or
                 ××                         ××                          ××
           (h) bottles any liquor for purposes of sale; or
           (i) Sells or stores for sales liquor] or any intoxicating drug.”
      48. For the sake of brevity, we need not reiterate the evidence relating
to the transport, bottling and sale of methyl alcohol. Alcohol as mentioned
in Section 55, has been defined under Section 3(10) as any liquid consisting
of or made of alcohol. Therefore, there can be no dispute that Section 55
applies to the transmission of methyl alcohol. It has been established that
the methyl alcohol was first purchased by A11, then shown to be sold to
different entities, however, it was provided to A1. These accused persons
have been established to be in conspiracy for common objectives throughout.
Therefore, the conviction of A10 and A11 has to be upheld under Section
55(a)(h) and (i) of the Abkari Act.
      49. There can be no doubt left about the involvement of the accused
persons before us, in the sale and mixing of methyl alcohol with spirit as
part of the conspiracy, resulting in deaths and injuries to many innocent
                   SAJEEV v. STATE OF KERALA                              259
                       [SANJAY KAROL, J.]

persons. The conviction of A10 and A11 under Sections 302, 307, 326 and
120B IPC and 57(A)(1)(ii) of the Abkari Act has to be upheld.
     50. We therefore find that the conclusion and conviction arrived
concurrently by the High Court and Trial Court regarding the role played
by these accused persons in this tragedy does not suffer from any infirmity
and does not warrant interference of this Court.
      51. Independent of the above discussion, this Court has time and again
reiterated that interference in concurrent convictions is only warranted when:
      i.     The finding is perverse.
      ii.    The finding is based or built on inadmissible evidence.
      iii.   The Courts below have not considered or wrongly discarded
             vital pieces of evidence that would tilt the balance in favor of
             the accused.
    [Ref: Mekala Sivaiah v. State of A.P.14 (2-Judge Bench); Ravasaheb
and Ors. v. State of Karnataka15 (3-Judge Bench)]
      On a perusal of the High Court and Trial Court judgments, it is our view
that the present appellants have made out none of the above circumstances
warranting interference of this Court.
     52. We place on record with appreciation for the assistance rendered
by the Learned Amicus Curiae.
     53. In view of the above, the Appellants’ challenge to the impugned
judgment fails.
     54. After the judgment was dictated, we have been informed vide letter
dated 31.10.2023, that one of the appellants, namely, Sajeev (A10 - Criminal
Appeal No.1134 of 2011), has passed away on 24.09.2023. In that view of
the matter, the appeal qua his conviction stands abated.
     55. Criminal Appeal No.567/2015, preferred by A11 (Roy) is
dismissed. The bail granted to A11 by this Court vide Order dated 30.06.2016



14 (2022) 8 SCC 253
15 (2023) 5 SCC 391
260            SUPREME COURT REPORTS                        [2023] 15 S.C.R.


stands cancelled and the appellant is directed to surrender before the Court
concerned forthwith.
      56. Before parting with the present appeals, we deem it appropriate to
deprecate the practice of depositions of material witnesses not being placed
on record, as recorded in our order dated 20.07.2023. We have observed that
such practices often cause repeated adjournments, which goes to the root
of pendency and delay in disposing of appeals. Therefore, it is incumbent
upon us to provide suggestions, in tackling this issue.
      57. In this backdrop we must refer to Order XX of the Supreme Court
Rules, 2013 (referred to as ‘the Rules’), which concerns criminal appeals.
A perusal of sub-Rules 2 & 3 of Rule 5 thereof shows that physical copies
of the original records are to be called for, in criminal appeals involving
sentence of life or the death penalty. In all other cases, the calling of such
records is subject to specific orders of a Bench of this Court.
      58. We suggest the following:
      i.     Sub-Rule 3 be amended to insert the words ‘soft copy’ before
             the words ‘original records’,resulting in e-copies of the Original
             Records being requisitioned. This would facilitate a much quicker
             availability of such records to the court as also further a more
             environmentally conscious approach.
      ii.    Further, vide necessary amendment to the Rules such requisition
             of the soft copy of the record be extended to cases where leave
             is granted against an order of acquittal or conviction.
      iii.   Such soft copy of the records, once received be provided to the
             learned counsel appearing for the parties.
      59. We direct the Registry to place a copy of this judgment before
Hon’ble the Chief Justice of India for his kind consideration and appropriate
directions, should he deem fit.
      60. Interlocutory applications, if any, shall stand disposed of.


Headnotes prepared by:                                          Appeal dismissed.
Nidhi Jain