[TRIAL AND APPELLATE ADVOCACY, NLUO, 2021]

Before

[HIGH COURT OF DELHI]

IN THE MATTER BETWEEN:

STATE OF DELHI [APPELLANT]

versus

BHARAT, VASU AND MAHESH [RESPONDENT]

MEMORIAL for APPELLANT

PREPARED BY:

ARVIND SANKAR

(17BBA013)
 TRIAL AND APPELLATE ADVOCACY, NLUO, 2021

TABLE OF CONTENTS

Table of Contents..................................................................................................................- 1 -

Index of Authorities...............................................................................................................- 2 -

Statement of Jurisdiction.......................................................................................................- 3 -

Statement of Facts.................................................................................................................- 4 -

Issues Raised.........................................................................................................................- 5 -

Summary of Arguments........................................................................................................- 6 -

Arguments Advanced............................................................................................................- 7 -

Prayer for Relief..................................................................................................................- 12 -

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MEMORIAL for APPELLANT TABLE OF CONTENTS
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INDEX OF AUTHORITIES

Websites

Manupatra

SCC Online

Indian Kanoon

Bare Acts

Partnership Act, 1932

Code of Criminal Procedure, 1973

Case Law

Ram Prasad, AIR 1968 SC 881 [LNIND 1967 SC 358]

State of Haryana v Krishan, AIR 2017 SC 3125 [LNIND 2017 SC 294]

Jayappa Dattu Rajage v. State of Maharashtra, (1982) 2 SCC 453

Chandran v. State of Kerala, (2011) 5 SCC 161;

Ravinder Singh v. State of Gujarat, (2013) 12 SCC 446

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MEMORIAL for [PETITIONER / RESPONDENT] INDEX OF ABBREVIATIONS
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STATEMENT OF JURISDICTION

The Appellant humbly submits this memorandum before this Honourable Court Under
Section 377 and 378 of Code of Criminal Procedure 1973. Under the directions of the State
Government the present appeal is filed under Section 377 and 378 of the Code of Criminal
Procedure, 1973 (hereinafter ‘CrPC’) on the grounds of inadequacy of sentence awarded by
the Sessions Court for the conviction of the accused under Section 326 read with Section
120B, 107 and 109 of the Indian Penal Code (hereinafter ‘IPC’) and an appeal against the
acquittal of the accused under Section 302 of the IPC.

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MEMORIAL for [PETITIONER / RESPONDENT] STATEMENT OF FACTS
 TRIAL AND APPELLATE ADVOCACY, NLUO, 2021

STATEMENT OF FACTS

1. On the festive day of Holi, 70 people died and 24 lost eyesight permanently in Delhi after
having consumed liquor from liquor shops and sub-shops catered by the firm names
“TOUCH LIQUOR”. Many others became prey to lesser injuries.

2. TOUCH LIQUORS was started on 24th February 2006 and the license to vend liquor was
taken in the name of the firm by the three partners: BHARAT, VASU and MAHESH.

3. All three accused were convicted under Section 326 read with Section 120B, 107 and 109
of the Indian Penal Code, 1860, and were sentenced to rigorous imprisonment of seven years.
However, all the three were acquitted under Section 302 of the IPC.

4. Mahesh was further convicted under 272 read with section 34, 107 and 109 of IPC and was
sentenced to rigorous imprisonment of six months and fine of Rupees 1000/- with the rider
that the substantive terms of imprisonment would run concurrently. No order of
compensation to the victims was passed by the Sessions Court.

5. The present appeal is being filed by the State against acquittal of the accused persons under
Section 302, and for enhancement of Punishment under Section 326 of the IPC.

6. In separate individual appeals, all the accused persons also challenged their conviction and
prayed for setting aside of the sentence.

7. The victims and families filed a class appeal praying for grant of adequate compensation to
the victims and their families under Section 357 and/or 357A of the Code of Criminal
Procedure, 1973, as no order for compensation was made by the sessions court.

8. All the appeals are clubbed together for the present case.

This Memorandum contains the issues raised by the State, accused and the victims and their
families.

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MEMORIAL for [PETITIONER / RESPONDENT] STATEMENT OF FACTS
 TRIAL AND APPELLATE ADVOCACY, NLUO, 2021

ISSUES RAISED

1. Whether the acquittal of the accused persons of charges Section 302 of IPC by the
Sessions court proper?

2. Whether in this case the quantum of punishment awarded under Section 326, given the
loss of lives and grievous hurt caused, be enhanced?

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MEMORIAL for [PETITIONER / RESPONDENT] SUMMARY OF ARGUMENTS
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SUMMARY OF ARGUMENTS

1. Whether the acquittal of the accused persons of charges Section 302 of IPC by the
Sessions court proper?

1.1. The acquittal of the Respondents under Section 302 by the Sessions Court was
improper as it failed to appreciate the facts and the context by which the facts should
be interpreted.

1.2. It is submitted that there is sufficient evidence to establish the presence of

knowledge, the key ingredient for conviction under 4thly clause of Section 300. The
existing evidence satisfy the existing legal tests, as laid down in several cases by the
Supreme Court of India. Hence, the Sessions Court’s decision to acquit the
Respondents was not proper and the Respondents must be convicted under Section
302.

2. Whether in this case the quantum of punishment awarded under Section 326, given the
loss of lives and grievous hurt caused, be enhanced?

2.1. The State requests the enhancement of punishment under Section 326 in
consideration of the enormity of consequences caused by the reckless acts of the
Respondents. Furthermore, the Supreme Court went to great lengths to ensure that
the accused obtain maximum punishment for such an offence.

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MEMORIAL for [PETITIONER / RESPONDENT] SUMMARY OF ARGUMENTS
 TRIAL AND APPELLATE ADVOCACY, NLUO, 2021

ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:-

That the present appeal is filed under Section 377 and 378 of the Code of Criminal
Procedure, 1973 (hereinafter ‘CrPC’) on the grounds of inadequacy of sentence awarded by
the Sessions Court for the conviction of the accused under Section 326 read with Section
120B, 107 and 109 of the Indian Penal Code (hereinafter ‘IPC’) and an appeal against the
acquittal of the accused under Section 302 of the IPC. This appeal is clubbed with the appeal
filed by the accused against his conviction under Section 272 read with Sections 34, 107 and
109 of IPC and application filed by the victims and their families for compensation under
Section 357/357A of CrPC.

The arguments are advanced for the following issues:

I. WHETHER THE ACQUITTAL OF THE ACCUSED PERSONS OF CHARGES SECTION 302

OF IPC BY THE SESSIONS COURT PROPER?

1. Respondent No.1 and Respondent No. 2 have been convicted under Section 326 read with
Sections 120B, 107 and 109 while Respondent No. 3 has been further convicted under
Section 272 read with 34, 107 and 109. This means that all three Respondents have been
convicted for the offence of voluntarily causing grievous hurt by dangerous weapons or
means (under Section 326) while Respondent No. 3 has been further convicted for
adulterating drinks intended for sale (under Section 272), in addition to conspiring (under
Section 120B) and abetting Respondent No. 3 to do so. The proposed case theory (i.e. the
State’s interpretation of facts), according to the facts submitted to the court, suggests that
all three Respondents conspired to adulterate the drinks with the intention of profiting
from the celebratory mood during the festival of Holi. It is not uncommon in India to see
liquor shops use ‘Hooch’, which is brewed from cheaper alternatives of ethanol. 1 The
most common of such alternatives include Methanol, which as in this case, is known to

‘Explained: Hooch tragedies in India before Assam’, (2019, Indian Express) <
https://indianexpress.com/article/explained/hooch-tragedies-in-india-before-assam-5598726/> accessed on 9th
October 2021.
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MEMORIAL for [PETITIONER / RESPONDENT] ARGUMENTS ADVANCED
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cause vision problems and death among other side-effects.2 Given this background, it is
submitted that the Respondents conspired to profit from the celebratory mood during Holi
by adulterating liquor with cheaper life-threatening ingredients. While only Respondent
No. 3 executed the adulteration (thereby leading to his separate conviction under Section
272), all three Respondents participating in selling the adulterated liquor to the public
with the full knowledge that of its potential side-effects, thereby causing death of 70
people and lose of vision of 24 other persons. The Sessions court, finding merit in this
theory, convicted the three Respondents under Section 326 read with Sections 120B, 107
and 109 for the 74 deaths and loss of vision caused to 34 other persons, and convicted
Respondent No.3 for executing the adulteration under Section 272 read with 34, 107 and
109.

2. However, the Sessions court acquitted the Respondents for charges under Section 302
which the State wishes to challenge. Section 302 provides punishment for murder as
defined under Section 300 of the Penal Code. The 4thly clause of Section 300 states that
culpable homicide becomes murder, “[i]f 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”. Culpable Homicide is further
defined under Section 299 as any act that causes death of person(s) is done with the
intention or knowledge that it is likely to cause death. In sum, the essential ingredients of
murder are a) an act causing death of person(s); and b) the act is performed with the
knowledge that it is so imminently dangerous that that it would, in all probability, cause
death. There is no dispute as to whether death was caused (as 70 people were found dead
as a result of consuming the Respondent’s liquor), thereby satisfying the first prong of the
essential ingredients of Section 300. The issue effectively funnels down to whether there
was knowledge that their act was so imminently dangerous that it would in all probability
result in death.

3. The Supreme Court in State of MP v Ram Prasad held that the 4thly clause of Section
300 is applicable in those cases where there is no intention to cause the death of any

ibid
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MEMORIAL for [PETITIONER / RESPONDENT] ARGUMENTS ADVANCED
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particular person, the clause may on its terms be used in those cases where there is such
callousness towards the result and the risk taken is such that it may be stated that the
person knows that the act is likely to cause death or such bodily injury as is likely to
cause death.3

4. In the case of State of Haryana v Kishan which dealt with another Hooch Tragedy, the
Supreme Court only need to establish whether the liquor contained the substance methyl
and that the consumption of methyl would result in loss of vision and death. The court
established this fact through respondent’s subsequent conduct of destroying the remaining
bottles of liquor.4 Furthermore, it has been held and reaffirmed that that clause (4) of
Section 300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general as distinguished from a particular
person or persons — being caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge on the part of the offender must be of the highest
degree of probability, the act having been committed by the offender without any excuse
for incurring the risk of causing death or such injury as aforesaid. 5 Furthermore, in several
Hooch Tragedy cases, the accused have been convicted under Section 302.6

5. As for the knowledge that such adulteration is imminently dangerous, it reiterated that the
use of cheaper ingredients for brewing alcohol is not uncommon in India. Such tragedies
are reported nearly every year7 and many isolated incidents go unreported. Further, it is

Ram Prasad, AIR 1968 SC 881 [LNIND 1967 SC 358]

State of Haryana v Krishan, AIR 2017 SC 3125 [LNIND 2017 SC 294]

Jayappa Dattu Rajage v. State of Maharashtra, (1982) 2 SCC 453

Chandran v. State of Kerala, (2011) 5 SCC 161;

ibid
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MEMORIAL for [PETITIONER / RESPONDENT] ARGUMENTS ADVANCED
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common knowledge that cheaper ingredients, including but not limited to methanol,
methyl etc., are known to cause poisoning resulting in death among other side-effects.
The use of such substances have been proven to be poisonous The Respondents, who
indeed had the knowledge that the adulteration of liquor would result in poisoning,
deliberately sold spurious liquor to the public with the intention of profiting from the use
of cheaper ingredients. In anticipation of bigger sales during the festival of Holi, the
Respondents adulterated the liquor in hopes of cutting down expenditure further, thereby
increasing profits. Given the effects of adulterated liquor on human body is common
knowledge8, it is clear that the Respondents undertook the risk that their liquor could
cause loss of vision and death among other side-effects. It was a calculated, yet
reckless/callous act that led to the deaths of 70 individuals. It is submitted that this
knowledge is sufficient satisfy the latter of the aforementioned conditions under Section
300 and hence all three Respondents must be convicted and punished under Section 302.

II. WHETHER IN THIS CASE THE QUANTUM OF PUNISHMENT AWARDED UNDER

SECTION 326, GIVEN THE LOSS OF LIVES AND GRIEVOUS HURT CAUSED, BE
ENHANCED?

6. Section 377 of the CrPC allows States to file an appeal against the inadequacy of
punishment awarded in certain cases, provided the High Court gives reasonable
opportunity of showing cause against such enhancement to the accused. The said
provision is invoked as the State contends the punishment of 7 years rigorous
imprisonment is inadequate for the crime of this nature.

7. Section 326 provides a definition for Voluntarily causing grievous hurt by dangerous
weapons or means, along with the punishment for the same. The punishment for such
crimes, as provided for in the same section, includes ‘imprisonment for life’ or with
imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine. The State seeks to enhance the punishment awarded to the
Respondents to life imprisonment in consideration of the death of 70 persons and loss of
vision of 24 people, among other damages caused to persons who consumed their liquor.

Ravindersingh v. State of Gujarat, (2013) 12 SCC 446

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MEMORIAL for [PETITIONER / RESPONDENT] ARGUMENTS ADVANCED
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8. Section 326 refers to cases where grievous hurt is voluntarily caused through means of
any substance which it is deleterious to the human body to inhale, to swallow, or to
receive into the blood. Grievous hurt is further defined under Section 320 as….
‘Secondly.- permanent privation of the eye’ and ‘Eighthly.-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’. There is no question that the Respondents, with
full knowledge of its consequences, caused 24 persons to lose their vision through their
reckless act of adulterating the liquor, thereby voluntarily causing grievous hurt to its
customers. Furthermore, the Sessions court too appreciated this fact and found the
Respondents to be guilty of the aforesaid offence.

9. In EK Chandrasenan vs State of Kerala 9 which dealt with a case involving the death of 70
persons and loss of vision of 24 persons, among other other injuries caused to other
persons, the Supreme Court used its suo moto powers enhance the punishment of the
accused in consideration of the enormity of consequences of adulterating liquor. The
bench extended the punishment of all accused to life imprisonment, i.e. the maximum
punishment available for the said conviction.

10. Therefore, the State seeks to the court to impose maximum punishment of life
imprisonment for the conviction of the Respondents under Section 326.

E.K. Chandrasenan v. State of Kerala, (1995) 2 SCC 99

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MEMORIAL for [PETITIONER / RESPONDENT] ARGUMENTS ADVANCED
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PRAYER FOR RELIEF

That the appellant humbly prays this Hon’ble court

1. To set aside the order of the Sessions Court and convict all the accused persons under
Section 302 IPC and uphold the conviction of the accused persons under section 326 read
with 107, 109 of IPC.

2. That all the accused persons be awarded with maximum punishment provided for the
above said offences in IPC. That the Sentence be enhanced from seven years to life
imprisonment and a strong message be given to the person indulging in wrongful activities
related to liquor business.

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MEMORIAL for [PETITIONER / RESPONDENT] PRAYER FOR RELIEF