Orissa High Court
Pratap Behera vs State Of Orissa on 20 August, 2015
Author: Raghubir Dash
Bench: Vinod Prasad, Raghubir Dash
HIGH COURT OF ORISSA: CUTTACK
CRLA NOS.221 OF 2008 & 318 OF 2008
From the judgment and order dated 31.3.2008 passed by Sri
Chakradhar Kar, Adhoc Additional Sessions Judge, Khurda in S.T.
Case No.2/11/206 of 2004.
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In CRLA No.221 of 2008
Pratap Behera ... Appellant
- Versus -
State of Orissa ... Respondent
For Appellant ... M/s. Ranjan Kumar Rout,
Rabindra Kumar Nanda
& Jagadananda Pattnaik
M/s. R.K.Nayak,P.K. Moharaj,
S.K. Dash, S.R. Mohanty
& S.P. Dash
For Respondent ... Mr. J. Katikia
Additional Government Advocate
In CRLA No.318 of 2008
Bhagabat Parida ... Appellant
- Versus -
State of Orissa ... Respondent
For Appellant ... M/s. R.N. Rout, B.K. Patra &
K. Ramdas
For Respondent ... Mr. J. Katikia
Additional Government Advocate
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PRESENT:
THE HONOURABLE SHRI JUSTICE VINOD PRASAD
AND
THE HONOURABLE SHRI JUSTICE RAGHUBIR DASH
Date of hearing: 05.08.2015 Date of judgment : 20.08.2015
Raghubir Dash, J.Both the appeals arise from one and the same judgment passed by the learned ad hoc Additional Sessions Judge, Khurda in S.T. Case No.2/11/206 of 2004 corresponding to G.R. Case No.644/2003 in the file of the learned S.D.J.M., Khurda arising out of Tangi P.S. Case No.122/2003. The impugned judgment with the order of conviction and sentence was passed on 31.3.2008.
Both the appellants stood jointly charged under Sections 272,273,302,472 and 468, all read with Section 34 of I.P.C., and Section 47 (a) of the Bihar and Orissa Excise Act. Both the Appellants were acquitted of the charges under Sections 302,468 and 472, read with Section 34 of I.P.C. and Section 47 (a) of the Bihar and Orissa Excise Act but being found guilty of the offences punishable under Sections 272,273 and 304 (Part-II), read with Section 34 of I.P.C., each of them was convicted thereunder and sentenced to undergo R.I. for life with fine of Rs.5,000/-, in default, to undergo R.I. for six months on each count of offences under Sections 272 and 273, read with Section 34 of I.P.C., and R.I. for 10 years with fine of Rs.2,000/-, in default, to undergo R.I. 3 for three months for the offence punishable under Section 304 (Part-II), read with Section 34 of I.P.C. Being aggrieved, each of the convicts preferred appeal separately.
2. In short prosecution case as narrated in the F.I.R. dated 15.7.2003 is that on 13.7.2003 informant's nephew, Nityananda Behera (the deceased) consumed liquor obtained from liquor-vendor Bhagabat Parida (The Appellant in CRLA No.318 of 2008). After taking in the liquor he fell sick. When his condition became serious he was shifted to the hospital at Balugaon on 15.7.2003 at 8.00 A.M. The doctor referred him to the Government hospital at Bhubaneswar. On the way he died. His dead body was brought to Tangi P.S. where F.I.R. was lodged.
In course of investigation it came to light that one Pratap Behera (The Appellant in CRLA No.221 of 2008) was the principal supplier of liquor and Appellant Bhagabat Behera used to get liquor from said Pratap Behera to run his liquor business. On 13.7.2003 Pratap had supplied I.D. liquor to Appellant Bhagabat who had sold the same to local people and after consuming the same many people became ill and were taken to the doctor for treatment. A number of persons died, allegedly for having consumed the liquor which was supplied by Appellant Pratap Behera. The present case is confined to the death of deceased Nityananda Behera.
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3. Investigation further revealed that Appellant Pratap Behera, besides selling Government manufactured C.S. liquor (popularly known as "Aska-40"), was also selling some white coloured liquid looking like Government manufactured C.S. liquor packing it in duplicate packing materials having resemblance of the get up of the polythene packets in which Government manufactured C.S. liquor is being sold. In course of investigation search of Pratap's dwelling house was conducted. During such search one packing machine and some printed polythene packets (empty) having resemblance of the packets in which Government "Aska-40" is being packed and sold were recovered. Those were sent to the Government Examiner for his opinion. The viscera of the deceased was also sent for chemical examination. C.E. report revealed that the viscera contained ethyl alcohol and methyl alcohol. The Government Examiner, after examining the polythene packets seized from Pratap's house and the genuine packets used in the packing of Government manufactured C.S. liquor, opined that the former differed from the latter.
4. The defence case was one of denial as well as false prosecution.
5. In order to establish the charges the prosecution examined as many as 34 witnesses. Out of them P.W.3 is the informant, P.W.9 is the Doctor who conducted autopsy over the 5 dead body, P.Ws.21 and 30 are investigating officers, P.W. 27 is an Inspector of Excise and P.W. 33 is the Government Examiner. Most of the remaining P.Ws. are persons who had consumed liquor on the same day as the deceased did and had fallen sick and some of the witnesses are the relatives of the deceased.
6. Before recording the order of conviction of the Appellants under Sections 272, 273 and 304 read with Section 34 of I.P.C. the learned trial court has observed that the evidence of P.W.21 and some other prosecution witnesses established that Appellant Pratap was having wholesale as well as retail business in liquor and Appellant Bhagabat used to sell liquor supplied by the former. With such evidence, read with the medical evidence and Chemical Examiner's report, learned trial court held that the liquor which was sold to the deceased and others by either of the Appellants was adulterated with methyl and ethyl alcohol for which it was noxious as drink and injurious to health. It was further observed that the Appellants while selling such spurious liquor had the knowledge that consumption of such liquor would cause such bodily injury as is likely to cause death but they had no intention to cause death.
Learned counsels for the Appellants submit that there is quite insufficient evidence supporting the order of conviction. Learned counsel for the Appellant Pratap Behera further submits 6 that whatever allegations are there in the testimony of the P.Ws., it is all against Appellant Bhagabat Parida and the learned trial court has convicted his client merely on presumption and/or surmises. Learned counsel for the Appellant Bhagabat further submits that the evidence appearing against his client is hearsay in nature and that the alleged dying declaration is neither reliable nor sufficient for recording an order of conviction.
7. Before entering into an analysis of the evidence it is considered necessary to narrate the incriminating materials available against both the Appellants. P.W.1 has stated that the deceased and three others, who had taken liquor, had died. He has further stated that he himself had purchased liquor from Bhagabat Parida and after consuming the same he had fallen ill. He has further stated that Bhagabat used to bring liquor from Pratap to sell it. In his cross-examination he has stated that from one Guni Jaysingh he had learnt that Bhagabat used to bring liquor from Pratap. P.W.5, deceased's mother, has stated that after the deceased had started vomiting and on being enquired he told her that he had taken liquor from Bhagabat. She has further stated that Bhagabat used to bring liquor from Pratap to sell it. In cross- examination she has stated that as Pratap is her co-villager, she is aware of the fact that Pratap used to sell liquor. P.W.6, deceased's wife says that from her husband she came to know that he had 7 taken liquor from Bhagabat. P.W.8, deceased's brother-in-law has stated that when the deceased was feeling drowsy and was unable to see anything, the deceased, on being asked by the witness, told that he had taken liquor from Bhagabat. P.W.9, deceased's mother-in-law corroborates P.W.8. P.W.10, though declared to be a hostile witness, has stated that when the liquor tragedy had taken place in his village at that time he had taken liquor from accused Bhagabat and thereafter suffered headache and loss of vision.
P.W.11 says that after taking liquor from Pratap he had suffered head-reeling and for that he went to Berhampur for treatment. He further says that Pratap used to sell liquor by himself as well as through different persons. P.W.12 also claims to have had taken liquor from one of the vendors of Pratap and having consumed the same fallen sick and was taken to hospital for treatment. P.W.15 says that the deceased and others had taken liquor from Pratap who is also a wholesale dealer in liquor. He further claims that he himself had taken liquor from Pratap and thereafter suffered from giddiness for about two days. P.W. 20 has stated that Pratap deals in liquor. He further says that Pratap collects country liquor from Naramanai and Randha areas and sells it through others as well as by himself. P.W.25, though declared hostile by the prosecution, has stated that about three years back there was liquor tragedy in their village in which four to 8 five persons had died and before their death the deceased persons had stated that they had taken liquor from Pratap.
P.W.21 (I.O.) and P.W.22, a witness to search and seizure, say that house of Appellant Pratap was searched and one machine used for the packing of liquor in polythene packets along with some empty polythene packets was recovered from his house and seized vide Ext.8. In cross-examination P.W.22 had stated that at the time of search he remained present in front of Pratap's house.
P.W.33, Government Examiner of questioned documents, has stated that he had examined some polythene pouches with the help of scientific aid and submitted his report vide Ext.25. He has further stated that the disputed printing matters on the polythene pouches were not printed by the same block using which the standard printed matters have been printed. Read with the evidence of the I.O. (P.W.21), the Government Examiner's report establishes that the printed polythene pouches recovered from the house of Pratap are duplicate pouches having the resemblance of the printed pouch which is being used for packing of Government manufactured C.S. liquor popularly known as "Aska-40".
8. Thus, it is found from the evidence of P.Ws.5, 6, 8 and 9 that when the deceased fell ill he had told the aforestated 9 witnesses that he had taken liquor from Bhagabat. The report of the Chemical Examiner is to the effect that ethyl alcohol and methyl alcohol were detected in the viscera of the deceased which was sent for chemical examination. The Doctor, who had conducted post mortem examination and had reserved final opinion awaiting Chemical Examiner's report on the visceral, has given his final opinion to the effect that the cause of death of the deceased might be due to ethyl alcohol and methyl alcohol. In view of such expert-opinions, and in the absence of any material on record showing that after taking in liquor obtained from Appellant Bhagabat till his death the deceased had consumed any other alcoholic substance, the presumption is that the liquor that the deceased had taken from Bhagabat contained ethyl alcohol and methyl alcohol. This presumption is further strengthened by the evidence of P.Ws.1 and 10 who have stated that on or about the day the deceased had taken liquor from Bhagabat they had also taken liquor from him (Bhagabat) and thereafter they had experienced symptoms like headache and loss of vision and therefore, they had gone to the doctor for treatment. No doubt the medical opinion of the doctor who examined these two persons on Police requisition reflects that by the time of their examination no sign or symptom of alcohol poisoning was marked. However, it is to be kept in mind that they were sent to the Medical Officer two days 10 after they had taken the liquor and in the meanwhile the effect of the alcohol they had taken must have disappeared without causing much harm to them, may be due to less intake of quantity.There is no reason as to why they should depose falsehood implicating the Appellant Bhagabat. Their testimony to the extent that after taking liquor from Bhagabat they had experienced some unusual reaction cannot be disbelieved. But there is no iota of evidence for raising a presumption that Appellant Bhagabat had either adulterated the liquor or that he sold liquor to the deceased knowing or having reason to believe that the same was noxious as drink.
It is neither alleged nor proved that Appellant Bhagabat was manufacturing liquor for sale. Rather, some witnesses have stated that he used to obtain liquor from Appellant Pratap Behera. One of the necessary ingredients of Section 273 is that the offender should know or should have reason to believe that the commodity sold or offered or exposed by him for sale as food or drink was noxious. Learned trial judge has reflected this ingredient in the impugned judgment as one of the essential points for consideration but he completely neglected to find out whether this important ingredient was successfully proved by the prosecution. We regret to observe that without any discussion on that point he immediately jumped to a conclusion that the offences punishable under Sections 272 and 273 of I.P.C. stood proved. 11
9. So far Appellant Pratap Behera is concerned, it is stated by P.W.1 that Appellant Bhagabat used to bring liquor from Appellant Pratap Behera. But in his cross-examination he has stated that he came to know about this only from one Guni Jaisingh. Said Guni Jaisingh has not been examined as a witness. Therefore, the aforestated evidence of P.W.1 is hearsay in nature. P.W.5 has also stated that Bhagabat used to get liquor from Pratap. But this general statement is not sufficient for a conclusion that the liquor in question, which the deceased had taken from Bhagabat and thereafter fell ill and ultimately died, was actually obtained from Pratap Behera. P.Ws.11 and 15 have stated that after taking liquor from Pratap Behera (on or about the date on which the liquor tragedy happened) they had experienced giddiness and head reeling and therefore, they had gone to the doctor for treatment. These two persons were also sent for medical examination with a delay of about two to three days for which the doctor did not find any sign or symptom of alcoholic poisoning.
10. Evidence of P.Ws.20, 21, 22 and 33 makes out a case against Appellant Pratap Behera to the extent that procuring liquor from different sources he used to pack it in printed polythene pouches having resemblance of pouches containing Government manufactured C.S. liquor popularly known as "Aska-40". But there is no evidence showing that the spurious liquor which the 12 deceased had consumed was obtained from Pratap Behera and that Pratap Behera had adulterated the liquor making it noxious as drink. There is also no reliable material showing that Pratap Behera was manufacturing liquor for sale and in that process he had adulterated the liquor making it noxious as drink. Though there is some shaky evidence that Appellant Bhagabat used to get liquor from Appellant Pratap Behera for selling of the same to the villagers, there is no evidence to connect Appellant Pratap Behera with the spurious liquor that the deceased had consumed. There is also no evidence that Pratap Behera had adulterated liquor so as to make it noxious. There is also no evidence showing that on 13.7.2003 he had sold or offered or exposed for sale any liquor which was rendered or had become noxious knowing or having reason to believe that the same was noxious as drink. With the nature and extent of evidence adduced by the prosecution, Pratap Behera cannot be said to have committed offences punishable under Sections 272 and 273 of I.P.C.
11. So far as the order of conviction under Section 304 of I.P.C. is concerned, learned trial court has convicted both the Appellants under Section 304 (Part-II) read with Section 34 of I.P.C. observing that the Appellants while selling spurious liquor had knowledge that the said liquor containing ethyl alcohol and methyl alcohol was noxious as drink and it would cause such 13 bodily injury as is likely to cause death but it cannot be said that they had the intention to cause death of the deceased Nityananda. In this regard, it may be stated that though the prosecution can be said to have proved that the liquor taken from Appellant Bhagabat and consumed by the deceased had contained ethyl and methyl alcohol which caused death of the deceased, there is no evidence that while Bhagabat sold the liquor to the deceased he knew or had reason to believe that the liquor was noxious as drink or that Appellant Bhagabat himself had adulterated the liquor by admixing ethyl and methyl alcohol. Therefore, there cannot be a presumption that Appellant Bhagabat, or for that matter, Appellant Pratap had the knowledge that the liquor sold to the deceased contained ethyl alcohol and methyl alcohol making the liquor noxious as drink and consumption of that liquor was likely to cause death. Therefore, neither of the Appellants can be convicted under Section 304 of I.P.C.
12. In view of the discussion made above, the order of conviction and sentence under challenge in this appeal is not sustainable. The prosecution has utterly failed to bring home the charges under Sections 272, 273, 304 read with Section 34 of I.P.C. against either of the Appellants.
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13. In the result, both the appeals are allowed. The impugned order of conviction and sentence is set aside. Both the Appellants are found not guilty of the offences under Sections 272, 273 and 304 (Part-II) read with Section 34 of I.P.C. and they are acquitted of the charges. Appellant Pratap Behera, who is in custody, shall be set at liberty at once if his further detention is not required in any other case. The bail bonds furnished by Appellant Bhagabat Parida shall stand discharged. The seized Mobile phone, SIM Card and cash of Rs.7,700/- be returned to Appellant Pratap Behera from whose possession those were seized.
Both the CRLAs are accordingly disposed of.
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Raghubir Dash, J.
Vinod Prasad, J. I agree.
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Vinod Prasad, J.
15Orissa High Court, Cuttack The 20th August, 2015/Kar