Punjab-Haryana High Court
Baldev Singh @ Budha vs The State Of Punjab on 11 March, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.1994 SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1994 SB of 2002
Date of decision 11.3.2011.
Baldev Singh @ Budha
...... Appellant.
versus
The State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. Arun Walia Advocate and
Mr. Pradeep Punia, Advocate for the appellant.
Mr. J.S.Sandhu, AAG, Punjab.
K.C.PURI, J.
Baldev Singh @ Budha appellant has directed the present appeal against the judgment dated 11.11.2002 and order dated 13.11.2002 passed by Shri K.R.Mahajan, Additional Sessions Judge, (Adhoc) Patiala vide which appellant has been convicted under Section 304 part II of the Indian Penal Code ( in short - the IPC ) and sentenced him to undergo Criminal Appeal No.1994 SB of 2002 2 rigorous imprisonment for a period of three years and to pay a fine of `.1,000/-.
Briefly stated that on 31.12.1997 ASI Jagjiwan Singh along with Hardial Singh and other police officials in connection with the patrol duty on private vehicle were present at the Bus Stand of village Kakrala. There complainant Balbir Singh came and got recorded his statement that he is resident of village Kakrala and is an agriculturist by profession. On 19.12.1997 his brother Harjinder Singh, Sukhpal Singh, Amrik Singh and Sukhdev Singh and 8-10 other persons were filling the earth in the monastery (Mathh) with the help of tractors under the supervision of Baldev Singh @ Budha accused-appellant. At around 5.00p.m. Baldev Singh asked the persons that whether they have tired and on this all the persons replied in positive. Then Baldev Singh went to his house and brought one silver utensil (Dollu) filled with illicit liquor and started serving the same to those persons, included Harjinder Singh, Sukhpal Singh, Amrik Singh, Sukhdev Singh and other persons, who consumed the same. All the persons after consuming the liquor went to their respective houses. On return to his house Harjinder Singh, brother of the complainant started vomiting. On asking Harjinder Singh told the complainant that as he has taken liquor from the hands of Baldev Singh @ Budha accused-appellant, therefore, due to that he is vomiting. On enquiry, it revealed that Sukhpal Singh, Amrik Singh and Sukhdev Singh are also vomiting by consuming the liquor. Criminal Appeal No.1994 SB of 2002 3
It has been further alleged that on 20.12.1997 at around 11.30a.m. Sukhpal Singh died. Then complainant Amrik Singh, Sukhdev Singh and their heirs thought that Sukhpal Singh must have died due to fever ( pneumonia) and thus he was cremated. Thereafter, Harjinder Singh, Amrik Singh and Sukhdev Singh started doing more vomits. Then the complainant and others thought that the vomits are due to consumption of liquor and thus Harjinder Singh, Amrik Singh and Sukhdev Singh were got admitted at Civil Hospital, Samana. It has been further alleged that Amrik Singh died on the way to the Civil Hospital, Samana and he was also cremated. Thereafter, complainant got admitted his brother Harjinder Singh at Civil Hospital, Samana whereas Sukhdev Singh was got admitted at Rajindrea Hospital, Patiala by his relatives and on 21.12.1997. Harjinder Singh was also referred to Rajindra Hospital, Patiala. However, Harjinder Singh also died on the same day and he was also cremated after the post mortem examination. On 24.12.1997 Sukhdev Singh also died due to consumption of liquor. The post mortem examination was also conducted on the dead body of Sukhdev Singh and thereafter he was also cremated. Thereafter, the complainant and others were on definite opinion that the above said four persons have died due to the consumption of poisonous liquor served by Baldev Singh @ Budha accused-appellant. After recording the statement of the complainant investigation commenced. The accused was arrested. Statements of the witnesses were also recorded. After completion of the necessary investigation, challan against the accused was also presented in the Court for trial.
Criminal Appeal No.1994 SB of 2002 4
On appearance of the accused, copies of documents relied upon by the prosecution were supplied to the accused. The trial Court on finding a prima facie case under section 304 Part II of the IPC, a charge was framed against the accused. The accused did not plead guilty and claimed trial.
The prosecution in support of its case examined Dr.S.S.Oberoi (PW1), HC Major Singh (PW2), C. Manjit Singh (PW-3), MHC Satnam Singh (PW-4), Dr.Harish Tuli (PW-5), Devinder Singh (PW-6), Amar Singh (PW-7), Balbir Singh (PW-8), Nek Singh (PW-9), Inspector Arshdeep Singh (PW-10), Inspector Amrik Singh as (PW-11) and closed his evidence.
In his statement recorded under section 313 Cr.P.C, the accused denied all the allegation appearing against him and pleaded his false implication. The accused did not lead any evidence in defence.
The learned trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused/appellant vide judgment dated 11.11.2002 and order dated 13.11.2002, as aforesaid.
Feeling dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal.
I have heard learned counsel for the parties and have gone through the records of the case.
Learned counsel for the appellant has submitted that case of the prosecution is that the appellant has served liquor containing poisonous substance which resulted in death of four persons. However, it is submitted that medical evidence totally disproved the case of the prosecution. According to the doctor, no poisonous substance or alcoholic substance was found in the viscera of the dead persons. So, in these circumstances, Criminal Appeal No.1994 SB of 2002 5 the ingredient of offence under Section 304 Part II, IPC are not proved. It is contended that legal representatives of those four dead persons filed suit for recovery. Those suits were dismissed by the trial Court. In view of the finding of the Civil Court, the appellant cannot be convicted under Section 304- Part II, IPC.
I have considered the said submission but do not find any force in that submission.
The trial Court put a Court question to Dr.Harish Tuli (PW-5) and the answer given by the said doctor is relevant, which is reproduced as under :-
"CQ If the deceased had consumed illicit or poisonous liquor, at about 5 PM on December 19, 1997 and developed symptoms of alcohol poisoning then what would be the cause of death in the ordinary course of nature which may have escaped notice in the postmortem report ?
A. As the post mortem was conducted at 4.00p.m. On 21.12.1997, the possibility regarding the cause of death being poisonous alcohol cannot be ruled out."
So, that opinion of the doctor clinches the issue, which has been duly discussed by the trial Court. The other three persons died later on. So, in these circumstances, mere fact that poisonous substance was not found in the viscera does not prove the fact that death is not due to serving of liquor by the appellant. Otherwise also, if highly concentrated liquor with high degree of proof is served, that can cause death. From the ocular testimony, it is clear that those persons who have died along with others Criminal Appeal No.1994 SB of 2002 6 have taken the liquor served by the appellant. All those four persons have the same fate i.e. death, due to highly degree of proof of liquor. The decision of civil Court is not binding on the criminal Court and vice versa in view of authority Syed Askari Hadi Ali Augustine Imam & Anr vs. State (Delhi Admn.) & Anr. 2009 (2) RCR (Criminal) 520. Therefore, the Court has to independently assess the evidence produced before the Criminal Court and Civil Court for arriving at a correct conclusion.
Learned counsel for the appellant has further submitted that according to the prosecution, the appellant has also taken liquor, which was served upon the deceased and others. It was not the intention of the appellant to cause any harm to the deceased and others. So, the ingredient of offence under Section 304, Part II IPC is not made out.
I have considered the said submission but do not find any force in that submission.
The trial Court has convicted the appellant under Section 304 Part II, IPC. Had the prosecution been able to prove the intention to kill the deceased, in that case the charge would have been against the appellant under Section 302 IPC and not under Section 304-Part II, IPC. However, the fact remains that it shall be presumed that appellant has the knowledge that by serving illicit liquor or concentrated form of liquor can cause death.
Learned counsel for the appellant has further submitted that there is no evidence on the file that appellant served liquor on the deceased and as such the prosecution story is not trustworthy. Criminal Appeal No.1994 SB of 2002 7
I have considered the said submission but do not find any force in that submission.
Balbir Singh (PW-8) and Nek Singh (PW-9) have categorically supported the prosecution regarding serving of liquor in a dollu (bucket) to the deceased persons. So, the above said argument is without any substance.
Learned counsel for the appellant has further submitted that the punishment awarded to the appellant is harsh.
I have considered the said submission but do not find any force in that submission.
The trial Court has already taken a lenient view as the sentence awarded against the appellant is rigorous imprisonment for three years and to pay a fine of Rs.1000/- only under Section 304 Part II, of the IPC . That sentence in respect of death of four persons cannot be said to be excessive. However, the trial Court has not clarified default clause in respect of fine. So, it is ordered that in case of default of payment of fine, the appellant shall further undergo rigorous imprisonment for a period of two months.
With this modification in the default clause, the appeal stands dismissed.
The accused-appellant, who is on bail, shall be arrested to undergo the remaining part of his sentence.
Criminal Appeal No.1994 SB of 2002 8
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
March 11, 2011
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