- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity herein after referred as Cr. P. C. is directed against the judgment and order dated 4-10-1986, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 12 of 1984, whereby accused/appellants Radhakrishna and Uma Shankar have been convicted under Sections 304, Part II and 34 and 273/34 of Indian Penal Code, 1860, (for brevity herein after referred as I. P. C.) and each one of them has been sentenced to undergo rigorous imprisonment for a period of five years (under Section 304, Part II and 34 of I. P. C.) and rigorous imprisonment for a period of six months (under Sections 273/34 I. P. C.), The trial Court directed that both the sentences shall run concurrently.
(2.) HEARD learned Counsel for the parties. Prosecution story in brief is that on 21-6-1982, the accused/appellants with common intention, sold noxious liquor, popularly called 'tumri' (a mixture made of tincture balladonna and ashok liquid), in Kirti Nagar through their sale counter in shop Talwar Medical Store to Bhau Prasad, Jivanand (P. W. 11), Murari Lal (P. W. 9), Surendra Singh, Shiv Singh, Shyam Singh, Hari Singh, Bhupal Singh, Bhupat Singh, (P. W. 10), Ahmad, Roshan, Chandra Singh, Tara Chand, Shiv Lal, Khantu, Kamal Singh, Chote Lal, Harshmani and Kishan Lal (deceased) and others. All those who purchased and consumed the noxious liquor as an intoxicant from the shop of the accused, fell seriously ill and unconscious. They were taken to the hospital. Out of those who consumed the said liquor, Kishan Lal died after consuming the 'tumri'. It appears that First Information Report (Ext. A-3) was got lodged of the incident by P. W. 2 Aditya Pandey with the police station Kirti Nagar on 22-6-1982. Meanwhile, Sub-Divisional Magistrate (P. W. 1 Shri Narendra Kumar Joshi)) on receiving information that spurious and injurious, liquor is being sold to the members of the public, directed the Station Officer of police station Kirti Nagar on 22-6-1982 to raid the shop from where the, liquor is being sold. On this, the police party raided the shop of the accused in Kirti Nagar and recovered the bottles of spurious liquor and prepared memo (Ext. A-4 ). The recovery memo discloses that the recovered illicit liquor was scaled in the presence of Sub-Divisional Magistrate after it was recovered from the shop. Since Kishan Lal had died in the hospital, the police took his body in their possession and prepared inquest report (Ext. A-5) and other necessary papers, and sent the same for post-mortem examination of the dead-body. The post-mortem examination was conducted by Dr. D. P. Joshi on 23-6-1982 at 11. 30 a. m. who prepared the autopsy report. According to the autopsy report, cause of death of the deceased could not be ascertained, as such the viscera was preserved. It appears that the viscera and the contents of the bottles recovered from the shop were sent to the Chemical Examiner who corroborated that deceased did consume noxious liquor before his death. After Interrogation of the witnesses and on completion of the investigation, a charge-sheet against accused Radha Krishna and Uma Shankar, was filed before the Magistrate. The Magistrate, it appears on receipt of charge-sheet, after giving necessary copies to the accused persons, as required under Section 207, Cr. P. C. , committed the case to the Court of Session for trial. Learned trial Court after hearing the prosecution and the defence, framed charge of offence punishable under Sections 273 read with 34 and 304 read with 34 against both the accused Radha Krishna and Uma Shankar, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Sub Divisional Magistrate Narendra Kumar Joshi, P. W. 2 Aditya Bhushan Pandey (informant), P. W. 3 Constable Bhajan Singh (witness of the inquest report), P. W. 4 Vijendra Singh (a taxi wala, who took the unconscious persons to the hospital), P. W. 5 Sohan Nautiyal (witness of fact partly hostile), P. W. 6 Jitendra Prasad (landlord of the shop run by the accused), P. W. 7 Constable Janeshwar Prasad (who took the sealed recovered bottles and viscera for medical examination to Agra), P. W. 8 Girdhari Lal (father of the deceased), P. W. 9 Murari Lal (one of the persons, who consumed the liquor), P. W. 10 Bhupat (another person who consumed the liquor and got affected by it), P. W. 11 Jiwanand (who also consumed the liquor and got affected ). P. W. 12 Chirnajeev Lal (who detected that Kishan Lal, lying dead after consuming the liquor ). P. W. 13 Rajendra Singh Negi (Sub-Inspector witness of recovery of bottles. P. W. 14 Sub-Inspector Nagendra Singh Rawat (Investigating Officer), P. W. 15 Sub-Inspector Hajari Prasad (another Investigating Officer), P. W. 16 Dr. R. K. Purohit (who medically examined unconscious patients, who reached the hospital) and P. W. 17 Head Constable Shaligram, who prepared the check report of the First Information Report and made necessary entry in the general diary. The oral and documentary evidence was put to the accused persons under Section 313 of Cr. P. C. in reply to which they alleged the same to be false. However, no evidence in defence was given. The trial Court after hearing the parties found both the accused/appellants Radha Krishan and Uma Shankar guilty of offence punishable under Section 273 read with 34 I. P. C. and under Section 304, Part II read with 34 I. P. C. After hearing on sentence, each one of the convict was sentenced to rigorous imprisonment for a period of five years (under Section 304, Part II read with 34 I. P. C.) and to rigorous imprisonment for a period of six months (under Section 273 read with 34 I. P. C. ). Aggrieved by said judgment and order dated 4-10-1986, this appeal appears to have been filed in that year in the Allahabad High Court and received by transfer to this Court under Section 35 of Reorganisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, it is pertinent to mention here that as per the Chemical Examiner, who has sent his report of viscera of the deceased and the recovered bottles from the shop of the accused, has reported that the bottles contained alcohol and medriatic alcolide poison (Ext. A-57) and in the items of viscera also alcohol and medriatic alcolide poison was found (Ext. A-58 ). P. W. 1 Narendra Kumar Joshi Sub-Divisional Magistrate, has stated on oath that on 22-6-1982, he received information that in Kirti Nagar. several persons are lying unconscious after taking spurious liquor. The witness has further stated that he directed the police to raid the shop from where the liquor is being sold. The witness has further stated that after recovery was made in the presence of five witnesses, the bottles recovered were sold and the recovery memo was prepared.;