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2005 DIGILAW 373 (ORI)

Krushna Chandra Das v. State of Orissa

2005-06-21

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. : This revision is directed against the order-dated 9.10.2002 passed by the Second Addl. Sessions Judge, Cuttack in S.T. No.361 of 1997 wherein he framed charge for the offence under Sections 302/109 I.P.C. read with Section 47(a) of Bihar and Orissa Excise Act against the petitioner and some oth¬ers. 2. The nub of the fact giving rise to this Revision is that on 9.5.1992 at about 2.00 P.M. S.I. Rudra Charan Samal of Madhupatna P.S. lodged a report before the I.I.C. of that Police Station stating therein that while he was enquiring U.D. Case No.5 of 1992 at Balabhadrapur, it came to light that deceased Bijaya Kumar Jena consumed liquor from the illicit liquor shop of Chabisa alias Bishnu Charan Behera of Canal Road, Malgodown on 7.5.1992 at 2.00 P.M. and some time thereafter complained of stomach pain and head reeling. On the same day at 6.00 P.M. he expired in his house. On the basis of this report the case was investigated into. In course of investigation it was found that the main accused Belu mixed methyl with the I.D. liquor to strengthen its effect so as to earn easy money. The liquor was seized from the shop of Belu and some sample thereof was sent for chemical analysis. As per the chemical analysis report methyl in combination with ethyl alcohol, which was unsafe for human con¬sumption, was detected in the sample liquor. Investigation fur¬ther shows that the petitioner assisted the main accused Belu, his brother in his clandestine liquor business. Belu was also assisted by some of his hench-men in the said business. After conclusion of investigation since a prima facie case was made out against the accused persons including the petitioner Charge Sheet was submitted against them under Sections 302/328/326/272/278/284/115/109/34 I.P.C. read with Section 47 (a) of Bihar and Orissa Excise Act. On commitment of the case to the Court of Session, it was transferred to the Court of Second Addl. Sessions Judge, Cuttack for disposal, before whom the petitioner filed a petition under Section 227 Cr.P.C. to dis¬charge him of all charges. After going through the Case Diary and other relevant documents, the Addl.Sessions Judge while rejecting the petition, framed charge for the offence under Sections 302/109 I.P.C. read with Section 47(a) Bihar and Orissa Excise Act against the petitioner. Sessions Judge, Cuttack for disposal, before whom the petitioner filed a petition under Section 227 Cr.P.C. to dis¬charge him of all charges. After going through the Case Diary and other relevant documents, the Addl.Sessions Judge while rejecting the petition, framed charge for the offence under Sections 302/109 I.P.C. read with Section 47(a) Bihar and Orissa Excise Act against the petitioner. Charge was framed against accused Belu for the offence under Section 302 I.P.C. read with Section 47 (a) of Bihar and Orissa Excise Act. Being aggrieved with the order of framing charge against him the petitioner has preferred this Revision as mentioned earlier. 3. Learned counsel for the petitioner submitted that as appeared from the prosecution case the main accused Belu had no intention or knowledge that consumption of the liquor in question would be fatal. So he ought not have been charged for the offence under Section 302 I.P.C. Consequently the petitioner could not have been charged for the offence under Sections 302/109 I.P.C. The Court below at best ought to have charged the petitioner for the offence under Sections 304-A/109 I.P.C. On the other hand the learned Addl.Standing counsel submitted that the trial Court rightly framed the charges. 4. As mentioned earlier chemical report shows that methyl alcohol and ethyl were mixed with the I.D. liquor, which was unsafe for human consumption. While co-accused Belu along with his associates mixed the same with the I.D. liquor it would be presumed that he had knowledge that his act was likely to cause death. So, I am not in one with the submission of learned counsel for the petitioner that Belu cannot be liable for the offence under Section 302 I.P.C. There is prima facie material to show that the petitioner being the brother of Belu actively assisted him in procurement of the methyl and ethyl alcohol and running the clandestine business. So, the trial Court rightly framed charge under Sections 302/109 I.P.C. against him. As regards the offence under Section 47(a) of Bihar and Orissa Excise Act, as stated earlier there is prima facie material in the case diary to show that accused Belu with the assistance of some of the co-accused mixed methyl and ethyl alcohol in the I.D.liquor illegal¬ly and sold the same. The present petitioner actively assisted him in the sale of such liquor. The present petitioner actively assisted him in the sale of such liquor. There is also material to show that the petitioner was selling such liquor. So, the order of framing charge under Section 47(a) of Bihar and Orissa Excise Act cannot also be said to be illegal. There is sufficient material on record to presume that he petitioner has committed the offence under Sections 302/109 I.P.C. read with Section 47 (a) Bihar and Orissa Excise Act. I do not find any glaring procedural defect or magnificent error of law leading to miscarriage of justice in the impugned order. In the result, the Revision stands dismissed. Revision dismissed.