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2017 DIGILAW 449 (ORI)

Lange Mallick v. State of Odisha

2017-04-21

SATRUGHANA PUJAHARI

body2017
JUDGMENT : S.PUJAHARI, J. The prisoner (hereinafter referred to as “the accused”) assails the judgment dated 27.01.2016 rendered by the learned Sessions Judge, Phulbani in S.T. No.246 of 2001 convicting him under Section 304, Part-II of the Indian Penal Code, 1860 (for short “the IPC”) and sentencing him to undergo R.I. for seven yeas and to pay a fine of Rs.10,000/-, in default, to undergo R.I. for a further period of six months. However, the learned trial court held the accused not guilty of the charge under Section 52A(a) of the Bihar & Orissa Excise Act, 1915 (for short “the Act”) and acquitted him thereunder. 2. Briefly stated, the case of the prosecution is that on 24.08.2007, the then I.I.C., Baliguda Police Station, namely, Purna Chandra Nayak (P.W.13) when got an information as to the unnatural death of one Abneswar Mallick, he registered Baliguda P.S. U.D. Case No.16 of 2007 dated 24.08.2007 and directed S.I. – Nabakishore Samal (P.W.11) to inquire into the matter. In course of inquiry, P.W.13 ascertained from the Chemical examination report of viscera of the deceased (Ext.7) that cause of death was due to “Organophosphorous insecticidal poison”. On further inquiry, it was ascertained that on 24.08.2007 at about 10 a.m., accused – Lange Mallick, deceased Abneswar Mallick and prosecution witness – Nirasa Mallick (P.W.1) had distilled Mahua liquor in the house of the accused for the purpose of obsequies of his daughter-in-law. It was alleged that the accused had added some noxious drug substance to make Mahua liquor more intoxicant. After taking such spurious/noxious liquor, the deceased and P.W.1 fell ill. While P.W.1 recovered, the deceased died on 25.08.2007 while undergoing treatment in Baliguda S.H. Hospital. On such information, the Inquiring Officer, S.I. – Naba Kishore Samal (P.W.11) drew up plain paper F.I.R. (Ext.5) on his own information. On receipt of such information, the I.I.C., Baliguda Police Station (P.W.13) registered P.S. Case No.194 dated 24.11.2007 under Section 304 of IPC and Section 52A(a) of the Act and took up investigation of the case. Subsequently, S.I. – Krushna Prasad Pattnaik (P.W.12) took up investigation of the case. After due investigation, charge-sheet was filed against the accused under Section 304 of I.P.C. and Section 52A(a) of the Act. In due course, the case was committed to the Court of Session for trial. The accused abjured his guilt. Subsequently, S.I. – Krushna Prasad Pattnaik (P.W.12) took up investigation of the case. After due investigation, charge-sheet was filed against the accused under Section 304 of I.P.C. and Section 52A(a) of the Act. In due course, the case was committed to the Court of Session for trial. The accused abjured his guilt. To substantiate its allegation, the prosecution examined 13 witnesses and also exhibited 10 documents. However, no Material Objects produced and proved on behalf of the prosecution. On conclusion of the trial, the learned trial court placing reliance on the testimony of the prosecution witnesses viz. P.W.1 coupled with inference drawn on Ext.7, held the accused guilty under Section 304, Part-II of IPC and sentenced him as aforesaid while holding him not guilty under Section 52A(a) of the Act. 3. I have heard Mr. J.K. Panda, the learned Amicus Curiae on behalf of the accused and Mr. C.R. Swain, the learned Addl. Standing counsel appearing for the State. 4. The learned Amicus Curiae would contend that there being no iota of evidence that the accused had prepared any noxious liquor which was allegedly consumed by the deceased, and otherwise there being no pinch of evidence to infer that the accused had provided the alleged liquor with the knowledge that it was likely to cause death of the deceased, the finding of guilt of the accused on the basis of such evidence is unsustainable in law as well as in fact. 5. Per contra, the learned Addl. Standing counsel submitted that the evidence of P.W.1 coupled with the postmortem examination report (Ext.3), chemical examination report (Ext.7) and oral evidence of Medical Officer (P.W.9) was sufficient to fasten the guilt of the accused as rightly held by the learned trial court. 6. Keeping the aforesaid contentions raised at the Bar, I have critically examined the oral and documentary evidence and scanned the impugned judgment with all care and caution. I am convinced from the bare perusal of the impugned judgment that the learned trial court had placed implicit reliance on the evidence of P.W.1, the medical opinion of P.W.9 vis-a-vis the documentary evidence (Exts.3 and 7), and reached at its irresistible conclusion as to the guilt of the accused under Section 304, Part-II of IPC while holding him not guilty under Section 52A(a) of the Act. 7. 7. Before I delve into the question raised, I would like to add that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence. A moral conviction, however, strong or genuine cannot be a substitute for legal proof. [See – (2015) 2 OLR (SC) 448 (Makhan Singh vrs. State of Haryana)]. So, Fouler the crime, the higher should be the degree of scrutiny. 8. It is pertinent to note here that Section 52A(a) of the Act provides as under :- “52-A. Penalty for mixing noxious substance with liquor -Whoever mixes or permit to be mixed with any liquor sold or manufactured or possessed by him any noxious drug or any foreign ingredient likely to cause grievous hurt or death to human beings, shall, on conviction, be punishable – (a) if as a result of such an act, death is caused to any person with imprisonment for life and shall also be liable to fine which may extend to ten lakh rupees. (b) ……………………………………………..” It is thus apparent that Section 52-A provides for mixing of noxious substance with liquor an offence and sub-section (a) thereof provides punishment, if as a result of such an act, death is caused to any person. In this legal backdrop, it would be prudent to quote paragraph-21 of the impugned judgment of the learned trial court which reveals the following :- “Para-21:-As far as the charge of mixing of noxious substance with liquor is concerned, the essential element needs to be proved by prosecution that the accused mixed or permits to be mixed some noxious substance. Going through the material available on record the prosecution failed to prove the accused was in conscious possession of any noxious liquor and there is no seizure of liquor from the accused to hold that he prepared the liquor having mixed noxious substance. As this court held that the accused had simply served the liquor to consume so it does not prove the fact that he himself prepared and mixed noxious substance or permits to be mixed. Therefore, it is unsafe to hold the accused guilty U/s.52A(a) of Bihar and Orissa Excise Act and prosecution has miserably failed to bring the above charge against the accused.” (sic). [Emphasis added] 9. Therefore, it is unsafe to hold the accused guilty U/s.52A(a) of Bihar and Orissa Excise Act and prosecution has miserably failed to bring the above charge against the accused.” (sic). [Emphasis added] 9. Being satisfied that there was no iota of evidence placed on record that it was the accused who had added any noxious substance in the alleged liquor, there is also no evidence that the accused manufactured any liquor, the learned trial court acquitted the accused from the charge under Section 52A(a) of the Act. In that process, when the accused was held not guilty under Section 52A(a) of the Act, simultaneously holding him guilty under Section 304, Part-II of IPC, he having administered noxious intoxicant to the deceased which caused his death, is apparently a misconception of fact and an error of record. In paragraph-19 of the impugned judgment, the learned trial court has observed that notwithstanding non-seizure of any poisonous liquor, apparatus for preparing liquor and vomiting substance of the deceased, absolute reliance could be placed on the oral testimony of P.W.1 that he along with the deceased had consumed liquor provided by the accused. The observation of the learned trial court that non-seizure of any liquor is of no avail since the evidence of P.W.1 revealed that soon after consuming liquor they fell ill, is fallacious. 10. In a case of this nature, oral evidence of P.W.1 that he and the deceased had consumed liquor in the house of the accused is itself not sufficient to jump to a conclusion that the liquor was noxious to the knowledge of the accused and that liquor alone had caused the death of the deceased. Postmortem examination report (Ext.3) reveals the time of death was beyond 18 hours and within 24 hours from the time of examination. The doctor noticed “Rigour mortise is still present in right and left lower limbs and disappeared in right upper limb”. Postmortem examination was conducted at 4.30 p.m. of 25.08.2007. Chemical examination report (Ext.7) reveals that “Organophosphorous insecticidal poison” was detected in the viscera contained in a decomposed state. In this backdrop, the evidence of P.W.1 revealed that on the fateful day at about 10 a.m. he and the deceased consumed liquor in the house of the accused and after consuming liquor they returned to their respective houses. Chemical examination report (Ext.7) reveals that “Organophosphorous insecticidal poison” was detected in the viscera contained in a decomposed state. In this backdrop, the evidence of P.W.1 revealed that on the fateful day at about 10 a.m. he and the deceased consumed liquor in the house of the accused and after consuming liquor they returned to their respective houses. After sometime he fell unconscious and shifted to Baliguda hospital where he recovered within 4 to 5 days thereafter. His evidence further revealed that deceased was also taken to the hospital for treatment but he died. In absence of any material that the liquor consumed by the deceased containing “Organophosphorous insecticidal poison” and it was the accused who had mixed any such noxious drug or any foreign ingredients, the uncorroborated testimony of P.W.1 that the death was caused due to the liquor they allegedly consumed in the house of the accused on the day of obsequies of accused’s daughter-in-law, is not ipso facto to bring home the charge under Section 304, Part-II of IPC against the accused. Neither the Inquiring Officer (P.W.11) nor the Investigating Officers (P.Ws.12 and 13) took care to seize the apparatus allegedly utilized in distilating liquor, no drop of liquor also seized and subjected to any test to ascertain its contents. In absence of such material evidence, the learned trial court has rightly held the accused not guilty of the charge under Section 52A(a) of the Act. Once there is no evidence that it was accused and accused alone who had prepared that liquor containing Organophosphorous insecticidal poison, even if it is assumed for the moment that the accused had provided such liquor to the P.W.1 and the deceased, it is unsafe to jump to a conclusion that the accused had knowledge that consumption of such liquor would likely to cause death though it was without intention to cause death. The finding of the learned trial court rendered in paragraphs-19 and 21 of its judgment supports such findings calling out from the proved fact. 11. The mischief of Section 304, Part-I & Part-II of IPC is attracted if the “culpable homicide” is not ‘murder’, for having been caused in the circumstances provided in the 5 Exceptions to Section 300 IPC. The finding of the learned trial court rendered in paragraphs-19 and 21 of its judgment supports such findings calling out from the proved fact. 11. The mischief of Section 304, Part-I & Part-II of IPC is attracted if the “culpable homicide” is not ‘murder’, for having been caused in the circumstances provided in the 5 Exceptions to Section 300 IPC. If the “culpable homicide” is caused within Clause Firstly or Secondly of Section 299 of IPC in circumstance as mentioned in the Exception to Section 300 of IPC, the same would attract Part-I of Section 304 of IPC and visit with severe punishment than the punishment provided in Part-II of 304 of IPC. But, if the “culpable homicide” is caused attracting Clause Thirdly of Section 299 of IPC and in circumstances provided in exceptions to Section 300 of IPC, the same visit the offender with a lenient punishment. 12. There is no evidence that the accused had the knowledge that the liquor contained such noxious substance. The learned trial court in paragraph-17 of the impugned judgment had also observed that P.W.11 had seized Mahua wash and apparatus for preparing the liquor from the backyard of the house of the accused where the accused as the investigation revealed, had prepared liquor along with the deceased and P.W.1. Curiously that seized Mahua wash and apparatus said to be a material piece of evidence in support of the prosecution were neither subjected to any chemical examination nor produced before the trial court. Furthermore, when the Investigating Officer found that the country liquor was prepared at the backyard of the house of the accused by the deceased, P.W.1 as well as the accused and when P.W.1 and deceased consumed such liquor, it is hard to believe that the liquor prepared by them apparently for consumption by the guest attending obsequies of the daughter-in-law of the accused contained noxious substance. In this backdrop, only because the viscera report of the deceased said to be containing “Organophosphorous insecticidal poison”, it cannot be said that it was caused due to the liquor consumed by him in the house of the accused. In this backdrop, only because the viscera report of the deceased said to be containing “Organophosphorous insecticidal poison”, it cannot be said that it was caused due to the liquor consumed by him in the house of the accused. This scanty evidence of P.W.1 does not ipso facto leads to one and only conclusion that the accused had knowledge that the liquor, the deceased took, contained such noxious substance which likely to cause the death of the deceased, particularly when the deceased was found not guilty for the offence under Section 52A(a) of the Act as held by the learned trial court in paragraph-21 of its judgment. He had long standing enmity with the accused. In paragraph-2 of his cross-examination P.W.1 had admitted that “I and Abneswar (deceased) had no good term with the accused for seven years”. When P.W.1 and deceased had strong animus against the accused, testimony of P.W.1 that he was invited to the house of the accused to attend the obsequies of his daughter-in-law is too big a pill to be swallowed. One cannot lose sight of the possibility fact that P.W.1 and the deceased having bad blood with the accused, when the deceased died of consuming liquor, they might have foisted a story to rope-in the accused in a serious charge of this nature. A witness may lie but the circumstances do not. In such premises, even if there is no legal bar to record conviction on the basis of evidence of a solitary witness, if his evidence is found to be truthful, reliable, cogent, trustworthy and above reproach, but the evidence of P.W.1 said to be the only eyewitness to the occurrence being not convincing and not above suspicion, no absolute reliance can be placed on such tainted testimony. As such, when there is no convincing evidence that the accused had the knowledge that the liquor contained such noxious substance as held by the trial court, it cannot be said that the accused served such spurious liquor with the knowledge that it is likely to cause death of the deceased. Moreover, in this case, when two views can be called out from the perusal of evidence and application of law, was being well settled that the view which favours the accused should be taken up. Moreover, in this case, when two views can be called out from the perusal of evidence and application of law, was being well settled that the view which favours the accused should be taken up. Hence, there is reasonable doubt as to the involvement of the accused in adding any drugs or noxious substance in the liquor when the seized mahua wash and apparatus were not sent for chemical examination and when the presence of P.W.1 and the deceased in that obsequies ceremony is shrouded in mystery. In the absence of knowledge of the accused that the liquor consumed was containing noxious substance, even if for the sake of argument, it is accused that the deceased died of consuming liquor seized by the accused, it can hardly be said that the accused intending the death of the deceased served the same to him which caused his death and/or served the liquor to the deceased to cause injury to his person which he knows likely to cause the death of the deceased and/or served the liquor to the deceased for consumption knowing well that consumption of such liquor is likely to cause death of the deceased. So, any of the ingredients of “culpable homicide” being totally absent, the conviction of the accused under Section 304, Part-II of IPC, as such, was misconceived. In such premises, this Court is of the view that when the accused is held not guilty under Section 52A(a) of the Act, his conviction under Section 304, Part-II of IPC is also unsustainable both in law as well as in fact, particularly when the ingredients of the offence of “culpable homicide” are not emerging from the evidence on record. 13. Consequently, for the reasons aforesaid, this Court is of the opinion that the oral evidence of P.Ws.1 and 3 coupled with the documentary evidence like Exts.3 and 7 is not sufficient and adequate to hold the accused guilty under Section 304, Part-II of IPC. 14. Therefore, I would allow this criminal appeal and set-aside the impugned judgment of conviction and order of sentence passed against the accused. Consequently, the accused is acquitted of the charge and he be set at liberty forthwith, if in custody, unless his detention is required otherwise. L.C.R. received be sent back forthwith along with a copy of this Judgment.