1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 01 of 2010 with CRMA No. 1440 of 2010 Kedar Sigh S/o Shri Gyan Singh R/o Village Uniyana-Narayankoti P.S.Ukhimath District Rudraprayag …..…Appellant Versus State of Uttarakhand ……….Respondent Mr. Yogesh Pacholia, Advocate, present for the appellant Mr. Hariom Bhakuni, Brief Holder, present for the State. Hon'ble Prafulla C. Pant, J. This appeal is received through the Superintendent of District Jail, Dehradun, by accused/appellant Kedar Singh who has been convicted vide judgment and order dated 24.04.2009, passed by Sessions Judge, Rudraprayag, in Sessions Trial No. 11 of 2008, whereby he has been convicted under section 304 and 328 IPC. The accused/appellant has been sentenced to rigorous imprisonment for a period of ten years under section 304 IPC, and rigorous imprisonment for a period of five years, and 2 directed to pay fine of ` 5,000/- under section 328 IPC. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief is that P.W. 1 Mangal Singh lodged First Information Report (Ex. A1) with Patti Patwari Guptkashi, Tehsil Ukhimath, that on 24.01.2008, his cousin Kundan Singh (one of the deceased) came in a drunken state in the evening and got unwell. When son of Kundan Singh came to him, and told that his father was quarreling with his mother, the complainant went to his house where Kundan Singh told him that he purchased liquor from Kedar Singh (present appellant) and feeling unwell. Treating it to be not a unusual incident, complainant Mangal Singh (P.W. 1) left his cousin Kundan Singh at his home. On the next morning Kundan Singh was found dead. Suspecting that Kedar Singh had sold spurious liquor the FIR was lodged (In Uttarakhand hills certain Revenue officials have police powers). On the basis of said report crime no. 1 of 2008, was registered. Since on the same day three other persons namely Balwant Singh, Umed Singh and Jagdish Lal also died in similar fashion the investigation was transferred from revenue police to regular police, and 3 Station Officer Rudra Singh Pal (P.W. 12) investigated the crime after making necessary entry in the General Diary. Post mortem examination on the dead bodies was conducted by P.W. 10 Dr. Govind Pujari of Government Joint Hospital, Srinagar (Pauri Garhwal) on 25.01.2008, after the sealed dead bodies were sent by the Investigating Officer alongwith inquest report and other necessary police papers. After post-mortem examination, Dr. Govind Pujari prepared autopsy reports (Ex. A4, Ex. A5, Ex. A6 and Ex. A7) and in all the four cases the medical officer opined that cause of death could not be ascertained, and visceras were preserved. The Investigating Officer got sent the visceras to Forensic Laboratory, Agra. As per the reports (Ex.A10, Ex. A11, Ex. A112 and Ex. A13) received from Forensic Science Laboratory, Agra, contents of the viscera of aforesaid four deceased found containing organochloro insecticide with ethyle alcohol. Meanwhile, the Investigating Officer interrogated the witnesses and after completion of investigation, charge sheet (Ex. A45) was filed against the accused Kedar Singh, and two others Naraini Devi and Prem Singh, for their trial in respect of offences punishable under section 328 and 304 IPC. 4. The Chief Judicial Magistrate, Rudraprayag, 4 on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned Sessions Judge, Rudraprayag, on 31.05.2008, after hearing the parties framed charge of offences punishable under section 328 and 304 IPC, against the accused/appellant Kedar Singh and two others namely Naraini Devi and Prem Singh. They pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Mangal Singh (complainant), P.W.2 Jas Pal, P.W. 3 Kalam Singh, P.W.4 Rajendra Lal @ Raju Lal, P.W. 5 Ram Bharose (declared hostile), P.W. 6 Surendra Singh, P.W.7 Virendra Singh, P.W. 8 Rajendra Singh, P.W.9 Prakash Singh, P.W.10 Dr. Govind Pujari (who conducted post-mortem examination) P.W.11 Constable Surendra Singh and P.W. 12 Rudra Singh Pal (Investigating Officer). Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which the accused/appellant pleaded that evidence adduced against him is false. However, no evidence in defence was adduced. The trial court after hearing the parties found that charge of offences punishable under section 304 and 328 IPC, is proved as against accused Kedar Singh, and convicted him accordingly. As against other two 5 accused namely Naraini Devi and Prem Singh the trial court found that charge stood not proved beyond reasonable doubt, and they were acquitted. After hearing on sentence, convict Kedar Singh was sentenced to rigorous imprisonment for a period of ten years under section 304 IPC, and rigorous imprisonment for a period of five years, and directed to pay fine of ` 5,000/- under section 328 IPC. Aggrieved by said judgment and order dated 24.3.2009, passed by the Sessions Judge, Rudraprayag, this appeal is got sent by the convict from District Jail, Dehradun. 5. Before further discussion this Court think it just and proper to mention the post mortem examination reports and viscera reports. The autopsy reports prepared by P.W. 10 Dr. Govind Pujari after conducting autopsy on the dead bodies of Kundan Singh, Umed Singh, Balwant Singh and Jagdish Lal which are proved as Ex. A4, Ex. A5, Ex. A6 and Ex. A7on the record. In all four cases the medical officer opined that cause of death could not be ascertained. All the four post mortem examination were conducted between 4:00 P.M. to 8:00 P.M. on 25.01.2008. The autopsy reports further revealed that death of Kundan Singh took place about 12-16 hours 6 before post-mortem examination, similar period was found in the cases of Balwant Singh and Jagdish Lal. As to the case of Umed Singh he also died on 25.01.2008, in the morning hours but in the hospital. According to P.W. 10 Dr. Govind Pujari in all the four cases visceras were preserved for chemical analysis. P.W. 12 Rudra Singh Pal has proved that visceras were got sent for chemical examination to the Forensic Laboratory. P.W. 12 has further told that before getting sent dead bodies in sealed condition for post mortem examination, the inquest reports (Ex. A2, Ex. A3, Ex. A20 and Ex. A27) were prepared of the dead bodies of Kundan Singh, Balwant Singh, Jagdish Lal and Umed Singh respectively. Forensic Laboratory reports (Ex. A10, Ex. A11, Ex. A12 and Ex. A13) relate to deceased Kundan Singh, Umed Singh, Jagdish Lal and Balwant Singh respectively. In all the four reports the stomach, pieces of intestine, pieces of lever, pieces of kidney, spleens, pieces of lungs contained organochloro insecticide with ethyle alcohol, suggesting that all the deceased had consumed spurious liquor. 6. Now the question before this Court is whether there is evidence on record that the spurious liquor was sold as suggested by the prosecution by 7 accused/appellant Kedar Singh to the four deceased or not. To prove this fact, P.W. 1 Mangal Singh (complainant) has stated that on 21.04.2008, in the evening, his cousin Kundan Singh (deceased) reached his house in a drunken state. His son told the witness that his father was quarreling with his mother, on which the witness went to the house of the deceased (Kundan Singh) where he (Kundan Singh) told him that he bought and consumed liquor from Kedar Singh on same day whereafter he was feeling unwell. P.W. 1 Mangal Singh further told that on the next day he came to know that Kundan Singh had died. The witness has proved FIR (EX. A1) lodged with Patwari of the area. 7. P.W. 2 Jas Pal is important witness who has stated that he had also taken a bottle of illicit liquor from Kedar Singh (accused/appellant) for an amount of ` 50/-, but after consuming some of it when he disliked it, he threw the bottle. The witness has further stated that he too fell ill and vomited whole night. P.W.2 Jas Pal has further stated that in the morning he was taken to Guptkashi Hospital where he treated and got saved. 8. P.W. 3 Kalam Singh is another important 8 witness who has also stated that on 24.01.2008, he too bought a bottle of liquor from accused/appellant Kedar Singh for an amount of ` 50/- but as soon as he took a sip of it he felt uneasiness, and did not drink further. 9. P.W.7 Virendra Singh (son of another deceased Balwant Singh) has corroborated the fact that on 21.04.2008, his father Balwant Singh told him in the evening that he had taken liquor, and he was feeling unwell. The witness further narrated that his father told him that he had purchased liquor from Kedar Singh (accused/ appellant).This fact is further corroborated by P.W. 8 Rajendra Singh that his brother Balwant Singh told him that he had taken liquor from Kedar Singh and feeling unwell. The evidence of these two witnesses is admissible under section 32 of Indian Evidence Act, 1872, as the same relates to cause of death of Balwant Singh. 10. P.W.9 Prakash Singh is elder brother of deceased Umed Singh. He has also stated that on 21.04.2008, Umed Singh told him that he had taken liquor from Kedar Singh. The witness has further stated that Umed Singh was taken in a unconscious condition to the Base Hospital, Srinagar, where he 9 died. Evidence of this witness is also admissible for the reason mentioned in the preceding paragraph. 11. Testimony of the witnesses mentioned above clearly establishes on record beyond a reasonable doubt that on 21.04.2008, accused Kedar Singh sold spurious liquor to various persons and four of them after feeling unwell died. It has also come on record that some of those who consumed liquor could survive after getting unwell but treated. As far as the other two accused acquitted by the trial court is concerned, it has come on the record that Kundan Singh, Naraini Devi and Prem Singh used to sell liquor separately, there is no consistent evidence unlike as against Kedar Singh that on the day of incident they had sold liquor to the persons who died in the incident. 12. Mr. Yogesh Pacholia, learned counsel for the appellant argued that there are various kinds of organochloro insecticides, and many are used for growing vegetables. It is further argued that it cannot be ruled out that the deceased persons might have taken some of such vegetables in a community feast whereafter they died. This Court is unable to accept the argument advanced on behalf of the appellant for 10 the reason that there is no such positive evidence on record which reflects that all the four had taken meals together at one place. Apart from this, the trial court has rightly observed that the defence has not even dared to put suggestion to the above mentioned witnesses of fact that on the day of incident Kedar Singh had not sold liquor to the persons died. It is not the case of Kedar Singh (accused/appellant) that he has a license/authority to sell the liquor. 13 For the reasons as discussed above, this Court finds no merit in this appeal which is liable to be dismissed. The appeal is accordingly dismissed. Let the copy of this judgment be sent to the Superintendent of Jail concerned. Lower court record be sent back. (Prafulla C. Pant, J.) Parul 07.12.2011 AFR