RADHAKRISHNA Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) 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 Section 304, Para II/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/34 of I. P. C.) and rigorous imprisonment for a period of six months (under Section 273/34 I. P. C.). The trial Court directed that both the sentences shall run concurrently.

(2.) Heard learned counsel for the parties,

(3.) 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 Kirtl 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 sealed 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.