KRUSHNA CHANDRA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order dated 9.10.2002 passed by the Second Addl.Sessions Judge, Cuttack in S.T. No.359 of 1997 wherein he framed charge for the offence under Sections 302/328/109 I.P.C. read with Section 47(a) of Bihar and Orissa Excise Act against the petitioner and some others.

(2.) THE nub of the fact giving rise to this Revision is that on 9.5.1992 at about 10.00 A.M. Bhikari Charan Sahani, the A.S.I. of Malgodown P.S. lodged a report before the I.C.C. of Malgodown Police Station stating therein that while he was enquiring into U.D. case No.8 of 1992, it came to light that on 7.5.1992 evening Suryamani Naik of Majhi Sahi consumed country liquor from the shop of Sarat Behera of Jobra, Majhi Sahi and developed vomiting tendency and felt pain in the stomach. On being asked Sarat Behera disclosed that he procured the liquor, sold to Suryamani Naik, from the shop of co -accused Belu alias Surendra Kumar Das. Suryamani Naik was shifted to Sriram Medical Centre, Jobra, Cuttack for treatment, but in spite of best effort of the doctors, he expired on 8.5.1992 at about 10.00 A.M. On basis of the 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 consumption, was detected in the sample liquor Investigation further 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 for the offence under Sections 302/307/328/226/273/284/115/109/34 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 discharge 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 Section 302/328/109 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 Sections 302/328 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.) 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.