Ramankutty vs State Of Kerala on 11 November, 2008

[Cites 6, Cited by 0]

Kerala High Court

Ramankutty vs State Of Kerala on 11 November, 2008

Crl.A.No.727 of 2009 is filed by the first accused, while Crl.A.No.2666 of 2008 is filed by the second accused in S.C.No.517 of 2004, on the file of the Court of the Additional Sessions Judge, Ad-hoc I, Palakkad. The court below convicted the accused under Section 57A(1)(i) and (ii) of the Abkari Act. They were sentenced to imprisonment for life and to pay a fine of `50,000/- each and in default, to undergo rigorous imprisonment for two years for the offence under Section 57A(1)(ii) of the Abkari Act. They were also sentenced to undergo rigorous imprisonment for five years and to pay a fine of `50,000/- and in default, to undergo rigorous imprisonment for two years for the offence under Section 57A(1)(i) of the Abkari Act. The court below directed that substantive sentence shall run concurrently.

Crl. Appeal No.2666 of 2008

and Crl. Appeal No.727 of 2009.

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2. Originally, the offence alleged against the accused were under Sections 302, 307, 120(B) read with Section 34 of the Indian Penal Code and Section 57A of the Abkari Act. The court below discharged the accused for the offence under the Indian Penal Code.

3. The prosecution case is that on 12.2.2003 the accused persons mixed toddy with a noxious substance like "nuvacrone", which is likely to endanger human life and with the knowledge that if it is consumed it is likely to endanger human life so as to cause grievous hurt to human beings, in the coconut garden belonging to one Unnikannadas, from where the first accused used to tap toddy and the second accused used to measure the toddy in the toddy shop. The toddy mixed with 'nuvacrone' happened to be consumed by several persons and five of them died and five others sustained grievous hurt. It was alleged that the accused mixed toddy with the noxious substance purposefully since they believed that some of the persons who died in the incident and some others were involved in Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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the theft of toddy from the coconut garden in question. The persons who died were: (1) Ponmala, (2) Vasu, (3) Vijayan, (4) Rajan and (5) Mani. PWs.2 to 5 (Sasi, Mani @ Manikandan, Prema and Kalyani), a boy by name Shinu and CW6 (Thevan) are the persons who sustained grievous hurt as a result of consumption of toddy mixed with "nuvacrone". It was also alleged that a boy named Shinu happened to consume a small quantity of toddy and he was hospitalized.

4. PW1 (Narayanan), the paternal uncle of deceased Vijayan, gave Ext.P1 First Information Statement which was recorded by PW31, the Sub Inspector of Police, Puthunagaram, at the Medical College Hospital, Thrissur. PW32, the Assistant Sub Inspector of Police, Puthunagaram, registered Ext.P35 First Information Report.

The investigation was conducted by PW34, the Circle Inspector of Police, Kuzhalmannam. The first accused was arrested on 22.3.2003 and the second accused was arrested on 8.3.2003.

5. On behalf of the prosecution, PW1 to PW34 were Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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examined and Exts.P1 to P43 and MO1 to MO15 were marked. On the defence side, DW1 and DW2 were examined and Ext.D1 was marked.

6. PW1 (Narayanan) is the paternal uncle of deceased Vijayan. He deposed that about 8 PM on 12.2.2003 while PW1 was sitting in his house, two boys came running and stated that some persons have fallen down as a result of consumption of toddy. Immediately he went to Palathulli. He saw Sasi (PW2), Ponmala (deceased) and Mani (deceased) and they stated that they consumed toddy and they fainted and fell down. They met Dr.Meeradas. Later, those persons were taken to District Hospital, Palakkad. By that time, Vijayan, Vasu and Rajan (deceased persons) were also brought to the District Hospital, Palakkad. The doctor advised that they should be taken to the Medical College Hospital, Thrissur and, accordingly, they were so taken. After midnight, Vasu died at the Medical College Hospital, Thrissur. Rajan, Mani, Ponmala and Vijayan who were brought from the District Hospital, Palakkad, were declared to be dead by the doctor Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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at the Medical College Hospital. PW1 also stated that the first accused is a toddy tapper and he used to tap toddy from the coconut garden of Unnikannadas. The second accused is the person who used to measure that toddy in the toddy shop. PW1 gave the First Information Statement and the crime was registered as mentioned above.

7. PW2 (Sasi) stated that he and his friend Mani went to the side of the river to see whether sand is available for the purpose of Mani. They went to the 'kadavu' by the side of the coconut garden. Mani decided to have toddy (f:Ja5Um). They met the first accused and demanded for toddy. He stated that toddy was not available. There was exchange of words. Later, the first accused offered to give toddy and he gave one earthen pot of toddy. The first accused did not receive any amount for the same. PW2 and Mani went to the side of the river with the toddy. At that time, Manikandan and Vijayan came there for taking bath in the river. Rajan also came there. Five of them consumed toddy by pouring the same in a mug. Manikandan stated that the toddy had a Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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different taste. PW2 and others stated that there was nothing wrong with the toddy. The balance toddy was taken to Chirayad colony. Vasu, brother of Mani, was given one steel tumbler of toddy. The balance of the toddy was taken to the house of Mani. Mani and PW2 again consumed toddy and Ponmala and Kalyani were also given toddy. PW2, Mani and Ponmala went near the bridge and sat there. After some time, they started vomiting and they had stomach pain. They met Dr.Meera Prasad and she expressed the doubt that the toddy was mixed with poison. They were taken to the District Hospital, Palakkad and later to the Medical College Hospital, Thrissur. PW2 remained in the hospital for fifteen days. PW2 stated that the first accused gave the toddy to them without any consideration since he had an impression that PW2 and others were involved in the theft of toddy from the coconut garden.

8. PW3 (Mani @ Manikandan) is also a victim. He went to the river side to take bath, where he met PW2 and others and consumed toddy. He was also treated in the Medical College Hospital.

Crl. Appeal No.2666 of 2008

and Crl. Appeal No.727 of 2009.

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9. PW4 (Prema) is the widow of deceased Vasu, who died as a result of consumption of toddy. She resides in the 'Lakshamveedu colony'. She stated that by about 6 PM on 12.2.2003, her husband Vasu brought toddy in a steel pot. The toddy was given to him by Sasi and Mani. PW4 consumed one tumbler of toddy and the balance was taken by her husband. While Vasu was consuming toddy, Karthiayani, a neighbour, and a boy called Shinu came there. A small quantity of toddy was given to Shinu stating that it was "payasam". Karthiayani did not consume toddy. The husband of PW4 went outside after consuming toddy. Vasu vomited twice and he was shivering. PW4 also vomited and she fainted. She was taken to the District Hospital, Palakkad. When she gained consciousness, she was in the Medical College Hospital.

10. PW5 Kalyani is a neighbour of deceased Mani. She stated that Mani offered to give toddy. PW5 took the toddy and consumed one tumbler of the same. After some time, Thevan and Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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Mathu came to their house. The balance toddy available was consumed by Thevan. PW5 had loose motion and vomiting. PW5 and Thevan were taken to the hospital. She was treated in the Medical College Hospital for one week.

11. The inquest of the dead-bodies of Ponmala, Vasu, Vijayan, Rajan and Mani was conducted respectively by PW30, PW27, PW28, PW29 and PW26 who prepared Exts.P5, P7, P6, P3 and P34 inquest reports. The postmortem was conducted by PW15, PW16, PW17 and PW33, who issued Ext.P17 (in respect of Vijayan), Ext.P19 (in respect of Ponmala), Ext.P22 (in respect of Vasu), Ext.P25 (in respect of Mani) and Ext.P36 (in respect of Rajan). Exts.P18, P21, P24, P27 and P37 chemical analysis reports would disclose that the deceased died of monocrotophos poisoning.

12. As per Ext.P8 mahazar, the earthen pot (5Ua5a?") was seized from the house of Mani. Samples of toddy available in the pot were sent for chemical analysis. Ext.P41 report shows that the Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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sample contained monocrotophos, a highly poisonous organophosphorous compound.

13. It has come out in evidence that in the "kalappura" in the coconut garden belonging to Unnikannadas, the first accused was residing. On a search of the "kalappura", MO4 bottle containing some liquid and MO5 cardboard box containing a white powder were seized as per Ext.P29 mahazar. Ext.P41 chemical analysis report shows that the liquid in MO4 bottle contained monocrotophos, a highly poisonous organophosphorous compound and the white powder in MO5 cardboard box contained atrazine, a poisonous organophosphorous compound. Ext.P41 chemical analysis report further shows that monocrotophos is used as an insecticide under the trade name "nuvacrone" etc. As per Ext.P30 mahazar, MO14 series of earthen pots were seized from the coconut garden of Unnikannadas. Ext.P42 chemical analysis report shows that one of the items of samples collected from the earthen pot was positive for monocrotophos.

Crl. Appeal No.2666 of 2008

and Crl. Appeal No.727 of 2009.

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14. After the arrest of the second accused, he was in the police custody and it is alleged that the second accused made a confession to the police. He stated that he had concealed a plastic bottle which was used for mixing toddy with "nuvacrone", in a sugarcane garden. As led by the second accused and as shown by him, MO2 plastic pot was recovered. The sample of liquid taken from that pot was subjected to chemical analysis. Ext.P42 report shows that it was positive form of monocrotophos in item 8 therein.

15. The court below relied on the evidence of PW1 to PW5 and held that Ponmala, Vasu, Vijayan, Rajan and Mani died as a result of consumption of toddy mixed with "nuvacrone", which was supplied by the first accused to PW2 and Mani. It was also found that the other victims happened to consume toddy as supplied by PW2 and Mani. The court below found that the second accused was engaged in measuring the toddy tapped from the coconut garden of Unnikannadas and he was also responsible for mixing the noxious substance with toddy, which was later given to PW2 and Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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Mani by the first accused. The court below found that five of the victims were hospitalized for a few days and they sustained grievous hurt as a result of consumption of toddy mixed with noxious substance at the instance of the first and second accused. The evidence of some of the living victims were found reliable by the court below.

16. The court below also relied on the evidence of PW20 (Rajan) who is residing in the nearby compound of the coconut garden of Unnikannadas. He stated that toddy was being tapped from the coconut trees belonging to Unnikannadas by the first accused and that the first accused is residing in the"kalappura" in that compound. PW20 stated that he saw the first accused at 10 AM on the date of incident near "kalappura" and the second accused was also there. PW20 also stated that the first accused stated to him that toddy was being stolen and something had to be done. At 3 PM also PW20 saw the first and second accused together in the "kalappura" and one earthen pot was found in their possession. He also saw something being poured into the earthen Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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pot and stirring the same by the first accused. PW20 also saw the accused going to the coconut garden with the earthen pot.

17. PW24 (Unnikannadas), who is the owner of the coconut garden having an extent of six acres, stated that some of the coconut trees were earmarked for toddy tapping and the first accused is the toddy tapper. He also stated that the second accused used to come to the coconut garden. PW24 stated that earlier, one Thankaraj and Subramanyam were the toddy tappers and he had occasion to entrust to Thankaraj a bottle of "nuvacrone". He identified MO4 bottle of "nuvacrone".

18. The learned counsel appearing for the accused submitted that there are lot of contradictions in the evidence of the witnesses. It is submitted that there is vast difference between the charges levelled in the final report and the charges framed by the Court. The counsel submitted that there was no fair trial since the accused were misled by the charge.

Crl. Appeal No.2666 of 2008

and Crl. Appeal No.727 of 2009.

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19. It is pointed out that the final report would disclose that toddy mixed with "nuvacrone" was placed on the coconut tree and without knowing that "nuvacrone" was mixed with toddy it was consumed by Mani, Vijayan and Rajan and by the persons to whom they supplied the toddy. It is submitted that in the charges framed by the Court it is stated that such toddy mixed with "nuvacrone" happened to be consumed by the victims. It is submitted that the specific case of PW2 is that they did not take toddy from the coconut tree but it was given by the first accused to PW2 and Mani on their demand, that too even without receiving any money. According to the learned counsel, this would be irreconcilable with the charge and, therefore, the evidence of PW2 and other witnesses cannot be relied on.

20. We do not find much substance in the submission made by the learned counsel for the appellants. It is the specific case of the prosecution that the accused mixed "nuvacrone" with toddy knowing fully well that it would be consumed by the victims. It is proved that the victims consumed that particular toddy. Whether it Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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was taken by some of them from the coconut tree or whether it was supplied by the first accused to PW2 and Mani may not be quite relevant in deciding the issue involved in the case. It is also proved in the case that five persons died and five other persons sustained grievous hurt as a result of consumption of the particular toddy taken from the particular coconut garden, which was found mixed with "nuvacrone", a noxious substance. The various facts and circumstances proved in the case would lead to the only conclusion that it was the accused persons who mixed "nuvacrone" with the toddy, which later happened to be consumed by the victims in the case. That the samples taken contained monocrotophos is proved in the case. The final opinion given in the postmortem certificates would also indicate that the five persons died of consumption of toddy containing monocrotophos. Ext.P41 chemical analysis report shows that monocrotophos is used as an insecticide under the trade name "nuvacrone". Ext.P41 also shows that monocrotophos is a highly poisonous organophosphorous compound.

21. The deceased persons were coolies and villagers. The Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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other victims are also coolies and villagers. They are residents of the same place and they are known to each other. They consumed toddy supplied by the first accused thinking that it was pure toddy. Even when one of the victims expressed a doubt as to the taste difference, the other victims were too sure about the purity of the toddy since it was directly taken from the toddy tapper. The victims belonged to the poor strata of the society. Five families lost their bread winners as a result of consumption of toddy mixed with noxious substance. The allegation is that the accused mixed "nuvacrone" with toddy to prevent theft of toddy by some of the victims.

22. Section 57A(1) of the Abkari Act reads as follows:

"57A. For adulteration of liquor or intoxicating drug with noxious substances, etc.:- (1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable -- Crl. Appeal No.2666 of 2008

and Crl. Appeal No.727 of 2009.

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(i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;

(ii) If, as a result of such act, death is caused to any person, with death or imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;

(iii) in any other case, with imprisonment for a term which shall not be less than one year, but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.

Explanation:- For the purposes of this section and section 57B, the expression "grievous hurt" shall have the same meaning as in section 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860)."

23. The facts and circumstances proved in the case would show that clause (i) of sub-section (1) of Section 57A of the Abkari Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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Act is attracted in respect of the grievous hurt caused to PW2 to PW5 and CW6 and clause (ii) of sub-section (1) of Section 57A of the Act would apply to the death of Ponmala, Vasu, Vijayan, Rajan and Mani. The court below rightly found that the accused are guilty. We do not find any ground to interfere with the conviction imposed by the court below.

24. As regards sentence, we are of the view that the sentence imposed by the court below is excessive. The court below noticed in the judgment that when the victims were taken to the District Hospital, Palakkad, nothing was done by the doctors there and they were merely referred to the Medical College Hospital, Thrissur. It is also noticed in the judgment that it would take two hours to travel from Palakkad to Thrissur. It was noticed by the court below that the evidence of PW21, the Professor and Head of the Department of Forensic Science, Medical College Hospital, Thrissur, shows that "in ordinary course, in poisoning cases, stomach wash, I.B.fluids, antibiotic and other drugs to counteract will be given". These facilities were available in the District Hospital, Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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Palakkad. The court below found that the doctors in the District Hospital, Palakkad were guilty of dereliction of duty. Had proper and timely treatment were given to the victims at the District Hospital, Palakkad, probably the consequence of the mishap would not have been so disastrous. Taking into account the over all facts and circumstances of the case, we are of the view that a sentence of rigorous imprisonment for four years under Section 57A(1)(i) of the Abkari Act and rigorous imprisonment for six years for the first accused and five years for the second accused under Section 57A (1)(ii) of the Abkari Act would meet the ends of justice.

Accordingly, the Criminal Appeals are allowed in part and they are disposed of as follows:

a) The conviction of the appellants under Section 57A(1)(i) and

(ii) of the Abkari Act is confirmed.

b) Accused No.1 (appellant in Crl.A.No.727 of 2009) is sentenced to undergo imprisonment for four years and to pay a fine of `50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year under Section Crl. Appeal No.2666 of 2008 and Crl. Appeal No.727 of 2009.

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57A(1)(i) of the Abkari Act and to undergo rigorous imprisonment for a period of six years and to pay a fine of `50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year under Section 57A(1)(ii) of the Act.

c) Accused No.2 (appellant in Crl.A.No.2666 of 2008) is sentenced to undergo imprisonment for four years and to pay a fine of `50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year under Section 57A(1)(i) of the Abkari Act and to undergo rigorous imprisonment for a period of five years and to pay a fine of `50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year under Section 57A(1)(ii) of the Act.

d) The substantive sentence mentioned above shall run concurrently in the case of accused Nos.1 and 2.

e) The appellants/accused would be entitled to set off under Section 428 of the Code of Criminal Procedure. Crl. Appeal No.2666 of 2008

and Crl. Appeal No.727 of 2009.

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f) If the fine amount is realized, it shall be disbursed in the manner indicated below as compensation under Section 357 (1)(b) of the Code of Criminal Procedure: (i) `25,000/- each to the legal representatives of deceased Ponmala, Vasu, Vijayan, Rajan and Mani; (ii) `15,000/- each to the other victims, namely, Sasi (PW2), Mani @ Manikandan (PW3), Prema (PW4), Kalyani (PW5) and Thevan (CW6).

g) If the fine amount is realized only in part, it shall be disbursed in the proportion mentioned above.

h) The court below shall issue revised committal warrant.

(K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/

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