Wildlife (Protection) Act, 1972 – Ss. 9 r/w. 51 – Forest (Amendment) Act, 1993 (Kerala) – S. 27 (3)(iv) – trial court, while framing the charges, had omitted the offences under the Kerala Forest Act – accused had entered into the Konni Reserve Forest and had placed crackers (thotta) along with food items in order to entice wild animals like deer, with the intention of killing it – crackers were consumed by a wild female elephant which exploded in its mouth and caused its death – confession statement was given to the forest officers – courts below have failed to look into all aspects of the matter – remitted back for consideration of the appeal afresh.
ALEXANDER THOMAS, J.
Crl.R.P.No. 1921 Of 2006
Dated this the 20th day of June, 2016
CRL.A.NO. 74/2002 OF ADDITIONAL DISTRICT & SESSIONS COURT-I (ADHOC), PATHANAMTHITTA CC.NO. 507/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNY
BY ADVS.SRI. THOMAS ANTONY SRI.M.P.PRAKASH
THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. P.V. ELIAS
O R D E R
The 1 st accused in Calendar Case C.C.No.507/1998 on the file of Judicial First Class Magistrate’s Court, Ranni is the revision petitioner. He was convicted for the offence under
Sec.9 read with Sec.51 of the Wildlife (Protection) Act, 1972
(Central Act No.53 of 1972)
and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a further period of three months. Being aggrieved by the said conviction and sentence, the revision petitioner had preferred Crl.Appeal No.74/2002 before the Appellate Sessions Court concerned (Court of the Additional Sessions Judge, Adhoc – 1, Pathanamthitta). As per the impugned appellate judgment rendered on 3.3.2006, the Criminal Appeal was dismissed confirming the impugned conviction and sentence imposed by the learned Magistrate. The Calendar Case arose before the trial court out of a complaint filed by the Forest Range Officer, Goodrical, in Ocurrence Report No.12 of 1995 of Plappally Police Station against the two accused for the offences punishable under
Sec.27 (3)(iv) of the Kerala Forest (Amendment) Act,1993
and Sec.51 of the Wildlife (Protection) Act,1972. However, the trial court, while framing the charges, had omitted the offences under the Kerala Forest Act and had charged the accused only for the aforesaid offences under the Wildlife (Protection) Act, 1972. The second accused had died during the pendency of the trial.
2. The gist of the allegations in the complaint is that sometime in the second week of October 1995, both the accused had entered into the Konni Reserve Forest and had placed crackers (thotta) along with food items in order to entice wild animals like deer, with the intention of killing it, as such crackers would explode when the same is consumed along with the food items by the wild animals and that the said food materials along with the crackers were consumed by a wild female elephant which exploded in its mouth and caused its death. During that time, accused No.1 was engaged with the work of bamboo cutting along with some other workers including one Sri.Ramachandran (informant who is PW-1) and that accused No.1 was also in the work shed along with those workers when the crackers were exploded with a big noise and that he had disclosed these aspects to the informant who later conveyed this information to the forest officials on 17.10.1995. The forest officials concerned went to the scene of occurrence where the carcass of the wild elephant was lying and had prepared Ext.P-1 mahazar dated 17.10.1995. Thereafter, a Senior Veterinary Surgeon of the Government Hospital, Pathanamthitta had conducted the post-mortem of the dead body of the above elephant on 19.10.1995 and had issued Ext-P7 postmortem certificate dated 19.10.1995 with a finding that the elephant had died as a result of bleeding due to the explosive blast that took place in its mouth. The investigation was conducted by PW-4 (Forest Range Officer) and his investigation revealed the involvement of accused No.2 in the supply of the crackers to accused No.1. Ext-P6 confession statement dated 28.6.1996 was recorded from accused No.2 by PW-4 (Forest Range Officer), which also had implicated acused No.1. Thereafter, the accused No.1 was absconding for a long time and he had ultimately surrendered before the Forest Range Officer only on 12.9.1996 and Ext.P-5 confession statement of accused No.1 was recorded by PW-3 (Forest Guard) in the presence of PW-4 (Forest Range Officer). It is the case projected in the complaint that the confession statements as per Exts.P-5 and P-6 have clearly disclosed the involvement of both the accused, more particularly accused No.1 in the commission of the above said offences, etc. The prosecution had examined prosecution witnesses 1 to 9 and had produced Exts.P-1 to P-7 documents. The defence had not adduced any evidence on their behalf. The trial court had dispensed with the charges for the offences under the Forest Act, presumably, because even as per the case projected in the complaint, the presence of the accused in the forest area concerned was not unauthorized in as much as he was present there for carrying out bamboo cutting activities undertaken by M/s.Hindusthan News Print Limited, who were permitted for that activity by the competent forest officials concerned.
3. On a perusal of the judgments of both the courts below, it is clearly disclosed that the main aspect that was considered by the said courts in arriving at the impugned conviction is on the basis of Ext.P-5 confession statement dated 12.9.1996 which was said to have been given by accused No.1 to the forest officers concerned. Sri.M.P.Prakash, learned counsel for the revision petitioner/accused No.1, has urged various contentions in the matter and the main points urged by him are as follows:
(i) That a reading of the impugned judgments of both the courts below would clearly reveal that the sole basis for rendering the impugned conviction against the revision petitioner (accused No.1) was on the basis of Ext.P-5 confession statement dated 12.9.1996 said to have been given by the accused No.1 to the Forest Officers concerned. It is pointed out in this regard that there was Ext.P-5 dated 12.9.1996 which was alleged by the prosecution to be a confession statement given by accused No.1 and Ext.P-6 dated 28.6.1996 which is stated by the prosecution to be a confession statement given by Accused No.2 and that accused No.2 had died during trial. First informant in this case was cited as PW-7 by the prosecution in order to prove the projected case of the prosecution so as to corroborate the implication of accused No.1 in tune with Ext.P-5 confession statement, but that PW-7 has turned hostile. Further that PW-9 was cited by the prosecution in order to corroborate the versions of accused No.1 in Ext.P-5 that he had purchased the crackers (thotta) in question from PW-9. But that PW-9 even in his statement given before the investigating officer had stated that it was not from him that the said crackers was purchased and that immediately after mounting the box, PW-9 was given up by the prosecution. On this basis, it is contended by the petitioner that there is no independent witness whatsoever to corroborate the version relied on by the prosecution on the basis of Ext.P-5 confession statement. In this regard, the learned counsel for the petitioner relies on the rulings of the Apex Court in the case