Sakeer Hussain v. Forest Range Officer — 1999 DIGILAW 260 (KER)

Judgment :- K.A. Mohamed Shafi, J. Accused Nos. 3 to 8 in C.C. No. 107/91 on the file of the Judicial First Class Magistrate's Court, Perinthalmanna are the revision petitioners. Crl.R.P. 523/93 is filed against the judgment passed by the Sessions Court, Manjeri in Crl. A. No. 159/91 dated 18.6.93. Crl.R.P. 525/93 is filed against the order in Crl.R.P. No. 170/91 of the same date, passed by the same court. 2. Nine accused persons including the revision petitioners stood trial before the Judicial First Class Magistrate's Court, Perinthalmanna for the offences punishable under S.27(2)(c) of the Kerala Forest Act and Ss.9(2), 50(1)(c) and 51 of the Wild Life (Protection) Act on the basis of the complaint filed by the Forest Range Officer, Thenkara Special Range. 3. The allegation made was that the accused on 31.1.1989 in the midnight trespassed upon the vested forest at Uppukulam of Edathattukara Beat in Kottopadam Section, shot and killed two axis deer (Ajaaona) and captured one slender Loris (Ajsiomojom;) and thereby committed the offences alleged against them. During the trial of the case accused 1 and 2 absconded and the case against them was split up and re-filed as C.C.189/91 and proceeded with the trial against accused 3 to 9. After trial the trial court found the 9th accused not guilty, acquitted Mm and set him at liberty and also found the accused 3 to 8 guilty of the offences punishable under Ss.9(2) and 50(1)(c) r/w 51 of the Wild Life (Protection) Act, convicted and sentenced them to undergo R.I. for six months each and to pay fine of Rs. 1000/- each in default of payment to undergo S.I. for three months each and found them not guilty of the offence punishable under S.27(2)(c) of the Kerala Forest Act and acquitted them on that count by judgment dated 14.11.1991. 4. Crl. Appeal No. 159/91 was preferred by accused 3 to 8 challenging the judgment of the trial court before the Sessions Court, Manjeri. Crl.R.P. No. 170/91 was taken by the Sessions Court suo mote finding that the sentence awarded by the trial court is inadequate. The Sessions Court by the common judgment dated 18.6.93 confirmed the finding of guilt and conviction entered by the trial court, set aside the sentence awarded and remitted the case to the trial court for imposing proper sentence under the Wild Life (Protection) Act. The Sessions Court by the common judgment dated 18.6.93 confirmed the finding of guilt and conviction entered by the trial court, set aside the sentence awarded and remitted the case to the trial court for imposing proper sentence under the Wild Life (Protection) Act. Challenging the judgment passed by the appellate court in the appeal and revision, the above revisions are preferred by the accused 3 to 8, before this Court. 5. The submission made by the learned senior counsel to the effect that the prosecution has not explained from where the animals are alleged to have been killed and captured by the revision petitioners and in view of the fact that both the courts below found that the revision petitioners are not guilty of the offence punishable under S.27(2)(c) of the Forest Act, their prosecution for the offence punishable under the provisions of the Wild Life (Protection) Act is also not sustainable, is of no force since if it is established by evidence that the revision petitioners have either killed or captured any of the animals described in the different Schedules of the Wild Life (Protection) Act, they are liable for punishment for the offences committed under the Act irrespective of the fact whether those animals are killed or captured from within or outside the limits of the vested forest. 6. The senior counsel argued that no offence is proved against the petitioners in this case since the prosecution has not established that the animals alleged to have been shot dead and captured in this case are included in such and such schedule of the Wild Life (Protection) Act since the punishment prescribed with regard to the animals included in different schedules is different. He submitted that in the mahazars Exts. P1 and P2 produced in this case as well as the complaint filed by the Forest Range Officer and the charge framed by the court, it is not stated that the animals fell in such and such schedule. In all these documents it is only stated that the accused have shot and killed two 'Kooraman' and captured one 'Kuttythevank' alive. In the post-mortem reports Exts. P3 and P4 it is stated within the brackets that 'Kooraman' is mouse deer. In all these documents it is only stated that the accused have shot and killed two 'Kooraman' and captured one 'Kuttythevank' alive. In the post-mortem reports Exts. P3 and P4 it is stated within the brackets that 'Kooraman' is mouse deer. In the evidence of PWs.1 to 4 and 6 it is only stated that the deers shot dead were 'Kooraman' and they have not given any description of those animals. PW5 has stated in his examination-in-chief that he has conducted post-mortem examination on the dead bodies of two Kooraman known as axis deer. But in the cross-examination it is established that he knows nothing about the zoological features and the names of mouse deer and axis deer. No evidence is adduced by the prosecution with regard to the characteristics and features of axis deer and mouse deer in this case. From the descriptions regarding axis deer and mouse deer given in Encyclopedia Britannica as well as Encyclopedia Americana, axis deer and mouse deer are entirely different species of animals. Even though the prosecution should have adduced better and acceptable evidence with regard to the variety and species of the deer involved in this case by examining an expert zoologist so that the courts could have properly and fully understood about the species of animal and analysed the contention raised by the accused in that regard, the prosecution did not apply their mind in that regard and adduce any better and reliable evidence even after the examination of PWS. At any rate, if it i s found that the petitioners have shot and killed two deers and captured one alive slender loris, the failure of the prosecution to establish the species of those animals need not detain us any more in this case since for killing of either mouse deer which is described as item 24A of Schedule I, Part I, or axis deer (Chital) in item 5, Schedule III or Loris described as item 20 in Schedule I, Part I, and capturing those animals alive, sentence of imprisonment extended to a term of two years or fine upto Rs. 2000/- or both is provided under S.51(1) of the Wild Life (Protection) Act and the provisos therein provided for minimum and enhanced sentence. 2000/- or both is provided under S.51(1) of the Wild Life (Protection) Act and the provisos therein provided for minimum and enhanced sentence. Therefore, the lengthy argument advanced by the learned senior counsel regarding the failure of the prosecution to establish the exact nature and character and species of the animals alleged to have been killed and captured in this case with reference to the description of axis deer, mouse deer etc. given in the Encyclopedia Britannica and Encyclopedia Americana, is of no significance in this case. 7. The learned senior counsel submitted that in order to attract the penal provision under S.51 of the Wild Life (Protection) Act, actual and conscious possession of the alleged animals by the petitioners should be established. In the decision in Pachiripalli Satyanarayana, In re. (1953) 1 MLJ 175 a single judge of the Madras High Court has observed as follows: "Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity to the object." 8. In the decision in Patel Jethabai v. State of Gujarat (AIR 1977 SC 294) the Supreme Court has observed that "Possession again must be distinguished from custody and it must be conscious possession". Therefore, the senior counsel submitted that unless and until it is positively established by the prosecution that the petitioners were in conscious possession of the wild animals dead and alive in this case, they cannot be held guilty of the offence punishable under the provisions of the Wild Life (Protection) Act, merely because of the fact that they were found in the jeep in which the dead bodies of the animals and the captured animal were found, since mere physical presence in proximity or near proximity of the animals in question is absolutely insufficient to establish the dominion and conscious possession of the dead and alive animals in this case. 9. 9. It is contended by the petitioners that while they were waiting for a vehicle to travel on road, the jeep belonged to and driven by the 1st accused came through the road and they got into the jeep and travelled in the jeep absolutely unaware of the fact as to what was carried in the jeep and they cannot be held reasonable for any offence under the Wild Life (Protection) Act or any other law for carrying contraband articles in the jeep. The petitioners have not explained as to why they were travelling in the jeep at that odd hour at about 4.30 am on that day. The petitioners have absolutely no contention that due to any previous enmity or personal grudge against them, PW6 and other forest officials deliberately implicated them in this false case alleging offence punishable under the Wild Life (Protection) Act. Their only contention is that they were innocent travelers in the jeep unaware of the article carried by accused 1 and 2 in the jeep. 10. PW2, the forester has deposed that he cannot say when, from where and how the petitioners herein got into the jeep. PW6, the Range Officer has also deposed that he cannot say how the petitioners got into the jeep. Therefore, the learned senior counsel submitted that the evidence of PWs. 2 and 6 the very important prosecution witnesses in this case establishes that they were only casual or accidental travelers in this case and they were not parties to the alleged killing and capture of the animals or possessing the same. It is the case of the prosecution that when the forest officials got information about hunting in the vested forest area they went for search and found the petitioners along with accused 1,2 and 9 in the jeep along with the weapons and the dead bodies of two deers and one live loris. Therefore, due to the mere fact that PW2 and PW6 were not able to mention how, when and from where the petitioners got into the jeep, it cannot be contended that the petitioners were not in dominion or conscious possession of the dead bodies of the animals and the live animal in this case. 11. It is true that the dead bodies and the live animal were kept concealed in the jeep in plastic bag and covered in a bath towel. 11. It is true that the dead bodies and the live animal were kept concealed in the jeep in plastic bag and covered in a bath towel. Due to that fact the learned senior counsel for the petitioners has advanced an argument that the petitioners wife not in conscious possession or dominion of the animals in this case. 12. Under S.57 of the Wild Life (Protection) Act there is a presumption that it is established that a person is in possession, custody or control of any captive animal, animal article, meat, trophy or uncured trophy, it shall be presumed that such person is in unlawful possession, custody or control of such captive animal, animal article, meat, trophy or uncured trophy and the burden of proving the contrary is on the accused. S.57 of the Act reads as follows: "57. Presumption to be made in certain cases:- Where, in any prosecution for one offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, trophy or uncured trophy, it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat, trophy or uncured trophy". Therefore, it is clear from the provisions of S.57 of the Act that if it is established that a person is in possession, custody or control of any captive animal, animal article, meat etc., there is a legal presumption against him that he is in unlawful possession,' custody or control of such captive animal, meat etc., until the contrary is proved by that person. Under the provisions of S.57 the presumption can be raised if the person is in possession, custody or control of any captive animal, animal article, meat etc. and for drawing that presumption it is not necessary that the person should be in possession of the captive animal, animal article, meat etc. with complete dominion over the animal or the article and conscious possession of the same and mere custody or control over the captive animal, animal article, meat etc. is sufficient to draw the presumption against the person in possession of the captive animal, animal article, meat etc. with complete dominion over the animal or the article and conscious possession of the same and mere custody or control over the captive animal, animal article, meat etc. is sufficient to draw the presumption against the person in possession of the captive animal, animal article, meat etc. Therefore, the contention of the revision petitioners that merely because of the fact that the petitioners were in proximity or near proximity of the animals in the jeep. itis absolutely insufficient to fasten the criminal liability upon the revision petitioners under S.51 of the Act since the prosecution has not established dominion and conscious possession of the animals, is not sustainable. Apart from contending that they were not aware of the presence of the dead animals and the live animal in the jeep, the petitioners have not offered any explanation with regard to the custody of those animals in the jeep in which they were travelling along with a gun, three dismantled guns, pellets and other accessories. 13. In the decision in Pyarelal v. State (Delhi admn.) (AIR 1995 SC 1159) the apex court has observed as follows: "The evidence of PW1 establishes that the appellant was found in possession of trophies. S.44 prohibits any dealing in such trophies without licence and S.49 of the Act lay s down that no parson shall purchase, receive or acquire any captive animal, wild animal other than vermin or any animal article, trophy, uncured trophy, or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this Act. PW1 is an experienced and specially trained officer. His evidence thus establishes that the accused was in possession of those trophies and all the Courts below have accepted the same. 4. Now coming to the sentence, we are of the view that only the first part of sub-s.(1) of S.51 is attracted and not the proviso. There is no evidence whatsoever when the accused came into possession. No doubt it was for the accused to have given an explanation, but what is clear from the evidence is that there is only a contravention, namely that a declaration as required under S.40 was not made and that the act of dealing in the trophies by the appellant was without a licence." 14. No doubt it was for the accused to have given an explanation, but what is clear from the evidence is that there is only a contravention, namely that a declaration as required under S.40 was not made and that the act of dealing in the trophies by the appellant was without a licence." 14. From the above decision it is clear that when a person is found to be in possession of any animal article, trophy, meat etc. the burden is upon him to offer an explanation with regard to the possession of those articles. Therefore, in the absence of any explanation offered by the petitioners with regard to the possession, custody or control of the dead bodies of two deers and the captive slender loris, the legal presumption of possession, custody or control of these animals has to be drawn against the petitioners under S.57 of the Act and the Courts below were fully justified in finding that they were in possession of those animals so as to attract the provisions of S.9 punishable under S.51 of the Act. 15. The prosecution has relied upon the alleged admission made by the petitioners before PW6 when they were questioned by him before their arrest with regard to the killing of the deers and capture of the slender loris. Exts. P5 to P10 are the admissions made by the petitioners alleged to have been recorded by PW6. The petitioners have vehemently contended that they have not given any such statements and Exts. P5 to P10 are not proved to be the admissions made by them before PW6 and those alleged admissions are not put to them when they were questioned under S.313 of Cr.P.C. and as such Exts. P5 to P10 cannot be pressed into service against them to find them guilty in this case. It is argued by the learned senior counsel appearing for the petitioners that Exts. P5 to P10 are not proved as the admissions made by the petitioners herein. According to him, Exts. P5 to P10 are identical statements created by the prosecution for the purpose of this case. He also argued that while PWs.1, 2 and 4 have deposed that Exts. P5 to P10 are recorded by PW6, PW6 has deposed that they were recorded by PW2 Forest Guard as dictated by him. According to him, Exts. P5 to P10 are identical statements created by the prosecution for the purpose of this case. He also argued that while PWs.1, 2 and 4 have deposed that Exts. P5 to P10 are recorded by PW6, PW6 has deposed that they were recorded by PW2 Forest Guard as dictated by him. Therefore, according to him, as the very factum of recording those statements is not proved and in fact conflicting evidence is adduced regarding that aspect, Exts. P5 to P10 should have been di scared by the lower courts in this case. He also submitted that the alleged admissions Exts. P5 to P10 are not put to the petitioners by the Court when they were questioned under S.313 of Cr.P.C. Therefore, according to him, Exts. P5 to P10 should be discarded. 16. A perusal of the evidence of PWs.1, 2,4 and 6 establishes that there is discrepancy in their evidence with regard to the person who recorded the statements of the revision petitioners. It is also clear from the questions put by the court to the revision petitioners under S.313 of Cr.P.C. that apart from stating that Exts. P5 to P10 are their statements recorded by PW6, the contents of Exts. P5 to P10 are not put by the court to the revision petitioners. Therefore, I find force in the contention raised by the counsel for the revision petitioners against placing reliance upon Exts. P5 to P10, the alleged statements of the revision petitioners recorded by PW6. 17. It is clear from the evidence on record that even if no reliance is placed upon Exts. P5 to P10 statements alleged to have recorded by PW6 from the revision petitioners, there is sufficient and satisfactory evidence on record beyond reasonable doubt to establish that the revision petitioners were in possession, custody or control of the dead bodies of two deers shot and killed and a live captive slender loris in the jeep in which they were travelling at a very odd hour in the night in the forest area. When the forest officers intercepted them the petitioners have not offered any satisfactory evidence with regard to the possession, custody or control of those animals in the jeep in which they were travelling at that time apart from contending that they were innocent travelers in the jeep, which is found to be unsustainable. When the forest officers intercepted them the petitioners have not offered any satisfactory evidence with regard to the possession, custody or control of those animals in the jeep in which they were travelling at that time apart from contending that they were innocent travelers in the jeep, which is found to be unsustainable. The petitioners have no case that the forest officers have foisted a false case against them due to any previous ill will or animosity against them. Therefore, it is clear that the petitioners are guilty of the offences punishable under Ss.9, 50 and 51 of the Wild Life (Protection) Act. 18. The sentence of rigorous imprisonment for six months each and fine of Rs. 1000/- each with default sentence of simple imprisonment for three months each for the offences punishable under Ss.9(2) and 50(1)(c)r/w S.51 of the Wild Life (Protection) Act awarded by the trial court found to be inadequate in this case by the appellate court and by the impugned judgment the appellate court has remitted the case to the trial court to consider the matter afresh with regard to the sentence and to impose appropriate sentence. The Senior counsel for the petitioners submitted that the petitioners were very young when the offences were alleged to have committed on 31.1.87 and they were now well settled in life and leading a happy life with their wife and children and if they are sent to jail at this distant point of time, the families of all the petitioners will be wrecked and ruined and therefore, he submitted that if at all this Court finds that the revision petitioners are guilty of the offence alleged against them, the sentence to be awarded to them may be confined to imposition of fine since sentence of imprisonment is not mandatory under S.51(1) of the Wild Life (Protection) Act. S.51(1) of the Wild Life (Protection) Act stipulates sentence of imprisonment for a term which may extend to two years or with fine which may extend to Rs. 2000/-or with both. The first proviso to that section mandates that if the offence committed is in relation to any animal specified in Sch. I or Part II of Sch. II or meat etc. 2000/-or with both. The first proviso to that section mandates that if the offence committed is in relation to any animal specified in Sch. I or Part II of Sch. II or meat etc. of such animal or the offence is related to hunting in a sanctuary or a National Park, a minimum sentence of imprisonment for a term not less than six months and with fine not less than five hundred rupees as well as enhanced maximum sentence of imprisonment of six years is provided. As per the second proviso, in the case of a second or subsequent offence of the nature mentioned in sub-s.(1) of S.51 and the first proviso, a minimum sentence of imprisonment of not less than one year and a fine not less than one thousand rupees is provided. As it is clear from the evidence on record that the prosecution has not adduced satisfactory evidence to prove that the hunting was in a sanctuary or National Park or with regard to the exact nature and species of the animals killed and captured in this case so as to find out whether they were animals specified in Sch. I Part II or Sch. II of the Act, the first proviso to S.51(1) of the Act providing enhanced sentence including mandatory imprisonment is not attracted. The prosecution has no case that the petitioners herein were involved in any other previous crime of simil ar nature coming within the ambit of S. S.51(1) of the Wild Life (Protection) Act. Therefore, the second proviso to S.51(1) of the Act providing compulsory imprisonment and enhanced sentence also is not attracted in this case. 19. Considering the submissions made by the learned senior counsel for the petitioners and also the fact that the petitioners have been undergoing the ordeal of trial in this case from the year 1987 onwards, I find imposition of sentence of imprisonment till raising of the court and direction to pay a heavy amount being compensation to the state for killing and capturing the animals as provided under S.357(3) of the Cr.P.C. will meet the ends of justice in this case. Hence the findings arrived at by the courts below that the revision petitioners are guilty of the offences punishable under Ss.9(2) and 50(1)(c) r/w S.51 of the Wild Life (Protection) Act are confirmed and they are convicted and sentenced to undergo imprisonment till raising of the court and to pay a compensation of Rs. 5000/- each to the State under S.357(3) of the Cr.P.C. The compensation awarded should be paid within two weeks from this date, in default of payment of compensation the petitioners are directed to undergo simple imprisonment for six months each. The petitioners are directed to appear before the trial court to receive the sentence on 12.7.1999.