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2020 DIGILAW 840 (KER)

Sasi, S/o. Parameswaran v. State Of Kerala

2020-10-08

N.ANIL KUMAR

body2020
ORDER : The question presented for determination in this Criminal Revision Petition is whether the reception of evidence to prove an identical fact, which has been the subject matter of an earlier finding between the same parties, has been excluded on the ground that it was part of the evidence given for the prosecution at the former trial, at which the accused were charged. 2. The revision petitioners 1 and 2 were the appellants 1 and 2 respectively in Crl.A.No. 299/2010 on the file of the Additional Sessions Court (ADHOC-II), Thodupuzha and the accused in C.C.No.784/2002 on the file of the Judicial First Class Magistrate Court, Kattappana. Both the revision petitioners were chargesheeted by the Assistant Wild Life Warden, Idukki Wild Life Sanctuary in O.R.No. 1/2001 on the allegation of the commission of offences punishable under Sections 9(2), 27(1), 29(1) and 31 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the Wild Life Act'). 3. The prosecution case unfolded during the trial of the case is as hereunder:- Idukki Wild Life Sanctuary is a reserve forest within the natural habitat that has high degree of protection from any kind of hunting and poaching. On 15.4.2001, early in the morning at 2.30 a.m., both the accused trespassed into Idukki Wild Life Sanctuary and hunted down a barking deer or muntjac (Muntiacus muntjak), which is a special animal shown in Schedule III of the Wild Life Act as Item No.2 near Vagavanam Watch Tower in Kizhukanam Section of Idukki Wild Life Sanctuary. The first accused was found in possession of a gun and the second accused was found in possession of the carcass of the barking deer without requisite permit under the Wild Life Act and thereby, both of them have committed the offences punishable under Sections 9(2), 27(1), 29(1) and 31 of the Wild Life Act. 4. A complaint was filed by the Assistant Wild Life Warden, Idukki before the Judicial First Class Magistrate Court, Peermade alleging the aforesaid offences against accused 1 and 2. After completing all the legal formalities, the case was registered as C.C.No.158/2002. Later the case was transferred to the Judicial First Class Magistrate Court, Kattappana and re-registered as C.C.No.784/2002. 5. On the appearance of the accused, PWs.1 to 4 were examined and marked Exts.P1 to P7. After completing all the legal formalities, the case was registered as C.C.No.158/2002. Later the case was transferred to the Judicial First Class Magistrate Court, Kattappana and re-registered as C.C.No.784/2002. 5. On the appearance of the accused, PWs.1 to 4 were examined and marked Exts.P1 to P7. On finding sufficient grounds to frame the charge, the learned Magistrate framed the charges under Sections 9(2), 27(1), 29(1) and 31 of the Wild Life Act against the accused. Later, after having heard both sides, the charge was amended for the offences punishable under Sections 27(1)(e)(iv) of the Kerala Forest Act, Sections 9, 27(1), 29 and 31 read with Section 51 of the Wild Life Act. The charge was read over to which the accused 1 and 2 pleaded not guilty. 6. During the trial of the case, PWs.1 to 4 were examined and marked Exts.P1 to P7 on prosecution side. After the closure of the prosecution evidence, they were questioned under Section 313(1)(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. However, no defence evidence was adduced. 7. The learned Magistrate, on appreciation of evidence mainly under six points, found the accused 1 and 2 guilty and convicted and sentenced them to undergo simple imprisonment for one year and to pay a fine of Rs.5000/-each, in default to undergo simple imprisonment for 3 months each for the offence under Section 27(1)(e)(iv) of the Kerala Forest Act. For each of the offence under Sections 9, 27(1),29 and 31 read with Section 51 of the Wild Life Act, both the accused were sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs.1250/-each, in default, to undergo simple imprisonment for three months each more. The above sentences were ordered to run concurrently. Set off was allowed under Section 428 of Cr.P.C. Feeling aggrieved, both the accused preferred Crl.A.No.299/2010 before the Sessions Court, Thodupuzha and the learned Sessions Judge made over the case to the Additional Sessions Court (Adhoc-II), Thodupuzha for disposal. By its judgment dated 25.1.2012, the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed against the revision petitioners 1 and 2. Hence, the revision petitioners 1 and 2 are before this Court. 8. Heard Sri.S.Rajeev, the learned counsel appearing for the revision petitioners and Sri.B.R.Muraleedharan, the learned Senior Government Pleader for Forest. 9. By its judgment dated 25.1.2012, the learned Additional Sessions Judge dismissed the appeal confirming the order of conviction and sentence passed against the revision petitioners 1 and 2. Hence, the revision petitioners 1 and 2 are before this Court. 8. Heard Sri.S.Rajeev, the learned counsel appearing for the revision petitioners and Sri.B.R.Muraleedharan, the learned Senior Government Pleader for Forest. 9. The learned counsel for the revision petitioners submitted that a separate case under the Arms Act was registered against the accused 1 and 2 as Crime No.71/2001 of the Upputhara Police Station for the offence punishable under Section 3 read with Section 25 (1-B) of the Arms Act, 1959 (for short 'the Act') consequent to the recovery of the gun from the first accused. By its judgment dated 22.2.2008, the learned Judicial First Class Magistrate, Kattappana framed charges against the accused 1 and 2 for the offences punishable under Section 3 read with 25(1-B) of the Act and after the trial, they were acquitted of the charges levelled against them. Further, there are discrepancies in the evidence of PWs.1 to 4 regarding the manner in which occurrence took place, and even as per the allegations, it was the second accused, who had hunted down the animal and no offence under Sections 9 and 29 of the Wild Life Act would be attracted as against the first accused. It is further contended that the prosecution has not proved the Government Notification issued under Section 19 of the Wild Life Act to prove that the occurrence took place within the reserve forests as defined under the Wild Life Act. 10. Per contra, Sri.B.R.Muraleedharan, the learned Senior Government Pleader for Forests appearing for the respondent submitted that the courts below had concurrently found that the case against them has been proved. It is further submitted that the provisions contained in Section 3 r/w Section 25(1-B) of the Act do not operate as a bar against the prosecution of the accused 1 and 2, who are charged with the allegations, which constitute an offence or offences under other laws including the Forest Act and Wild Life Act. 11. PWs.2 and 4 testified that on 15.4.2001, while they were conducting night patrol duty in the Idukki Wild Life Sanctuary, they heard the sound of a gunshot near Vagavanam Watch Tower. Then they found two persons running around the sanctuary area. 11. PWs.2 and 4 testified that on 15.4.2001, while they were conducting night patrol duty in the Idukki Wild Life Sanctuary, they heard the sound of a gunshot near Vagavanam Watch Tower. Then they found two persons running around the sanctuary area. PWs.2 and 4 identified the accused before the court. According to them, while so, the first accused was holding a gun and the second accused was holding a carcass of an animal and on seeing them, they immediately left the gun and the carcass of the animal in the forest and ran away from the place. However, PWs.2 and 4 chased them and caught hold of them. The gun and the carcass, which were found in the possession of the first accused and second accused respectively, were recovered in accordance with law, which were later identified by them as barking deer or muntjac (Muntiacus muntjak) as per Ext.P2 mahazar. They arrested the accused and came to the office and prepared Ext.P3 Form-I (Forest Offence Seizure Report (Preliminary). On being questioned, the first and second accused confessed their guilt. Both the accused were arrested at the place of occurrence and were taken to PW3-the Assistant Wild Life Warden, Idukki. Consequently, Exts.P5 and P6 confession statements of accused 1 and 2 respectively were recorded. Thereafter, PW3 completed the investigation and submitted the complaint before the court. 12. PW1 is the Doctor, who examined the body of the barking deer. He issued Ext.P1 Postmortem Certificate. Form I report was marked as Ext.P3 and the copy of the Notification was marked as Ext.P4. The country made gun, which was seized from the first accused was delivered to the Circle Inspector of Police, Peermade for taking further proceedings under the Act and the receipt for the same was marked as Ext.P7. In C.C.No.294/2003, in connection with this occurrence, the Judicial First Class Magistrate Court acquitted accused 1 and 2 for the offences punishable under Section 3 read with Section 25(1-B) of the Act. The prosecution case in the said case is that both the accused trespassed into Idukki Wild Life Sanctuary on 15.4.2001 at 2.30 am by keeping a rifle in their possession without having licence or other means of authorisation and killed a 'Kezhaman' (a kind of reddish deer-barking deer). By its judgment dated 22.2.2008, both the accused were acquitted. 13. The prosecution case in the said case is that both the accused trespassed into Idukki Wild Life Sanctuary on 15.4.2001 at 2.30 am by keeping a rifle in their possession without having licence or other means of authorisation and killed a 'Kezhaman' (a kind of reddish deer-barking deer). By its judgment dated 22.2.2008, both the accused were acquitted. 13. One of the points raised in this revision is regarding the scope and ambit of doctrine of double jeopardy. The rule against double jeopardy provides foundation for the pleas of 'autrefois acquit' and 'autrefois convict'. The manifestation of this rule is founded in Section 300 of Cr.P.C., Section 26 of the General Clauses Act and Section 71 of the Indian Penal Code and Article 20(2) of the Constitution of India. 14. Section 300 of the Cr.P.C. embodies in the statutory form, the accepted English rule of autrefois acquit. The Section reads thus:- “300 (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under subsection (1) of S.221, or for which he might have been convicted under subsection (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under subsection (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first mentioned court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897), or of S.188 of this Code. Explanation-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section." Section 26 of the General Clauses Act which is referred to in Section 300(6) of the Cr.P.C. reads as hereinbelow:- “Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.” Section 71 of the Indian Penal Code reads thus:- “71. Limit of punishment of offence made up of several offences.—Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.” In this connection, Article 20(2) of the Constitution of India is also important. The said provision reads as hereunder:- “No person shall be prosecuted and punished for the same offence more than once.” 15. The said provision reads as hereunder:- “No person shall be prosecuted and punished for the same offence more than once.” 15. In Pritam Singh and another v. the State of Punjab [ AIR 1956 SC 415 ], it was held that the effect of a verdict of acquittal passed by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence and to that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. In that case, the appellant had been acquitted of the charge under Section 19(f) of the Arms Act for possession of a revolver. There was a subsequent prosecution of the appellant for an offence under S.302, Indian Penal Code and the possession of the revolver was a fact in issue in the latter case which had to be established by the prosecution. It was held that the finding in the former trial on the issue of possession of the revolver will constitute an estoppel against the prosecution, not as a bar to the trial and conviction of the appellant for a different offence but as precluding the reception of evidence to disturb the finding of fact. 16. In Manipur Administration, Manipur v. Thokchom Bira Singh [ AIR 1965 SC 87 ], Lalta and Others Versus State of U.P. [1970 KHC 718] and Sangeetaben Mahendrabhai Patel Versus State of Gujarat & Anr.,[(2012) 7 SC 2844], the Apex Court followed Pritam Singh's case (supra) and held that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of their evidence to disturb the finding of fact when the accused is tried subsequently even for a different offence. Of course, this rule is distinct and separate from the doctrine of double jeopardy as it does not prevent trial of any offence but only precludes the evidence being led to prove a fact in issue as regards, which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus the rule relies only to the admissibility of evidence, which is designed to upset a finding of fact recorded by a competent court in a previous trial on the very same facts. 17. In T.S.Baliah v. T.S.Rengachari [(1969)3SCR 65], State of Bombay v. S.L.Apte & another [ (1961)3 SCR 107 ], V.K.Agarwal, Asst.Collector of Customs v. Vasantraj B. Bhagwanji Bhatia [ (1988)3 SCC 467 ], State of Bihar v. Murad Ali Khan [(1988)4 SCC 655], State of Rajasthan v. Hat Singh [(2003)2 SCC 152] and the Institute of Chartered Accountants of India v. Vimal Kumar Surana [ (2011)1 SCC 534 ], the Apex Court held that if there are two distinct and separate offences with different ingredients under two different enactments, there is no bar against the prosecution of the accused under two different enactments. Thus it is clear that the rule of issue-estoppel shall not be confused with that of res judicata, which in criminal proceedings are expressed in terms of 'autrefois acquit' and 'autrefois convict'. The rule of issue of estoppel is concerned with the judicial establishment of a proposition of law or fact between the parties, which control the relitigation of the issues, which are settled by prior litigation. 18. In the case on hand, the possession of the gun was a fact in issue, which had to be established by the prosecution before the accused 1 and 2 could be convicted for the offences with which they had been charged. That fact was found against the prosecution in the former case. The gun was marked as MO1 through PW4 in C.C.No.294/2003. In paragraph 9 of the judgment, the learned Magistrate had gone into a finding that the prosecution had not succeeded in proving the fact that the accused 1 and 2 were found in possession of MO1 gun as alleged by the prosecution on 15.4.2001 at 2.30 a.m. within the Idukki Wild Life Sanctuary as alleged by the prosecution in the said case. In the above circumstances, recovery of the gun from the custody of the first accused could not be proved against the accused in this proceeding between the State and the accused. 19. Of the four witnesses examined by the prosecution, PW2 Sathyaraj along with PW4 detected the offence. PWs.2 and 4 proved the arrest of the accused on the spot. But, the crucial question is whether the accused were arrested at the reserved forest as alleged by the prosecution. To initiate a prosecution under Section 27 of the Kerala Forest Act, 1961 as regards the reserved forest, it is mandatory on the part of the prosecution to produce Government Notification issued under Section 19 of the Act. Ext.P4 is neither the original nor a certified copy. It is only a copy of the notification signed by the Chief Conservator of Forest. This is not seen certified as true copy by anybody. Just because it contains the seal of an officer, it cannot be said to be a true copy or a copy certified by him. In Kanthaswami v. State of Kerala [ 2019 (2) KLT 113 ], this Court held that the notification, as required under Section 19 of the Act, has to be proved in accordance with law. The notification has not been proved in this case. There is no evidence to show that the alleged occurrence took place within the reserve forest as detailed in Ext.P4 notification. 20. Further, the prosecution relied on Exts.P5 and P6 confession statements given by the accused. These statements would show that the statements were recorded by PW3. However, the statements do not contain the date of recording of such statement by PW3. Mere marking of Exts.P5 and P6 are not sufficient to prove the confession statements given by the accused. 21. In view of the discussions made hereinabove, this court is of the view that the recovery of gun from the spot as spoken to by PWs.2 to 4 was an issue which has been distinctly raised and found against the prosecution in the former case. Once that is done, so long as the finding stands, the prosecution is precluded from adducing evidence inconsistent with the finding in this case between the same parties. Further, the prosecution failed to prove the notification issued under Section 19 of the Act. Once that is done, so long as the finding stands, the prosecution is precluded from adducing evidence inconsistent with the finding in this case between the same parties. Further, the prosecution failed to prove the notification issued under Section 19 of the Act. Exts.P5 and P6 confession statements are not properly and legally proved for making it admissible in evidence. Resultantly, the conviction against the revision petitioners cannot be sustained on merits. 22. For the reasons aforementioned, this Criminal Revision Petition is allowed. The revision petitioners are found not guilty for the offences punishable under Section 27(1)(e)(iv) of the Kerala Forest Act, Sections 9, 27(1), 29 and 31 read with Section 51 of the Wild Life Act and they are acquitted thereunder. Cancelling their bail bonds, this Court directs that they be set at liberty. If any fine amount is deposited during the pendency of this revision by the revision petitioners, pursuant to the interim order passed by this Court, the same shall be refunded to the revision petitioners in accordance with rules. Pending applications, if any, stand disposed of.