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2020 DIGILAW 903 (KER)

BABU S/O MARCHOSE v. STATE OF KERALA

2020-10-28

N.ANIL KUMAR

body2020
ORDER : 1. This Criminal Revision Petition is directed against the judgment dated 23.05.2003 in Crl. Appeal Nos. 47/2000, 44/2000 and connected cases on the file of the Additional Sessions Judge (Ad-hoc), Kalpetta, confirming the conviction and sentence rendered in C.C No. 671/1996 on the file of the Judicial First Class Magistrate Court, Sultan Bethery. The revision petitioners are accused Nos. 1 and 4 in C.C. No. 671/1996 on the file of the Judicial First Class Magistrate Court, Sultan Bethery and the 1st appellant in Crl. Appeal No. 47/2000 and the appellant in Crl. Appeal No. 44/2000 respectively on the file of the Additional Sessions Judge (Ad-hoc), Kalpetta. The offences alleged against the accused are punishable under Sections 9, 29, 31, 40(2) and 49-B(ia) read with Section 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as ‘the Act’). 2. The prosecution case in brief is hereunder: On 06.07.1995, while the forest guards, Kurichiat Section were engaged in patrol duty in and around the reserved forest, they had located carcass of a wild elephant at Dhodakulasi in Kurichiat reserve forest in Wynad Wild Life Sanctuary. They had noticed that the tusk of the elephant was removed and the elephant was killed by gun shot on its head. Immediately the forest officials informed the occurrence to the Assistant Wild Life Warden, Kurichiat who registered Form-I report as O.R. 9/95. On the next day, the Assistant Wild Life Warden inspected the place and made a request to the Veterinary Surgeon for conducting postmortem examination. The investigation in this case revealed that the accused 1 to 5 had hunted the elephant on 1.7.1995 and removed the tusks. During investigation, it was further disclosed that the accused had hunted a wild elephant on 30.6.1995 from Karnataka Forest. The tusk of the said elephant was also collected by the accused. It is further alleged that the accused 1 to 5 reached the house of the 2nd accused and the 6th accused came in his autorikshaw bearing Registration No. K.L. 10B/4029 and assisted the other accused to remove the tusks to the house of the 3rd accused. The 3rd accused contacted the 7th accused at Trivandrum. The 7th accused purchased the tusks for consideration of Rs. 22,500/- and took tusks to Thiruvananthapuram. The tusks were seized from the house of the 7th accused. The 3rd accused contacted the 7th accused at Trivandrum. The 7th accused purchased the tusks for consideration of Rs. 22,500/- and took tusks to Thiruvananthapuram. The tusks were seized from the house of the 7th accused. The 7th accused was further found in possession of trophies made in ivory and they were also seized. 3. The crime was registered against the accused for the offences under Sections 9, 29, 31, 40(2) and 49-B(ia) read with Section 51 of the Act. 4. During the trial of the case, PWs. 1 to 10 were examined and marked Exts.P1 to P20 and MOs.1 to 24 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. 5. Heard the learned counsel for the revision petitioners/accused 1 and 4 and the learned Public Prosecutor for the State. 6. Coming to the evidence let in this case PWs. 1 and 2 adduced evidence to show that on 06.07.1995 they were conducting patrol duty within the reserved forest in Kurichiat Section. According to them, while so, they found the carcass of a wild animal at Dhodakulasi. According to them, an elephant was shot dead on its head and its tusks were removed. The carcass was of 5 days old and it was that of a male elephant. Accordingly, PW-1 prepared Ext.P1 mahazar and returned to the forest office. On the next day, the occurrence was informed to PW-2, the Assistant Wild Life Warden. Consequently, PW-2 registered Ext.P7 Form-I report as O.R. 9/95. PWs. 1, 2 and 4 again proceeded to the spot along with PW-3, a Veterinary Surgeon. Ext.P2 mahazar was prepared on 07.07.1995. PW-3 conducted postmortem examination on carcass and issued Ext.P8 postmortem certificate. According to PW-3, the carcass was that of a male elephant aged 10 years. The head was broken. 7. During investigation PW-2 arrested the 1st accused on 10.7.1995 at his residence and MO7 gun was recovered from the house of the 1st accused after preparing Ext.P3 mahazar. On the very same day, the Forest Officials went to the house of the 2nd accused. The wife of the 2nd accused produced MO8 gun, MO9 axe, MO10 chopper, MO11 saw and MO12 pellets to PWs. 1 to 4. On the very same day, the Forest Officials went to the house of the 2nd accused. The wife of the 2nd accused produced MO8 gun, MO9 axe, MO10 chopper, MO11 saw and MO12 pellets to PWs. 1 to 4. MO1 balance, MO2 horn of bison, MO3 lead shots, MO4 big-shopper, MO5 common balance, and MO6 series weights were seized from the house of the 3rd accused by Ext.P5 mahazar. By the time the 4th accused was also arrested. The confession statements of the accused were also recorded. 8. Relying on the confession statements of the accused 1 and 4, the Forest Officials had come to an initial conclusion that the accused hunted a wild elephant from Karnataka Forest initially and on the next day, the 1st accused fired the gun and killed a wild elephant from Kurichiat forest. The tusk was cut into pieces and appropriated the same. 9. Ext.P8 is the confession statement given by the 1st accused. On the basis of the confession statement from the 1st and 4th accused the house of the 1st accused was searched on 10.7.1995 and MO7 gun was seized as per Ext.P3 seizure mahazar. The 4th accused gave Ext.P11 confession statement on 10.07.1995 at the reserved forest at Dhodakulasi. The 4th accused stated that the fire arm and implants were kept in the house of the 2nd accused. Accordingly MO8 gun, MO9 axe, MO10 chopper, MO11 saw and MO12 series pelletes were recovered from the house of the 2nd accused. It is true that the confession statements of the 1st and 4th accused were recorded during the investigation. The confession statement itself is not an evidence unless it is corroborated by other material evidence. PW-2, who recorded the confession statements, did not adduce any evidence before the trial court to prove the contents of the confession statements recorded. When the prosecution relies on the confession statement of the accused, the statement must be proved by the person who recorded the statement. Merely marking a statement will not suffice to prove a statement of confession. [Vide Rajan vs. State of Kerala, 2018 (3) KLT 422 ]. Material objects were not proved before the trial court to show that the accused 1 and 4 were instrumental in killing an elephant within the reserved forest. No medical experts were examined to substantiate the allegations. Merely marking a statement will not suffice to prove a statement of confession. [Vide Rajan vs. State of Kerala, 2018 (3) KLT 422 ]. Material objects were not proved before the trial court to show that the accused 1 and 4 were instrumental in killing an elephant within the reserved forest. No medical experts were examined to substantiate the allegations. MO13 pieces of tusks (4 in number) and MO14 pieces of tusks (4 in number) were produced before the court. There is nothing on record to infer that MOs.13 and 14 pieces of tusks are that of the very same elephant killed in this case. The gun allegedly recovered from the accused was not examined by an expert to compare with MO3 lead shots. There is no evidence to show that MO3 lead shots were kept as a fire arm for the use of the gun recovered. 10. Relying on the decision reported in Chacko Pyli and Others vs. State of Kerala, 1966 KLT 102 , it is contended that in case when the original is a public document within the meaning of Section 74 of the Evidence Act or in case when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence, it is mandatory under Section 65 of the Evidence Act to prove the document in accordance with law and no other kind of secondary evidence is admissible. 11. Per contra, the learned Senior Public Prosecutor submitted that it is not practically possible to produce the original notification invariably in all forest cases as evidence. It is further submitted that examination of Chief Conservator of Forest to prove the notification is practically not possible. It is further submitted that being a notification issued in the Gazette, the Court is empowered to take judicial notice under Section 57 of the Evidence Act. What has been produced is the copy of the notification duly signed by the Wildlife Warden, Wynad Wildlife Sanctuary in exercise of his official functions, it has been submitted. 12. It is further submitted that being a notification issued in the Gazette, the Court is empowered to take judicial notice under Section 57 of the Evidence Act. What has been produced is the copy of the notification duly signed by the Wildlife Warden, Wynad Wildlife Sanctuary in exercise of his official functions, it has been submitted. 12. Section 25-B of the Wild Life (Protection) Act, 1972 defines the term ‘reserve forest’ which is stated as hereunder: “(25B) “reserve forest” means the forest declared to be reserved by the State Government under section 20 of the Indian Forest Act, 1927 (16 of 1927), or declared as such under any other State Act.” 13. Section 26-A(b) of the Wild Life (Protection) Act, 1972 mandates that any area comprised within any reserve forest or any part of the territorial waters, which is considered by the State Government to be of adequate ecological, faunal, floral, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wild life or its environment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which shall be comprised within the sanctuary and declare that the said area shall be sanctuary. By virtue of Section 18 of the Wild Life (Protectioni) Act, the powers given to the State Government to declare an area as sanctuary and the notification referred to sub-section 1 in Section 18 shall specify the situation and limits of such area. 14. Ext.P16 is the notification under the provisions of Section 16 of the Madras Forest Act (Act V of 1882) notifying Kurichiat reserved forest under the said Act. Ext.P17 is the abstract issued by the Deputy Secretary to Government to prove creation of separate Wild life Wing in Parambikulam and Wynad as per G.O. (Ms) No. 152/85/AD dated 10.5.1985. 15. Ext.P16 is a notification issued under Section 16 of the Madras Forest Act (Act V of 1882) dated 31.3.1885 specifying Kurichiat Reserve Forest, Ganapati Vattom, Wynad Taluk, Malabar District as reserved forest. In Ext.P16 notification the boundaries are clearly specified. The following are the boundaries of the Kurichiat Reserved Forest: “North: Mysore territory South: From the Puthadi amsom boundary where the road from Chedleth to Manantoddy via. In Ext.P16 notification the boundaries are clearly specified. The following are the boundaries of the Kurichiat Reserved Forest: “North: Mysore territory South: From the Puthadi amsom boundary where the road from Chedleth to Manantoddy via. Panamaram crosses along the same road to the junction of the roads from Kurichiat, Chedleth and Manantoddy; then along the Kurichiat road for a short distance and then to the corner of Nillipatta vayal No. 718, thence along the borders of Nos. 718, 758, 762, 763, 762 again; 764, 766 and 764 again upto the corner No. 764, then straight across in an Easterly direction, cutting the desom boundary between Chenad and Vadakkanad to the northern corner of Mangalam vayal No. 767 along the borders of Nos. 767 and 768 from the corner of which the boundary follows the course of the stream to No. 769-A and then along the border of Nos. 769, 770, 771 and 774; thence in a direct line to the bend of the swamp between Ichakunnu and Karuppur vayals; thence in a straight line to No. 791C and along the borders of Nos. 791 D. and 791 again to a point close to No. 791E, and from No. 791 to the corner of No. 792 and from this round the bend of the swamp near it thence along the borders of the said swamp upto Vedapallam Vayal Nos. 804 and 803. East: From Vadapallam Vayal Nos. 804 and 803 near the corner of the swamp then along Nos. 804, 803A thence to N.803 again and from the corner of No. 803 to the road from Sultans Battery to Bankavadi. West: The Puthadi Amsom boundary. Remarks: (a) The right of way from Pambara to Gundri which crosses the extreme north-west corner of this block has been admitted until a substitute has been provided by the Forest Department. (b) The present occupants of survey Nos. 703, 709, 710, 711, 712, 713, 714-A, 714-B, 715, 716 and 717 will be permitted to gather the produce of their coffee and fruit trees growing on the said holdings for a period of five years ending 31st March 1890, on free permit to be granted by the forest authorities. (c) The Jain and Bet kurambas residing in this block are permitted to continue therein and to enjoy their present privileges until they have been provided for elsewhere. Meantime, they will be tenants-at-will of the Forest Department. (c) The Jain and Bet kurambas residing in this block are permitted to continue therein and to enjoy their present privileges until they have been provided for elsewhere. Meantime, they will be tenants-at-will of the Forest Department. This remark applies equally to blocks II and III. (d) The right of way from Chedleth to Panamaram has been admitted.” 16. Ext.P17 is a copy of the Government Order. Ext.P16 is a copy of notification signed by the Wildlife Warden, Wynad Wildlife Sanctuary. Both are not certified copies. 17. According to PW-1, he prepared Ext.P1 mahazar on the spot. On a perusal of Ext.P1 mahazar, there is nothing to indicate that the alleged occurrence took place within the boundaries specified in Ext.P16 notification issued by the competent authority. Since Kurichiat Reserved Forest is situated within specified boundaries, it is essential on the part of the officer concerned to specify the exact boundaries in Ext.P1 mahazar to prove that the occurrence took place within the reserve forest as stated in Ext.P1 mahazar. 18. Coming to the validity of Ext.P16 notification, separate mode of proof is provided under Sections 78, 74 and 65 of the Evidence Act to prove a certified copy of the notification. In Paragraph 5 of Chacko Pyli’s case (supra), a Division Bench of this Court held as follows: “5. A court is not under S.57 of the Evidence Act entitled to take judicial notice of a notification issued by the Government under S.19 of the Act. But such a notification is a public document within the meaning of S.74 of the Evidence Act. What is the mode of proof of the contents of the notification. The publication of the notification has to be in the Gazette. S.78 of the Evidence Act prescribes special modes of proving the contents of various kinds of public documents. S.61 of the Evidence Act embodies the rule that “contents of documents may be proved either by primary or secondary evidence.” Primary evidence is defined in S.62 while S.63 gives an inclusive definition of secondary evidence. The contents of public documents can also be proved by production of secondary evidence. S.65 allows secondary evidence being given when the original is a public document within the meaning of S.74. The contents of public documents can also be proved by production of secondary evidence. S.65 allows secondary evidence being given when the original is a public document within the meaning of S.74. In case when the original is a public document within the meaning of S.74 or in case when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence S.65 of the Evidence Act says that certified copy the document but no other kind of secondary evidence is admissible. If the official Gazette containing the notification under the Act is produced in court it has to presume its genuineness under S.81 of the Act. In view of these provisions of the Evidence Act, it was the duty of the prosecution to have established one of the ingredients of the offence viz. that the act complained of was done in a Forest constituted as a Reserved Forest by the issue of a notification under S.19 of the Act and by the publication of the same in the Gazette, either by the production of the Gazette or by a certified copy of the notification and adduce evidence of the publication of the same in the Gazette. No other evidence is admissible in the case.” 19. Admittedly, Ext.P16 is a signed copy of the notification issued by the competent authority. No doubt, the notification is a public document within the meaning of Section 74 of the Evidence Act. The publication of the notification was done in the Gazette in accordance with Section 78 of the Evidence Act. Section 65 of the Evidence Act permits secondary evidence being given when the original is a public document within the meaning of Section 74 of the Evidence Act. The official Gazette containing the notification has not been produced before the trial court to presume the genuineness under Section 81 of the Evidence Act. What has been produced is only a copy of the original notification. Hence, it was the duty of the prosecution to prove that the act complained of was done within the reserve forest in accordance with the notification under Section 19 of the Act. The said notification is to be proved either by production of the Gazette or by a certified copy of the notification before the court. Hence, it was the duty of the prosecution to prove that the act complained of was done within the reserve forest in accordance with the notification under Section 19 of the Act. The said notification is to be proved either by production of the Gazette or by a certified copy of the notification before the court. In this case, the original of Ext.P16 notification is not produced before the trial court. The certified copy is also not produced. 20. In this case Ext.P16 notification has not been proved in accordance with law. Ext.P16 is neither the original nor a certified copy. It is only a copy of the notification signed by the Wildlife Warden, Wynad Wildlife Sanctuary. 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 vs. 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.P16 notification. 21. The validity of the notification discussed in the above cited judicial precedents is equally applicable in this case. Corresponding provisions are provided under the Wild Life Act in paramateria with the Forest Act. Section 19 of the Forest Act mandates notification. Whereas Sections 18 and 26-A(b) of the Wild Life (Protection) Act mandate notification in respect of a sanctuary specifying the limits of the area which shall be comprised within the sanctuary. Hence, the principles discussed and decided under Section 19 of the Forest Act are equally applicable for the offences under the Wild Life (Protection) Act as well. 22. Judged by the above standards, this Court is of the view that the trial court and the appellate court erroneously appreciated the evidence and wrongfully convicted and sentenced the accused 1 and 4 for the offences punishable under Sections 9, 29, 31 and 40(2) read with Section 51 of the Act. Thus, the conviction and sentence imposed by the trial court as confirmed in appeal are liable to be set aside. 23. Thus, the conviction and sentence imposed by the trial court as confirmed in appeal are liable to be set aside. 23. The revision petitioners/accused 1 and 4 are found not guilty of the offences under Sections 9, 29, 31 and 40(2) read with Section 51 of the 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 the proceeding pursuant to an interim order passed by this Court, the same shall be refunded to the revision petitioners/accused 1 and 4 in accordance with law. Pending applications, if any, stand disposed of. 24. The criminal revision petition is allowed accordingly.