IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 227 of 2002() ----------------------------- CC.232/1992 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI CRA.165/1994 of SESSIONS COURT, MANJERI .................... REVN. PETITIONER(S): REVN. PETITIONER/ACCUSED: ---------------------------------------------- PULIYAMPATTAYIL SURENDRAN, S/O. AYYAPPAN, KAVALAMUKKATTA, AMARAMBALAM AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- FOREST RANGE OFFICER, KARULAI, NEDUMKAYAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.227 of 2002 ---------------------------------------- Dated this the 30th day of March 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 51 of the Wild Life (Protection) Act 1976. The petitioner herein is the 4th accused in the case. He faces a sentence of S.I for a period of six months and to pay a fine of Rs.500/- and in default to undergo S.I for a further period of three months. 2. Altogether there were four accused persons. Accused 1 to 3 are absconding and are not available for trial. The crux of the allegations against the 4 accused persons is that accused 1 to 3 came into possession of MO1 series - three tusks of elephant (ivory) from the forest. Those are government properties under the provisions of the Wild Life (Protection)Act. Accused 1 to 3 sold such tusks to the 4th accused. The 4th accused purchased the same. He paid an amount of Rs.100/- to accused 1 to 3. Accused 1 to 3 are adivasis. The petitioner/4th accused kept those tusks in his possession. 3. On the night of 18/10/1990, the forest officials received discreet secret information that adivasis were attempting to dispose of tusks. They made enquiries. They came across accused Crl.R.P.No.227/02 2 1 to 3 in front of a church on that night. They were interrogated. They revealed that they had sold the tusks to the petitioner herein. The forest officials went to the house of the petitioner along with accused 1 to 3. 4th accused was questioned. He produced the three tusks which were kept in a plastic cover near the well of his house. The same was seized on the morning of 19/10/1990 under Ext.P1 seizure mahazer. Accused 1 to 4 were arrested. After verification/investigation, complaint was filed against accused 1 to 4. 4. As stated earlier, accused 1 to 3 are absconding and are not available for trial. The petitioner/4th accused appeared before the court. After pre-charge enquiry under Section 244 Cr.P.C. charges were framed under Section 246 Cr.P.C. The accused denied the offence. He wanted the witnesses to be recalled for cross-examination. They were permitted to be cross-examined. 5. Before the learned Magistrate, PWs 1 to 7 were examined and Exts.P1 to P7 were marked. PWs 1 to 5 are forest officials who were members of the party which, on receipt of discreet secret information, went in search of the accused and the government property. PWs 6 and 7 are forest officials who have roles to play in the investigation, further verification of facts and Crl.R.P.No.227/02 3 the filing of the complaint. 6. Ext.P1 is the seizure mahazer under which MO1 series and MO2 plastic bag were seized. Ext.P2 is the mahazer prepared after locating the site where carcass of the elephants were available. Exts.P3 to P6 are the confession statements of accused 1 to 4. Ext.P7 marked is the sanction order. Petitioner/4th accused who alone was available for trial, denied all circumstances which appeared in evidence against him. According to him, he had nothing to do with the tusks in question. He alleged that the signatures were obtained on blank papers by the forest officials. No defence evidence was adduced. 7. The courts below concurrently came to the conclusion that the evidence of PWs 1 to 5 can be believed and when believed, their evidence establishes the offence punishable under Section 51 (1) of the Wild Life (Protection) Act. Accordingly they proceeded to pass the impugned concurrent judgments. 8. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. The learned counsel for the petitioner assails the impugned concurrent judgments on various grounds. Crl.R.P.No.227/02 4 5. First of all it is contended that there is no satisfactory evidence to show that MO1 series were in the possession of the petitioner/accused No.4. The evidence of PWs 1 to 5 on this aspect cannot be accepted, contends the learned counsel. The learned counsel submits that no independent witness has been examined to offer assurance for the version of interested forest officials examined as PWs 1 to 5. The learned counsel argues that there is nothing to show that the house where 4th accused was allegedly found and the recovery effected belongs to the petitioner/4th accused. The learned counsel for the petitioner further contends that there is total confusion as to whether the information was received on 18/10/1990 or 19/10/1990 and consequently whether recovery was effected on the morning of 19/10/1990 or 20/10/1990. The learned counsel argues that, in these circumstances, at any rate, the benefit of doubt must have been conceded to the petitioner/accused. 6. Secondly, the learned counsel contends that allegations have not been precisely and specifically raised against the accused and this omission to raise the allegations has resulted in failure and miscarriage of justice against the petitioner/accused. In the complaint filed, totally different sections of offences were quoted by Crl.R.P.No.227/02 5 the complainant. The allegation in the complaint is that offence punishable under Section 52(9)(1) and (2) of the Wild Life Protection Act has been conceded; whereas the trial court, in the impugned judgment, has ultimately found the petitioner to be guilty of offences punishable under Section 39(3)(a) and Section 49 read with Section 51(1) of the Wild Life (Protection) Act. This is incorrect. This has resulted in prejudice and failure of justice against the accused, it is secondly contended. 7. Thirdly and finally it is contended that the sentence imposed is excessive. 8. I have adverted to all the contentions raised. First of all, I shall advert to the alleged confusion in the date of seizure. The seizure mahazer is seen prepared on the early hours of 19/10/1990. A reading of Ext.P1 and the oral evidence of PWs 1 to 7 as also a perusal of the relevant documents must clearly convey that discreet information about the offences was received by the forest officials on the night of 18/10/1990. After getting that information they started the efforts to trace the offenders. It is evident that on the night of 18/10/1990 accused 1 to 3 were located, traced and taken into custody. On their statement, the forest officials were led to the house of the petitioner/4th accused. They reached the house of the Crl.R.P.No.227/02 6 4th accused evidently after mid night only and by the time the date has changed and it had become 19/10/1990. A reading of Ext.P1 seizure mahazer clearly shows that the preparation of the mahazer started and was completed on the wee hours of 19/10/1990. Not a semblance of doubt on this aspect can survive after a careful reading of all the documents and analysis of the evidence of PWs 1 to 7. 9. It is true that there is only the oral evidence of PWs 1 to 5 about the seizure of MO1 series under Ext.P1. No independent witness was available. Considering the nature of the operation, it would be idle to expect independent witnesses to be available to corroborate the oral evidence of PWs 1 to 5. The contemporaneous seizure mahazer Ext.P1 is eloquent and its contents support the oral evidence of PWs 1 to 4 satisfactorily. I find no reason to disbelieve the oral evidence of PWs 1 to 5. A careful reading of the oral evidence of PWs 1 to 5 suggest that even the petitioner/accused does not have a case that PWs 1 to 5 or any other forest officials have any ill will or malice against the petitioner as to prompt them to raise totally false allegations against the petitioner. The courts below according to me, did not, in these circumstances, commit any error in choosing to place reliance on the oral evidence of PWs 1 to Crl.R.P.No.227/02 7 4. The oral evidence of PWs 1 to 5, as stated earlier, is supported by the contents of Ext.P1 as also their ability to produce costly articles like MO1 series. 10. The grievance is raised that there is nothing to prove that the house belongs to the 4th accused. Factually this grievance is correct. No serious enquiry appears to have been conducted as to who owns and has possession over the house where the 4th accused was found on that night. But the ownership of the house, in the nature of the facts of the case, is not of crucial importance. No one has a case that MO1 series was recovered from the house in question after a search. Recovery was on the basis of the admission of the 4th accused that the statement of accused 1 to 3 that they had handed over MO1 series is correct and on the basis of production of MO1 series by the 4th accused. As recovery was not from a house and recovery was on the basis of the conduct of the 4th accused handing over MO1 series to the forest officials the omission/failure to trace the ownership/possession of the house in question is not of any crucial significance. Of course, an alert investigator must have done the same also; but absence of evidence on that aspect does not, at any rate, generate any reasonable doubt in the mind of the court. In these circumstances, the challenge on that ground is also Crl.R.P.No.227/02 8 found to be without any merit. 11. I am, in these circumstances, satisfied that the courts below were certainly justified in accepting and acting upon the evidence of PWs 1 to 5 and in concluding that the petitioner/4th accused was in possession of MO1 series which had, earlier on 18/10/1990, been handed over to him by accused 1 to 3 after the petitioner/4th accused had handed over an amount of Rs.100/- as price thereof with a promise to pay the balance sale proceeds to accused 1 to 3 after he secures a buyer. The statements of accused 1 to 4 produced as Exts.P3 to P6 do also support the oral evidence of PWs 1 to 5 on this aspect. Though there is no contention even raised before me that Exts.P3 to P6 cannot be reckoned as substantive evidence, it is not necessary to make use of Exts.P3 to P6 as substantive evidence. The substantive evidence of PWs 1 to 5 get support, inspiration and corroboration from the contents of Exts.P3 to P6. 12. The learned counsel for the petitioner raises the contention that prejudice has resulted from the non-specification of the offences against the accused precisely and accurately in the complaint filed by the forest officials. In the complaint, it is alleged that the offences are punishable under Section 52(9)(1) and (2) of Crl.R.P.No.227/02 9 the Wild Life Protection Act. There is no such statutory provision in the Act. But it must be noted that in the complaint, allegations of facts are narrated crisply and clearly. It is possible to understand clearly notwithstanding the quoting of the wrong (non-existent) sections of offence that the accused persons had to meet the allegations that accused 1 to 3 had unauthorisedly sold MO1 series to the petitioner/4th accused and the petitioner had received the same and kept the same in his possession without any legal authority. The mere omission to state the sections of offence clearly and correctly in the complaint cannot, in these circumstances, ipso facto be held to result in prejudice or failure of justice. In fact, this contention is of no avail as the charge framed by the court on 04/10/1993 clearly shows that the charge is framed under Section 51(1) of the Wild Life Protection Act. The court charge, which charge the petitioner is called to meet, defend and disprove, clearly showed that the allegation is that the petitioner unlawfully collected and kept in his possession MO1 series. True that there has been mis statement of the section of the offences in the complaint. True that in the court charge there is no specific reference to Section 39 or 49 of the Wild Life Protection Act. But I do note that there is specific allegation that the petitioner has to meet the charge under Crl.R.P.No.227/02 10 Section 51(1) of the Wild Life Protection Act and the crux or the gravamen of the allegation is that he had unlawfully collected and kept in his possession MO1 series - tusks of elephants. In these circumstances, I find no merit in the contention that there has been prejudice or failure of justice for the reason that the allegation is not precisely raised in the complaint that he has to meet a charge under and 51(1) of the Wild Life Protection Act read with Section 39 and 49. That contention is of no substance and no prejudice or failure of justice has resulted, I hold. 13. The sentence imposed, that is S.I for a period of six months and fine of Rs.500/- is according to me, absolutely reasonable and modest. Considering the nature of the allegations, I am not persuaded to agree that the sentence imposed warrants interference. 14. In the result, this revision petition is dismissed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 02/05/2009 for execution of the impugned sentence. (R.BASANT, JUDGE) jsr Crl.R.P.No.227/02 11 Crl.R.P.No.227/02 12 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER Crl.R.P.No.227/02 13 17th DAY OF JANUARY 2008