IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 31ST MAY 2010 / 10TH JYAISTHA 1932 Crl.Rev.Pet.No. 1304 of 2003() ------------------------------ CRA.81/1993 of ADDL. SESSIONS COURT (ADHOC) I , PATHANAMTHITTA CC.135/1990 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER(S): 1ST APPELLANT/3RD ACCUSED ---------------------------------------------- KOCHUKUNJU CHACKO, MANALADIYIL, PUTHENVEEDU, POOZHIKKADU, KURAMPALA VILLAGE, ADOOR TALUK. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/05/2010, ALONG WITH CRL.R.P.1420/03 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.5433/03 IN CRRP 1304/03 AND CRL.M.P.6121/03 IN CRRP 1420/03 DISMISSED 31/5/2010 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. -------------------------------------------------------- CRL.R.P.NO.1304 & 1420 OF 2003 --------------------------------------------------------- Dated 31st May, 2010 O R D E R Petitioners, the accused 3 and 4 in C.C.135/1990 on the file of Judicial First Class Magistrate-I, Pathanamthitta are convicted and sentenced to rigorous imprisonment for six months each and a fine of Rs.500/- each and in default simple imprisonment for one month for the offence under Section 51 of Wild Life Protection Act. Though petitioner challenged the conviction and sentence before Sessions court, Pathanamthitta in Crl.A.81/1993. Learned Additional Sessions Judge on re- appreciation of the evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in these revisions CRRP 1304 & 1420/03 2 filed separately. Prosecution case is that on 1/2/1990 on getting information that petitioners are preparing Karimkurangu Resayanam by using meat of black monkey (Nilgiri Langoor) at the thatched shed in Kurampala village, PW1 Forest officer along with Pws.3 and 4 forest officials proceeded to the thatched shed and found petitioners cooking the meat of a black monkey in MO.1 Aluminium vessel. When they were questioned, on the disclosure that the black monkey was shot dead by accused 1 and 2 and it was purchased by petitioners for preparing Karimkurangu Rasayanam and accused 1 and 2 are in the other room, they were also arrested. On questioning as disclosed by petitioners, MO.2 skin of the black monkey, which was found kept in that shed for drying, was also seized under Ext.P1 mahazar. MO.2 skin and the meat being CRRP 1304 & 1420/03 3 cooked in MO.1 vessel were got examined by PW2 Veterinary Doctor who prepared Ext.P7 postmortem certificate that it is the skin and meat of a black monkey. PW1 recorded Exts.P4 and P5 confession statements of the petitioners apart from Exts.P2 and P3 confession statements of accused 1 and 2. Complaint was lodged by PW1 against the petitioners and accused 1 and 2 alleging that they committed the offence punishable under Section 51 of Wild Life Protection Act, as the black monkey which an animal specified in schedule II of Part II of Wild Life Act and it was killed for preparing Rasayanam and was being used for preparing the Rasayanam. Second accused absconded and therefore, the case as against him was split up and re-filed. Petitioners and first accused pleaded not guilty. Prosecution examined six witnesses and marked Exts.P1 to P7 and CRRP 1304 & 1420/03 4 identified Mos.1 and 2. Learned Magistrate on the evidence found that petitioners and first accused guilty of the offence punishable under Section 51 and convicted and sentenced them. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence. It is challenged in the revisions. 2. Revision petitioners would contend that courts below did not properly appreciate the evidence. It is contended that even though evidence show that several independent persons were present at the time of the alleged seizure, none of the independent witness attested Ext.P1 and none were examined. It is also argued that Ext.P1 does not show the time at which the forest official reached the house or conducted search and made seizure and therefore, when the alleged seizure was conducted not in the presence of any CRRP 1304 & 1420/03 5 independent witness, learned Magistrate and learned Sessions Judge should not have relied on the evidence of the forest officials to accept the disputed seizure. It was argued that in any case, there is no evidence to prove that meat which was seized under Ext.P1 mahazar which was found being cooked in Mo.1 vessel is the meat of a black monkey or that Mo.2 is its skin and therefore, the conviction is not sustainable. It was also argued that as per the prosecution case, the grievous offence is killing of the black monkey from the forest and no investigation was conducted on that aspect and the only allegation is that petitioners purchased the corpus of the black monkey for preparing Rasayanam and in the nature of the evidence, it should have been found that prosecution failed to establish the offence as against the petitioners. Learned counsel CRRP 1304 & 1420/03 6 finally argued that in any case, considering the age of the petitioners leniency should have been shown as there is no case that they committed similar offence earlier, and hence benefit of Probation of Offenders Act should have been granted. 3. Learned Public Prosecutor pointed out that learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and there is no reason to interfere with the factual findings. 4. PW1 Forest Range Officer had detected the crime and also effected seizure and also recorded Exts.P2 to P5 confession statements of the accused. PW3 the watcher of the Forest Range officer, PW4 Deputy Forest Range Officer and PW5 Forest Range Guard were also examined to prove the seizure evidenced by Ext.P1 mahazar. Evidence of PW1 CRRP 1304 & 1420/03 7 is corroborated by Ext.P1, the contemporaneous record prepared at the time of seizure and also by the evidence of Pws.3 to 5. Learned Magistrate and learned Sessions Judge on appreciation of their evidence found that their evidence is trust worthy and reliable. Argument of the learned counsel is that courts below should not have relied on the evidence. Main argument is that there is no independent witness to prove the seizure. Though there is no independent witness in Ext.P1 mahazar, that by itself is not a ground to disbelieve the evidence of Pws.1, 3 to 5. There is no law or rule or evidence that evidence of forest officials are either to be disbelieved or suspected. Their evidence is to be appreciated like any other evidence. While appreciating the evidence of PW1, Exts.P4 and P5 statements proved to be furnished by the petitioners and CRRP 1304 & 1420/03 8 recorded by PW1 is also to be appreciated. Though Learned counsel appearing for the petitioners argued that their signatures were obtained in Exts.P4 and P5 from the Forest Range office by PW1 and they did not furnish any statement much less confession statement and evidence of PW4 shows that confession statement was recorded from the forest range office, when according to the evidence of PW1 it was given by the petitioners at the place of seizure. But when PW1 was cross examined, the factum of Exts.P4 and P5 statements given by the petitioners were not challenged. There is not even a suggestion to PW1 that he obtained signature in a paper much less at the range office. There is no suggestion that Exts.P4 and P5 statements were not furnished by the petitioners. If what is stated in Exts.P4 and P5 is accepted, it fully corroborates the CRRP 1304 & 1420/03 9 evidence of Pws.1 and 3 to 5. 5. Though learned counsel appearing for the petitioners argued that Exts.P4 and P5 confession statements should not have been accepted as they are inadmissible, I cannot agree with the submission. Section 25 of the Evidence Act prohibits using of confession statement made to a police officer. Under Section 25, no confession made to a police officer, shall be proved as against a person accused of any offence. So also Section 26 provides that no confession made by any person, while he is in custody of a police officer, shall be proved as against such person, unless it is made in the immediate presence of the Magistrate. PW1 Forest Range Officer is not a police officer. All the powers of police officer is not available to a Forest Officer. As Forest Range Officer is not CRRP 1304 & 1420/03 10 empowered with all the powers of Police officer, he cannot be a police officer. If so, Sections 25 and 26 of Indian Evidence Act is not applicable and will not affect the statements of an accused made to the Forest Officer. The legal position has been settled by this court in Forest Range Officer v. Aboobacker (1989 (1) KLT 871). Therefore, apart from the evidence of Pws.1 and 3 to 5, Exts.P4 and P5 statements establish that petitioners purchased a black monkey which was shot dead by the accused 1 and 2.Ext.P1 seizure mahazar shows the time at which the mahazar was prepared. Evidence of PW1 also proves the time which was corroborated by the entry in Ext.P1. Hence courts below rightly accepted the evidence after proper appreciation. Though the exact forest, from which the black monkey was shot dead is not CRRP 1304 & 1420/03 11 proved by the prosecution, that will not affect the conviction as against the petitioners. 6. Though it was argued by the learned counsel that meat which was found being cooked in MO.1 vessel and MO.2 skin are not proved to be the meat and skin of a black monkey, on the evidence I cannot agree. Evidence of PW1 who is competent to identify the meat and skin establish that fact. PW2 Forest Veterinary Doctor who is having an experience of more than thirty years examined the meat and MO.2 skin and prepared Ext.P7 certificate. Though PW2 was cross examined at length, I find no reason to discard the evidence of PW2 corroborated by Ext.P7 certificate and accepted by the learned Magistrate and learned Sessions Judge. Evidence establish that petitioners were cooking the CRRP 1304 & 1420/03 12 meat of black monkey whose skin was removed and kept in the shed. Evidence therefore, conclusively establish that petitioners violated the mandatory provisions of Sections 39(a), 39(b), 42, 43(1)(A) and 44(b) of Wild Life Protection Act. Section 51 of Wild Life Protection Act provides the penalty. Under Sub Section (1) any person who contravenes any provision of this Act except Chapter VA and Section 38 J or any rule or order made thereunder or who commits a breach of any other conditions of any license or permit granted shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to twenty five rupees or with both. In spite of the severe sentence provided, learned Magistrate awarded only a sentence of simple imprisonment for six months and a fine of Rs.500/- (Rupees Five CRRP 1304 & 1420/03 13 hundred only) each. Though learned counsel argued that leniency is to be shown considering the age of the accused, considering the nature of the offence I find that petitioners are not entitled to any further leniency. Petitioners are also not entitled to get the benefit of Probation of Offenders Act. There is no merit in the revision petitions and they are dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.