Kerala High Court
Forest Range Officer, Chungathara Ii ... vs Aboobacker And Anr. on 14 March, 1989
Equivalent citations: 1989CRILJ2038
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. For hunting and killing a wild animal (a bison) in a forest area, the respondents were convicted by the trial Magistrate, but were acquitted by the Sessions Court in appeal. The Forest Range Officer,! who instituted the prosecution, has presented this appeal with special leave against the said acquittal Hunting of wild animals is prohibited under Section 9 of the Wild Life (Protection) Act, 1972 (for short 'the Act'). The trial Magistrate who convicted the two respondents under Section 5.1 of the Act sentenced them to rigordus imprisonment for six months and a fine of Rs. 500/- each being the minimum sentence prescribed under the Act. The Sessions Judge who set aside the conviction and sentence was disinclined to rely on the evidence of the prosecution and hence the acquittal.
2. The facts revealed in the prosecution evidence, in short, are these : The three accused in the trial Court are brothers. They engage themselves in poaching as a pasttime and also for profit-making. They have a gun and other accessories necessary for poaching. During the middle of February, 1985 they went into the vested (reserved?) forest at Munderi (in Nilambur range) and sighted a bison and shot it down. They extracted its meat and sold it in open bazaar. The remaining carcass was buried in the ground On receipt of some unauthentic information about the incident, the forest officials went to the house of the accused. As the first accused was absent in the house then, the Range Officer interrogated the respondents (who were the second and third accused in the trial Court). They admitted that the bison was shot dead by them and its flesh was sold in open market. The respondents pointed out the spot where they buried the carcass of the animal which included its skull and horns.
3. The Chief Judicial Magistrate who tried the case relied on two statements (Exts. P3 and P4) containing the confession made by the respondents before the Range Officer. However, the Chief Judicial Magistrate acquitted the first accused and convicted the other two accused (respondents) for the aforesaid offence. The Sessions Judge found that the prosecution has not been instituted by a person authorised by the State Government as required in Section 55 of the Act. He also found that the confessional statements cannot be relied on.
4. Section 55 of the Act says that "no Court shall take cognizance of any offence against this Act except on the complaint of the Chief Wild Life Warden or such other officer as the State Government may authorise in this behalf". The complaint in this case was filed by the Forest Range Officer. By notification dated 1-2-1975 the Kerala Government has authorised "officers of the Forest Department of the State not below the rank of Range Officers and Assistant Wild Life Preservation Officers" (Vide Kerala Gazette No. 10, Part-I dt. 11-3-1975 -Notification No. 6211/FM3/75/AD). Even though the said notification was not marked as an exhibit in evidence, Court can take judicial notice of it. (Vide Assistant Collector of C. E. v. Vasanthakumar 1988 (1) Ker LT 92 : 1988 Cri LJ 1217. Therefore the view of the learned Sessions Judge regarding the competence of the complainant cannot be sustained.
5. Prosecution examined only three witnesses, all of whom are officials of the Forest Department, who claimed to have gone to the respondents' house on 21-2-1985 and heard the statements made by them. The officials were present when the skull and horns were disinterred from the place spotted out by the respondents. Section 9(2) of the Act contains the prohibition that "no person shall hunt any wild animal specified in Sch. II, Sch. III or Sch. IV, except under and in accordance with the conditions specified in a licence granted under Sub-section (5)". Bison is included among the list of animals enumerated in Schdule II. Both the trial Magistrate and the Sessions Judge accepted the prosecution evidence regarding the identity of the skull and horns as those of a bison. The term "hunting" is defined in the Act as including capturing, killing, poisoning, snaring and trapping of any wild animal and driving any wild animal for any of the aforesaid purposes, injuring or destroying or taking any part of the body of any such animal. (Vide Section 2(16) of the Act).
6. One of the arguments advanced by the learned Counsel for the respondents is that the evidence of Forest Officers alone cannot be made the basis of conviction without corroboration by independent witnesses. It is difficult to accept such a wide proposition. The rule of corroboration is a principle of prudence which should not be applied rigidly or punctiliously. If a crime is committed in such a manner that no other person could normally have been present in the vicinity, insistence on the rule of corroboration in such case would maul the cause of justice because such insistence would only help the perpetrator to go scot-free. It should not be forgotten that there is no rule of law that no evidence should be relied on unless there is corroboration. Facts and circumstances may warrant, sometimes, to act on such evidence even without corroboration. Forest is an area where human activities are scanty except the clandestine adventures of poachers. The invaders of forest and wild life usually take care that their poaching techniques go unnoticed by others including wild animals. They adopt devices to keep their movements undetected. Hence it would be pedantic to insist on the rule of corroboration by independent evidence in proof of 'offence relating to forests and wild life. Parliament, in bringing a new legislation for protection of wild life was inspired by the urge to preserve what little is left of wild life. Rapid decline of India's animal wealth, one of the richest in the world once upon a time, would have caused concern not only to the Zoologists and Ornithologists but to all others who know the consequences of deforestation. Some of the rare species have already been wiped out of the earth and some others have reached danger mark predicting total extinction unless expeditious protective measures are adopted. The previous enactment (Wild Birds and Animals Protection Act, 1912) was found to be outmoded and unsuited to meet the challenges posed by marauders who make forays into the dens of woods pillaging forest wealth. When a legislation was thus brought to meet new challenges, Court must guard against the possibility of frustrating the enactment by clinging to the rule of corroboration punctiliously.
7. The most important item of evidence in this case is the confessional statement made by the respondents. The admissibility of the confession made to the Forest Range Officer is not open to doubt since the embargo contained in Section 25 of the Evidence Act is not applicable to it. Forest Officers, though they are invested with some of the police powers, are not Police Officers. Hence they can give evidence before Court regarding admissions or confessions made to them by accused persons, whether or not such persons were then in custody. If the Court considers such confession to he reliable, there is no legal bar in acting on such confession.
8. A Constitution Bench of the Supreme Court has held in Romesh Chandra Mehta v. State of West' Bengal , that Customs Officer is not a Police Officer for the purpose of Section 25 of the Evidence Act, Their Lordships have stated thus : . "A Customs Officer under the Sea Customs Act, 1878, had the power to detain, to arrest, obtain a search warrant to produce the person arrested before a Magistrate and to obtain an order for remand and to keep him in custody with a view to collect evidence. He may therefore have opportunities, which a Police Officer has of extracting a confession from a suspect, but a Customs Officer is not on that account, a Police Officer. The test for determining whether an officer of Customs is to be deemed a Police Officer is whether he is invested with all the powers of a Police Officer qua investigation of an offence, including the power to submit a report under Section 173, Cr. P.C.". The Madras High Court has considered whether a Forest Range Officer under the Madras Forest Act is a Police Officer for the purpose of Section 25 of the Evidence Act (E. C. Richard v. Forest Range Officer AIR 1958 Mad 31 : 1958 Cri LJ 52. It was held that the Forest Officer is on a par with the Customs Officer and hence what applies to the Customs Officer applies to the Forest Officers also. It has been observed by Somasundaram, J. in the said decision that "in the absence of a specific provision in the Madras Forest Act conferring on the Forest Officer all the powers of an Officer-in-Charge of a Police Station he cannot be called a 'Police Officer' and a statement made to him will not be hit by Section 25 of the Evidence Act". Neither the Kerala Forest Act nor the Wild Life Protection Act conferred all the powers of Police Officers on the Forest Officers or wild life protection force even though some of the powers have been conferred on them to be exercised in specified contexts. It is therefore clear that the embargo contained in Section 25 of the Evidence Act cannot be applied to the statements made to a Forest Officer or Range Officer etc.
9. One of the reasons which the learned Sessions Judge mentioned for not acting on the confessional statements is that there is no reference to them in the mahazar prepared by the Forest Range Officer. As a matter of fact, reference has been made in Ext. P1 mahazar to the confessions made by the two respondents. It would have escaped the notice of the learned Sessions Judge. Another ground is that there is no attesting witness to the statements signed by the respondents ( Exts. P3 and P4). There is no legal requirement that whenever a confession is reduced to writing it must also be attested by another witness. Nor can it be insisted as a rule of caution that such record of confession must be attested by another person. If the testimony of the person (to whom the confession is made) is found credit-worthy, it is immaterial that the record of confession does not bear the signature of a third person. Having gone through the evidence of P.W. 3, the Forest Officer, I have no reason to disbelieve him. One of the. circumstances which ensures confidence regarding the reliability of the confessional statements is the disinterment of the skull and horns from the place spotted out by the respondents. The trial Magistrate has rightly relied on the confession made by the respondents. The Sessions Judge has improperly rejected them.
10. In the result, I set aside the order of acquittal passed by the Sessions Court. I restore the conviction and sentence passed by the trial Magistrate.
11. Appeal is disposed of accordingly.