Kerala High Court
Balakrishnan vs The State Of Kerala Represented By on 26 August, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 17TH DAY OF JANUARY 2018 / 27TH POUSHA, 1939
Crl.Rev.Pet.No. 537 of 2005
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AGAINST THE JUDGMENT IN CRA 42/2001 of ADDL. SESSIONS COURT (ADHOC),
KALPETTA DATED 26.08.2004
AGAINST THE JUDGMENT IN CC 106/1997 of J.M.F.C.-I, SULTHANBATHERY DATED
26.04.2001
REVISION PETITIONER(S)/APPELLANTS 2 AND 3/ACCUSED 2 AND 3 :-
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1 BALAKRISHNAN, S/O.APPUCHETTY,
KALANKANDY HOUSE,
MUTHANGA P.O., S.BATHERY.
2 SHANMUGHAN, S/O.VELAYUDHAN CHETTY,
KALANKANDY HOUSE, NOOLPUUZHA, P.O. MUTHANGA,
SULTHAN BATHERY.
BY ADVS.SRI.M.P.ASHOK KUMAR
SRI.SUMESH KUMAR N.C.
RESPONDENTS/RESPONDENTS/COMPLAINANT :-
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THE STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SMT.SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-01-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rkj
P.UBAID, J.
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Crl.R.P.No.537 of 2005
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Dated this the 17th day of January, 2018
ORDER
The revision petitioners herein are the accused Nos.2 and 3 in C.C.No.106 of 1997 of the Judicial First Class Magistrate Court-I, Sulthan Bathery. They and the first accused faced prosecution in the court below under Sections 9, 27, 29 and 31 read with Section 51 of the Wildlife (Protection) Act on the allegation that the first accused trespassed into the Government Forest at the Alathur Section of the Sulthan Bathery Forest Range, and shot down a spotted deer, and that with the assistance of the accused Nos.2 and 3, he removed the carcass to his house. The offence was detected by the Assistant Wildlife Warden of the Range at about 10 a.m. on 01.07.1994. The accused were arrested on the spot, and the carcass along with some weapons and a gun were seized by the Assistant Wildlife Warden. When interrogated, all the three accused gave statements admitting their liability under the Wildlife (Protection) Act. After investigation, final report was filed in Court by the Forest Range Officer.
2. The three accused appeared before the learned Magistrate, and pleaded not guilty to the charge Crl.R.P.No.537 of 2005 2 framed against them. The prosecution examined seven witnesses, and proved Exts.P1 to P9 documents in the trial court. The MO1 to MO8 properties were also identified during trial. At the instance of the prosecution, the Ext.C1 notification was also proved. All the accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. They did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the first accused guilty under Sections 9, 27, 29 and 31 read with Section 51 of the Wildlife (Protection) Act, and the accused Nos.2 and 3 were found guilty under Sections 27 and 29 read with Section 51 of the Wildlife (Protection) Act. On conviction, they were sentenced to undergo rigorous imprisonment for one year.
3. Aggrieved by the judgment of conviction dated 26.04.2001, the three accused approached the Court of Session, Wayanad with Crl.Appeal No.42 of 2001. Pending the appeal, the first accused died, and thus the charge against him abated. In appeal, the learned Additional Sessions Judge(Adhoc), Wayanad, confirmed the conviction, but reduced and modified the sentence. Accordingly, the jail sentence against the accused Nos.2 and 3 was reduced to simple imprisonment for three months each, and they were also sentenced to pay fine of Rs.2,500/- each. Now the accused are before this Court in revision challenging the legality and Crl.R.P.No.537 of 2005 3 propriety of the conviction and sentence.
4. On hearing both sides, and on a perusal of the materials, I find no reason or ground for interference in the conviction made by the courts below concurrently as against these revision petitioners. Ofcourse, it is true that the carcass of the shot down spotted deer was seized from the house of the first accused. The weapons and also a gun were also seized from his house as per mahazar by the Assistant Wildlife Warden examined as PW6. PW1 and PW2 are the Forest Guards who accompanied PW6. As against the accused Nos.2 and 3, the prosecution would mainly rely on the statements given by them to the Assistant Wildlife Warden admitting the guilt. The prosecution also relies on the presence and involvement of these two persons in removing the skin of the carcass at the house of the first accused.
5. The definite and consistent evidence given by PW6, PW1 and PW2 is that when they made a search at the house of the first accused on 01.07.1994 at about 10.00 a.m., they saw the carcass of a spotted deer at the house, and they saw all the accused involved in the process of removing the skin of the carcass. Ofcourse, during cross-examination, PW1 and PW2 stated that the accused Nos.2 and 3 were arraigned on the basis of the statements given by the first accused. However, their evidence shows that these two accused were Crl.R.P.No.537 of 2005 4 also seen at the house of the first accused, and they were also seen engaged in the process of removing the skin of the carcass. This evidence given by the material witnesses stands not discredited. I find that the involvement and complicity of the accused No.2 is also well proved by evidence. Accordingly, the conviction is liable to be confirmed in revision also.
6. Now the question of sentence. Though the trial court imposed a sentence of rigorous imprisonment for one year, the appellate court modified and reduced it to simple imprisonment for three months. In lieu of such modification, a fine sentence of Rs.2,500/- each was imposed in appeal. The person who actually shot down the spotted deer at the forest is the first accused. He died, pending the appeal. The allegation as against these petitioners is that they just helped the first accused to remove the skin of the carcass. That involvement is also punishable under the Wildlife (Protection) Act. However, I feel that the jail sentence as against these two revision petitioners can be further reduced to minimum possible under the law, and in lieu of such reduction, the amount of fine can be slightly enhanced.
In the result, the conviction against the revision petitioners under Sections 27 and 29 read with Section 51 of the Wildlife (Protection) Act in C.C.No.106 of 1997 of the Judicial First Class Magistrate Court-I, Sulthan Bathery is confirmed, and Crl.R.P.No.537 of 2005 5 the revision petition is disposed of accordingly. However, the jail sentence imposed by the court below will stand further reduced and modified to imprisonment till rising of the Court, and the fine sentence imposed by the appellate court will stand further modified and enhanced to Rs.5,000/- each with the default sentence already imposed by the trial court. The revision petitioners will surrender before the trial court within three weeks from this date to serve out the sentence, and to make payment of the fine amount voluntarily, on failure of which, steps shall be taken by the trial court to enforce the sentence, and to recover the amount of fine, or enforce the default sentence.
Sd/-
P.UBAID, JUDGE rkj //TRUE COPY// P.A. TO JUDGE