Kerala High Court
Jinu vs State Of Kerala on 9 January, 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941
Crl.Rev.Pet.No.2001 OF 2005
AGAINST THE ORDER/JUDGMENT IN CRA 120/2004 OF DISTRICT COURT&
SESSIONS COURT,THODUPUZHA
AGAINST THE ORDER/JUDGMENT IN CC 224/2001 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - I, IDUKKI
REVISION PETITIONER/S:
JINU, S/O ISSAC,
PUTHENPARAMBIL HOUSE, KOTHAPARA KARA,, UPPUTHARA
VILLAGE.
BY ADV. SRI.JAI GEORGE
RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
PP SRI.RAMESH CHAND
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.R.P.No.2001 OF 2005 2
O R D E R
Dated this the 9th day of January 2020 The revision petitioner is the first accused in C.C.No.224/2001 on the files of the Judicial First Class Magistrate Court, Idukki. He along with four others were charged with for having committed offences punishable under Section 27(1)(e) (iii) and
(iv) of the Kerala Forest Act and Section 27(1) and 29 of Wild Life (Protection) Act. By judgment dated 30.03.2004, the learned Judicial First Class Magistrate Court, Idukki convicted and sentenced the first accused to undergo simple imprisonment for one year each and fine of Rs.1,000/- each under Section 27(1)(e) (iii) and (iv) of the Kerala Forest Act and simple imprisonment for six months each and fine of Rs.1,000/- each under Section 27(1) and 29 of Wild Life (Protection) Act, and in default of payment of fine, to undergo simple imprisonment for three months more. A2 to A5 were acquitted.
2. Challenging the conviction and sentence, the first accused preferred Crl.Appeal No.120/2004 before the Sessions Judge, Thodupuzha. Learned Sessions Judge allowed the Appeal in part confirming Crl.R.P.No.2001 OF 2005 3 the conviction and sentence under Section 27(1)(e)
(iii) and (iv) of the Kerala Forest Act. However, the sentence for the offence under Section 27(1) and 29 read with Section 51 of the Wild Life (Protection) Act was set aside finding that no separate sentence is warranted.
3. The prosecution case is that, on 22.01.1999, while PW1 Forest Guard along with other officials were moving around the forest at Murikkolibhagom, it had come to their notice that a withered teak tree was cut, sliced and sawn and certain portions were removed. It is alleged that the accused caused damage to the habitat of Wild Animal within the sanctuary and caused damage to the Government to the tune of Rs.2,500/-. Ext. P1 Mahazar was prepared and on the strength of Ext.P1, Ext.P2 report was prepared and a case was registered for investigation. During the course of investigation, PW4 forester attached to the Forest Department arrested the first accused on 25.01.1999 on getting reliable information from PW2. It is alleged that the teak tree was cut down by him along with accused Nos. 2 to 5 and that one piece was sawn and the timber pieces were removed by them. Pursuant to the Crl.R.P.No.2001 OF 2005 4 confession statement, three wooden planks and log was seized from the first accused on the strength of Ext.P3(a) Mahazar. Accused 2 to 5 were arrested on 31.1.1999 and on the basis of their confession statements. Some pieces of wood were seized as per Ext.P2 Mahazar. The first accused was taken into custody on 25.01.1999 by PW4 and produced before PW6 Wild Life Warden. According to PW6, Ext.P4 confession statement was given by the first accused and it was recorded by the forester in his presence.
4. During the trial, PW 1 to 6 were examined and marked as Exts.P1 to P8. Exts.C1 and C2 were marked as Court Exhibits. MO1 saw was marked as material object.
5. Heard learned counsel for the revision petitioner Sri. Jai George and learned Public Prosecutor Sri. Ramesh Chand.
6. All the accused except the first accused were acquitted by the Court below. In this context, the testimonies of PW 4 and 5 are important. PW4 forester and PW5 Forest Guard stated before the Court below that the first accused was arrested from his house on 25.01.1999 and on being questioned, he produced one teak log and three sawn pieces and the Crl.R.P.No.2001 OF 2005 5 same was recovered by way of Ext.P3(a) Mahazar. There are two independent witnesses to Exts.P3 and P3(a) Mahazar. However, those witnesses were not examined by the prosecution. The oral testimony of PW6 Assistant Wild Life Warden would show that the first accused was produced before him by PW4 and the confession statement of first accused was recorded by one Aboobacker. Aboobacker was not examined before the Court below. However, PW6 stated that the confession statement of the accused was recorded by Aboobacker in his presence. When the prosecution relies on the confession statement of the accused, the prudent mandate that the statement must be proved by the person who recorded the statement and his evidences recording the contents of the statement specifically amounting to confession. Mere statement of PW6 that confession statement was recorded in his presence, is not sufficient as per the scheme of the Forest Act. It is true that confession statement given by the accused before the officer as defined under the Forest Act is admissible in evidence. No reasons are stated by PW6 as to why he had not recorded the alleged confession of the first accused. According to him, Crl.R.P.No.2001 OF 2005 6 one of the officers working under him recorded the confession statement in his presence. Confession being a previous statement of the accused, it is necessary on the part of the prosecution to examine the person who recorded the confession statement to prove the genuineness of the confession as mandated under law. The statement by the senior officer that the confession statement was recorded in his presence alone is not sufficient to act upon the confession allegedly given by the accused. In a criminal case, it is the duty of the prosecution to prove the case beyond reasonable shadow of doubt.
7. Admittedly, occurrence in this case took place within the Idukki sanctuary area. Considering the natural and zoological significance, the Government of Kerala by virtue of Ext.P1 notification, declared the area to be a sanctuary to be known as the Idukki sanctuary for the purpose of protecting, propagating and developing wild life and its environment. This Court held in Rajan and others V. State of Kerala 2018 KHC 534 that the proper way to prove notification is to examine the person who certified the copy of the true copy as the custodian of the notification. In this case, Crl.R.P.No.2001 OF 2005 7 Ext.C1 true copy of the notification was issued by the Assistant Wild Life Warden, Idukki sanctuary. He was not examined as witness. Ext.C2 notification was also issued by the Government for identical purpose. In this case, Exts.C1 and C2 were marked as Court exhibits with the consent of the parties.
8. In a criminal case, when certain matters are to be proved in a particular manner, it should be done in that manner and a different method of marking is strictly prohibited. The very foundation of the case is based on the notification issued by the Government. Hence the prosecution was obliged to prove the notification initially and the area covered under the notification in accordance with law. Though it is recorded in the judgment that the accused consented marking of Exts.C1 and C2, there is nothing on record to probablise the same. The prosecution mainly relies on Ext.P4 confession statement given by the first accused. As indicated earlier, the confession statement is not true.
9. In view of the discussion made herein above, this court finds two major infirmities in this case. Firstly, the prosecution has not exhibited Ext.C1 notification issued under Section 19 of the Forest Crl.R.P.No.2001 OF 2005 8 Act in accordance with law. Secondly, Ext.P4 confession statement is not properly and legally proved by the proper person who recorded the confession to make it admissible in evidence. In the above circumstances, the conviction against the revision petitioner cannot be sustained.
10. In the result, the revision petition is allowed. The revision petitioner is found not guilty for the offences punishable under Section 27(1)(e) (iii) and (iv) of the Kerala Forest Act and under Section 27(1) and 29 of the Wild Life (Protection) Act. The conviction and sentence imposed by learned Sessions Judge, Thodupuzha in Crl.Appeal No.120/2004 stand set aside. Accordingly, the revision petitioner-accused stands acquitted.
The Criminal Revision is allowed accordingly.
Sd/-
N.ANIL KUMAR JUDGE uu