KANTHASWAMI and OTHERS v. STATE OF KERALA

## **'CR'** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 23RD DAY OF JANUARY 2019/3RD MAGHA, 1940 Crl.Rev.Pet.No.362 of 2005** **JUDGMENT IN CRA 334/2002 of II ADDL.SESSIONS COURT, PALAKKAD DATED 25-01-2005 JUDGMENT IN CC 306/1999 of J.M.F.C., ALATHUR DATED 11-09-2002 -----------------** ## **- REVISION PETITIONERS/APPELLANTS/ACCUSED :** - **1 KANTHASWAMI, AGED 40 YEARS, S/O.VELLAYYAN, KANDAPADIYIL, VICTORIA DIVISION, NELLIAMPATHY, PALAKKAD DISTRICT.** - **2 SOMAN, AGED 56 YEARS, S/O.KALIMUTHA PUTHANTHOTTAM ORIENTAL ESTATE, PADAGIRI, NELLIAMPATHY, PALAKKAD DISTRICT.** - **3 NAGARAJAN, AGED 47 YEARS, S/O.VELLAYYAN VICTORIA DIVISION, NELLIAMPATHY, PALAKKAD DISTRICT.** **BY ADVS.SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW** ## **- RESPONDENT/RESPONDENT/COMPLAINANT :** **STATE OF KERALA REPRESENTED BY RANGE OFFICER OF NELLIAMPATHY RANGE, PALAKKAD DISTRICT BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.REVI KRISHNAN, SPL.PUBLIC PROSECUTOR FOR FOREST** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.01.2019, ALONG WITH Crl.M.A.1/2018 in Crl.Rev.Pet.1735/ 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 2 :- ## **'CR'** ## **COMMON ORDER** Crl.R.P. No.1735/2006 stands disposed of by this Court on 10.07.2018 by an order of acquittal. The accused who brought the said revision before this Court were found not guilty of the offence under Section 27(1)(e)(iii) of the Kerala Forest Act on various grounds. One of the grounds of acquittal is that the confession statements of the accused, on which, the prosecution rely are not properly and legally proved, the second ground of acquittal is that the copy of the Government notification produced by the prosecution is not proved, and the third ground is that there is no proper and satisfactory evidence to prove the prosecution case on facts. Crl.M.A. No.1/2018 is filed by the learned Special Public prosecutor for rehearing the said revision on the ground that the Court has committed some factual errors, and that Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 3 :- the accused were wrongly acquitted in revision. If the prosecution is aggrieved by the order in revision, or if the prosecution has got a grievance that the accused were wrongly acquitted, the proper and legal remedy must be to approach the Supreme Court, and not to file petition for rehearing. Any way, it appears from the submissions made by the learned Special Public Prosecutor that the actual grievance of the Forest Department is regarding the findings made by the Court as regards the proof of the Government notification in **Joonus** v. **State of** **Kerala** [2018 (3) KLT 420] and **Rajan** v. **State of Kerala** [2018 (3) KLT 422]. When that alone is practically their grievance, the legal aspect can be clarified, and if necessary, the findings can be modified. 2. Crl.R.P. No.362/2005 is a revision brought by the three accused in C.C. No.306/1999 of the Judicial First Class Magistrate Court, Alathur. Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 4 :- They faced trial before the learned Magistrate under Section 27(1)(e)(iv) of the Kerala Forest Act, and also under Section 51 of the Wild Life Protection Act on the allegation that they jointly trespassed into the Government Reserve Forest at the Victoria part of the Padagiri Section within the Nelliampathy Forest Range on 11.03.1999, and they trapped and killed a wild animal. It appears that the offence was detected by a Forester of the said Forest Range on the basis of secret information. The prosecution records reveal that on the basis of the said information, the Section Forester, accompanied by some Forest Guards, reached the house of the 1[st] accused, and questioned him. As led by the 1[st] accused, the Forester reached the scene of occurrence, and he saw the skeleton of a wild animal there. The gun alleged to have been used by the accused for hunting was also seized by him at the house of the 1[st] accused. Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 **==> picture [45 x 8] intentionally omitted <==** On the basis of the statements given by the 1[st] accused, the other two accused were arraigned and arrested. After investigation, the Forest Range Officer of the Range submitted complaint before the court. 3. All the three accused in C.C. No.306/1999 pleaded not guilty to the charge framed against them by the trial court. The prosecution examined six witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 to MO5 properties were also identified during trial. **==> picture [408 x 10] intentionally omitted <==** incriminating circumstances when examined under Section 313 Cr.P.C., and projected a defence of total denial. They disowned the confession statements alleged to have been given by them to the Forest Range officer. 5. On an appreciation of the evidence, the trial court found the three accused guilty. On Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 6 :- conviction, they were sentenced to undergo simple imprisonment for one year each under Section 27(1) (e)(iv) of the Kerala Forest Act, and another term of simple imprisonment for one year each under Section 51 of the Wild Life Protection Act. 6. Aggrieved by the judgment of conviction dated 11.09.2002, the three accused approached the Court of Session, Palakkad, with Crl.A. No.334/ 2002. In appeal, the learned IInd Additional Sessions Judge confirmed the conviction and sentence, and accordingly, dismissed the appeal. The conviction made concurrently by the trial court and the appellate court is under challenge in Crl.R.P. No.362/2005. 7. On hearing both sides, and on a perusal of the materials in C.C. No.306/1999 of the trial court, I find that the prosecution has not adduced proper and satisfactory evidence to prove the guilt of the accused. Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 7 :- 8. Of the six witnesses examined in the trial court, PW2 is said to be the Section Forester who detected the offence. PW1 and PW4 are the Forest Guards who accompanied PW2. PW5 is the Forest Range officer who filed complaint in court, and PW6 is the veterinary doctor who conducted post-mortem examination. 9. On an examination of the evidence given by the material witnesses, I find that the prosecution is not definite or certain as to who exactly detected the offence. The Section Forester examined as PW2 would say that the offence was detected by him. His case is that he questioned the 1[st] accused after preparation of the Ext.P1 mahazar, and at that time, the 1[st] accused gave indication regarding the commission of the alleged offence. The Ext.P2 mahazar was prepared by the forest official on the basis of the statements allegedly given by the 1[st] accused. The prosecution Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 8 :- case is that as led by the 1[st] accused, the Detecting Officer reached the scene of occurrence, and he found the skeleton of a wild animal there. The 1[st] accused also confessed that he in fact shot down the wild animal with a gun provided by the 2[nd] accused, and he did it as instructed and instigated by the 2[nd] accused. Thus, there is absolutely no direct evidence in this case. PW2 prepared the Ext.P2 mahazar and he also arraigned the accused Nos.2 and 3 on the basis of the statements given by the 1[st] accused. No Forest Official has got a case that he had seen any of the accused at the Government Forest, or that anybody had seen any of the accused hunting, or otherwise dealing with the corpse of any wild animal. The Forest Range Officer brought complaint in court against the three accused simply on the basis of the mahazars prepared by the Forester and the statements allegedly given by the accused. There is no direct Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 9 :- or circumstantial evidence against any of the accused. What is available is only the statements alleged to have been given by the three accused before the Forest Range Officer. 10. Exts.P3 to P5 are said to be the statements of confession made by the accused Nos.1 to 3 respectively. These statements would show that the statements were in fact recorded by the Forest Range Officer. Curiously enough, he did not say anything about the Ext.P3 or Ext.P4 statement when examined as PW5. His evidence is only regarding the Ext.P5 statement allegedly given by the 3[rd] accused. But, this statement also has not been properly proved by him. Proving a confession statement is entirely different from marking a confession statement. PW5 has only marked Ext.P3 as the statement given by the 3[rd] accused. He has not stated anything about the contents of the said statement amounting to confession. This Court has Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 10 :- settled the position as regards proof of confession statements in **Rajan** v. **State of Kerala** [2018 (3) KLT 422]. No value can be attached to Exts.P3 to P5 statements. The Exts.P3 and P4 statements were marked through PW1. He is not the person, who recorded the statement. His evidence is only regarding the statements given by the 1[st] accused to the Forester at the time of detection. This is not a confession statement as such. Thus, I find that the Exts.P3 to P5 statements stand not proved as confession statements. 11. Ext.P6 is said to be the Government Notification as required under Section 19 of the Kerala Forest Act. This is the copy of the Cochin Government Gazette dated 8.5.1909. 12. In **State of Kerala** v. **Adichan Sasi** [1975 KHC 136 = 1975 KLT 839], this Court has held long back that a notification issued under the old Forest Act can be deemed to be a notification under Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 11 :- Section 19 of the Kerala Forest Act. There has been various decisions of this Court as to how exactly a Government Notification under Section 19 of the Kerala Forest Act can be proved. In **Alipilla and Others** v. **State of Kerala** [1983 KHC 346], this Court held that a notification issued by the Government under Section 19 of the Kerala Forest Act can be proved by production of the original notification, or a copy thereof, certified by the Head of the Department, and on production of such a certified copy, the court shall presume its genuineness, the truth of its contents and the competency of the officer, who certified it. In **Sivaraman and Others** v. **State of Kerala** [2012 (2) KHC 416 = 2012 (2) KLJ 225], this Court held that the copy of a Government Notification, attested by the Chief Conservator of Forest will be admissible in evidence as a notification meant under Section 19 of the Kerala Forest Act, and it is sufficient Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 12 :- to prove that the area notified is reserve forest. Thus, the legal position stands settled that the Government Notification required under Section 19 of the Kerala Forest Act can be produced either in original or as a certified copy, certified by the competent person in terms of Section 78 of the Evidence Act. The order of the Court in Crl.R.P.No.1735/2006 and in Crl.R.P.No.1404/2005 reported in **Rajan** v. **State of Kerala** [2018 (3) KLT 422] and in **Joonus** v. **State of Kerala** [2018 (3) KLT 420] respectively will stand clarified and modified to that effect. If what is produced is a certified copy, certified by the proper and competent person, further proof of it may not be required. 13. But in C.C.306/1999, what is produced by the prosecution and marked as Ext.P6 is neither the original nor a certified copy. This is not seen certified as true copy by anybody. Just because it contains the seal of an officer, it cannot be said Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 13 :- to be a true copy, or a copy certified by him. Thus, I find that in this case, there is no proper notification as required under the law. It is well settled that for a conviction under Section 27 of the Kerala Forest Act as regards reserved forest, there must be a notification as required under Section 19 of the Act. Even otherwise I find on factual aspects that the accused are entitled for acquittal because there is absolutely no evidence on facts as against any of the accused. 14. An examination of the evidence given by PW1 (Forest Guard) would show that he had questioned the 1[st] accused. Sub Section (8) of Section 50 of the Wild Life Protection Act makes it clear that only the officers authorised by the law, or the Government under the Act, can conduct investigation. If what PW1 stated about is the extra judicial confession made by the 1[st] accused, that is a different thing, because an extra Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 14 :- judicial confession can be made to any person other than a judicial officer subject to the prohibition contained in Sections 25 and 26 of the Evidence Act. If at all PW1 claims the statement to be an extra judicial confession, it must be properly and legally proved as stated earlier. But, such a confession stands not properly proved according to law. In the result, Crl.R.P.No.362/2005 is allowed. The revision petitioners are found not guilty of the offences under Section 27(1)(e)(iv) of the Kerala Forest Act, and under Section 51 of the Wild Life Protection Act, and they are acquitted of those offences in revision. Accordingly, the conviction and sentence against them in C.C.No.306/1999 of the trial court will stand set aside. The Crl.M.A.No.1/2018 in Crl.R.P.No.1735/ 2006 for re-hearing the whole revision will stand Crl.R.P.362/2005 & Crl.M.A.1/2018 in Crl.R.P.1735/2006 -: 15 :- disallowed, however, subject to the clarification and modification stated above as regards proof and admissibility of the Government Notification under Section 19 of the Kerala Forest Act. **Sd/P.UBAID** **JUDGE** _//TRUE COPY//_ _P.A. TO JUDGE_ Jvt/ds/25.1.2019