Kareem s/o Kunhu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **Crl.Rev.Pet.No. 2568 of 2003 ( ) ---------------------------------** **AGAINST THE JUDGMENT DATED 05-08-2003 IN CRL.APPEAL NO.258/2002 OF THE SESSIONS COURT, MANJERI** **AGAINST THE JUDGMENT DATED 10-09-2002 IN CC NO.107/1999 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II(FOREST OFFENCES),MANJERI** **REVISION PETITIONER/APPELLANT/ACCUSED NO.2:** **------------------------------------------** **KAREEM S/O.KUNHU, THUPPILIKKADAN HOUSE, MOOTHEDAM, CHEENIKKUNNU, EDAKKARA AMSOM DESOM, NILAMBUR TALUK** **BY ADVS.SRI.P.VIJAYA BHANU SMT.P.MAYA** **RESPONDENT/RESPONDENT/COMPLAINANT: ---------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY SPECIAL GOVERNMENT PLEADER (FOREST) SHRI NAGARAJ** ## **NARAYANAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SKV** ## **K.P. JYOTHINDRANATH, J** ========================= Crl.R.P. No.2568 of 2003 ======================= Dated this the 27[th] day of June, 2017 ## ORDER This Criminal Revision Petition is preferred against the concurrent findings of the courts below. The revision petitioner herein was the accused in CC No.107/1999 on the files of the Judicial First Class Magistrate's Court-II, Forest Offences, Manjeri. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/under Section 27(1)(e)(IV) of the Kerala Forest Act and further sentenced to rigorous imprisonment for two years under Section 9, 50(c) read with Section 51 of the Wildlife Protection Act and to pay a fine of Rs.5,000/-. He filed an appeal as Crl.Appeal No.258/2007 before the Sessions Court. The appeal was also not successful. Hence, this revision. Crl.R.P.No.2568 of 2003 2 2. When this revision petition came up for hearing, the learned counsel submitted before this Court that the below was appreciation of the evidence by the courts perverse and hence a re-appreciation of the evidence is warranted. It is the submission that originally there were two accused. One accused died during trial. The case against him abated. The revision petitioner herein was the 2[nd] accused. The 1[st] accused was arrested from the forest. It was alleged that, at that point of time, another person was present. Now, the case projected before the court below was that, the revision petitioner herein was the other person. It is a case of disputing identity. It is the further submission before me that the courts below erred in relying upon a so called confession of the deceased, co-accused in Ext.P4. It is the submission that two aspects were not considered by the courts. One is that he can be considered only as an accomplice. A statement of an accomplice how far can be used against the co-accused is a matter to be considered. Crl.R.P.No.2568 of 2003 3 Secondly, it is hit by Section 25 of the Evidence Act, as per Section 57 of the Kerala Forest Act, it is evident that the recording officer was having all the powers of a police officer. If he was having the powers of a police officer and conducting the investigation by virtue of the said powers, then naturally he will be a police officer and Section 25 of the Evidence Act explicitly bars consideration of any of the confession statement made before a police officer. Under such circumstances, the said document cannot be looked into. Similarly, for the same reason, Ext.P5, it is the so called confession of the revision petitioner herein also cannot be looked into. More over, the petitioner got a case that he was under coercion, compulsion and threat and Section 24 of the Evidence Act will also come into play. Thus Ext.P5 cannot be made use of against the petitioner herein. 3. The next point raised before me is that regarding Crl.R.P.No.2568 of 2003 4 the identity. It is the case of the petitioner herein that, as per the prosecution case itself, he was not nabbed from the forest. It is to be remembered that, it is a forest area and the curious case put forward by the forest officials was that he was identified in the forest in moon light. That also at about 5.30 am. Thus, the whole case put forward by the forest officials was unbelievable and unreliable. The conviction can be considered only on based upon a perverse appreciation of evidence and hence this Court can re-appreciate the materials and can extend the benefit of doubt. 4. I heard the learned Special Government Pleader (Forest). 5. The learned counsel submitted before me that here is a case where the evidence has been appreciated by two courts and found the accused guilty. A re-appreciation of the materials is not warranted. It is the submission that the forest official is not a police officer. It is further submitted Crl.R.P.No.2568 of 2003 5 before me that they are not conducting an investigation, but is only conducting an enquiry as contemplated under the Act. Under such circumstances, when the quasi judicial powers exercised by the excise officials, the bar under Section 24, 25 or 26 Evidence Act will not be applicable. Hence, there is no merit in the contention. 6. After hearing the learned counsel, I perused the records. It can be seen that this Court is sitting as a revisional court. Surely, two courts already appreciated the evidence. This is the 3[rd] court. But, the learned counsel appearing for the revision petitioner raised a technical point stating that the courts below erred in relying upon Exts.P4 and P5. In support of the contention, the learned counsel produced a decision reported in **Abdul Rasheed v. State of Bihar** reported in [(2001) 9 SCC 578]. It is the submission that there it was found that an excise officer is a police officer. Bihar Excise Act was under consideration. There is nothing to show that a section similar to Section 57 of the Crl.R.P.No.2568 of 2003 6 Kerala Forest Act was considered therein by the Supreme Court. Under such circumstances, when the forest officials is not entitled to file a report under Section 173 of the Cr.P.C., by no stretch of imagination it can be said that, a forest officer is a police officer. It is to be remembered that by virtue of Section 50 of the amended provisions of the Abkari Act of Kerala, an abkari officer of Kerala can be termed as a police officer. A forest officer will not become a police officer, even if an abkari officer of Kerala can be termed as a police officer for the purpose of consideration of admissibility of a confession. Thus, there is no merit in the argument. When a forest officer is not a police officer, surely the Section 25 and 26 of Evidence Act will not be applicable. The only remaining question is that of applicability of Section 24 of Evidence Act. Surely, there is a suggestion made to the official witnesses that it was obtained on coercion and threat. But there is no material before this Court to substantiate the same. Under such circumstances, there is Crl.R.P.No.2568 of 2003 7 also no merit. 7. Now in this case, PW1 identified the revision petitioner herein as the other person present along with the nabbed person. There is also corroborative material i.e., Exts.P4 and P5, to corroborate the same. Under such circumstances, the appreciation of evidence cannot be termed as perverse. Thus, there is nothing to interfere with the conviction entered into by the courts below. The only question is that of sentence. 8. In this case the incident occurred in the year 1998. Further, it can be seen that the incident occurred inside the forest and it is the claim of the forest officials that he was identified in the moon light. The only question is that of sentence. At this juncture, it is submitted before the court that a minimum sentence has to be passed under Section 51 of the Wildlife Protection Act. During the relevant period, it was one year. The age of the appellant, period of offence are taken into consideration. It can be seen that the only Crl.R.P.No.2568 of 2003 8 allegation is that he was also along with other accused. Thus, considering the totality of the case and passage of time, the sentence to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- under Section 27(1)(e) (IV) of the Kerala Forest Act maintained. But the sentence to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000 each under Section51 of the Wildlife Protection Act is modified and reduced as imprisonment for one year and to pay a fine of Rs.1,000/- with default simple imprisonment for six months. With the above modification on the sentence side and further directing that the sentence will run concurrently, this revision petition partially allowed. With the above modification on the sentence side, as stated above, this revision petition is partly allowed. Sd/- ## **K.P. JYOTHINDRANATH, JUDGE,** /TRUE COPY/ SKV P.A. TO JUDGE