O Abdul Kareem alias Kunhani and Riyasudeen alias Manu v State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942** ## **Bail Appl..No.4044 OF 2020** **OR NO.10/2020 OF Thiruvizhamkunnu Forest Station, Mannarkkad Forest Division, Palakkad** ## **PETITIONERS/A1 & A2:** **1 O.ABDUL KAREEM ALIAS KUNHANI AGED 63 YEARS S/O.LATE KUNHAMMU HAJI, OTHUKKUMPURATH HOUSE, MUNDAKUNNU, EDATHANTTUKARA P.O., ALANALLUR VIA., MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678 601. 678601** **2 RIYASUDEEN ALIAS MANU AGED 37 YEARS S/O.ABDUL KAREEM, OTHUKKUMPURATH HOUSE, MUNDAKUNNU, EDATHANATTUKARA P.O., ALANALLUR VIA., MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN - 678 601.** **BY ADVS.** **SRI.BABU JOSEPH KURUVATHAZHA SMT.K.S.ARCHANA** ## **RESPONDENT/S:** - **1 STATE FO KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 682031** **2 DIVISIONAL FOREST OFFICER MANNARKKAD DIVISION, MANNARKKAD P.O., PALAKKAD DISTRICT, PIN - 678 582.** **3 RANGE FOREST OFFICER MANNARKKAD RANGE, MANNARKKAD P.O., PALAKKAD DISTRICT, PIN - 678 582.** ## **OTHER PRESENT:** **SRI.RANJITH THAMPAN, ADDL.AG SRI.SANDESH RAJA SPL. PP (FOREST)** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21.8.2020, THE COURT ON 26.11.2020 PASSED THE FOLLOWING:** BA 4044/2020 2 ## **O R D E R** **Dated this the 26th day of November 2020** Application for anticipatory bail under Section 438 Cr.P.C. The applicants are accused 1 and 2 in OR No.10/2020 of Thiruvizhamkunnu Forest Station, Mannarkkad Forest Range and Division for having caused the death of a she elephant with explosive substances, an offence punishable under the Wildlife Protection Act. 2. The prosecution case, in brief, is that the applicants who are father and son, had in furtherance of common intention with the 3[rd] accused concealed explosive substance in coconut, which was consumed by the she elephant causing BA 4044/2020 3 fatal injuries inside her mouth as a result of which it was not able to consume food and succumbed to the injuries on 27.05.2020. The 3[rd] accused was arrested on 05.06.2020 and he gave a statement that the applicants used to place explosive substances inside coconut with the intention to keep away wild animals which trespassed into the property. On 11.05.2020, the explosive concealed in the coconut by them was consumed by the she elephant and it got injured inside the mouth. The 3[rd] accused was engaged by the applicants to drive away the elephant into the forest. Consequent to the arrest of the 3[rd] accused, he gave a confession statement to the forest officials and in accordance with that several arms and explosive substances for the purpose of use against wild animals were BA 4044/2020 4 seized from a shed in their property. However, the applicants could not be apprehended as they were not available. The seized articles were produced before the Court. 3. The applicants would contend that they are the owners of 15 acres of property in Kottapadam of Mannarkkad Taluk. They are cultivating rubber, coconut and arecanut palms in their property. They do not have any threat of wild animals in their property as no plantain, tapioca or vegetables are cultivated in their properties so as to attract the wild animals. Hence, there is no need for them to plant explosives in their property to scare away wild animals. They have been implicated without any materials and solely on the basis of an alleged uncorroborated confession statement given by the 3[rd] BA 4044/2020 5 accused. It is also submitted that the preliminary autopsy report of the carcass of the elephant indicates that the death was caused due to water filling the lungs indicating death by drowning as the immediate cause of death. There were incapacitating wounds that led to localised sepsis in the oral cavity evidencing severe traumatic injury most likely to have occurred following an explosive blast in the mouth. The report does not indicate presence of any explosive substance inside the mouth or body of the elephant. This would belie the entire prosecution story of death due to explosion. Hence, the applicants seek anticipatory bail. 4. Heard the learned counsel Shri.Babu Joseph Kuruvathazha appearing for the applicants and Shri.Renjith BA 4044/2020 6 Thampan, the Additional Advocate General for the State. Records perused. 5. The learned Add.AG submits that there are sufficient materials to indicate the involvement of the applicants in the crime. The 3[rd] accused has given a confession statement which is corroborated by seizure of explosive substances from the property of the applicants. It has been established that the applicants and the 3[rd] accused were regularly planting explosive substances to eliminate wild boar and similar animals raiding into their property. It is such explosives which were planted concealed inside a coconut that happen to be consumed by the she elephant resulting in an explosion taking place inside its mouth and causing it a traumatic injury inside BA 4044/2020 7 the mouth and the jaw which prevented the animal from feeding resulting in severe debility and weakness which ultimately led to the collapse of the animal in the neck deep water and its drowning to death. It is also submitted that custodial interrogation of the applicants is essential for the purpose of further investigation and hence the application for anticipatory bail may be rejected. 6. After having anxiously considered the submissions made on either sides and perused the records available, I find that the death of the she elephant was prima facie caused due to an explosion in its mouth. The final postmortem report indicates that there were no apparent external wound or injury on any other part of the carcass. There was severe and BA 4044/2020 8 progressive gangrenous cellulitis with breach of skin of lower and upper jaw region on the right side. Similar but less extensive lesions in the jaw region was found on the left side. Black to greyish coloured necrotic subcutis was noted on both sides infested with maggots. Proximal and cranial portion of oral and nasal cavities were breached. Teeth was found chipped off almost completely on both sides. Entire gum black to greyish in colour. Tongue is bluish to black coloured and highly swollen and infested with maggots. Severe and progressive gangrenous necrosis of maxillary sinus was noted. Extensive gangrenous necrosis of masseter muscles on both sides was noted. Temporomandibular joint of the right side was disarticulated and fixed. Fracture and extensive erosions BA 4044/2020 9 of major portions of maxillary bones and medial portion of the mandible on both sides, prominently on the right side was noted. No apparent gross lesion in muscles and skeleton in other parts of the body was noticed. The veterinary surgeon who conducted the autopsy has opined that lesions in oral cavity have resulted from a major traumatic injury sustained in nearly 2 weeks ago. Based on external appearance as well as internal structural damages in the affected area, the traumatic injury has most likely occurred following an explosive blast in the oral cavity. The major traumatic injury in the mouth and jaw prevented the animal from feeding resulting in severe debility and weakness which ultimately led to the collapse and drowning of the animal. BA 4044/2020 10 7. The argument of the learned counsel appearing for the applicants that there is no evidence of an explosion taking place inside the oral cavity of the animal is disproved by the postmortem report. Even without any traces of Explosive Substances inside the mouth or the oral cavity, the veterinary doctor has confirmed that going by the injury sustained inside the mouth and no where else could only point towards the injury being caused by an explosion inside the mouth. The learned counsel appearing for the applicants points out that the injury could have been caused due to a fight with another animal and not necessarily due to an explosion. The postmortem report does not indicate any external injury. Had the injury been caused in a fight with another animal, there BA 4044/2020 11 would necessarily have been some external injuries. The extensive damage to the teeth, mandible and maxillary bones could only have been caused by an explosion. The opinion of the veterinary surgeon who conducted the postmortem has therefore to be accepted to conclude at least at this point in time, that the elephant had sustained fatal injuries in an explosion inside the mouth two weeks prior to its death. 8. It is true that confession statement of the coaccused alone may not be sufficient to find an accused guilty. The prosecution has collected corroborative pieces of evidence to establish its case. There is no reason to disbelieve the materials collected by the prosecution at least to arrive at a prima facie finding regarding the complicity of the applicants. BA 4044/2020 12 9. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another [2010 (14) SCC 496] , it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. The Hon'ble Apex Court has enumerated thus: "9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence. (ii)nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv)danger of the accused absconding or fleeing, if released on bail; (v)character, behaviour, means, position and standing of the accused; BA 4044/2020 13 (vi)likelihood of the offence being repeated; (vii)reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail." In Ramesh and Others v. State of Kerala [2010(1) KHC 745] , this Court held thus: “10. Every citizen has a duty to protect wildlife. Art.51 - A of the Constitution of India enshrines the fundamental duties of citizens. Art.51 - A (g) provides that it shall be duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Offences under the Wild Life Protection Act are to be viewed very seriously - even while dealing with the Bail Applications filed by the accused who are involved in grave offences under the BA 4044/2020 14 Wild Life Protection Act.” 10. The law laid down in Gudikanti Narasimhulu vs. Public Prosecutor [(1978) 1 SCC 240] by Justice Krishna Iyer explains the judicial discretion as the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that discretion when to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor, it must not be arbitrary, vague and fanciful, but legal and regular. 11. Offence under the Wild Life Protection Act is undoubtedly a grave one. The prosecution has not been able to proceed with the investigation in the absence of the availability of the applicants. They need to be interrogated with regard to BA 4044/2020 15 the materials collected through the third accused. The extraordinary remedy of anticipatory bail cannot therefore be exercised in favour of the applicants. The bail application is dismissed. **Sd/-** **ASHOK MENON JUDGE** jg