State of Kerala v. M.K. Manomohan and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 ``` ``` CRL.A NO. 1531 OF 2007 ``` ``` CC 9/2000 OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, ``` ## **`KOZHIKODE.`** ## **`APPELLANT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, PALAKKAD. BY SRI.RAJESH A. -SPL.GP(VIGILANCE) ``` ## **`RESPONDENTS/ACCUSED:`** ``` 1M.K.MANOMOHAN, FORMERLY FOREST RANGE OFFICER, NELLIAMPATHY RANGE, NENMARA DIVISION, PALAKKAD DISTRICT. (S/O.KUNJAN, MUNDAKAPARAMBIL, ALATTUCHIRA P.O., KODANAD, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.). ``` ``` 2K.V.SUBHASH, FORMERLY FORESTER, PADAGIRI SECTION, NELLIAMPATHY RANGE, NENMARA DIVISION,, (S/O.VIJAYAN, KANNOLI HOUSE, INCHAMUDI P.O.,, THRISSUR DISTRICT.). ``` ``` 3N.JAILABUDEEN, FORMERLY FOREST GUARD, PADAGIRI SECTION,NELLIAMPATHY RANGE, NENMARA DIVISION,(S/O.NOOR MOHAMMED RAWTHER, BULKIES MANZIL,KAMBRATHCHALLA P.O., MUDHALAMADA,PALAKKAD DISTRICT.) ``` ``` 4A.RAMAKRISHNAN NAIR FORMERLY FOREST GUARD, PADAGIRI SECTION,NELLIAMPATHY RANGE,NENMARA ``` Crl.A.1531 of 2007 2 ``` DIVISION,(S/O.ACHUTHAN NAIR, LAKSHMI, BHAVAN, PUDUPPALLIKUNNAM,CHARUMMOOD P.O., NOORANAD VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. ``` ``` 5M.KARUNAKARAN NAIR, FORMERLY FOREST GUARD, PADAGIRI SECTION, NELLIAMPATHY RANGE, NENMARA DIVISION,(S/O.G.MADHAVAKURUP, PANDARATHIL HOUSE, KUNNAM P.O., MAVELIKKARA TALUK, ALAPPUZHA DISTRICT.(EXPIRED) 6P.V.SUBRAMANIAN, FORMERLY FOREST GUARD, PADAGIRI SECTION,NELLIAMPATHY RANGE, NENMARA DIVISION,(S/O.C.VELAYUDHAN, RACHANA HOUSE, AYINUMPADAM, NENMARA) ``` ``` 7C.KANDAN, FORMERLY FOREST GUARD, PADAGIRI SECTION,NELLIAMPATHY BHAVAN, PANAMBAZHAKKAD,CHERAMANGALAM P.O., ALATHUR TALUK, PALAKKAD DISTRICT. ``` ``` 8P.V.MAJEED MANAGING PARTNER KARAPPARA `A’ ESTATE,PADAGIRI P.O., NELLIAMPATHY, (S/O.ALAVI HAJI, HILA PADA NORTH KARUNAGAPPALLY, TALUK, KOLLAM DISTRICT. ``` ``` 9P.MOHAMMED, MANAGER, KARAPPARA `A’ ESTATE PADAGIRI, NELLIAMPATHY (S/O.ABDULLA HAJI, PARAMBIL HOUSE, KODURKARA P.O., PATTMABI, PALAKKAD DISTRICT. ``` ``` 10P.B.SREEKUMAR, DIVISIONAL FOREST OFFICER, FOREST FLYING SQUAD,KOZHIKODE,FORMERLY D.F.O., NENMARA(S/O.LATE POOKAT BALAKRISHNAN, SHADYANOOK, KOZHIKODE, THEKKUVEEDU LINE). ``` Crl.A.1531 of 2007 3 ``` 11A.PREMAKUMARAN, FOREST GUARD AKATHEYTHARA SECTION, WALAYAR FOREST RANGE, PALAKKAD DISTRICT, FORMERLY FOREST GUARD, PADAGIRI SECTION, (S/O.NEELAKANDAN NAIR, CHAVAKAM, KOVILPAD, OLAVAKODE,PALAKKAD DISTRICT). ``` ``` 12K.GOVINDAN, FOREST GUARD, NENMARA DIVISION, ON SPECIAL DUTY, FORMERLY FOREST GUARD, PADAGIRI SECTION, (S/O.CHINNALAGIRI, P.O.KAVANNUR, VIA AREEKODE,MALAPPURAM DISTRICT). ``` ``` BY ADVS.SRI.AUGUSTINE JOSEPH – R1 TO R4, R6, R7, R9, R11 & R12 SRI.K.B.GANGESH – R10 SRI.MOHAN C. MENON - R8 SRI.K.C.JOSEPH SRI.K.S.ROCKEY SMT.SMITHA CHATHANARAMBATH ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.1531 of 2007 4 K.BABU, J. -----------------Crl.A.1531 of 2007 ----------------------Dated : 22[nd] June, 2022 ## JUDGMENT **1.** This appeal arises from the judgment dated 24.1.2005 passed by the Enquiry Commissioner and Special Judge, Kozhikode, in C.C.9/2000 acquitting all the accused arrayed in the case. The State of Kerala represented by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Palakkad, has preferred this Appeal under Section 378 (3) Cr.P.C. C.C.9/2000 arose from the Vigilance Crime No.9/1997 of VACB, Palakkad. Final report was filed before the trial Court alleging offences punishable under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act and Sections 109, 120B and 403 of IPC against the respondents and two others. **2.** Accused Nos.2 and 4 died during the proceedings in the trial Court. Accused No.7, respondent No.5 in the appeal, died during the pendency of this appeal. Crl.A.1531 of 2007 5 **3.** Karappara 'A' estate is a leased Government Forest measuring an area of 541.29 acres in Nelliampathi Forest Range. Accused No.10 was the Managing partner of the estate. Accused No.11, who was the power of Attorney holder of accused No.10, was the Manager of the estate. Accused Nos.1 to 9 and 12 to 14 were Forest officials. **4.** This Court as per Ext.P4 order in O.P.No.3274/1992 granted permission for cutting and removing 1000 dead and wind fallen trees from Karappara 'A' estate. **5.** The prosecution case is that under Ext.P4 order, accused Nos.1 to 9 and 12 to 14 entered into a criminal conspiracy with accused Nos.10 and 11 and pursuant to that conspiracy, the accused cut down 483 trees from Karappara 'A' estate, out of which 280 trees were healthy standing trees, which had not been included in the list of trees permitted to be cut down as per Ext.P4 order. According to the prosecution, accused Nos.10 and 11 committed offences punishable under Sections 109 and 403 IPC and the other accused committed offence under Section 13(2) r/w Section (1)(d) of the PC Act. The prosecution further alleged that all the accused committed the offence under Section 120B of the IPC. Crl.A.1531 of 2007 6 **6.** The trial Court took cognizance of the offences and, the accused appeared on summons. The Court below framed charges against the accused for the offences alleged and proceeded with the trial. **7.** Prosecution examined PWs1 to 3 and proved Ext.P1 to P81. After the closure of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. On the side of the defence, DW1 was examined and Exts.D1 to 3 series were marked. After hearing the arguments addressed on both sides, the trial Court acquitted the accused under Section 248 Cr.P.C. **8.** Heard the learned Special Government Pleader (Vigilance) Sri.Rajesh A., Sri.Augustine Joseph, the learned counsel appearing for respondent Nos.1 to 4, 6, 7, 11 and 12, Sri.Mohan C.Menon, the learned counsel appearing for respondent No.8 and Sri.K.B.Ganesh, the learned counsel appearing for respondent No.10. **9.** The learned Special Government Pleader, relying on a series of judicial precedents, contended that the trial Court had not even considered the oral evidence of the prosecution witnesses and the documents proved while passing the Crl.A.1531 of 2007 7 impugned judgment. The learned Special Government Pleader also contended that the trial Court has not assigned any reason for recording the finding that the prosecution has failed to establish the charges against the accused. It is further contended that the judgment under challenge is very cryptic and the Court below has dealt with the evidence in a casual manner and hence the judgment acquitting the accused requires interference. Per contra, the learned counsel for the respondents submitted that the trial Court has considered all the relevant materials in support of the judgment and contended that the impugned judgment requires no interference. **10.** The crux of the prosecution allegation is that under the cover of Ext.P4 order of this Court, to cut and remove the dead and wind fallen trees from the estate, accused Nos.10 and 11 hatched a conspiracy with the other accused being forest officials, and cut down 483 trees out of which 280 were healthy and standing trees. The specific case of the prosecution is that those 280 trees would not come within the scope of Ext.P4 order. Due to the acts of the accused, the State sustained a loss of Rs.14,42,392/-. In the impugned Crl.A.1531 of 2007 8 judgment, the trial Court casually mentioned the names and rank of the witnesses and the point on which they were examined without discussing the credibility of the evidence of those witnesses. The trial Court considered the evidence of 23 prosecution witnesses and 81 documents in paragraphs 41 and 42 of the judgment as follows:- “41. In this case, it has been shown that green trees were cut from Karapparara 'A' estate. Though it could be presumed that the trees were cut as directed by A-10 and A-11, with the tacit consent of the other accused who were public servants, in a criminal case like this, criminality cannot be fastened on the accused on the strength of such a presumption. It can also be said that the felling was done by somebody else, without the knowledge of the accused. The prosecution did not succeed in fixing the responsibility on the accused. It is worthwhile to note that in a criminal case, the standard of proof is proof beyond reasonable doubt and not preponderance of probability. 42. The evidence in this case as discussed in detail above, does not establish that there was a criminal conspiracy to commit the offence of illegal felling of the trees from Karappara 'A' estate, in between the accused.” **11.** It is relevant to note that the trial Court has not analyzed or touched on the credibility of the evidence of the witnesses anywhere in the judgment. The trial Court has not referred to the series of documents proved on the side of the prosecution. The Court below has not assigned any credible reason for discarding the evidence of prosecution to record the finding of acquittal. Crl.A.1531 of 2007 9 **12.** Reasons are live links between the mind of the decisiontaker to the controversy in question and the decision or conclusion arrived at. In **Jawahar Lal Singh v. Naresh Singh [(1987) 2 SCC 222]** the Apex Court held that recording of proper reasons would be essential, so that the appellate court would have advantage of considering the considered opinion of the High Court on the reasons which had weighed with the trial court. **13.** In **State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568]** the Apex Court held that reasons in support of the decision is cardinal principle and right to reason is an indispensable part of a sound judicial system. **14.** In **State of Rajasthan v. Rajendra Prasad Jain [(2008) 15 SCC 711]** the Apex Court held that reason is the heartbeat of every conclusion, and without the same it becomes lifeless. **15.** In **Assistant Commissioner, Commissioner Tax Department v. Shukla and Brothers (2010 KHC 4260)** , - the Apex Court held that, the principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be Crl.A.1531 of 2007 10 given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. ## **16.** In **State of Uttar Pradesh v. Golli Alias Ankur and** **Another (2019) 14 SCC 674)** on the non-appreciation of the evidence in proper perspective, the Apex Court held thus: “5. Before us, the prime contention of learned counsel for the State is that without going into the merits of the case the High Court has dismissed its appeal, not even considering the law or assigning proper reasons for dismissal which is contrary to the established principles. There was substantial material evidence on record to establish the guilt of the accused, but the trial Court did not appreciate the same in proper perspective whereas the High Court failed to take into account the evidences available on record. 6. It appears from the impugned judgment that the High Court passed the order rejecting the appeal of the State in a casual manner. In our opinion, the High Court ought to have passed a reasoned order in the light of facts and circumstances of the case. On going through the impugned judgment as well as other material on record, we are of the view that the matter deserves to be remitted back to the High Court for reconsideration and a speaking order. Accordingly we remit the matter back to the High Court with a request to take up the matter afresh and dispose of the same as early as possible, after affording to the parties opportunity of being heard.” ## **17.** In **State of M.P v. Gauri Shankar (AIR 2006 SC 768)** **following State of U.P v. Sahai & Ors (AIR 1981 SC 1442)** , a three Judge Bench of the Apex Court held that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and Crl.A.1531 of 2007 11 has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial miscarriage of justice. **18.** In the present case, I have already concluded that the trial Court has not cared to analyze the merits of the evidence of 23 witnesses and the admissibility of 81 documents. Therefore, the judgment of acquittal passed by the trial Court is not in accordance with law. This Court has no option, but to set aside the same and remit the matter back to the trial Court. This court makes it clear that the Court has not expressed any opinion on the merits of the case. **19.** Resultantly, the Crl.Appeal is allowed. Judgment dated 24.1.2005 in C.C.9/2000 acquitting the accused is set aside. The case is remitted to the trial Court to rehear the same and pass orders afresh, after affording an opportunity of being heard to the respondents. Since the matter is remitted for the limited purpose of reconsidering the evidence already adduced, the personal appearance of the accused is dispensed with. The Court below is at liberty to require the presence of the accused, if necessary. The matter is of the Crl.A.1531 of 2007 12 year 1997. Therefore, the trial Court shall dispose of the matter within three months from the date of receipt of a copy of this judgment. Registry shall transmit the Lower Court Records forthwith. Sd/- **K.BABU , Judge** Mrcs