## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**TUESDAY, THE 20TH DAY OF JUNE 2017/30TH JYAISHTA, 1939**
**Crl.Rev.Pet.No. 1453 of 2003 ( ) ---------------------------------**
**AGAINST THE JUDGMENT IN CRA 34/2001 of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR DATED 13-05-2003**
**REVISION PETITIONER/2ND APPELLANT/ACCUSED (A2):**
**----------------------**
**VARGHESE, AGED 53 YEARS S/O PAULOSE, MANGARKUZHIYIL HOUSE NEERAN CITY, KUTTANPUZHA VILLAGE DEVIKULAM TALUK**
**BY ADVS.SRI.ROBSON PAUL SRI.C.D.DILEEP**
## **RESPONDENTS/COMPLAINANT**
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**1. FOREST RANGE OFFICER, SHOLAYAR THRISSUR**
**2. STATE OF KERAL, REP. BY PUBLIC PROSECUTOR**
**BY SPL.GOVT. PLEADER (FOREST) SRI.NAGARAJ NARAYANAN**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **K.P.JYOTHINDRANATH, J.**
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## **Crl.R.P.No.1453 OF 2003**
- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of June, 2017
## **ORDER**
This is a revision filed against the concurrent findings of the courts below regarding the guilt of the accused in respect of an offence
under Section 9(1) 50 and 51 of Wild Life Protection Act. The sentence is to undergo simple imprisonment for one year and also to pay a fine of Rs.1,000/-.
2. The learned counsel submitted before me that the appreciation of the evidence by the courts below was perverse and as such an interference by this Court is warranted. To highlight the fact that the appreciation was perverse, the learned counsel submitted before me that Section 57 of the Wild Life Protection Act is incorrectly
invoked by the trial court as well as by the appellate court. It is the submission that to invoke Section 57 of the said Act, there should be meat in possession of a person prosecuted. Admittedly, as per the
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prosecution case, the petitioner was seen on the southern side of Kummattippara and it is also the submission that the case of prosecution was that meat was spread to dry upon the top of the rock.
It is also submitted before me that there were two accused who faced trial for the same charge. The first accused was acquitted by the appellate court and it became final as no appeal filed by the State. When the positive case of the prosecution is that there were two persons present and when there was no reliable material produced before the court to connect this accused with conscious and exclusive possession, it is submitted that the revision petitioner is entitled for benefit of doubt. The approach of the courts below taking it as granted that he was in possession of meat and therefore there is a presumption
that he had committed the offence is patently illegal.
3. The second argument advanced before me is that as per the evidence adduced by the prosecution, it can be seen that PW7, the forest ranger took the head of bison to the doctor. But, contrary to this evidence, the veterinary doctor got a positive case that no trophy was taken to him, but only meat of the bison. Thus, the submission made
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before me is that the evidence of PW7 as well as PW3 doctor as contradictory will not helpful for the prosecution and the courts below erred in relying upon the same.
4. The next argument advanced before me is that the conclusion arrived at by the court by invoking Section 57 is not correct as already stated, on the background of the positive case of the prosecution.
5. I heard the learned Public Prosecutor. I perused the documents as well as the oral evidence. It can be seen that the prosecution case is that on 3.2.1990 at about 5.20 p.m., while the forest patrolling party was conducting patrol duty through the forest, they noticed smoke and following the same, they reached at a place namely Kummattippara. It can be seen that the said place is inside the forest. There they saw a person preparing food as well as meat spread on the top of the rock to dry. They approached the person and tried to catch him. Then he resisted. At the very same time, another person appeared with riffle and shoot against them and that person escaped. When the other person shot with riffle, this person also escaped. Crime
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was registered and the forest officials seized the meat and a mahazar was prepared. It can be seen that even though the trial court convicted both the accused, the appeal preferred by the first appellant/accused No.1 was allowed by the appellate court. The conviction of this revision petitioner for an offence under the Wild Life Protection Act, 1972 was seen upheld. In this case, as already stated, the mahazar which was marked as Ext.P8 shows that the head of bison was recovered. Similarly, Ext.P1 also will show that it was a place inside the Sholayar range. Then the place of incident is well inside a forest and when as per the prosecution case there were only two persons and meat was recovered, by no stretch of imagination can it be said that only because meat was not in actual physical possession of Accused No.2 it was not in possession of him. It is to be remembered at this juncture, that as per the prosecution case, the meat present therein was about 50 kgms. We cannot expect that a person will carry the same or touch the same, then only it can be said that he was seen in possession of the same. We have to appreciate the evidence considering the attending circumstances. When no other person other than the accused
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can be in possession of the article in a forest area. The far fetched argument that the possession cannot be attributed to this person cannot be accepted. Surely, if the same incident was from an area where there are other inhabitants, then the argument advanced by the learned counsel for the petitioner will have some force. When the place of incident is well inside the forest and meat was found therein, the only inference that can be drawn is that it was the meat of a forest animal. Surely, as per the original case, there were two persons. The other person was having the riffle. He was acquitted. It appears that the acquittal of the said person became final. Only because the other accused who was allegedly possessing the rifle was acquitted is not a ground to acquit this petitioner. The petitioner happened to be therein after the commission of offence is also not believable on the facts of the case. The preponderance of probability is that both accused entered the forest to hunt wild animals and committed the offence.
6. The next point argued before me is regarding the evidence of PW3 and PW **7** . As per the prosecution case, about 50 kgms. of meat was recovered from the spot. Ext.P5 certificate issued by PW3 also
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refers about wild bison meat. The positive evidence of PW3 is that meat was shown to him . PW7 got a case that a trophy was shown to PW3. It is to be remembered that some confusion might have occurred as there was a later recovery of trophy by the officials. The evidence of PW7 that trophy was shown was denied by PW3.
7. The grievance of the petitioner is that the meat was considered as that of bison. Surely PW3 not conducted any special test to identify the meat that of wild bison. But the fact that meat is that of a wild animal need not be suspected. When the evidence of PW7 is not supported by PW3, it can be only held that PW3 only considered the meat shown to him and issued the certificate. It can be seen that the evidence adduced to prove that meat is that of wild bison is only that of PW3. He gave an opinion by looking into the meat. On appreciating the facts of the case, it can be only held that it is only proved that the meat was that of wild animal.
8. The only question is that of sentence. In this case, the learned counsel placed before me the decision in **Sakeer Hussain v. Forest Range Officer ( 1999 (2) KLT 665)** . The submission of the
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learned counsel is that revision petitioner is now aged 74 years. It is also submitted that as per the records itself, he is a physically challenged person and it is submitted before me that as per the decision in **Sakeer Hussain's** case (supra), only imprisonment till the rising of the court was awarded and there was also a direction to pay a compensation of Rs.5,000/- with default imprisonment for six months. The logic advanced before me regarding this aspect is that the prosecution got a case that a loss of about Rs.2,000/- is caused by the petitioner herein. Surely, the age factor and the fact that he is a physically handicapped person is a matter to be considered. The incident occurred in 1990. Now we are in 2017. But at the same time, if a lenient attitude is taken, it will give a wrong message to the society. Considering all these aspects, including the fact that he is a physically challenged person and further considering the fact that meat is not seen positively proved that of wild bison, sentence is modified and reduced as imprisonment for two months and to pay a compensation of Rs.5,000/- to the State under Section 357(3) of Cr.P.C. with default simple imprisonment for two months.
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With the above modification on the sentence side, this revision petition is disposed of. It is made clear that the revision petitioner is entitled for set off as contemplated under Section 428 of Cr.P.C.
**K.P.JYOTHINDRANATH JUDGE**
sv.
