State of Kerala appealed against the acquittal of Subramanian for killing a wild pig. The High Court found prosecution witnesses unreliable and noted the absence of the animal species in the postmortem report. Appeals dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937
CRL.A.No. 910 of 2005 ( )
AGAINST THE JUDGMENT IN CC 349/2002 of JUDICIAL MAGISTRATE OF FIRST CLASS-1,SULTHANBATHERY DATED 28-06-2004
APPELLANT(S)/COMPLAINANT::
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (O.R.NO.1/96(B) OF ASSISTANT WILD LIFE WARDEN, SULTHAN BATHERY).
BY GOVERNMENT PLEADER SRI. DHANESH MATHEW MANJOORAN
RESPONDENT(S)/ACCUSED::
SUBRAMANIAN, S/O. MADHAVAN, MAROTE KOLAKACHIRA VEEDU, NOOLPUZHA, BATHERY.
BY ADV. SRI.S.M.PRASANTH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
acd
P.D. RAJAN, J.
Crl.Appeal No.910 of 2005
Dated this the 8th day of February, 2016
JUDGMENT
This appeal is preferred by the State of Kerala against the
judgment in C.C.No.349/2002 of Judicial First Class Magistrate
Court-I, Sulthan Bathery. The above case was filed by Asst. Wild Life Warden, Sulthan Bathery Range u/s.27, 29, 32 and 51
(1) of the Wild Life Protection Act 1972 (hereinafter referred to
as the 'Wild Life Act') against the accused. The trial Court after analysing the evidence, acquitted the accused. Being aggrieved by that, the Asst. Wild Life Warden, Sulthan Bathery preferred this appeal.
into the Rampur Reserve Forest in Sulthan Bathery Range of Wayanad Wildlife Sanctuary and killed a wild pig by using
Crl.Appeal No.910/2005 2
explosives. The forest guard while conducting patrol duty,
detected the offence and the Asst. Wild Life Warden registered O.R. 1/96 and filed the complaint before Judicial First Class Magistrate Court-I, Sulthan Bathery. During trial, five witnesses were examined on the side of the prosecution and marked Exts.P1 to P4 as documentary evidence. Ext.D1 was marked on the side of the accused. The incriminating circumstances brought out in evidence were denied by the accused while questioning him.
an appeal to the High Court from an order of acquittal. The
section reads as follows:
“ Appeal in case of acquittal - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), -
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court
Crl.Appeal No.910/2005
3
from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision).
(2)If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946(25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, (the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal -
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court (not being an order under clause(a) or an order of acquittal passed by the Court of Session in revision).
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court”.
(4)If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4)
Crl.Appeal No.910/2005 4
for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under subsection (2)”.
against acquittal has been explained under Section 378 Cr.P.C. in order to protect the interest of the accused person. While reading of the first four sub sections of section 378, it is seen that an appeal against acquittal could be filed by government in cases preferred upon a complaint by the government as well as by the complainant. The right on such appeal can be exercised only after obtaining leave of the court. When acquittal is passed by any Magistrate or by any Sessions Judge and where the offences of which accused is a major or a minor, appeal in every case of such acquittal could only be made to High Court. According to sub-section (6), an appeal by the State under sub-section (1) or sub-section (2) is barred in case private complaints fail to obtain special leave under sub section
Crl.Appeal No.910/2005 5
question whether the finding of the trial court are wrong or there is any error or it is sustainable or not. High Court has full power to re-appreciate and reconsider the evidence on which the order of acquittal is made. While considering the question of law and facts, the high court cannot forget the presumption of innocence available to the accused.
arrived at the place of occurrence, the accused was found
Crl.Appeal No.910/2005
6
moving towards eastern side by carrying a wild animal. When chased the accused, he escaped by leaving the carcass of a
female pig, aged 8 months. Slippers worn by the accused were taken into custody and prepared Ext.P1 mahazar. Subsequently, the body was sent over for postmortem examination. But PW1 did not identify the colour of the dress worn by the accused and he failed to disclose the direction in which the accused ran
away. Subsequently, he admitted that the accused ran away from south to east, he again stated that the accused ran towards south side . PW4 supported the evidence of PW1, who accompanied PW1 at the time of patrol duty and he also failed to identify the colour of the dress and the direction in which the accused ran away.
Crl.Appeal No.910/2005 7
identification, the slippers found at the place of occurrence
to prove the trespass is not a connecting evidence.
Ext.P2 postmortem certificate. Postmortem examination was conducted by PW2, who deposed that he conducted postmortem examination of carcass of a female pig, aged 8 months and he issued Ext.P2 certificate. The name of the species is not mentioned in Ext.P2. When there is no evidence connecting the respondent, the trial Court rightly acquitted the accused.
certain property near the Wild Life sanctuary but no documentary evidence has been produced by him to show that
he had obtained permission from the wild life sanctuary officers for entering inside the wild life sanctuary. PW3
produced Exts.P3 and P4 notifications. As per Ext.P4, it is a reserve forest and as per Ext.P3, it is a wildlife sanctuary.
Crl.Appeal No.910/2005
8
PW5 is the Asst. Wild Life Warden, who deposed that he
issued Ext.P1(a) report. Ext.D1 was issued by the forest
officials. In the absence of such evidence, that contention need not be considered.
principles have been restated by the Apex Court in Muralidhar alias Gidda V. State of Karnataka (AIR 2014 SC 2200) wherein it was held as follows:-
9
Crl.Appeal No.910/2005
court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv)Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if view taken by the court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court”.
Apex Court in the above decision referred its earlier decision in Surajpal Singh V. State (AIR 1952 SC 52). Tulsiram Kanu
V. State (1954 SC 1), Chandrappa V. State of Karnataka
Crl.Appeal No.910/2005
10
(2007(4) SCC 415), Madan Mohan Singh V. State of U.P (AIR 1954 SC 637), Atley V. State of U.P (AIR 1955 SC 807), Aher Raja Kihma V. State of Saurashtra (AIR 1956 SC 217), Balbir Singh V. State of Punjab (AIR 1957 SC 216), M.G.Agarwal V. State of Maharashtra (AIR 1963 SC 200), Noor Khan V. State of Rajasthan (AIR 1964 SC 286), Khedu Mohton V. State of Bihar (1970(2) SCC 450), Shivaji Sahabrao Bobade V. State of Maharshtra (1973(2) SCC 793), Lekha Yadav V. State of Bihar (1973(2) SCC 424), Khem Karan V. State of U.P. (1974(4)SCC 603), Bishan Singh V. State of Punjab (1974(3)SCC 288) Umedbhai Jadavbhai V. State of Gujarat (1978(1) SCC 228), K.Gopal
Reddy V. State of A.P (1979 (1) SCC 355), Tota Singh V. State of Punjab (1987(2) SCC 529), Ram Kumar V. State of Haryana (1995 supp (1) SCC 248), Madan Lal V. State of J and K (1997(7) SCC 677), Sambasivan V. State of Kerala (1998(5) SCC 412), Bhagwan Singh V. State of M.P (20002
Crl.Appeal No.910/2005
11
(4) SCC 85), Harijana Thirupala V. Public Prosecutor, High
Court of A.P (2002(6) SCC 470), C.Antony V. K.G.Raghavan Nair (2003(1) SCC 1), State of Karnataka V. K.Gopalakrishna (2005(9) SCC 291) & State of Goa V. Sanjay Thakran (2007 (3) SCC 755).
Crl.Appeal No.910/2005
12
learned Magistrate. Therefore, the facts highlighted by the
appellant is not sufficient to interfere in the findings of the
lower court.
There is no merit in this appeal and it is dismissed
accordingly.
P.D. RAJAN, JUDGE.
acd
1 issue framed by the court
Whether the evidence regarding the species of the wild animal and identification of the accused.
Colour shows how this judgement treated each authority
Muralidhar alias Gidda V. State of KarnatakaExplained¶75
Muralidhar alias Gidda V. State of Karnataka (AIR 2014 SC 2200) · Who else cites this
Surajpal Singh V. StateReferred¶80
Surajpal Singh V. State (AIR 1952 SC 52) · Who else cites this
Tulsiram Kanu V. StateReferred¶80
Tulsiram Kanu V. State (1954 SC 1)
Chandrappa V. State of KarnatakaReferred¶81
Chandrappa V. State of Karnataka (2007(4) SCC 415) · Who else cites this
Madan Mohan Singh V. State of U.PReferred¶81
Madan Mohan Singh V. State of U.P (AIR 1954 SC 637) · Who else cites this
Atley V. State of U.PReferred¶81
Atley V. State of U.P (AIR 1955 SC 807) · Who else cites this
Aher Raja Kihma V. State of SaurashtraReferred¶81
Aher Raja Kihma V. State of Saurashtra (AIR 1956 SC 217) · Who else cites this
Balbir Singh V. State of PunjabReferred¶82
Balbir Singh V. State of Punjab (AIR 1957 SC 216) · Who else cites this
M.G.Agarwal V. State of MaharashtraReferred¶82
M.G.Agarwal V. State of Maharashtra (AIR 1963 SC 200) · Who else cites this
Noor Khan V. State of RajasthanReferred¶82
Noor Khan V. State of Rajasthan (AIR 1964 SC 286) · Who else cites this
Khem Karan V. State of U.P.Referred¶84
Khem Karan V. State of U.P. (1974(4)SCC 603) · Who else cites this
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR
SUBRAMANIAN
P.D. RAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
