Remanded

Bhadran v. State of Kerala

Kerala HC20 Jun 2016Crl.Rev.Pet/1921/2006

Case brief

AI extract

What is this about?

In a criminal revision petition, the High Court of Kerala held that impugned appellate conviction in a wildlife case based largely on a confession statement required fresh examination. The bench directed remittal to the appellate court to reconsider evidence admissibility, confession validity, and statutory compliance regarding recording of statements by Forest Range Officers versus higher officia

What did the court decide?

Impugned appellate judgment dated 3.3.2006 set aside; Criminal Appeal No.74/2002 remitted to the Additional Sessions Court for fresh consideration.

Bhadran Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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MONDAY, THE 20TH DAY OF JUNE 2016/30TH JYAISHTA, 1938

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Crl.Rev.Pet.No. 1921 of 2006 ( )

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CRL.A.NO. 74/2002 OF ADDITIONAL DISTRICT & SESSIONS COURT-I (ADHOC), PATHANAMTHITTA CC.NO. 507/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, RANNY

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REVISION PETITIONER/APPELLANT/ACCUSED:

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BHADRAN

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S/O. SUKUMARAN, VELLICKATHU HOUSE, ANGAMOOZHY, CHITTAR.

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BY ADVS.SRI.THOMAS ANTONY SRI.M.P.PRAKASH

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RESPONDENT/RESPONDENT/COMPLAINANT :

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THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. P.V. ELIAS

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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Crl.R.P.No.1921 Of 2006

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Dated this the 20th day of June, 2016.

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O R D E R

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The 1st accused in Calendar Case C.C.No.507/1998 on the file of

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Judicial First Class Magistrate’s Court, Ranni is the revision petitioner. He was convicted for the offence under Sec.9 read with Sec.51 of the Wildlife (Protection) Act,1972 (Central Act No.53 of 1972) and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a further period of three months. Being aggrieved by the said conviction and sentence, the revision petitioner had preferred Crl.Appeal No.74/2002 before the Appellate Sessions Court concerned (Court of the Additional Sessions Judge, Adhoc – 1, Pathanamthitta). As per the impugned appellate judgment rendered on 3.3.2006, the Criminal Appeal was dismissed confirming the impugned conviction and sentence imposed by the learned Magistrate. The Calendar Case arose before the trial court out of a complaint filed by the Forest Range Officer, Goodrical, in Ocurrence Report No.12 of 1995 of Plappally Police Station against the two accused for the offences punishable under

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Sec.27 (3)(iv) of the Kerala Forest (Amendment) Act,1993 and Sec.51 of the Wildlife (Protection) Act,1972. However, the trial court, while framing the charges, had omitted the offences under the Kerala Forest Act and had charged the accused only for the aforesaid offences under the Wildlife (Protection) Act, 1972. The second accused had died during the pendency of the trial.

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The gist of the allegations in the complaint is that sometime in the second week of October 1995, both the accused had entered into the Konni Reserve Forest and had placed crackers (thotta) along with food items in order to entice wild animals like deer, with the intention of killing it, as such crackers would explode when the same is consumed along with the food items by the wild animals and that the said food materials along with the crackers were consumed by a wild female elephant which exploded in its mouth and caused its death. During that time, accused No.1 was engaged with the work of bamboo cutting along with some other workers including one Sri.Ramachandran (informant who is PW-1) and that accused No.1 was also in the work shed along with those workers when the crackers were exploded with a big noise and that he had disclosed these aspects to the informant who later conveyed this information to the forest officials on

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17.10.1995. The forest officials concerned went to the scene of occurrence where the carcass of the wild elephant was lying and had prepared Ext.P-1 mahazar dated 17.10.1995. Thereafter, a Senior Veterinary Surgeon of the Government Hospital, Pathanamthitta had conducted the post-mortem of the dead body of the above elephant on 19.10.1995 and had issued Ext-P7 postmortem certificate dated 19.10.1995 with a finding that the elephant had died as a result of bleeding due to the explosive blast that took place in its mouth. The investigation was conducted by PW-4 (Forest Range Officer) and his investigation revealed the involvement of accused No.2 in the supply of the crackers to accused No.1. Ext-P6 confession statement dated 28.6.1996 was recorded from accused No.2 by PW-4 (Forest Range Officer), which also had implicated acused No.1. Thereafter, the accused No.1 was absconding for a long time and he had ultimately surrendered before the Forest Range Officer only on 12.9.1996 and Ext.P-5 confession statement of accused No.1 was recorded by PW-3 (Forest Guard) in the presence of PW-4 (Forest Range Officer). It is the case projected in the complaint that the confession statements as per Exts.P-5 and P-6 have clearly disclosed the involvement of both the accused, more particularly accused No.1 in the commission of the above

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said offences, etc. The prosecution had examined prosecution witnesses 1 to 9 and had produced Exts.P-1 to P-7 documents. The defence had not adduced any evidence on their behalf. The trial court had dispensed with the charges for the offences under the Forest Act, presumably, because even as per the case projected in the complaint, the presence of the accused in the forest area concerned was not unauthorized in as much as he was present there for carrying out bamboo cutting activities undertaken by M/s.Hindusthan News Print Limited, who were permitted for that activity by the competent forest officials concerned.

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On a perusal of the judgments of both the courts below, it is clearly disclosed that the main aspect that was considered by the said courts in arriving at the impugned conviction is on the basis of Ext.P-5 confession statement dated 12.9.1996 which was said to have been given by accused No.1 to the forest officers concerned. Sri.M.P.Prakash, learned counsel for the revision petitioner/accused No.1, has urged various contentions in the matter and the main points urged by him are as follows:

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(i) That a reading of the impugned judgments of both the courts below would clearly reveal that the sole basis for rendering the

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impugned conviction against the revision petitioner (accused No.1) was on the basis of Ext.P-5 confession statement dated 12.9.1996 said to have been given by the accused No.1 to the Forest Officers concerned. It is pointed out in this regard that there was Ext.P-5 dated 12.9.1996 which was alleged by the prosecution to be a confession statement given by accused No.1 and Ext.P-6 dated 28.6.1996 which is stated by the prosecution to be a confession statement given by Accused No.2 and that accused No.2 had died during trial. First informant in this case was cited as PW-7 by the prosecution in order to prove the projected case of the prosecution so as to corroborate the implication of accused No.1 in tune with Ext.P-5 confession statement, but that PW-7 has turned hostile. Further that PW-9 was cited by the prosecution in order to corroborate the versions of accused No.1 in Ext.P-5 that he had purchased the crackers (thotta) in question from PW-9. But that PW-9 even in his statement given before the investigating officer had stated that it was not from him that the said crackers was purchased and that immediately after mounting the box, PW-9 was given up by the prosecution. On this basis, it is contended by the petitioner that there is no independent witness whatsoever to corroborate the version relied on by the prosecution on the basis of Ext.P-5 confession statement. In this

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regard, the learned counsel for the petitioner relies on the rulings of the Apex Court in the case Sahoo v. State of U.P reported in AIR 1966 SC 40 = 1966 Crl.L.J 68, wherein the Apex Court held that confession is a direct piece of evidence but that before such evidence should be accepted, it must be established by cogent evidence what were the exact words used by the accused and even if the confession was established, prudence and justice demands that such evidence should not be used as the sole ground of conviction and it may be used as a corroborative piece of evidence and that confession statement, even if it is admissible, cannot be the sole basis for any conviction and that it can only be used as a corroborative piece of evidence so as to corroborate independent evidence adduced in that regard disclosing the implication of the accused. In this regard, the petitioner would also rely on the ruling of the Apex Court in Sucha Singh v. State of Haryana reported in (2013) 14 SCC 552 para 13. On this basis, the learned counsel for the petitioner contends that both the courts below have overlooked this crucial aspect of the matter and that both the courts below have clearly held that the only piece of material available in this case to establish the involvement of the petitioner is Ext.P-5 confession statement and that therefore, the impugned conviction and sentence is liable to be set aside on that ground alone.

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(ii) It is further contended by the learned counsel for the petitioner/accused No.1 that even a mere perusal of Ext.P-5 confession statement dated 12.9.1996 would make it clear that it is a three page statement and the 3rd page hardly contains two sentences and that the crucial pages 1 & 2 thereof are unsigned by the accused concerned (A1) as well as by the Forest Officer who had recorded the same and by the Forest Officer before whom it is said to have been recorded, etc. That a perusal of the same would show that the last page (3rd page) alone is signed by the accused which bears his signature as well as thumb impression and it is said to be recorded by one Thomas John (Forest Guard), PW-3, and bears the signature and date 12.9.1996 and it is further stated that the same was signed before the Forest Range Officer, Goodrical and it bears his signature and date and the other two pages do not contain the signature of anyone. The last page (3rd page) says only about the arrangement of bail and that the maker of the statement (A1) has realised that the case is serious only now and he will not repeat such instances and that there is none else to protect his children as the mother is far away from the family house and that he has nothing further to submit. On this basis it is contended by the petitioner that since the crucial contents in Ext.P-5 on pages 1 & 2 regarding the

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alleged admission of offence, etc., is not signed by the accused or by anybody else, the same is not worthy of any reliability and credibility and it is only to be eschewed. That both the courts below proceeded on the premise that Ext.P-5 is otherwise acceptable and that it is not vitiated by any such glaring aspects, etc. Accordingly, it is contended that even if the accused has not raised such a contention even before the trial court or before the appellate court, the same is not a bar from urging such contention as a mere perusal of Ext.P-5 would clearly establish that pages 1 & 2 of the same are unsigned by anyone including the accused and therefore is bereft of any legal acceptability and admissibility.

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(iii) Further it is contended by Sri.M.P.Prakash, learned counsel for the petitioner, that even if all the three pages of Ext.P-5 statement dated 12.9.1996 are accepted as it is, it does not necessarily either explicitly or by necessary implication in any manner disclose that the so called admission of certain activities of accused No.1 relating to killing of certain wild life animals mentioned therein or places mentioned therein are necessarily relatable to the time, place and specific animal involved in the present criminal offence. In this regard the petitioner's counsel has taken this Court to the details of Ext.P-5 to urge his case.

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That in Ext.P-5 it is seen stated that the accused had placed some crackers earlier to kill some wild deers and on earlier occasions the description of the events therein and the vague manner of detailing of the time, occurrence and other events relating to the particular charges concerned are too vague and it does not necessarily in any manner disclose the admission of the guilt regarding the commission of the presently charged offence in question. Therefore, it is contended that the conviction rendered against the petitioner by both the courts below are clearly based on “no evidence”.

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(iv) It is further urged by the learned counsel for the petitioner that in view of the mandatory conditions laid down in Sec.50(8)(d) r/w Sec.50(9) of the Wildlife (Protection) Act, 1972, statement from witnesses including that from prospective accused could have been recorded for acceptance in evidence only by the Officer of the rank of not below the rank of Assistant Conservator of Forests. That admittedly in this case, Ext.P-5 statement was recorded by PW-3 (Range Officer) and it is stated to have been taken in the presence of PW-4 (Forest Range Officer) and that even if it is taken that the same was recorded by the Forest Range Officer, the same is illegal and improper as it would amount to violating statutory mandate of Sec.50(8)(d) r/w Sec.50(9) of

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the Wildlife (Protection) Act, 1972. In this regard the learned counsel for the petitioner would submit that this aspect of the matter has not been considered by the learned Single Judge of this Court in the case Forest Range Officer v. Aboobacker reported in 1989 (1) KLT 871 in Criminal Appeal No.317/1988 dated 14.3.1989 wherein it has been held that confession statement made by an accused in an offence under the Wildlife (Protection) Act, 1972, to a Forest Range Officer is admissible as the said Forest Officer is not a police officer within the meaning of Sec.25 of the Evidence Act and that therefore the prohibition contained in Sec.25 of the Evidence Act is not applicable and therefore as the confession statement is made before the Forest Range Officer is admissible. It is pointed out by the petitioner's counsel that the above said decision of this Court in Aboobacker's case (supra) was rendered on 14.3.1989 in respect of a forest offence which occurred in the middle of February, 1985 and that therefore this Court has no occasion to consider the impact of clause (d) of sub-sec. 8 of Sec.50 of the Wildlife (Protection) Act, 1972 in so far as the provision in that regard as per that sub-section was enacted by a subsequent amendment as per Central Act 4 of 1991 with effect from 2.10.1991. Therefore, it is contended that the legal position settled by this Court in

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the ruling in Forest Range Officer v. Aboobacker reported in 1989 (1) KLT 871 is in no way a bar from accepting the above said contention of the petitioner. To fortify his contention the learned counsel for the petitioner has placed reliance on the judgment of a learned Single Judge of the High Court of Bombay (at Goa) in Criminal Revision Application No.1/2015 (decided on 22.6.2015) in the case State v. Francis Masrenhas. Therein the Bombay High Court (at Goa) was called upon to decide on the applicability of Sec.50(8) of the Wildlife (Protection) Act, 1972 and the specific contention raised therein was that the confession statement recorded by the Deputy Range officer in respect of an offence involving provisions of Wildlife (Protection) Act, 1972, could not be admissible in evidence in view of the provisions contained in Sec.50(8)(d) r/w Sec.50 (9) of the said Act. The learned counsel for the petitioner would also rely in this regard on the decision of the learned Division Bench ruling of the High Court of Bombay (at Nagpur) in Criminal Writ Petition No.308/2002 (judgment dated 17.4.2003) in the case Dr.Krishnadas Shankarraon Abhare v. State of Maharashtra and ors. which deals with the admissibility of statements recorded in confiscation proceedings relating to the Indian Forest Act, 1927. It is pointed out that the Division Bench of the Bombay High Court (at Nagpur) held therein that

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such confession statement relied on in confiscation proceedings arising out of Indian Forest Act, 1927 is illegal and inadmissible as the said statement was recorded by Forest Range Officer and not by the officer not below the rank of Assistant Conservator of Forests as mandated in Sec.72(1)(d) of the Indian Forest Act, 1927 which is quite similar to the provisions contained in Sec.50(8)(d) of the Wildlife (Protection) Act, 1972 , etc.

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(v) Lastly, the learned counsel for the petitioner would also

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urge the contention raised by him in Ground 'B' of his revision petition which reads as follows:

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“B. The courts below overlooked Section 55 of the Wild Life (Protection) Act, 1972, according to which no court shall take cognizance of an offence under the Act otherwise than on a complaint of a notified person. The prosecution did not prove that PW4 is a person competent to file complaint under the Wild Life (Protection) Act, 1972. Therefore, the courts below have committed a grave illegality in taking cognizance of the offence and convicting the petitioners herein. Therefore, the conviction and sentence imposed on the petitioner is illegal and are liable to be set aside.”

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The learned Government Pleader made submissions

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regarding the various contentions urged on behalf of the petitioner. In particular, the learned Government Pleader pointed out that the aforequoted rulings of the Bombay High Court are seem to have been made by that Court without adverting to the earlier Division Bench

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ruling of the Bombay High Court in the case The State v. Bankulal Gokuldas Shah and ors. in Criminal Appeal Nos.1138 and 1064 of 1954 (judgment dated 20.4.1955) reported in AIR 1955 NUC (Bombay) 4492 (para 42) wherein the Division Bench of the Bombay High Court has considered therein the impact of the provisions contained in Sec.72(1) (d) of Indian Forest Act, 1927, and held that Sec.72 has got reference to the evidence recorded by a Forest Officer who has been empowered to hold an enquiry which has to be recorded on oath and secondly the words “evidence” employed in Sec.72(1)(d) and Sec.72(2) show quite clearly what is thereby meant is the statement of a witness and not the statement of a person who is alleged to have committed an offence (para 26). Further it was also held therein by the Division Bench of the Bombay High Court that statement made by an accused person before an officer who is not a Magistrate or a Judicial Officer, amounting to a confession, is an extra judicial confession and there being nothing in Sec.72(1)(d) and Sec.72(2) which would prevent its use in a subsequent trial of the maker along with other accused persons, the statement would be admissible in evidence against the maker as an extra judicial confession and against the co-accused implicated under Sec.30 of the Indian Evidence Act. The learned Prosecutor would also pointed out

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that Sec.72(1)(d) of the Kerala Forest Act is in para material terms compared to Sec.72(1)(d) of the Indian Forest Act, 1927 and is broadly similar to the provisions in Sec.50(8)(d) and Sec.50(9) of the Wildlife (Protection) Act. The learned Prosecutor would also point out that the learned Single Judge of this Court in Kunjali & ors. v. Forest Range officer and anr. reported in 2012 KHC 231 = 2012 (2) KLJ 124 = 2012 (2) KLT SN 6 has held in paras 20-22 thereof which read as follows:

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"20. It is pointed out that the Kerala Forest Act does not say that the confession statement of the accused should be recorded only by the Assistant Conservator of Forest. Section 72 deals with certain powers invested on a Forest Officer not below the rank of an Assistant Conservator of Forests. Section 72(d) deals with the power to hold inquiries into the forest offences. Section 72(d) says that in the course of inquiries the Assistant Conservator of Forest can receive and record evidence and can issue search warrants which may be executed in the manner provided by the Code of Criminal Procedure. That section also empowers the Assistant Conservator of Forest to accept compensation for forest offences under section 68.

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The learned Special Government Pleader would submit that recording of a confession is different from conducting inquiry as contemplated under section 72(d) of the Forest Act. The petitioners contend that the Forest Range Officer is not a Forest Officer mentioned in Section 72 (d) and as such the confession made to a Forest Range Officer is not inadmissible. It is submitted by Sri.Madhavankutty, the learned Special Government Pleader for Forest, that the recording of evidence mentioned in Section 72 (d) is the recording of evidence of the witnesses and not the confession of the accused and therefore, the contention that since the confession statements were recorded by the Forest Range Officer and not by the Assistant Conservator of forest those statements are inadmissible, must also fall to the ground.

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The word 'evidence' occurring in Section 72(d) has reference to the statements of the witnesses and not to the statement of the person alleged to have committed an offence. As such the confession statements given by the accused persons to the Forest Range Officer are admissible in evidence."

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The provisions contained in Secs.50(8)(d) and Sec.50(9) of the Wildlife

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(Protection) Act read as follows:

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“Sec: 50. Power of entry, search, arrest and detention.-(1) Notwithstanding anything contained in any other law for the time being in force, the Director or any other officer authorised by him in this behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police officer not below the rank of a sub-inspector, may, if he has reasonable grounds for believing that any person has committed an offence against this Act

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xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

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(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests authorised by the State Government in this behalf shall have the powers, for purposes of making investigation into any offence against any provision of this Act,

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(a) to issue a search warrant;

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(b) to enforce the attendance of witnesses;

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(d) to receive and record evidence.”

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“Sec.50(9). Any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate provided that it has been taken in the presence of the accused person.”

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Secs.72(1)(d) and 72(2) of the Indian Forest Act, 1927, read as follows:

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“Sec: 72. State Government may invest Forest-officers with certain powers.-.(1) The State Government may invest any Forest-officer with all or of the following powers, that is to say:

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(a) power to enter upon any land and to survey, demarcate and make a map

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of the same;

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(b) the powers of a Civil Court to compel the attendance of witnesses and the

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production of documents and material objects;

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1898 ; and

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(d) power to hold an inquiry into forest-offences, and, in the course of such

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inquiry, to receive and record evidence.

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(2) Any evidence recorded under clause (d) of sub-section (1) shall be

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admissible in any subsequent trial before a Magistrate, provided that it has been taken in the presence of the accused person.”

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Sec.72 of the Kerala Forest Act, 1961, reads as follows:

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“Sec.72. Investing Forest Officers with powers.- The Government may invest any Forest Officer not below the rank of an Assistant Conservator of Forests with all or any of the following powers, and may withdraw the same:-

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(a) power to enter upon any land and to survey, demarcate and make a map of the same;

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(b) powers of a Forest Settlement Officer;

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(d) power to hold inquiries into forest offences and, in the course of such inquiries, to receive and record evidence and to issue search-warrants which may be executed in the manner provided by the Code of Criminal Procedure, 1898;

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(e) power to accept compensation for forest offences under Section 68 of this Act.

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Any evidence recorded under clause (d) of this section shall be admissible in any subsequent trial of the alleged offender before a Magistrate; provided that it has been taken in the presence of the accused person and recorded in the manner provided by the Code of Criminal Procedure, 1898.”

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Accordingly, the learned Prosecutor contend that ratio decidendi laid

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down by this Court in the ruling in Kunjali & ors. v. Forest Range officer

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and anr. reported in 2012 KHC 231 with respect to the provisions contained in Sec.72(1)(d) of the Kerala Forest Act, 1961 in respect of confession statement recorded by Forest Range Officer relating to Forest Offence recorded by Forest Range Officer would apply with equal vigor in this case. That the case covered by Sec.50(8)(d) r/w Sec.50(9) is recording of evidence of witnesses and not the confession of the accused

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and therefore the contention of the accused that the confession statement is inadmissible as the same was recorded by the Forest Range Officer and not by the Assistant Conservator of Forests must fall to the ground. However, Sri.M.P.Prakash, learned counsel for the petitioner would submit that irrespective as to the acceptability or otherwise of this contention based on Sec.50(8)(d) of the Wildlife protection Act, 1972, if the petitioner/accused succeeds in the other three contentions narrated above, then he is entitled to succeed in this matter which would necessarily entail setting aside of the impugned conviction and sentence.

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Having regard to the nature of the reliefs proposed to be granted in this revision petition, there is no necessity for this Court to deal extensively with the rival pleas made on the various contentions raised by the learned counsel for the petitioner and the learned Prosecutor.

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On a perusal of the impugned judgment of both the courts below, it can be seen that both the courts proceeded on the premise that the main evidence to clinch the involvement of the accused is Ext.P-5 statement which is stated to be a confession statement of accused No.1. None of the above said contentions urged by the learned counsel for the

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petitioner has not even been remotely considered by both the courts below. Some of the contentions do have significant implications even in the arena of appreciation of evidence. As both the courts below have failed to look into all these aspects of the matter, this Court is of the considered opinion that this Court sitting in revisional jurisdiction need not make a first look at it and it is only appropriate to direct the appellate Sessions Court concerned to have a fresh re-look at the entire matter more particularly the above said contentions now advanced by the petitioner. In that view of the matter the impugned appellate judgment dated 3.3.2006 in Crl.A.No.74/2002 rendered by the appellate Sessions Court concerned (Court of Additional Sessions Court (Adhoc) I, Pathanamthitta) is set aside and Crl.A.No.74/2002 is remitted back to that court for consideration of the appeal afresh.

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The court below will hear both sides and consider all the contentions of the accused more particularly those which are dealt with herein above and pass final orders in the appeal without much delay. As the date of occurrence of the offence in this case is said to have occurred in and around October, 1995, the appellate court should give top priority for the disposal of the appeal and all reasonable endeavours should be taken by the appellate court to ensure that the appeal is

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finally disposed of without much delay, at any rate, within a period of six months from the date of production of the lower court records. The Registry will ensure that the lower court records and a copy of this judgment are transmitted to the appellate court without much delay.

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With these observations and directions, this Criminal Revision Petition stands finally disposed of.

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ALEXANDER THOMAS, Judge.

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bkn/-

Bhadran v. State of Kerala

Case brief

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Bhadran v. State of Kerala

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