Dismissed

State of Kerala v. Elias, S/O.Poulose

Kerala HC11 Feb 2020CRL.A/853/2005

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed an appeal by the State against an acquittal in a wild life case involving illegal possession of ivory. The court held that despite legal flaws like the absence of a search warrant and possession certificate, the prosecution case failed due to lack of reliable independent evidence and insufficient proof of guilt.

What did the court decide?

The criminal appeal was dismissed, confirming the trial court's judgment acquitting the accused of the charges.

State of Kerala Vs Elias, S/O.Poulose — Narcotics (NDPS) | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941

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CRL.A.No.853 OF 2005

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AGAINST THE JUDGMENT IN CC 485/2001 DATED 05-11-2004 OF COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS I, SULTHANBATHERY

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APPELLANT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. OR NO.4/98, THE ASSISTANT WILDLIFE WARDEN, SULTHAN BATHERY).

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BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER FOR FOREST

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SRI.T.R.RENJITH, PUBLIC PROSECUTOR

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RESPONDENTS/ACCUSED:

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1 ELIAS, S/O.POULOSE KOMARIKAL VEEDU, KUPPADI, NAIKATTI.

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2 KOCHUMON @ DANIEL GEORGE, S/O.GEORGE, KALLIKKAL VEEDU, KONNATHADI, AMSOM,, MARAKANAKARA, UDUMBANCHOLA, IDUKKI.

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3 JOMON, S/O.JOSEPH, CORAKKALLEL VEEDU, MARAKANAKARA, KONNATHADI AMSOM, UDUMBANCHOLA, IDUKKI.

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4 SUNILKUMAR, S/O. SREEDHARAN, SUNIL BHAVAN, KALLARA VILLAGE, VIMANAPURAM TALUK, TRIVANDRUM. R1-4 BY ADV. SRI.K.PRAVEEN KUMAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.853 OF 2005 2

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JUDGMENT

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Dated this, the 11^th day of February, 2020

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The appeal on hand is directed against the judgment of Judicial First Class Magistrate Court I, Sulthan Bathery (for short 'the trial court') in C.C.No.485 of 2001.

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C.C.No.485 of 2001 is a prosecution launched under Section 39(3) read with Section 51 of the Wildlife Protection Act, 1972 (for short 'the Act'). The facts of the prosecution case in brief are to the following effect:-

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On 08.12.1998 at about 12.00 midnight accused 5 in numbers were found in possession of 6 pieces of ivory in the house belonging to 1^st accused situated at Naikatty in Sulthan Bathery. For the reason that those were possessed by them without authority and in violation of the provisions of the Act, O.R.No.04 of 1998 was registered against them. O.R was produced before the court. On summons being served, accused Nos.1 to 4 entered appearance before the court. After serving the material documents to each of them, hearing both sides and upon perusing the records available, charge was framed by the trial court against all of them under Section 39(3) read with Section 51 of the Act. Charge was read

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CRL.A.No.853 OF 2005 3

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over and explained to each of them and they pleaded not guilty. Since the 5^th accused was absconding, the case against him was split up and maintained as C.C.No.602 of 2004. Four accused denied the charges when read over and explained to them and faced trial.

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On the side of the prosecution, witnesses were examined as PW1 to PW9 and documents and properties seized were marked respectively as Exts.P1 to P5 and MO1 series. On closure of the prosecution evidence, each of the accused were examined under Section 313 (1)(b) Cr.P.C. All of them denied when the incriminating circumstances, brought on record by the prosecution were put to them in the examination. Grounds having not been made out to record an order of acquittal, the accused were called upon to enter on defence. They did not adduce any evidence. The trial court heard the counsel representing the prosecution as well as the defence and on appreciation of the evidence, found that the prosecution has thoroughly failed to prove the guilt against the accused beyond reasonable doubt. Accordingly, all of them were acquitted. Aggrieved by the judgment, the appeal on hand was preferred by the State.

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The learned Special Government Pleader for Forest has contended that the judgment of acquittal under challenge is unsustainable. According to him, the reasons stated by the trial court for acquitting the accused are not justifiable ones. According

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to him, the court below has thoroughly failed in appreciating the evidence in its true perspective.

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It is contended by the Special Government Pleader for Forest offences that 9 witnesses examined by the prosecution have corroborated in their versions regarding search and seizure and the trial court went wrong in not relying on their versions. According to him, the confession statement of all of the 4 accused have been recorded and made available to the court by the prosecution and the trial court ought to have relied on those. According to him, those are valid pieces of evidence to derive a finding of guilt against the accused and the trial court is highly unjustified in discarding those.

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Per contra, the learned counsel for the accused has contended that the trial court has correctly appreciated the evidence and the finding about the failure of the prosecution to establish the guilt against the accused was arrived at correctly. According to him, interference with the judgment under challenge is totally unwarranted and the judgment is only to be confirmed.

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In the backdrop of the rival contentions raised by the respective counsel, the evidence of the witnesses of the prosecution is thoroughly scrutinised. As already stated 9 witnesses were examined from the side of the prosecution before the trial court.

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Among the witnesses examined by the prosecution, PW1 is none other than the then Forest Guard attached to Flying Squad,

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Kalpetta. He had stated that alongwith the Range Officer and other staff members at about 12.00 midnight on 08.12.1988, he arrived at the house of the 1^st accused situated at Naikatty. According to him, the visit was based on a reliable information received by him on the previous day that the 1^st accused had stored ivory in his house. After reaching the house, the 1^st accused was questioned by him and a bundle covered by a gunny bag was shown by him. The same was examined and it was found to contain 6 pieces of ivory. On further questioning the 1^st accused had produced one country made gun, one binocular, one head light, eight bullets, two empty cases, one led piece and one piece of branch of horn of a deer, and those were seized by CW5, the then Assistant Wildlife Warden, Sulthan Bathery. Thereafter the 1^st accused and the remaining accused available there were arrested. A mahazar was also prepared, which stands marked in evidence as Ext.P1.

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PW2 is none other than the then Forest Guard attached

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to Kalloor Section of Sulthan Bathery Range. He has accompanied PW1 at the relevant time. He had also identified 6 ivory pieces seized from the house of the 1^st accused during trial and those were marked in the case on hand as MO1 series. According to him, all the accused available at 1^st accused’s house were questioned by him and all of them had spoken about the assistance offered by them to the 1^st accused in the commission of the crime. Admittedly he had

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CRL.A.No.853 OF 2005 6

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affixed his signature in Ext.P1 mahazar, prepared from the house of the 1^st accused. MO1 series were weighed and a mahazar was prepared, which stands marked in evidence as Ext.P2. PW2 has also gone to the extent of stating that on 15.08.1998 alongwith the Deputy Ranger he reached at an auto garage situated at Thirunelli on the basis of information received that the vehicle used in the commission of the crime was kept there. The owner of the workshop was located and he had shown the jeep bearing Registration No.KL-12-A-316, kept therein to them. He has stated that the jeep was produced at the workshop by the brother of the 1^st accused on 09.08.1998. PW2 has also stated that the number plate and mud-guards of the jeep were removed. According to him, the jeep was seized from the work shop in his presence.

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PW3 is the owner of the workshop wherefrom the jeep was seized by the forest officials. He had stated the factum of seizure of jeep from his workshop in categoric terms. PW4 and PW5 are independent witnesses who admittedly had signed Ext.P1 seizure mahazar. Though their signature in Ext.P1 seizure mahazar were admitted by them, they turned hostile to the prosecution case, by denying to have witnessed the seizure of any properties from the house of the 1^st accused. PW6, a worker in PW3’s workshop had also turned hostile to the prosecution case by stating that he did not witness the seizure of the jeep by forest officials from the workshop

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belonging to PW3. PW7 is the then Assistant Wild life Warden, Sulthan Bathery who has investigated the case and filed the chargesheet against the accused. He has deposed about the investigation in the crime and the preparation of the chargesheet. PW8 is the then Assistant Wildlife Warden of Sulthan Bathery Range, who detected the crime alongwith PW1 and PW2. His version also corroborates with that of PWs 1 and 2 regarding the arrest of the accused as well as the seizure of MO1 series and preparation of Ext.P1 seizure mahazar. PW8 had recorded the confession statements of accused Nos.2 to 4. He had identified the confession statements available in the court, which stands marked in evidence as Exts.P3 to P5. He had also deposed about the seizure of the jeep from the workshop belonging to PW3 on 08.12.1998. PW9, the then Range Officer attached to the Flying Squad Kalpetta who had accompanied PWs 1,3 and 8 at the relevant time had also deposed in tune with their versions.

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It is pertinent to note that the witnesses of the prosecution had deposed in corroborative terms regarding the detection of the crime, the search and seizure of the ivory from the house allegedly belonging to the 1^st accused. Though they have stated that the search and seizure was from the 1^st accused’s house, the prosecution failed to procure a possession certificate to show that the house wherefrom the properties have been seized was

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CRL.A.No.853 OF 2005 8

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possessed by the 1^st accused. Apart from the above, though the seizure was effected from a confined building, a search warrant was not seen procured from the court prior to the conduct of the search in the case on hand.

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It is clear from the evidence tendered by the prosecution witnesses, especially PWs 1, 2 and 8 that after obtaining a reliable information, they proceeded to the spot for the purpose of recovering the ivory. When prior information is obtained by prosecution witnesses that ivories have been kept in an enclosed premises in possession of the 1^st accused, they ought to have obtained a search warrant from the court having jurisdiction over the area. It is pertinent to note from the documentary evidence on record that such a search warrant is not forthcoming in evidence. PW7 and 8 who had conducted investigation in the case had also not spoken that a search memorandum was prepared and sent to the court in the case on hand. In such a circumstance, the conclusion possibly be drawn was that the prosecution suffers from a legal flaw, which would have the impact of vitiating the trial. Possession certificate is a material document to establish that the seizure of the ivory was from the premises in possession of the accused. Apart from all the above, independent evidence is lacking in the case on hand. True that several independent witnesses have been cited by the prosecution. Two among them were examined, but they did not

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support the prosecution in any manner. Therefore, independent evidence is totally lacking in the case. But, when the official witnesses corroborate in their versions and proved their credence by surviving the cross examination, want of independent evidence cannot have serious impact on the merits of the case.

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In the case on hand, as already stated, though official witnesses of prosecution corroborate in their versions, in view of several legal flaws, of which discussions have been made earlier, the prosecution case is liable to fail. The trial court after delving on all aspects in the right perspective held that the prosecution failed to establish the guilt against the accused. Illegality, impropriety or infirmity having not been found, the judgment under challenge does not deserve interference.

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In the result, Crl.Appeal fails and is dismissed.

Sd/-

MARY JOSEPH

JUDGE

NAB

State of Kerala v. Elias, S/O.Poulose

Case brief

What is this about?

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State of Kerala v. Elias, S/O.Poulose

Case brief

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