N. Murali Kumar Alias Vettaikaran Muralikumar vs State

Arunachalam, J.—The Petitioner is the first accused in C.C. No. 82 of 1987 on the file of the Chief Judicial Magistrate, Coimbatore. The

trial Magistrate has framed charges against the Petitioner for offences under s. 49 and 52 of the Wild Life (Protection), Act, 1972, hereinafter

referred to as the ''Act'' punishable u/s 51 of the Act.

The brief facts which led to the prosecution can be summarised as hereunder: It appears that on 4-7-1986 a corpse of an elephant was found in

Jahirporathi in Bolampatti Range of Mullangadu Reserve Forest area. On receipt of information the Respondent investigated the matter and it

disclosed that the occurrence in which the elephant was shot took place on 16-6-1986. The Second accused Mottai Mooppan was arrested on 1-

8-1986 and he volunteered a confession statement, which has been marked as Ex P2, in pursuance of which a gun and elephant hair had been

seized under Ex.P3. According to the second accused, in terms of Ex.P2, the first accused had directed him to shoot a deer and get it since he was

interested in venison. It is the further statement of the second accused that the Petitioner gave him a double-roll gun and four pellets. When the

second accused went to the reserve forest, he found only an elephant which he shot dead and came and informed the Petitioner about it. The

Petitioner directed the second accused to get the tusk of the elephant. In the process of removing the tusk of the elephant it appears that the third

accused Palani helped the second accused Mottai Mooppan. The third accused Palani was arrested on 17.9.1986 and he volunteered a statement,

which has been marked as Ex.P4. Ex.P4 relates to what accused 2 and 3 did together and it does not concern the first accused, (Petitioner)

directly. Obviously Ex.P4 cannot be used against the Petitioner since the third accused has no personal knowledge about what happened between

the second accused and the Petitioner. On 6-10-1986 the Petitioner obtained orders of anticipatory bail from the Court of Sessions, Coimbatore.

The complaint dated 26-12-1986 in this case, was filed before the trial Court on 30-12-1986.

In the complaint the only allegation against the Petitioner is that he had abetted the commission of the crime by the second accused by providing

him a gun and further directing him to cut the elephant''s tusk.

Three witnesses have been examined before the trial Court before the charge was framed. P.W.I is the Forest Range Officer, who speaks about

the above mentioned facts. P.W.2 is the Veterinary Doctor who performed the post-mortem on the dead elephant. P.W.3 is the Forester, who

speaks about his assisting P.W.I for arresting accused 2 and 3 apart from his being present during the postmortem examination of the elephant.

The other witnesses given in the complaint do not connect the Petitioner with the crime.

The trial Magistrate while framing the charge, in his order dated llth August, 1988, has observed that the Petitioner is liable to be charged under

Ss. 49 and 52 of the Act read with Section 51, since he had abetted the second accused in the commission of the offence. Though the learned

Magistrate has observed that there was material available for framing charges it is fairly conceded by the learned Public Prosecutor before me, that

except Ex.P2 and P4 there is no other material against the Petitioner. It is obvious that there has been no seizure from the Petitioner and his house

also has not been searched. There is no substantive evidence whatsoever against the Petitioner for charges being framed.

Section 49 of the Act prohibits any person from purchasing a captive animal or wild animal or any animal article, trophy, uncured trophy or meat

derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under the Act. There is

practically no material placed before me to connect the Petitioner with the ingredients of Section 49 of the Act, Section 52 of the Act deals with

abetment of offences. As long as there is no material to show active complicity of the Petitioner with the crime in question denoting intentional

aiding, it will not be possible to frame a charge u/s 52 of the Act. No material has been brought to my notice except Ex.P2 and P4 to facilitate

framing of a charge against the Petitioner. As I have already held, Ex.P4 is of no use and Ex.P2 can have no bearing for abetment unless there is

substantive evidence on record to frame a charge. Even Ex P2 has been retracted by the second accused. Section 51 of the Act is only the

punishing section and it cannot independently stand without Ss. 49 and 52, on the facts of this case. I am satisfied that there is no material

whatsoever to frame a charge against the Petitioner. The charge framed against the Petitioner is liable to be quashed.

In the result, this petition is allowed and the charge framed against the Petitioner as well as the proceedings in respect of the Petitioner (first

accused), in C.C. No. 82 of 1987 on the file of the Chief Judicial Magistrate, Coimbatore are hereby quashed.