Sasidharan vs The Assistant Wild Life Warden

A. Hariprasad, J.—Accused 1, 2 and 7 in C.C. No. 38/1994 on the file of the Judicial First Class Magistrate Court, Sulthan Bathery are the revision petitioners. They were charged with offences punishable under Section 27(1)(e)(iv) of the Kerala Forest Act, 1961 and Sections 29(1), 31 and 32 r/w Section 51 of the Wild Life (Protection) Act, 1972 After trial, they were convicted under Sections 27(1)(e)(iv) of the Kerala Forest Act and acquitted under Section 51 of the Kerala Wild Life Protection Act. That conviction and sentence was challenged in Criminal Appeal No. 37/1999 before the Additional Sessions Judge, Kalpetta. After considering the evidence threadbare, the learned Additional Sessions Judge confirmed the conviction and reduced the sentence. Not satisfied with the judgment of the lower appellate court, the petitioners have come up before this Court in revision.

Heard Sri. Anoop, learned counsel for the revision petitioners and Sri. N. Suresh, learned Public Prosecutor.

Learned counsel for the petitioners contended that conviction by the courts below is legally unsustainable. According to him, the vital flaw in the prosecution evidence was discarded by the courts below. Per contra, learned Public Prosecutor submitted that the evidence adduced before the trial court clearly showed that the petitioners were guilty of the offence alleged against them.

I have carefully gone through the judgments of the courts below. Trial court relied on the oral evidence of PW''s 1 and 3 and Exts. P1 to P6 to find guilt of the petitioners. PW 1 was a Forest Guard. PW 3 was a Forester. PW 2 was examined in chief. In spite of repeated opportunities given by the trial court, he did not turn up for cross examination. Since the prosecution did not show any valid reason for his absence, the court below rightly eschewed his evidence from consideration.

PW''s 1 and 3 deposed that while they were on patrol duty in a reserve forest falling within Kurichiat Range, they heard a gunshot. They went to the place from where the sound originated and found seven persons. Some of them were armed with guns. Four persons escaped and the petitioners were apprehended. They were questioned and the Forest Officers could understand from the confession that they were into the forest to hunt down wild animals. These witnesses were subjected to searching cross examination. Their credibility could not be demolished in spite of efforts taken.

Ext. P1 is the mahazar proved through PW 1. It shows the prosecution case. In spite of cross examination of PW 1, the recitals in the mahazar remains credible. Ext. P2 is the notification of Fort St. George, dated 31-03-1885. The title thereto is ''Kurichiat Reserve Forest''. This document was not assailed and it could not be done, as it is a public document came into existence in the year 1885. Ext. P2 is an order by the Government of Kerala dated 10-05-1985 wherein, it is showed that the Wayanad Life Sanctuary had been divided into four ranges: Sulthan Bathery Range, Muthanga Range, Kurichiat Range and Tholpetty Range. Ext. P3 may not be of much relevance for our purpose as the acquittal of the petitioners under the Wild Life Protection Act have come final.

Learned counsel for the petitioners mainly raised the following contentions. It is firstly contended that PW 1, when cross examined, deposed that they found the petitioners at a portion of the forest called Pavagadha in Kurichiat Range. He admitted in cross examination that to show that Pavagadha falls within Kurichiat Range, plan and sketch are available. Learned counsel contended that non production of plan and sketch to show that Pavagadha is a portion falling within Kurichiat Range is fatal to prosecution case. In answer to this contention, learned Public Prosecutor submitted that the entire area had been notified as per Ext. P2 as Reserve Forest as early as in the year 1885. Therefore, non production of any particular sketch does not affect the strength of the prosecution case. Considering the fact that a large area of land have been notified as reserve forest and it is surrounded by reserve forest falling within the States of Tamil Nadu and Karnataka, I find that the above contention raised by the petitioners is not legally sustainable.

Learned counsel for the petitioners contended that non examination of independent witnesses is fatal to the credibility of prosecution case. To buttress that decision reported in Gyan Singh and Others v. State of U.P. (1996 SCC (Cri.) 73) is cited. The facts and circumstances in the case are totally different from the facts in this case. Evidence tendered by PW''s 1 and 3 would show that the alleged occurrence was in the reserve forest. Possibility of having an independent witness in that area is beyond comprehension. It is true that one of the witnesses has deposed that aboriginals are residing in the forest. But it is not stated by any witness that their habitat is close to the place of occurrence. In Gyan Sing''s case (supra), it can be seen that human habitation in the forest area was revealed by evidence and in spite of that no witness was examined. Hence, the said decision is distinguishable on facts.

Learned counsel contended that the documents marked through PW 2 cannot be considered as the accused could not get an opportunity to cross examine PW 2. Learned Magistrate considered this question and found that Ext. P2 and Ext. P3 are public documents falling under Section 74 of the Evidence Act. Section 75 of the Evidence Act was also relied on by the trial court to find that certified copies can be produced to prove the existence and contents of public documents. The Supreme Court in Gopal Saran Vs. Satyanarayana, held that if a party does not subject himself to cross examination in spite of order of the court, it is not safe to rely on the examination in chief. If the party had not shown to be legally prevented from submitting himself to cross examination, certainly his evidence cannot be considered. But this proposition cannot be extended to documents produced through this witness, if they require no proof because they fall under the category of public documents. Therefore, the court below rightly relied on Exts. P2 and P3 to find that the prosecution case is reliable. Considering the oral and documentary evidence, I find no legal reason to hold that conviction of the petitioners are not in accordance with law. Therefore, I confirm the same.

Learned counsel for the petitioners contended that they are facing the trauma from the year 1993 onwards. It is also submitted that considering the age of the accused and the prolonged litigation, some leniency may be shown in the matter of sentence. The plea raised by the learned counsel for the petitioners that they should be released on probation under the provisions of the Probation of Offenders Act, 1958 cannot be considered in view of the nature of offence alleged against them. Further, the trial court has considered the question specifically and found that the petitioners are not entitled to get the benefit of the Probation of Offenders Act. I find at this distance of time that some leniency can be shown in the imprisonment part of the sentence.

In the result, the revision petition is partly allowed. Conviction of the petitioners under the aforementioned charge is confirmed. They shall undergo rigorous imprisonment for a period of three months and to pay a fine of Rs. 1000/- each (Rupees one thousand only). In default of payment of fine, they shall undergo simple imprisonment for a period of one month. The trial court is directed to take urgent steps to execute the sentence.

All pending interlocutory applications will stand dismissed.