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Kadavanathil Baby and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ1186
AppellantKadavanathil Baby and anr.
RespondentThe State
Cases ReferredPallasan Heneefa v. State of Kerala
Excerpt:
- - thankamma, like many others in that area, made earnings by illicit brewing. he used to enjoy life by hunting in the forest and consuming the liquor brewed by thankamma. state of maharashtra 1979crilj51 ,were clearly distinguishable. that the 1st accused used to go for hunting, that he used to consume arrack frequently from their house and that he sometimes even used to 'sleep' in their house is well-known to the two witnesses. 13. after carefully considering their evidence including the criticism about some answers given by them we are fully satisfied that the evidence of p. 2, the manager of the orphanage, a priest, aged 75. clearly rules out the theory of the children having been subjected to any tutoring by the police officials. we are satisfied that in the light of the guiding.....k. sukumaran, j.1. accused nos. 1 and 4 in s.c. no. 105 of 1980 of the sessions court, tellicharry have preferred the appeals challenging the conviction and sentence passed against them. criminal appeal no. 268 of 1981 is the appeal filed by the 1st accused. the appeal of the 4th accused is criminal appeal no. 279 of 1981.2. the 1st accused was charged with offences punishable under sections 302 and 201 read with section 34 of the i.p.c. as also an offence punishable under section 3 read with section 25(1)(a) of the arms act, 1959 for causing the death of mathew manjooran, the husband of the 4th accused by shooting him with an unlicensed country gun. all the four accused were charged under sections 302 and 201 read with section 34 of the i.p.c. accused nos. 2 and 3 were acquitted. accused.....
Judgment:

K. Sukumaran, J.

1. Accused Nos. 1 and 4 in S.C. No. 105 of 1980 of the Sessions Court, Tellicharry have preferred the appeals challenging the conviction and sentence passed against them. Criminal Appeal No. 268 of 1981 is the appeal filed by the 1st accused. The appeal of the 4th accused is Criminal Appeal No. 279 of 1981.

2. The 1st accused was charged with offences punishable under Sections 302 and 201 read with Section 34 of the I.P.C. as also an offence punishable under Section 3 read with Section 25(1)(a) of the Arms Act, 1959 for causing the death of Mathew Manjooran, the husband of the 4th accused by shooting him with an unlicensed country gun. All the four accused were charged under Sections 302 and 201 read with Section 34 of the I.P.C. Accused Nos. 2 and 3 were acquitted. Accused No. 1 was found guilty under Section 302 read with Section 34, I.P.C. and also under Section 3 read with Section 25(1)(a) of the Arms Act. The conviction of the 4th accused was for offence under Section 201 read with Section 34, I.P.C. The 1st accused was sentenced to undergo rigorous imprisonment for life under Section 302, I.P.C. and rigorous imprisonment for two years for the offence under Section 3, read with Section 25(1)(a) of the Arms Act. The 4th accused was sentenced to undergo rigorous imprisonment for a period of three years under Section 201, read with Section 34, I.P.C. There was a direction that the sentences imposed against the 1st accused shall run concurrently.

3. Mathew Manjooran has been living with his family in a forest area known by the name Kozhichal, close to the Mysore Reserve Forest. His family consisted of Thankamma (A4) and the children born to them, Kuttappan (P. W. 2) aged 7, Benny (P. W. 3) aged 6, Raji and Kanaka. The hut was humble but the scene around was beautiful with a waterfall nearby and a stream meandering before it. Closeby was the Reserve Forest, where 'starlight drips down the crypt of wood'. Mathew Manjoo-ran, aged 50, having a massive moustache (which earned him the name 'Meesa Mathew', the moustache and whiskers being prominent distinguishing features enabling identification of his dead body even when the head had been severed and buried in a pit in the forest) was employed as a rubber tapper in the Estates around the area. Thankamma, like many others in that area, made earnings by illicit brewing. It is in evidence that the arrack distilled by her, is popularly known as 'Mathew's Brew'. Understandably enough, there were many customers who used to consume the liquor served in the verandah of her house dimly lit by the pale kerosene lamp. Some used to take it home in bottles. Such customers included the 1st accused, a young man aged 25, reputedly having a substantial rubber estate in the vicinity. He used to enjoy life by hunting in the forest and consuming the liquor brewed by Thankamma. sometimes he used to 'sleep' in Thanka-mma's house. At about the time of the incident, Mathew Manjooran was employed in a rubber estate in Manakkadavu then run by one Sabastian Joseph, the writer of the estate being P. W. 10.' On 8-12-1979, the week-end Saturday Mathew Manjooran received his wages after settling the accounts and returned home, (and as it transpired, never to return to the work). As was his practice (and, as is likely to be the practice of any affectionate father) he took with him for his children a plastic packet containing sweets, biscuits, cakes and plantains. When he reached home by about 8.30 P. M., the 1st accused was already there in his house. He was on his hunting spree accompanied by P. W. 1. He wanted to have a drink before he set out to hunt. The stock of arrack had, however, run out. Thankumma hurried to make some for the 1st accused. The 1st accused placed his gun M.O. 3 in a corner of the kitchen. The two had their talks too. Mathew came in there and saw the 1st accused. Mathew did not relish the presence of the 1st accused in his house. There was an exchange of unpleasant words between them. The 1st accused took his gun, and shot Mathew. He cried aloud and stepped out to the courtyard vomitting blood. He was dead within a short time. The children P. Ws. 2 and 3 cried. They were, however, directed by their mother, accused No. 4, to hush their cries and suppress their sorrow. She gave a lunki M.O. 1 to the 1st accused, who, with the help of accused Nos. 2 and 3 thereafter covered the body in a hession bag (vernacular) and, removed it to a place near by the Mysore Reserve Forest. Mathew's head was severed from the body and it was buried in a pit along the plastic pocket containing the sweets and plantains. (This was apparently done with a view to make out that Mathew met his death even before he reached his home and before he could give the sweets-packet to his children).

4. The traces of blood in the courtyard of the house were removed and cow-dung smeared therein by Accused No. 4. P. W. 6, Karthiyayani Amma, who is a neighbour residing within a distance of 200 metres, on higher place on the western side and who could therefore have a view of the house of accused No. 4 met accused 4 next morning, on the way to her daughter's house. She had heard the sound of a gun shot during the night. Curiosity prompted P. W. 6 to ascertain from accused 4 the reason for the cleansing ceremony of the courtyard with cow-dung. The quick reflex of a woman, furnished Thankamma with a ready answer. It was the Sabarimala season. Thankamma replied that a purification was done for sending some ghee to be offered to Lord; Ayyappa in Sabarimala.

5. On the fourth day of the incident, 11-12-1979, at 6.30 P. M., the 3rd accused gave a statement Ext, P38 before p. W. 20 Head Constable of the Peringom Police Station. He registered the crime, 122/79, Ext. p 39 being the F.I.R. The Circle Inspector P. W. 21 took over the investigation of the crime on the very next day, 12-12-1979. He proceeded to the spot and conducted the inquest, Exts. P13 and P14 being the inquest reports, respectively relating to the trunk and the head of Mathew. P. Ws. 7 and 8 are the inquest witnesses; (P, W. 7, however, turned hostile). The Circle Inspector arranged for the post-mortem examination of the body, and to have photographs of the head and trunk of the corpse. P. W. 9 took three photographs at 10 A. M. on 12-12-1979, Exts. P15 to P17, the negatives of the photos being Exts. P 15 (a), P 16 (a) and P 17 (a). Ext. p 15 related to the head, Ext. p 16 to the trunk and Ext. P 17 to the whole body when the head was joined with the trunk. At the time of the inquest P. W.21 took into custody M.O. l piece of kaily cloth and the plastic packet (M. O, 2) with the sweets therein. The burnt piece of sack and the burnt piece of cloth from the side of the body and the stained earth nearby were also taken into custody as M. Os, 13, 14 and 15. He thereafter proceeded to the house of Thankamma and prepared the Mahazar Ext. P27 taking into custody M. Os. 16 to 21', being respectively the kerosene lamp, a bamboo piece, a palm leaf, a bamboo 'thatti', a small stone, and earth, all blood-stained. He also questioned witnesses, The house of the 1st accused was searched thereafter. The memorandum for search is Ext. P-41 and the search list is Ext. D-2. P. W. 11 Dr. Rat-nam conducted the post-mortem examination which started at about 3-30 p. m. and was completed by about dusk, necessitating the use of a torch, and a country torch, for the work in its last phase. Ext, P-18 is the post-mortem certificate, P. W. 11 deferred her opinion to await the result of the chemical examination of the viscera sent for that purpose. The report Ext. P-19 was duly received by her. The questioning continued on 13-12-1979. P. W. 1 produced M.O. 11 gun which was taken into custody under Ext. P-l mahazar. Investigation continued on the 14th. The 1st accused was arrested at 5-30 a. m. on 15-12-1979 from his house. On the basis of a confession made by him, M.O. 3 gun, along with the accessories of the gun including twenty two pellets and the gun powder (M. Os. 5 to 8) and the lunki M.O. 4 were taken into custody under Ext. P-24 mahazar. Under Ext. p-25 mahazar, M. Os. 9 and 10, the knife and sheath which were pointed out by the 1st accused, were also taken into custody. Accused Nos. 2 to 4 were thereafter arrested. P. W. 21 made arrangements for having the chemical analysis and examination by a Forensic Expert of the relevant articles. The Village Officer, p, W. 18 prepared the plan Ext. P-37. Sanction for prosecution for the offence under the Arms Act was given by the Collector under Ext. P-43 proceedings, proved by P. W. 22 clerk of the Collectorate. After completing the investigation the charge was laid before the Judicial Magistrate of the 2nd Class, Payyannur who committed the case to the Sessions Court.

6. The prosecution examined 22 witnesses, produced 43 documents and 21 material objects. Among the witnesses, P. Ws. 1, 7, 13 and 16 turned hostile. P. W. 1 is the brother-in-law of the 3rd accused, who is engaged in the manufacture of charcoal, p. W. 15, a boy aged 12 being the younger brother of P. W. 1. They were mainly to speak about the role of the 3rd accused with which we are not concerned now. P. W. 5 was a jeep driver and P. W. 12 a friend of Mathew, who have given evidence generally about Mathew's work and his disappearance. P. Ws. 7 and 8 are witnesses to the inquest and P. Ws. 13 and 14 witnesses to the recovery mahazars. P. W. 16, Krishnan, who is the son-in-law of accused No. 2 and brother-in-law of accused No. 3 was attestor to the scene mahazar, Ext. p-27. He too turned hostile. Portions of the statements of P. W. 1 proved through him have been marked as Exts. P-2 and P-12. Exts. p-22 and P-23 are portions of the statements of P. W. 13. Ext. P-26 that of P. W. 15 and Ext. P-42 that of accused No. 1. The plan relating to the scene of occurrence is Ext. P-37. The report of the Assistant Director, Forensic Science Laboratory who was addressed under Ext, P-32 is Ext. p-33. The certificate of chemical analysis is Ext. p-36.

7. The defence too adduced evidence, oral and documentary. Portion of the 162 statement of P. W. 10 was marked as Ext. D-l. Ext. D-2 is the search list already referred to, Exts. D-2 (a) and D-2 (b) being the signatures therein of P. W. 14 and p. W. 16. The General Diary maintained by the Peringam Police Station for the period from 20-11-1979 to 21-12-1979 has been marked as Ext. D-3, the relevant entry occurring at page 70 being marked as Ext. D-3 (a). The petition filed by the Circle Inspector of police before D. W. 2, the Manager of the Thrikaripur Orphanage for admitting P. W. 2 and P. W. 3 in that institution is marked as Ext. D4. D. W. 1 is the Sub Inspector of Police, Peringom police Station and D. W. 2, the manager of the Orphanage.

8. In his statement under Section 313 of the Cr. P.C. the 1st accused stated that he had been under Police custody ever since the 11th of Dec, when he was arrested from his house, that the prosecution witnesses were testifying against him due to the pressure of police, that Mathew Manjooran had many enemies and that somebody who had spite against Accused No. 1 had implicated him in the case. The 4th accused in her Section 313 statement alleged that her three children were under police custody and that the children were giving evidence as dictated to by the police. She answered in the negative when she was confronted with even the evidence of the various witnesses who testified to the death of her husband. The other answers were all by way of denial.

9. The learned Sessions Judge adverted to the principles laid down by the Supreme Court in relation to the appreciation of the evidence of child witnesses. The evidence of child witnesses in the case, P. Ws, 2 and 3, was carefully considered. Applying the principles so laid down, he concluded the discussion on that aspect with the observation:

Considering the aspects referred to above, I am of the definite view that P. Ws. 2 and 3 were not tutored by police officials or any other person in authority and that they have given a true and correct picture of what they saw at the time of the incident. I have therefore no hesitation whatsoever, to place reliance on the testimony of P. Ws. 2 and 3.

He also referred to the medical evidence in the case and observed that it supported the case spoken to by P. Ws. 2 and 3 The criticism levelled against the Doctor P. W. 11, was found to be unjustified. Though P. W. 13 had turned hostile the evidence of P. W. 14 and p. W. 21 was found acceptable to* that court and consequently the recovery under Section 27 of the Evidence Act of the various articles including M. 0. 3 gun was held to be a proper recovery. The report Ext. P-33 of the Ballistic Expert also confirmed the conclusion reached by that court. A contention that the inquest report was a fabricated one was rejected by the learned Sessions Judge, noting that p. W. 21 had given a cogent explanation for a mistake in Ext. P-14 and the correction thereof. The evidence of P. Ws. 5 and 10 establishes that Mathew was alive at and prior to 7 p. m. on 8-12-1979 and thus disproved the defence contention that Mathew had died some days prior to the date of the alleged incident. The fact that M. Os, 16 to 21 taken from the house and the courtyard of accused No. 4 contained human blood confirmed the fact that the incident had taken place in the house of accused No. 4 and Mathew, as alleged by the prosecution. The inconsistency between the prosecution case with some statements in Ext. P-38 was considered by the learned Sessions Judge. It was accused No. 3 who gave that statement, though it was not admitted by him. The evidence of P. W. 20 was acceptable to the learned Sessions Judge. He observed that the fact that 'some of the statements in Ext. P-38 do not tally with the case now set up by the prosecution does not assume any significance'. According to the learned Sessions Judge it was quite natural to expect accused No. 3 to have mention in the first information statement some facts which were not true. Ultimately accused Nos. 1 and 4 were convicted and sentenced in the manner referred to above.

10. Counsel appearing for the appellants challenged the reasoning and conclusion of the learned Sessions Judge. The entire evidence in the case was elaborately referred to before us in an attempt to assail the findings entered by the trial court. Counsel directed his main attack on the acceptability of the evidence of P. Ws. 2 and 3. In addition to the decisions referred to by the learned Sessions Judge regarding the appreciation of evidence given by child witnesses, he referred to other decisions too. The decisions so referred to at the Bar are: : 1979CriLJ51 and : 1981CriLJ746 . In addition, the decisions of the Travancore-Cochin, Kerala and Allahabad High Courts : AIR1968All58 , were also referred to us. It is not necessary to discuss at length, the factual details and the ultimate conclusions in the above decisions. The guiding principles are discernible therefrom. As observed by the Supreme Court, 'legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment.' See observations of Chief Justice Chandrachud in Shankarlal v. State of Maharashtra : 1981CriLJ325 . The witnesses in this case did not undergo any wrongful incarceration in jail for days as was the case in State of Bihar v. Kapil Singh : 1969CriLJ279 . The conduct of the investigation in that case was found to be condemnable. The witness had not disclosed the names of the assailants at the earlier stage. In the decision in C. P. Fernandes v Union Territory, Goa : AIR1977SC135 , the children had not seen the accused before the incident. The evidence of the children was totally inconsistent with the medical evidence and the explanation offered for the conflict was found unacceptable. The facts in Ganesh Bhavan Patel v. State of Maharashtra : 1979CriLJ51 , were clearly distinguishable. There was delay in naming the child as a witness in the case. The non-examination of the others available in the locality was also highlighted in that decision. It may be noted that in the latest decision Suresh v. State of U.P. : 1981CriLJ746 the evidence of the five-year child was accepted and acted upon, though the child had been questioned twenty days after the incident. We are also aware of the caution contained in the words of the Supreme Court in para 6 of that judgment. As will be discussed later, the evidence of the child witnesses in this case is amply corroborated by other evidence too. We shall now briefly refer to the evidence of the child witnesses and the criticism levelled against it by the counsel for the defence.

11. It may be noted that the 1st accused is a frequent visitor to the house of P. Ws. 2 and 3. They know him intimately. His habits too are known to them. That the 1st accused used to go for hunting, that he used to consume arrack frequently from their house and that he sometimes even used to 'sleep' in their house is well-known to the two witnesses. That the 1st accused used to go for hunting and that he used to be a frequent visitor of the house of accused No. 4, and that accused No. 4 was a known distiller and supplier of illicit arrack in the locality is amply established by the evidence of independent witnesses including P. Ws. 4, 5 and 6. These facts and the background of the person about whom the children have given evidence, have to be borne in mind while appreciating their testimony.

12. P. Ws. 2 and 3 have given a natural and clear version as to what had happened on the fateful day. They spoke about the arrival of the 1st accused in their house during the night and with the gun, the absence of their father at that time, the demand of arrack by accused No. 1, the reply of accused No. 4 about the exhaustion of the stock and her preparation of the liquor for the consumption of accused No. 1, about accused No. 1 placing his gun in the corner of the kitchen, the conversation between their mother and accused No. 1, and the arrival at that time of their father. The two children were in the kitchen at that time. When there was exchange of the words between accused No. 1 and their father, they saw the first accused taking the gun from the corner of the kitchen and his shouting their father. They witnessed their father crying aloud rushing to the courtyard through the kitchen, vomitting blood and soon lying there dead. They went to their father and found him dead. They saw that the pellet had pierced through the neck of their father. They cried, but were directed by accused No. 4 not to do so. They also saw accused No. 1 and P. W. I taking the dead body of their father, and accused Nos. 2 and 3 joining the 1st accused for taking away the dead body. Their mother had cleansed the courtyard with cow dung and had given the kaily M.O. 1 to accused No. 1. There is no conflict in their evidence, on any material aspects in relation to the incident with which the 1st accused is connected.

13. After carefully considering their evidence including the criticism about some answers given by them we are fully satisfied that the evidence of P. Ws. 2 and 3 can be accepted and acted upon. Despite elaborate cross-examination it was not possible to cast any doubt about the children having been tutored in respect of the evidence. We are unable to find that they gave evidence under the shadow of fear caused by the moustached policeman present in court or by other police officers. The evidence of D. W. 2, the Manager of the Orphanage, a priest, aged 75. clearly rules out the theory of the children having been subjected to any tutoring by the police officials. The mere fact that P. W. 3 had stated about the visit of some police officials to the Orphanage, as correctly pointed out by the Court below, is not sufficient to enter a finding that the police officials attempted to influence their evidence or to cause fright in them. The learned Sessions Judge has made reference to the passages in the evidence of P. Ws. 2 and 3, which would totally exclude a possibility of their being tutored witnesses. We are in full agreement with the evaluation and appreciation of the evidence of P. Ws. 2 and 3 made by the Court below. We are satisfied that in the light of the guiding principles relating to the testimony of child witnesses, the evidence of P. Ws. 2 and 3 constitute sufficient and reliable material to sustain the conviction of the accused in the case.

14. As observed by us earlier, the evidence of P. Ws, 2 and 3 is substantially corroborated by other evidence also in this case. One such important piece of evidence is the medical evidence. The learned Sessions Judge has discussed the evidence of P. W. 11 very thoroughly in the light of a harsh, and according to us unjustified, criticism about her conducting the post-mortem examination and giving the evidence. She had been extremely objective while giving the answers in the course of giving her evidence. Wherever a definite and positive answer was not possible, she had, with extreme candour, stated so. She started the postmortem at 3.30 P. M. Having regard to the forest area in which it was conducted, it was only natural that before she could complete her work it was slightly dark necessitating the use of torches. That however, does not in any way affect the post-mortem work done by her. She has spoken about the oval shaped nature of the wound at the front of the neck and about its being black coloured. At the cut end of the larynx she noticed small pieces of coir. According to her, the presence of burnt coir in the area indicated that the wound might have passed through the trachea. She stated that death would have happened in the normal course due to the oval wound. She opined: 'most probably the wound might have passed through trachea.' She emphasised the fact that the skin surrounding the wound was dark coloured. Death would have occurred more than 72 hours before she saw the dead body.

15. As observed by the Supreme Court, a gun-shot wound of entry caused by a single pellet or ball is ordinarily circular or oval in shape. When such injuries are caused by a gun-shot fired from close range, there would be scorching or blackening in and around the wound of entry. See Bhoor Singh v. State of Punjab, 1974 SCC (Cri) 664 at p. 672: (1974 Cri LJ 929 at pp. 934, 35). The oval nature of the wound and the blackening around it, as clearly brought out in the evidence of P. W. 11, has thus strongly corroborates the evidence of P. Ws. 2 and 3. It also probabilises the prosecution story about the death of Mathew on 8-12-1979.

16. Corroboration is also derived from the report Ext. P. 33 of the Ballistic Expert. There is a reference to M.O. 3 gun, as is seen on a perusal of Ext. P. 33 along with Ext. P. 24 mahazar. The various examinations conducted revealed signs of firing with M. O, 3 gun. Opinion was also expressed therein that if M.O. 3 gun is discharged at a close range a blackening mark would be caused around the entrance of the wound. The medical evidence, including Ext, pis post-mortem certificate and the evidence of P. W. 11 noted earlier, establish the existence of a black coloured wound on the neck of Mathew.

17. Counsel for the appellants submitted that there was no evidence in the case as to which of the guns, M.O. 3 and M.O. 11 had been used by accused No. 1 to shoot Mathew. Judicial decisions indicating the necessity of cogent evidence on the weapon used to commit the crime were referred to in that connection. There is no force in the contention, in view of the clear evidence available in the case. As regards the gun used by accused No. 1, the evidence furnished by the recovery of M. 0. 3 under Ext, P24 mahazar would connect the crime with M.O. 3. The learned Sessions Judge has discussed the aspect in para 14 of his judgment, M.O. 3 along with other items was recovered under Ext. p 24 mahazar. It was in pursuance to Ext. P. 42 statement of the 1st accused of his having concealed in the forest the gun and other articles. P. W. 21 proves Ext. p 42, which was one given after the arrest of the accused on 15-12-1979. We agree with the learned Sessions Judge that the evidence of P. W. 12 in the circumstances could be accepted and acted upon. That the evidence of Investigating Officer could be acted upon even if not corroborated by other evidence has been ruled by the Supreme Court in State of Kerala v. M. M. Mathur : 1978CriLJ1690 . No doubt, P. W. 16 turned hostile and gave evidence adverse to the prosecution in relation to the recovery of M.O. 3 gun. As noted earlier, he is the son-in-law of accused No. 2 and brother-in-law of accused No. 3. The testimony of P. W. 14 furnishes independant corroborating evidence on this aspect, p. W. 14 is an agriculturist residing in a nearby place. The 1'st accused is known to him. The fact that the 1st accused took out M.O. 3 from the forest area is clearly spoken to by him. Nothing had been brought out to discredit his testimony as observed by the learned Sessions Judge. He closely observed what was being recorded under Exts, p 24 and P 25, and signed the same without further reading, as he had fully understood the contents of those documents. He repudiated the suggestion that the gun and other articles: were recovered from the northern side of the house of accused No. 1, The minor discrepancies regarding the time of recovery are not material or sufficient to discredit his evidence. The recovery of M. O, 3 gun and other articles under Ext. P 24 corroborates the prosecution case and lends support to the evidence of P. Ws, 2 and 3. It also furnishes evidence as to the gun that was really used by the 1st accused for the commission of the crime.

18. A complaint was posed relating to the violation of Section 167 of the Criminal P.C. It was submitted that the case diary statement has not been sent along with the remand report. P. W. 21 had admitted so. The names of P. Ws. 2 and 3 were introduced as eye-witnesses only at the time of the filing of the charge-sheet. The conduct of the prosecution was one which had been disproved by this Court in Pallasan Heneefa v. State of Kerala : AIR1966Ker229 . It was held therein that the requirement of sending the case diary along with the remand report was of a mandatory character. Counsel is justified in the submission oh this aspect. However, the decision relied on by him is itself authority for the proposition that the evidence could not be discarded on the ground of a mere violation of Section 167. A violation may taint the prosecution in some cases, when the facts justify it. The present case however, is not one where the prosecution could be held to be tainted for a venial violation of Section 167 of the Criminal P.C. In that view of the matter, the accused cannot derive any assistance in challenging the judgment of the Court below on the ground of a violation of Section 167 of the Criminal P.C.

19. The evidence in the case also establishes the violation of the provisions of Section 3 read with Section 25(1)(a) of the Arms Act by the 1st accused. P.W. 22 has given evidence on that aspect. The learned Sessions Judge was correct in accepting and acting upon that evidence.

20. The offences with which the 4th accused was charged have also been established by the evidence adduced on the side of the prosecution, P. Ws. 2 and 3 have given evidence about accused No. 4 having given the lunki to accused No. 1 and about her cleansing the courtyard with cow-dung with a view to obliterate the traces of blood spilled therein. It is not necessary to refer in detail to the evidence on this aspect, as we are in full agreement with the learned Sessions Judge about the culpability of the 4th accused.

21. Before parting with the case, we may point out a disturbing phenomenon emerging from the evidence presented before us. The violation of the provisions of the Arms Act was a distinct charge against the 1st accused. The learned Sessions Judge found that he was in possession of M.O. 3 gun without licence and convicted him of the offence. We have confirmed the conviction M.O. 3 along with the other gun M.O. 11 had been directed to be confiscated to the Govt. The infraction of the provisions of the Arms Act happened to be detected only because of an extensive investigation into a serious crime like murder. The wholesale breach of the provisions of the Abkari Act is also clearly demonstrated by the evidence. Accused No. 4 is not the only person engaged in illicit distillation. Many others have taken to it with impunity. Consumption of liquor at the place of manufacture and carrying it away in bottles are so openly done that the witnesses refer to such actions as ordinary, normal and legal activities. The evidence of P. W. 1 and P. W. 12 indicates that the forest wealth is being converted into charcoal with the use of kilns, though perhaps on a small scale. That may amount to a violation of the provisions of the Forest laws. Open violation of the provisions of the Wild Life Act, as is evident from the evidence relating to hunting undertaken by many, also goes apparently unnoticed and unchecked. There was a time, here and elsewhere when stray or isolated hunting expeditions were not matters for serious concern. An echo of such a feeling can be felt from the beautiful lines of the 19th century Scottish Ballad, of, which a rough translation reads:

A trout from a pool.

A dear from the hill.

And a tree from the forest

Are thefts of which no

Man was ever ashamed.

(See Story and Song from Lochness-Side by Alexander MacDonald, 1914)

The conditions have drastically changed now. Necessity to preserve the forests and the wild life has been clearly recognised. Its importance is such that the 42nd Amendment to the Constitution specifically provides for the protection of forest and wild life by enjoining it as a Fundamental Duty of every citizen of India, under Article 51A. Under Article 48A, in Part IV dealing with the Directive Principles of State Policy, 'the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.' Counsel for the defence complained that the evidence of P. W. 10, the writer of the rubber estate should be disbelieved inasmuch as he had admitted that there were no registers relating to the employment of the workers in the estate. HE also referred to a virtual non-implementation of the Labour Laws in the estates around the area. No attempt had been made by any of the authorities to enquire into these violations of laws. We are not directly concerned with those questions in the appeals before us. They, however, deserve to be noted by the concerned authorities. It is essentially for Government to assess the situation and devise remedial measures to ensure effective implementation of well-meant pieces of legislation.

22. In the light of the above discussion, both the appeals fail. We confirm the conviction and sentence against accused Nos. 1 and 4. The appeals are dismissed.

As soon as the judgment was pronounced counsel for the appellants made an oral application under Article 134A for a Certificate under Article 134(1) (c) for appealing to the Supreme Court. We are not satisfied that the case is a fit one for appeal to the Supreme Court. The application is accordingly rejected.


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