(Prayer: Criminal Revision Case filed under Section 397 r/w 401 of Cr.P.C., to set aside the judgment dated 19.07.2023 made in Crl.A.No.274 of 2017 on the file of the learned IV Additional District and Sessions Judge, Coimbatore, confirming the judgment dated 31.08.2017 made in CC.No.303 of 2008 on the file of learned Judicial Magistrate No.1, Pollachi.)

1. The petitioners who were arrayed as A2, A3, A5, A6, A8 and A9, respectively, have filed this revision challenging the judgment dated 19.07.2023 passed in Crl.A.No.274 of 2017 by the learned IV Additional District & Sessions Judge, Coimbatore, confirming the judgment dated 31.08.2017 passed in CC No.303 of 2008, by the learned Judicial Magistrate No.I, Pollachi, convicting and sentencing the petitioners herein for the offences committed under the Wildlife Protection Act, 1972 [in short, ‘the Act’].

2. The petitioners were convicted for the offences under Section 51 of the Act, for violations of Sections 9, 27(1), 29, 30, 31, 32, 39(3) of the Act and were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default, to undergo three months simple imprisonment. The appellate Court confirmed the finding of guilt and sentence.

3. It is the case of the prosecution that petitioners 1 to 4 along with other accused went to Pothamadai Forest, camped there and planned to hunt a male elephant which was moving about in Maniyansolai region; that A1 decided to shoot the male elephant; that he directed A4 and A7 to cook for the others; that A3, A5 and A6 were directed to watch the movement of the elephants in the forest; that A1 directed A2 to follow him with the explosive substances and other tools; that A1 identified the male elephant and fired a gun shot at the male elephant; and that thereafter, the tusks of the elephant were removed and the accused took the tusks to Kanimari, Kerala and sold it to A8 and A9, who paid an advance of Rs.3,000/-.

4. It is the further case of the prosecution that on 10.06.2005, since A3 was found in the reserve forest, he was intercepted and enquired; that enquiry revealed that A1-Tamilarasan and his friends had killed a male elephant about five months ago, i.e., in January 2005 and removed the tusks and handed them over to A8 at Kerala; that thereafter, the tusks were seized by the Kerala Forest department in O.R.No.9 of 2005 registered by them; that on the confession of A3, the other accused were secured; that on 12.06.2005, the forest officials found the skull of the dead elephant and the same was seized; that the statements of the accused were recorded by the Forest Ranger Officer, Pollachi, from all the accused and hence, a complaint [WLOR No.3 of 2005] was filed, which was taken on file in C.C.No.303 of 2008 by the learned Judicial Magistrate No.I, Pollachi.

5. The respondent had examined five witnesses viz., PW1 to PW5 and marked 12 documents viz., Ex.P1 to Ex.P12 besides M.O.1 to M.O.8. The accused, did not examine any witness, but, had marked one document, i.e., Ex.D1. The trial Court found the petitioners guilty and sentenced them as stated above. The appellate Court confirmed the finding of guilt and sentence.

6. The gist of the prosecution case is that the accused 1 to 7 had executed a plan to kill a male elephant and remove the tusks. The case according to the prosecution was unearthed after A3, the 2nd petitioner herein was intercepted and arrested. On his confession, A1 and A4 were arrested. Subsequently, the other accused were arrested and the respondent on information went to Kerala and brought the tusks that were seized from A8 and A9 by the Kerala Police, pursuant to an FIR registered by the Kollakadu Forest Officer in O.R.No.9 of 2005.

7. The confessions of the accused were recorded by PW1, who is the Forest Range Officer, Pollachi. On the confession of A2, the 1st petitioner herein, the respondent seized a gun and other equipments in the Sethumadai Forest Area from a pit and the seizure mahazar was marked as Ex.P8. Thereafter, on the information given by the accused, PW3 seized the skull of an elephant under seizure mahazar [Ex.P12].

8. It is the case of the prosecution that the elephant, whose skull was seized, was killed and the tusks were removed from the said elephant. The prosecution relies upon the seizure of gun on A2’s confession; the seizure of skull and the seizure of the tusks besides the confession statements said to have been made by A2, A3 and A6, who are petitioners 1, 2 and 4, respectively.

9. Admittedly, the tusks were seized by the Kerala Forest Department in O.R.No.9 of 2005. PW1 had admitted in the crossexamination that the prosecution had not examined any officer, who is said to have made the alleged seizure of the tusks from A8 and A9 and the documents relating to seizure, also have not been marked. Since the officers and witnesses who made the seizure were not examined and the relevant documents have not been marked, the prosecution case that the seizure of tusks was made from A8 and A9, cannot be said to have been proved.

10. Though PW5, the Veterinary Doctor, was examined to prove that the tusks recovered and marked as M.O.1 series, were removed from the elephant, whose skull was seized, the evidence of PW5, does not inspire confidence. No report said to have been issued by PW5 was marked. Further, PW1 had admitted that no DNA test was conducted to establish that the tusks seized were removed from the elephant whose skull was recovered. The seizure of the gun is also of no avail to the respondent since, there is nothing on record to connect the gun with the alleged crime. Therefore, we are left only with the confession statements said to have been made by A2, A3 and A6 to PW1.

11. It is not in doubt that the Forest Range Officer is not a police officer. In E.C.Richard v. Forest Range Officer, Mettupalayam, reported in 70 LW 766, this Court had an occasion to consider whether a Forest Officer under the Madras Forest Act was a police officer. This Court held that since the Forest Officers are not conferred with the powers of an officer in-charge of a police station, they cannot be called as a police officer. Therefore, there cannot be any doubt that the officers empowered to prosecute the offenders for violations under the Act, are not police officers.

12. Sub-section (8) of Section 50 of the Act confers certain powers on the Assistant Director of Wildlife Preservation, for the purpose of making investigation. Sub-section (9) of Section 50 of the Act makes any evidence recorded under Clause (d) of Sub-section (8) of Section 50 of the Act, viz., to receive and record evidence, admissible in any subsequent trial, provided it is recorded in the presence of the accused.

13. Sub-sections 8 and 9 of Section 50 of the Act are extracted hereunder for better understanding.

                     “50.(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,-

                     (a)to issue a search warrant;

                     (b)to enforce the attendance of witnesses;

                     (c)to compel the discovery and production of documents and material objects; and

                     (d)to receive and record evidence.

                     (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.

14. Therefore, the Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests alone is empowered for the purpose of making investigation to do the acts mentioned in clause (a) to (d) of Sub-section 8 of Section 50 of the Act. In fact, Sub-section 9 of Section 50 of the Act, makes it very clear that any evidence recorded under clause (d) of Sub-section 8 of Section 50 of the Act, would be admissible in any subsequent trial, provided it is taken in the presence of the accused person. The Act, therefore, does not empower either the Assistant Director of Wild Life Preservation or any other officer to specifically record a confession of the accused. Even if there is no statutory power to record any confession, it is open for any person to confess to any other person. Therefore, any statement that has been recorded in this case by PW1 or the other officers have to be only construed as an extra-judicial confession.

15. In Sasi v. Forest Range Officer in Crl.Rev. Petition No.98 of 2018 dated 08.11.2024, the Kerala High Court held that even if it is a confession made to a competent authorised officer under Section 50(8) of the Act, it could be construed only as an extra-judicial confession. Therefore, an extra-judicial confession made by any person to a Forest Range Officer or the Assistant Director of Wildlife Conservative, who is empowered to record the evidence, would be admissible in evidence. The probative value of such a confession would be the same as any other extra-judicial confession.

16. In Sahadevan v. State of Tamil Nadu, reported in (2012) 6 SCC 403, the Hon'ble Supreme Court held as follows:

                     “16.....(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

                     ii) It should be made voluntarily and should be truthful.

                     iii) It should inspire confidence.

                     iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

                     v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

                     vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

17.(i) The officers under the Act have power to arrest. After the offender is arrested and taken into custody, the question is whether a confession made to an officer would be construed as an extra-judicial confession. The answer has to be in the negative in view of the judgment of the Hon'ble Supreme Court in Prem Prakash v. Union of India, reported in 2024 (9) SCC 787.

                     (ii) In Prem Prakash's case [supra], the Hon'ble Supreme Court was dealing with a statement made by a person to a Director under the PMLA Act and held that when an accused is in custody under PMLA, irrespective of the case for which he is under custody, any statement under Section 50 of the PMLA to the same investigating agency is inadmissible against the maker. The Hon'ble Supreme Court had also observed that the reason for stating so was that a person in custody cannot be construed as one with a free mind, and therefore, any statement recorded while in custody, cannot be admissible, notwithstanding the fact that the person recording the confession is not a police officer. It would be useful to refer to the following observations of the Hon'ble Supreme Court in Prem Prakash's case [supra]:

                     “38.We have no hesitation in holding that when an accused is in custody under PMLA irrespective of the case for which he is under custody, any statement under Section 50 PMLA to the same Investigating Agency is inadmissible against the maker. The reason being that the person in custody pursuant to the proceeding investigated by the same Investigating Agency is not a person who can be considered as one operating with a free mind. It will be extremely unsafe to render such statements admissible against the maker, as such a course of action would be contrary to all canons of fair play and justice.”

18. Admittedly, in the case of A3, the confession was recorded prior to arrest. In the case of A2 and A6, the confession was recorded after their arrest. So, the confessions recorded prior to arrest could only be construed as an extra-judicial confession and confession recorded while in custody, would be inadmissible, for the reasons stated above.

19. If the statement of A3 is construed as an extra-judicial confession, then considering the facts of the case and since the officer recording it had the power to arrest, it has to be appreciated with caution and trepidation. Though it would be a case of the petitioners that the alleged extra-judicial confession was not voluntary, even assuming that it was voluntary, it has to be corroborated in material particulars. There is no other evidence let in by the prosecution to corroborate the said statement. Therefore, it would be highly unsafe to hold the petitioners guilty only on the basis of that confession.

20. Hence, the judgments of the Courts below, holding the petitioners guilty of the offence cannot be sustained.

21. Accordingly, the Criminal Revision Case is allowed. The judgments of the Courts below are set aside. The petitioners/accused are acquitted of the charges. The fine amount, if any, paid by the petitioners/accused shall be refunded. Bail bond, if any, executed shall stand discharged.

22. Mr.R.Vivekananthan, learned counsel, who was appointed as Amicus Curiae, had elaborately explained the different provisions and also placed the relevant case laws. This Court records its appreciation for his valuable assistance. This Court also records its appreciation for the valuable assistance rendered by Mr.A.Amarnath, learned Additional Public Prosecutor.