Appellate courts cannot order retrial solely to enable prosecution to remedy deficiencies their case.

ORDER :

G. Girish, J.

The judgment dated 29.09.2020 of the Sessions Court, Thalassery, in Crl.A No.89/2016, remanding C.C No.392/2014 to the Judicial First Class Magistrate Court, Koothuparamba, for fresh disposal, is under challenge in this revision petition filed at the instance of the accused/appellant in the said case.

2. The prosecution case is that the accused entrapped and killed a wild boar which entered into his landed property, and made use of its meat for consumption as food. The offence was detected by the Flying Squad Range Officer, Thalassery, and his team pursuant to a search conducted at the residence of the petitioner/accused on 19.04.2012. It is stated that, in the aforesaid search, 2 Kg of meat kept in a sack and 3 Kg of cooked meat found in a pressure cooker, were recovered in addition to the utensils used for entrapping and killing the wild boar. It is the further case of the prosecution that the remnants of the carcass of the wild boar were recovered from a pit in the property of the petitioner/accused. Thus, the petitioner/accused is alleged to have committed the offence under Section 9 r/w Section 51 of the Wild Life (Protection) Act, 1972.

3. The learned Magistrate framed charges against the petitioner under the aforesaid Sections after recording the preliminary evidence let in by the prosecution through the oral testimonies of PW1 and PW2, and the documents marked as Exts.P1 and P2. After the recall and further examination of PW1 and PW2, three more witnesses were examined from the part of the prosecution as PW3 to PW5, and six other documents were marked as Exts.P3 to P8. Five material objects were identified as MO1 to MO5. From the part of the petitioner/accused, three witnesses were examined as DW1 to DW3, and five documents were marked as Exts.D1 to D5. After evaluation of the aforesaid evidence, the learned Magistrate found the petitioner guilty of commission of the offence under Section 9 r/w Section 51 of the Wild Life (Protection) Act, 1972 and convicted him thereunder. He was accordingly sentenced to rigorous imprisonment for three years and fine Rs.10,000/- with a default clause of rigorous imprisonment for six months.

4. The petitioner challenged the aforesaid verdict of the learned Magistrate in appeal before the Sessions Court, Thalassery. After embarking upon a re-appraisal of the whole evidence, the learned Sessions Judge came to the conclusion that the Trial Court wrongly relied on Ext.D2 postmortem certificate, which was not admitted in evidence through DW1, the Veterinary Surgeon, who was said to have conducted the postmortem of the wild boar. It was thus observed by the Appellate Court in the impugned judgment that the Trial Court erroneously acted upon Ext.D2 in proof of the cause of death of the said animal in spite of the fact that a mere statement about the cause of death in the aforesaid document will not amount to proof of the cause of death. The learned Sessions Judge further observed in the impugned judgment that the Trial Court wrongly relied on Ext.P7 confession statement, which was not properly proved through PW4, the Range Officer, who was said to have recorded the said statement. The other procedural anomalies committed by the Trial Court in not segregating the portions of statements in chief examination and cross-examination of PW4, and the mistakes committed in the marking of Exts.P2 and P5 documents are also mentioned in the impugned judgment of the learned Sessions Judge. Finally, the learned Sessions Judge acceded to the request of the learned Public Prosecutor, to remand back the case to the Trial Court for setting right the above material infirmities in the evidence adduced so that the prosecution will be b