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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.218 of 2003
Range Forest Officer and Assistant Wild life Warden,
Nagbhid Range Division, Brahmapuri. .... Appellant.
-Versus-
1] Wasudeo Laxman Bhakare,
Aged about 50 years, R/o.-Akapur,
Tah.Nagbhid, District Chandrapur.
2] Khushal Dashrath Bhakare,
Aged about 32 years, R/o.-Tilak Nagar,
Brahmapuri at Akapur, Tah. Nagbhid,
District Chandrapur. .... Respondents.
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Mr. S.B. Bissa, Additional Public Prosecutor for appellant.
Mr. V.N. Morande, Counsel for respondents.
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Coram : Mrs. Swapna Joshi, J.
th Dated : 14 August, 2017.
ORAL JUDGMENT The present appeal has been preferred by the appellant against the judgment and order dated 20-12-2002 delivered in Regular Criminal Case No.15 of 1999 by the learned Judicial Magistrate First Class, Brahmapuri, thereby acquitting the respondents of the offences punishable under Sections 9, 39(2), 39(3)(a), 39(3)(b), 40(1)(2), 48(a), 49(b) read with Section 51 of the Wild Life (Protection) Act, 1972 and ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 ::: 2 Judg. 140817 apeal 218.03.odt Sections 26(1) and 41 of the Indian Forest Act, 1927. 2] I have heard Mr. Morande, the learned Counsel for the respondents and Mr. S.B. Bissa, the learned Additional Public Prosecutor for the appellant.
3] It is the case of the prosecution that in an enquiry in Preliminary Occurrence Report No.268/3, dated 20-01-1996, the Forest Department found that, the accused persons who are involved in the present case, are possessing the skin of Tiger on the statement given by one Dewendra Mahadeo Choudhari, who was the accused therein. Therefore, on 24-01-1996, a search warrant was obtained from the Assistant Conservator of Forest and the raid was conducted by the R.F.O.(E.G.S.) Deepak Tirpude (PW-3) in the premises of the Vishesh Nivasi Apang Vidyalaya, Brahmapuri. During the said raid, one skin of spotted Deer and another skin of Tiger kept in a plastic gunny bag in still Kothi in the store room were found. The skin of Tiger and Deer was tanned (chemically processed). In the presence of panchas the pieces of skin were taken charge and the panchanama (Exhibit-60) and seizure panchanama (Exhibit-61) were prepared accordingly. It is the case of the prosecution that accused no.2 was working as a Superintendent in Vishesh Niwasi Apang Vidhyalaya, Brahmapuri. During the course of enquiry, it was found that, accused no.2 had brought the skin of wild animals for sale from accused no.1 Wasudeo, resident of Akapur. 4] It is the further case of prosecution that, the Forest Office received a unanimous letter about the information that accused no.1 is possessing ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 ::: 3 Judg. 140817 apeal 218.03.odt trophy, the skin of wild animal and he is involved in hunting of wild animals. Therefore, PW-1 conducted a raid at the house of accused no.1 at Akapur. A search warrant was obtained from the Assistant Conservator of Forest through Mr. Thaware. During the search of the house of accused no.1 at Akapur in the presence of panchas, two pieces of skin of Tiger were found. Those two pieces were taken charge by the Investigating agency under panchanama (Exhibit-60) and seizure panchanama (Exhibit-61). During the course of enquiry it was found that, the accused no.1 had given the remaining parts of the skin to the accused no.2 for sale purpose. The accused no.1 confessed that some persons have killed Bibtya in jungle (forest) and handed over the skin to him and the said skin is used in cultural programme like Dandar and drama. He further confessed that he had given the said skin to accused no.2. The accused no.2 confessed that the skin of Tiger and Deer was handed over to him by his relative Wasudeo (accused no.1). 5] All three pieces of skin of Tiger were taken charge by PW-1. Out of those 3 pieces, one flat piece was seized from accused no.2 and two small pieces of tail and right palm were taken charge from accused no.1 and it was transpired that those three pieces were of the same Tiger. The seized pieces were sent to Zoological Survey of India for ascertaining whether they are of the same Tiger and accordingly the report was furnished by the Zoological Department. During the course of investigation it was transpired that, accused no.1 committed hunting in the forest of Government and handed over the skin of animals to accused no.2 ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 ::: 4 Judg. 140817 apeal 218.03.odt Khushal and he possessed the skin without any permit and license. The accused no.1 transported the skin of wild animals without any permit and accused nos. 1 and 2 had failed to give declaration about the possession of skin of wild animals amounting to Rs. 1 Lac.
6] After completion of the investigation, the charge-sheet was filed against both the accused. The charge was framed. The learned Judicial Magistrate First Class conducted the trial and in the absence of convincing evidence against the accused persons, acquitted them as stated above. 7] The learned Additional Public Prosecutor for the appellant contended that the learned Judicial Magistrate First Class has passed an illegal and perverse order and acquitted the accused persons without considering the consistent testimonies of the witnesses examined by the prosecution. He submitted that the learned Judge has not considered that the skin of Leopard/Panther and Deer was taken charge by the prosecution and the report of Zoological Survey of India has detected that two pieces of skin which was found from the house of accused no.1 as well as one piece of skin which was found from the place where accused no.2 was working as Superintendent were belonging to the same Tiger. 8] The learned Counsel for the respondents contended that the prosecution has miserably failed to prove the seizure of pieces of skin of Leopard from the accused. Even the arrest warrant is not properly drafted by the investigating agency and simply a printed format is used to conduct the house search panchanama as well as the search of the Vishesh Niwasi Apang Vidhyalaya, Brahmapuri. The search is not conducted as ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 ::: 5 Judg. 140817 apeal 218.03.odt per the procedure and Rules. So also the panchas did not support the case of the prosecution. In view thereof, it cannot be said that two pieces of Leopard was found in the house of accused no.1 and one piece of Leopard was found in the Vishesh Niwasi Apang Vidhyalaya, Brahmapuri, where the accused no.2 was allegedly working as a Superintendent. 9] In order to verify the rival contentions of the learned Additional Public Prosecutor for the appellant and the learned Counsel for the respondents, it is necessary to go through the evidence led by the prosecution.
10] The prosecution heavily relied upon the testimony of Rahul (PW-1) who is the complainant. According to him, on 24-01-1996, a search warrant was issued by the Assistant Conservator of Forest to R.F.O. on Special Duty namely Mr. Tirpude (Exhibit-22) for search of the premises of the Vishesh Niwasi Apang Vidhyalaya, Brahmapuri. A search was conducted and during the search of the said Vishesh Nivasi Apang Vidyalaya, Brahmapuri, the R.F.O. Mr. Tirpude found skin of Tiger and another skin of Deer in the room of accused no.2. At the time of search, accused no.2 was working as a Superintendent in the Vishesh Nivasi Apang Vidyalaya, Brahmapuri. The PW-1 recorded the statement of accused no.2 (Exhibits-20). In the supplementary statement (Exhibit-21), he confessed that skin of Tiger belongs to Wasudeo and it was handed over to him by accused no.1-Wasudeo. Similarly, a search warrant Exhibit-22 dated 05-02-1996 was issued as the forest office received an unanimous letter that accused no.1 is having skin of wild animals and he is ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 ::: 6 Judg. 140817 apeal 218.03.odt involved in hunting. Therefore, in the presence of panchas a search was conducted in the house of accused no.1. The panchanamas were prepared at Exhibits-23 and 24 respectively. The PW-1 recorded the statement of accused no.1. In supplementary statement accused no.2 stated that, some other persons killed the Tiger in the forest and handed over the skin to him. He further stated that the skin of wild animals is used in cultural programme i.e. Dander and drama. However, it was further found that it was the accused no.1 who had killed the Tiger. Accused no.1 confessed that he has given the skins of Tiger and Deer to accused no.2 for sale in the month of January, 1996. The testimony of PW-1 further indicates that one piece of skin was seized from accused no.2 and two pieces of skin seized from accused no.1 and those were of the same Tiger. The skin was referred to the Zoological Survey of India for ascertaining whether those three pieces were of the same Tiger. The report was obtained from the Zoological Department and it was found that the accused had committed the offences as aforesaid. 11] From the testimony of PW-1 it was noticed that the R.F.O. PW-1 was not authorized by the State Government or Central Government to lodge complaint against the accused persons as per Section 55 of the Wild Life (Protection) Act, 1972. Similarly, it is noticed that the search warrant obtained by PW-1 during the search of accused no.1 at Akapur, was not as per the provisions under Section 100 of the Criminal Procedure Code, 1973. It was pointed out that A.C.F. had not signed before PW-1 on the search warrant Exhibit-22. Neither the search warrant reveal the ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 ::: 7 Judg. 140817 apeal 218.03.odt residence of panchas nor A.C.F. Mr. Thaware examine to support the contents of search warrant Exhibit-22. Thus. the search warrant Exhibit-22 does not assist the prosecution case. Similarly, the search warrant of the Vishesh Nivasi Apang Vidyalaya, Bramhapuri is also not as per the provisions of 100 of the Cr.P.C. It is noticed that Exhibit-56 does not show the name of the owner of the house and plot number. The details about the search are not mentioned in the search warrant. Interestingly, PW-1 stated that he does not remember whether he was present at the time of search or not. He did not make any enquiry about the ownership of the said premises. Both the search warrants are on record at Exhibits-22 and 56 which are in the printed format having filled in with the ink. Bare perusal of the details/contents therein, the said documents are not found to be reliable one. Thus, the testimony of PW-1 does not inspire confidence at all.
12] So far as the testimony of Manik (PW-3) is concerned he has carried out the search in the Vishesh Nivasi Apang Vidyalaya, Brahmapuri. According to him, after obtaining search warrant Exhibit-56 he along with panchas went to the said school. In the presence of panchas, he broke open the lock of the store room as accused no.2 Khushal was on leave. During search, he found the skin of Tiger and skin of Deer in a plastic gunny bag kept in a Kothi. He seized the skin as per the panchanama and seizure panchanama Exhibits-60 and 61 respectively. Thereafter, he registered P.O.R. at Exhibit-62. ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:49 :::
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13] The testimony of Dipak (PW-4) depicts that, he was a panch.
According to him, on 24-01-1996, he along with Mr. Ansari, Naib Tahsildar and Mr. Gourshettiwar, Senior Clerk went to the Vishesh Nivasi Apang Vidyalaya, Brahmapuri. The forest personnel broke open the lock and found the skin of the Tiger in a fertilizer polythene bag kept in a store room. The panchanama and seizure panchanama were prepared and both the panchanamas bear his signatures. He admitted his signature. During the course of cross examination he stated that he cannot remember as to who open the lock of the school and the date when he visited the Vishesh Nivasi Apang Vidyalaya, Brahmapuri. He admitted that the forest officials had not offered himself to be searched prior to conducting search. This fact creates a serious doubt on the seizure which had taken place in the Vishesh Nivasi Apang Vidyalaya, Brahmapuri that too in the absence of accused no.2. Significantly, the authorization of accused no.2 as a Superintendent of Vishesh Nivasi Apang Vidyalaya, Brahmapuri has not been established by the prosecution. Thus, the conscious possession of accused no.2 or the custody of skin of the wild animals from him is not proved. 14] As regards the statements and additional statements of accused nos. 1 and 2 are concerned, it is noticed that, all independent witnesses in whose presence the accused had allegedly made confessional statement have not been examined. As per the statement of the accused the confessional statement of the accused persons were recorded before PW-7. However, PW-7 has not supported the prosecution case and he ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:50 ::: 9 Judg. 140817 apeal 218.03.odt was declared hostile. In view thereof, his testimony is of no assistance to the prosecution case.
15] So far as the testimony of Ghamoji (PW-6) is concerned, according to him, Mr. Tirpude (PW-3) handed over the skin of wild animals to him in January, 1996. Exhibits-60 and 61 do not reveal that the skin of wild animals was seized from the Vishesh Nivasi Apang Vidyalaya, Brahmapuri premises and the skin is handed over to PW-6. In view thereof, it is doubtful that, the skin was taken charge by PW-6 who was the Forester. As far as Exhibit-30 is concerned, no doubt it depicts that flat skin, piece of tail and piece of skin from front right paw of Leopard/ Tiger were examined and it was found that those pieces were the part of the same Tiger. However, in view of the lacunae in the investigation conducted by the forest officials, the findings against the accused persons are held to be not proved beyond reasonable doubt.
16] It is already discussed above that the confessional statements of the accused nos.1 and 2 are not supported by any independent witnesses and as such not found to be reliable one. Similarly, there are discrepancies in the testimony of the witnesses examined by the prosecution. The independent witnesses PW-5 and PW-7 have not supported or corroborated the prosecution case. The testimony of PW-4 who is government servant is also not supported the prosecution case. The prosecution has failed to prove the conscious possession of the skin of Leopard from accused nos. 1 and 2. It is also not proved by the prosecution that accused no.1 used to do hunting of the wild animals and ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:50 ::: 10 Judg. 140817 apeal 218.03.odt he was involved in the transportation of the skin of the wild animals or other forest produce. Even the presence of forest officials at the place of seizure is doubtful. In view of the facts and circumstances and from the above discrepancies and lacunae in the testimony of the prosecution witnesses, the accused persons are entitled for the benefit of doubt. 17] The learned trial Judge has rightly acquitted the accused, as the case against the accused persons is not proved beyond reasonable doubt. The view taken by the learned trial Judge is a possible view. 18] The learned Counsel for the respondents has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Murugesan and others v State through Inspector of Police, reported in AIR 2013 SC 274. The Hon'ble Apex Court has held in para 25 of its Judgment as under :-
"The appeal against acquittal the Court has every power to re-appreciate evidence and come to its own conclusion. However it has to keep in mind that presumption of innocence available to accused has been reinforced by his acquittal. It is further held that the use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to express such as "erroneous view" or "wrong view". It is further held that the reversal of the acquittal could have been made by the Court only if the conclusions recorded by the learned trial Court did not reflect possible view. It must be emphasized that the inhibition to interfere must be perceived only in a situation where the view taken by the trial Court is not a possible view and the possible view taken by the trial Court cannot be substituted by the another possible view."::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:50 :::
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19] In view of the facts and circumstances, the learned trial Judge has
rightly acquitted the accused persons of the offences punishable under Sections 9, 39(2), 39(3)(a), 39(3)(b), 40(1)(2), 48(a), 49(b) read with Section 51 of the Wild Life (Protection) Act, 1972 and Sections 26(1) and 41 of the Indian Forest Act, 1927.
20] I do not find any illegality or perversity in the judgment passed by the learned trial Judge. It is well settled principle of law that in exercise of its appellate jurisdiction particularly in appeal against acquittal, it is not open to this Court to substitute its own view with a view taken by the lower Court, unless the view taken by the lower Court is illegal, perverse or against the principle of law.
21] There are no sufficient grounds made out by the appellant to interfere with the impugned judgment and order. In these circumstances, the appeal deserves to be dismissed and accordingly it is dismissed.
JUDGE Deshmukh ::: Uploaded on - 21/08/2017 ::: Downloaded on - 23/08/2017 01:31:50 :::