Bombay High Court
Range Forest Officer And ... vs Wasudeo Laxman Bhakare & Another on 14 August, 2017
Bench: Swapna Joshi
1 Judg. 140817 apeal 218.03.odt
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
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
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
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
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
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
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.
8 Judg. 140817 apeal 218.03.odt
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
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
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."
11 Judg. 140817 apeal 218.03.odt
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
