The State Of Mah.Thr.Pso ... vs Bandu Motiram Ramteke
2017 Latest Caselaw 7608 Bom

 apeal305of04.odt                           1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                     CRIMINAL APPEAL NO.305 OF 2004


 The State of Maharashtra,
 Through R.F.O. Ghot,
 Tahsil Chamorshi, Dist. Gadchiroli.                         ...APPELLANT


                  ...V E R S U S...


 Bandu s/o. Motiram Ramteke,
 Cultivator and Contractor,
 R/o. Bhiwapur, Police Station Chamorshi,
 District Gadchiroli.                     ...RESPONDENT

   ----------------------------------------------------------------------------------------
          Mr. A.V.Palshikar, Addl. Public Prosecutor for appellant
          Mr. A.J. Thakur, counsel for respondent.
   ----------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     27    SEPTEMBER, 2017.


 ORAL JUDGMENT

The State is in an appeal challenging judgment and

order dated 19.9.2003 in Regular Criminal Case 57 of 1993

delivered by Judicial Magistrate First Class, Gadchiroli, by and

under which the respondent is acquitted of offence punishable

under sections 51 and 52 of the Wild Life Protection Act, 1972 and

under section 42 of the Indian Forest Act, 1927.

2 The case of the prosecution as is unfolded, during

trial, is that accused is resident of Bhiwapur, Tahsil Chamorshi,

District Gadchiroli. The forest officer received information from

one Prabir Barai resident of Nawgram that the accused is

possessing animal articles inter-alia skin, teeth and nails of tiger

without valid permission and is intending the sell the same.

Acting on the said information, the Forest Officer decided to

trap the accused. A forest employee Patrange acted as the decoy.

The said Patrange alongwith Prabir Barai went to the house of the

accused in Ambassador car, Patrange represented himself as a

partner of one contractor who is willing to purchase skins, nails

and teeth of tiger. Patrange told the accused that the purchaser is

waiting at Chamorshi in Krishna Mandir and asked the accused to

accompany Patrange and Prabir Barai with the animal articles.

Accordingly, the accused accompanied Patrange and Prabir in the

car which proceeded towards Chamorshi. The car was stopped

by the forest officers near Sonapur crossing. The forest officer

asked the driver to take the car to the rest house at Chamorshi.

The inquiry was conducted at the said rest house. The sky

coloured suitcase which the accused was carrying was searched at

the rest house and 16 teeth, 7 jaws, skins and 12 moustache of

tiger were discovered in the search. The animal articles and the

suitcase was seized. Offence under the relevant provisions was

registered, investigation was undertaken and the completion of the

investigation culminated in chargesheet being filed before the

Judicial Magistrate First Class, Gadchiroli. The learned Magistrate

framed charge at Exh. 10, the accused pleaded not guilty and

claimed to be tried. The defence of the accused is of total denial

and false implication.

3 The learned Additional Public Prosecutor Shri. H.R.

Dhumale submits that the acquittal is against the weight of

evidence. He invites my attention to paragraph 13 of the

judgment impugned to contend that the learned Magistrate was

labouring under a misconception that it was necessary for the

prosecution to prove that the accused was trying to transport and

sell the animal articles. The learned APP would submit that

possession of animal articles without the requisite permission is in

itself an offence under section 39(3) of the Wild Life Protection

Act.

Per contra, Shri. Thakur, the learned counsel for the accused

submits that the learned Magistrate has rightly recorded a finding

that the prosecution has suppressed the best possible evidence.

That apart, the seizure of the animal articles from the accused is

not proved. The judgment of acquittal is unexceptionable, is the

submission. I am inclined to agree with the submission of Shri.

Thakur that the best possible evidence is not produced.

Concededly, acting on prior information the forest officer decided

to trap the accused. A decoy, alongwith PW 6 who allegedly gave

the information that the accused possessed animal trophies, went

to the house of the accused on 14.7.1992, lured the accused to

accompany them on the pretext that a contractor is waiting at

Chamorshi and he is interesting in purchasing the animal articles.

The case of the prosecution is that the accused accompanied the

decoy and PW 6 and the car was stopped near Sonapur crossing.

The car was then taken to the rest house at Chamorshi and it was

at the rest house that suitcase was searched and inquiries made

from the accused.

4 However, neither the driver of the vehicle nor the

decoy Patrange who concededly is a forest officer, was examined

in support of the prosecution case. It is inexplicable as to why the

car was taken to Chamorshi rest house. Concededly, the forest

officer had a prior information, a trap was arranged, a forest

officer alongwith informant were sent to the residence of the

accused to lure him to accompany them alongwth trophies and the

accused was persuaded to accompany the forest officer and PW 6

in a car. It is difficult to comprehend as to why the car was

stopped near Sonapur crossing and then even the car was stopped

at Sonapur crossing why was the search and seizure not done on

the spot. It is beyond comprehension that the car was taken to the

Chamorshi rest house and it was at the rest house that the search

and seizure was allegedly done. The forest squad could have

included panchas and even if the car was to be stopped near the

Sonapur crossing, the search and seizure could have been done

then and there in presence of the panchas. That apart, since the

accused was given the impression that a contractor was waiting at

Chamorshi to purchase forest articles, and the accused was really

at the mercy of the decoy, the driver and PW 6, there is no

conceivable reason as to why the car was stopped near Sonapur

crossing. The version of the prosecution has too many gray areas

to be relied upon. The learned Magistrate is absolutely right in

recording a finding that the seizure of the animal articles is not

linked to the accused. PW 1 and PW 2 who are the witnesses to

the spot panchanama have not supported the prosecution. PW 3

Gajendra who is witness to the seizure, admits in the cross

examination that he went to the rest house upon hearing that the

forest officers had seized tiger skin. The statement in the

examination in chief that the skin and teeth were in possession of

Bandu Ramteke is to be noted only to be discarded. Concededly,

even according to the prosecution, the animal articles were seized

from a suitcase. PW 3 Gajendra states in the examination in chief

that he was shown the skin and teeth of the tiger by the R.F.O.

The statement that the animal articles were in the possession of

the accused is absolutely untrustworthy and the witness is

obviously making an inferential statement at the instance of the

forest officer or the department. I have no hesitation in discarding

the evidence of Gajendra PW 3 as unreliable and not worthy of

credence. PW 4 is a forest guard who is examined to prove the

seizure. The evidence of PW 4 does not take the case of the

prosecution any further. Au contaire, the evidence causes serious

dent in the case of the prosecution to the extent the only

statement in the examination in chief is that the skin and nails of

tiger were seized from inside the suitcase on 14.7.1992. There is

not even a whisper in the evidence of PW 4 that the animal articles

was seized from the custody of the accused or that the suitcase

was in the custody of the accused. PW 5 is Sunil Hadalwar who

headed the mobile squad. He states that when the car was

stopped and checked, there was one suitcase in the car which was

with the accused. The animal articles like skin, nails and teeth of

tiger were recovered from the suitcase. Interestingly, PW 5 does

not make any reference to the car being stopped near Sonapur

crossing, to the taking of the car to Chamorshi rest house etc. PW

5 who headed the mobile squad has not thrown light on several

aspects of the prosecution case which are blurred. The evidence of

PW 5 is absolutely silent on the information received, the manner

in which the trap was arranged, alleged interaction, between the

decoy and PW 6 and the accused and the forcible stopping of the

car near Sonapur crossing. That apart, in view of the failure of the

other material witnesses to support the prosecution, the evidence

of PW 5 is of little assistance to the prosecution although the

learned APP is right in contending that there is hardly in cross

examination worth the name. PW 6 is the informant who has not

supported the prosecution.

5 On an overall appreciation of evidence, the

prosecution has not established, that the alleged seizure of the

animal articles is from the suitcase which was in the custody of the

accused. The offence is not proved beyond reasonable doubt. A

possible view is taken by the learned Magistrate which is certainly

not perverse.

I am not inclined to interfere in the judgment of acquittal.

The appeal is rejected.

JUDGE

R.S.Belkhede, Personal Assistant.