Bombay High Court
Yogesh @ Yograj S/O. Sakharam ... vs State Of Maharashtra Thr. Range ... on 5 October, 2023
Bench: G. A. Sanap
2023:BHC-NAG:14539
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO. 174 OF 2016
APPLICANTS : 1. Yogesh @ Yograj S/o. Sakharam
Kumbhare, Aged about 42 Years,
R/o. Heti, Tahsil Sadak-Arjuni,
District Gondia (Accused No.8).
2. Ramu S/o. Natthu Watti, Aged about
46 Years, R/o. Thatezari, Tahsil
Sadak-Arjuni, District Gondia
(Accused No. 9).
3. Ramkrishna S/o. Zitu Madavi, Aged
about 50 Years, R/o. Thatezari, Tahsil
Sadak-Arjuni, District Gondia
(Accused No. 10).
4. Nandlal S/o. Tangsu Sayam, Aged
about 47 years, R/o. Thatezari, Tahsil
Sadak-Arjuni, District Gondia
(Accused No. 11).
5. Tulshiram S/o. Bhiwa Wadave, Aged
about 46 years, R/o. Thatezari, Tahsil
Sadak-Arjuni, District Gondia
(Accused No. 13).
//VERSUS//
NON-APPLICANT : State of Maharashtra, through Range
Forest Officer, Sakoli, District
Bhandara.
**************************************************************
Mr. V.M. Vishwarupe, Advocate h/f. Mr. R.R. Vyas, Advocate
for the Applicants.
Mr. A.R. Chutke, APP for the Respondent/State.
**************************************************************
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CORAM : G. A. SANAP, J.
RESERVED ON : 17th AUGUST, 2023.
PRONOUNCED ON : 5th OCTOBER, 2023.
JUDGMENT
In this revision application, challenge is to the judgment
and order dated 15th September, 2016, passed by the learned
Sessions Judge, Bhandara, whereby the learned Sessions Judge
dismissed the appeal (except the modification of sentence) filed by
the applicants/accused Nos.8, 9, 10, 11 and 13 against their
conviction and sentence awarded by the learned Judicial Magistrate
First Class, Sakoli for the offences punishable under Sections 9, 27,
29 and 31 read with Section 51(1) of the Wild Life (Protection)
Act, 1972 (for short "the Act of 1972"). The learned Magistrate, on
conviction, had sentenced the accused to suffer rigorous
imprisonment for one year and to pay fine of Rs.300/- each and in
default to suffer simple imprisonment for a period of one month.
02] BACKGROUND FACTS :-
On the report of PW-2 Anand Meshram (Forest Guard),
a Crime bearing No.158/2005 was registered on 16th August,
2005. It is the case of prosecution that on 16th August, 2005, PW-2
Anand Meshram (Forest Guard) had received a secret information
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that two Chitals (axis axis) were hunted in Nagzira Forest and the
meat was sold at Village Heti. They visited the house of the
accused No.1 by name Najuk Gahane. They took the house search
and in the house search, they found that the meat was being
cooked in a big pot. Accused No.1 admitted the purchase of the
Chital meat from the other accused. The meat was seized under the
panchanama. The information provided by accused No.1 led to
arrest of the remaining accused. During the course of the
investigation, the accused were arrested. The accused made
confessional statements during the investigation. The accused led
the Forest Officers to the spot where the Chitals were killed. From
the spot, some parts of the Chitals and weapons were seized. The
material used for laying the trap to catch the Chitals was also seized
at the instance of the accused. The articles were seized by drawing
panchanama. After completion of the investigation, the case was
filed in the Court of Judicial Magistrate First Class, Sakoli.
03] The prosecution examined ten witnesses to bring home
the guilt against the accused. The learned Judicial Magistrate First
Class, on consideration of the evidence, found the
applicants/accused, guilty of the offences and sentenced them as
above. The learned Magistrate acquitted the remaining accused.
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The appeal filed by the applicants/accused against their conviction
and sentence was dismissed by the learned Sessions Judge,
Bhandara. However, the learned Sessions Judge modified the
substantive sentence and reduced it to six months from one year.
04] I have heard Mr. V.M. Vishwarupe, learned advocate
holding for Mr. R.R. Vyas, learned advocate for the accused and
Mr. A.R. Chutke, learned Additional Public Prosecutor for the
State. Perused the record and proceedings.
05] Learned advocate for the accused submitted that the
evidence adduced by the prosecution is not sufficient to prove the
charge against the accused. Learned advocate took me through the
evidence and pointed out the lacunas in the evidence of the
prosecution witnesses. Learned advocate pointed out that the
seized meat and other body parts of the Chitals were not sent to
forensic laboratory for examination and analysis. Learned advocate
submitted that, therefore, there is no evidence to prove that the
meat and other body parts seized during the course of investigation
were of Chitals. Learned advocate submitted that, therefore, the
basic fact of killing the Chitals has not been proved. Learned
advocate further submitted that the prosecution has heavily relied
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upon the confessional statements of the accused, recorded by the
Forest Officers during the course of investigation. Learned
advocate submitted that the evidence on record clearly indicates
that the confessions were not recorded by the Competent Officer
in terms of Section 50(8) of the Act of 1972. Learned advocate
further submitted that the evidence on record is not sufficient to
prove that the confessional statements were made voluntarily.
Learned advocate pointed out that the approach of the officials in
the process of recording the confessional statements was too casual
and mechanical. The evidence on record indicates that the
confessions were not recorded personally by the Competent Officer
(PW-8). Learned advocate took me through the evidence of PW-6,
who is the Forest Guard, and the evidence of PW-7, who is the
Range Forest Officer, and on the basis of their evidence, submitted
that the confessional statements were recorded by them and not by
PW-8. Learned advocate submitted that the prosecution has
miserably failed to prove that the confessional statements made by
the accused were voluntary and therefore, the confessional
statements cannot be made the basis of conviction.
06] Learned advocate took me through the evidence of the
witnesses and pointed out that on material points, there are major
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inconsistencies in their evidence. Learned advocate further
submitted that all the witnesses are the Forest Officers and as such
interested in the case of prosecution. Learned advocate submitted
that serious doubt has been created about the case of prosecution
on minute perusal of the evidence of these witnesses. Learned
advocate further pointed out that the independent panch witnesses
were not examined. The prosecution has not placed on record
plausible explanation for non-examination of the independent
panch witnesses. Learned advocate submitted that the Courts
below have not taken all these facts into consideration and as such
came to a wrong conclusion.
07] Learned Additional Public Prosecutor submitted that the
Courts below have properly appreciated the evidence of the
prosecution witnesses. Learned Additional Public Prosecutor took
me through the confessional statements and submitted that the
confessional statements were recorded by the Competent Officer.
Learned Additional Public Prosecutor submitted that on the basis
of the evidence of the Competent Officer, the Prosecution has
proved that the confessional statements are voluntary and truthful.
Learned Additional Public Prosecutor submitted that the evidence
of the witnesses cannot be discarded only on the ground that all the
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witnesses are from the Forest Department. Learned Additional
Public Prosecutor submitted that there are no major inconsistencies
in the evidence of the witnesses and therefore, the evidence of
these witnesses has been found credible by the Courts below.
Learned Additional Public Prosecutor submitted that the
concurrent findings of fact recorded by the Courts below are on the
basis of proper appreciation of the evidence and therefore, the same
need not warrant interference.
08] In order to appreciate the rival submissions, I have gone
through the record and proceedings. It has come on record that
after arrest of the accused, place of incident was inspected by the
Forest Officers. It is the case of the prosecution that the accused led
the Forest Officers to the spot where the Chitals were allegedly
killed. It has come on record that the cooked meat was seized.
Similarly, two hoofs and skin were seized from the spot. It has
come on record that the meat, seized by the Forest Officer, was
cooked. In this case, neither the cooked meat nor other body parts
of the Chitals were sent to the forensic laboratory for examination
and analysis. The Forest Officers have deposed before the Court
that since they are acquainted with the factual position and in the
know-how of the animals, they identified that the meat and other
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parts being of Chitals. It is seen on perusal of the record that the
carcasses or skeletons of the killed animals were not found from the
spot. Some body parts like hoofs and skin were found. The
Investigating Officer was required to take proper care, considering
the seriousness of the crime. He was expected to send the meat and
other body parts to the laboratory for examination and analysis.
The report of the examination and analysis of the body parts would
have been the concrete evidence in support of the case of the
prosecution. No explanation has been placed on record for not
undertaken this exercise by PW-7 and PW-8.
09] The question is whether the evidence of the Forest
Officers with regard to the identification of the body parts being of
Chitals, could be said to be conclusive proof of the fact that the
cooked meat and the body parts were of Chitals. In my view,
considering the fact that the provisions of the Act of 1972 are very
stringent, the provisions required strict interpretation. In such a
situation, the compliance of mandatory provisions has to be made
scrupulously. It is said that more stringent the punishment, the
grater should be the care, while conducting the investigation. In
this case, in my view, on the basis of this evidence, it is not possible
to record a finding that the cooked meat and the parts seized
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during the investigation were the body parts of Chitals. It is not the
case of the prosecution that the examination of the articles could
not be carried out for one reason or the other. It is not out of place
to mention that there is independent laboratory for examination
and analysis of the body parts of the animals. In this case, killing of
Chitals is the genesis of the crime. Failure to establish the very
genesis of the crime is fatal to the case of prosecution. In my view,
therefore, on this count, the benefit of doubt is required to be given
to the accused.
10] It is true that some material was seized from the spot.
The spot was in the forest area. The trap material and axe were
found. The main question in this context is as to whether the
recovered material from the forest could be attributed and
connected to the accused. The prosecution has not examined the
independent panch witness. No plausible explanation has been
placed on record for non-examination of the independent panch
witness. Even if it is assumed for the sake of argument that this
material could be attributed to the accused, this may not be
sufficient to conclude that the Chitals were killed and the body
parts found on the spot were of Chitals. Therefore, on this count
also, the evidence is found lacking.
-10- REVN.174.2016. Judgment.odt
11] The next important aspect is with regard to the
admissibility and proof of the confessional statements of the
applicants/accused, relied upon by the prosecution. A confessional
statement made before the Competent Officer, as provided under
Section 50(8), is admissible in evidence in view of the provisions of
sub-section 9 of Section 50 of the Act of 1972. The provisions of
sub-sections (8) and (9) of Section 50 are analogous to the
provisions of Section 67 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short "the NDPS Act"), Section 108 of
the Customs Act, 1962 and Section 72 of the Indian Forest Act,
1927. The provisions of Section 50 of the Act of 1972 is a part of
special Statute. It has overriding effect and prevails over the general
provisions of the Indian Evidence Act, particularly Sections 25 and
26. Sub-sections (8) and (9) of Section 50 are exception to the
general rule that the confession made before the Police Officer
during the custody is not admissible in evidence against the
accused.
12] It needs to be stated, at this stage, that the fundamental
protection provided under law against self-incrimination has to
some extent been diluted by this special provision. This provision
is an exception to the general rule. In view of this exceptional
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provision, corresponding duty has been cast upon the Competent
Officer to follow the procedure and ensure that the safeguards
provided to the accused under law are sufficiently met. Section 164
of the Code of Criminal Procedure, 1973 (for short "Cr.PC")
provides the procedure for recording the confessional statements of
the accused by the Magistrate. Similarly, the special criminal
enactments provide for the admissibility of the confessional
statements of the accused. The special enactments contain the
procedure and inbuilt mechanism, while recording the confessional
statement. The procedural mechanism has to be proved as a fact. It
is necessary, in such cases, to prove that the confessional statement
made by the accused was voluntary and truthful.
13] The question is whether the safeguards provided to the
accused under the law can be taken away by undertaking such an
exercise mechanically. It is trite law that the confession made by the
accused during the custody under Section 50(8) must be voluntary
and truthful. In such cases, the question of fact that needs to be
addressed by the Court is whether the confessional statement is
voluntary or not. A confessional statement is said to be voluntary, if
it is not caused by threat, inducement, torture or pressure etc. If a
confession is caused by threat, inducement, torture or pressure etc.,
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then it could not be said to be a voluntary confession and as such
has to be discarded in entirety. The Officer empowered to record
the confession, therefore, has to be independent officer having no
concern with the investigation. Before recording the confessional
statement, such Officer is required to make an enquiry with the
accused about any pressure, threat or inducement by the
Investigating Officer. The Officer must try to know from the
accused as to why he intends to make confession and cleanbreast of
the crime. The Officer is required to give an understanding to the
accused that he is not bound to make a confession and despite such
a warning, if he makes a confession, then it could be used as an
evidence against him in the trial. The Officer is supposed to
enquire with the accused about the time required for reflection.
The Competent Officer before recording the confessional
statement must be satisfied that on account of repentance and
remorse, the accused has made up his mind to cleanbreast of the
crime committed by him. The Competent Officer is required to
maintain a contemporaneous record of all the precautions and the
procedure followed by him. Whenever the confessional statement
is questioned on the ground that it was the result of threat,
inducement, promise or torture, the contemporaneous record must
be sufficient to rule out the said possibility.
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14] The question whether the confessional statement is
voluntary or not has to be decided keeping in mind the facts and
circumstances of each and every case. The evidence on record
needs proper scrutiny and appreciation. It is common knowledge
that the Forest Officers, like Police Officers are not required
everyday to conduct the investigation. The wildlife crime
investigation methodology is in the process of evolution. The
lapses and lacunas in the investigation result into the acquittal of
the accused in a serious crime. It is not out of place to mention that
after realising this phenomena, the Wildlife Crime Control Bureau
Ministry of Environment and Forest Government of India has
prepared and published a handbook for Wildlife Crime
Investigation Officers. The first edition was published in 2013.
Chapter 6 of the guidelines is with regard to the investigation and
complaint. Clause 6.25 specifically deals with interrogation of the
accused/suspect. In my view, it would be appropriate for the
purpose of proper understanding and to throw light on all these
aspects, it would be appropriate to reproduce the guidelines
Clauses 6.25 to 6.33 of Chapter 6 interrogation of the
accused/suspect. Clauses 6.25 to 6.33 of Chapter 6 are extracted
below:
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"6.25. Skillful interrogation of the accused/suspect is
essential for any successful criminal investigation. In order to
get further leads, preliminary interrogation of the accused
should be conducted at the seizure site. He should be
interrogated further, in detail subsequently, and his statement
should be recorded by an authorised officer. Such statement
of an accused recorded by a forest officer will be extra-
judicial confession of the accused.
6.26. As provided in Section 50(9) of Wild Life (Protection)
Act, 1972, the evidence recorded by the authorised officer
under Section 50(8) (d), in the presence of the accused, is
admissible as evidence.
6.27. Accused should be interrogated for backward linkages
like source of procurement of the wildlife materials,
monetary transactions, details of middlemen involved in the
trade, modus operandi in poaching & transportation, other
members of the gang, place or places where the wildlife
materials are concealed and for forward links like prospective
buyers, involvement of middlemen or brokers, existence of
organised gangs in the trade etc. All the replies elicited by the
accused should be clearly documented.
6.28. The evidentiary value of a confession statement
depends on its voluntary character. A confession made under
any inducement, threat or promise loses its credibility. Thus
a confession should be voluntary, true and trustworthy. It
must be clear and unequivocal and admitting the
commission of the crime. As per Section 30 of Indian
Evidence Act, the statement of an accused can be taken into
consideration against another accused involved in the same
crime.
6.28. Confession statement should be recorded within 6-12
hours of the arrest of the accused. Undue delay in recording
the confessional statement has an adverse effect on its
credibility. The accused may also make up his mind not give
such statement.
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6.29. It is also advisable not to record the confession
statement immediately after the arrest of the accused. The
authorised officer recording the confession should give some
time to the accused for making up his mind to confess. It is
also the bounden duty of the authorised officer to explain
the accused that he is not bound to make a confession. This
fact should be recorded in the statement.
6.30. As far as possible the confession should be recorded in
same language and exact words told by the accused. Once it
is recorded, the statement should be read over to the accused
in the language in which it was made and explained.
6.31. Every page of the confession should be signed by the
accused and the officer recording the statement. If the
accused refuses to sign the statement, the same should be
mentioned in the statement.
6.32. Where the confession discloses chance of recovery of
article/ weapons, any other incriminating evidence,
involvement of other accused etc., the Investigating Officer
should seek custody of the accused and go for recoveries. It
has been held by various courts that forest officers are
competent to get remand of the accused for the purpose of
investigation. Confession made before any forest officer falls
in the category of extra-judicial confession and the same is
admissible in evidence provided the same is made voluntarily
and there is other evidence to corroborate the facts disclosed
in the confession.
6.33. Accused/suspect should not be subjected to physical
duress or other coercive methods to elicit confession."
15] The sum and substance of the above guidelines indicate
that a great care is required to be taken at the time of recording the
confessional statement. The confessional statement recorded by the
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Forest Officer falls in the category of extra-judicial confession and
the same is admissible in evidence, provided the same is made
voluntarily and there is other evidence to corroborate the facts
disclosed in the confession. It is, therefore, apparent that the
Ministry of Environment and Forest Government of India also
realised that there were shortcomings and in order to overcome the
said shortcomings, the guidelines in the form of handbook was felt
necessary. The Forest Officers are required to make use of this
handbook.
16] The Hon'ble Supreme Court in the case of Shivappa Vs.
State of Karnataka [(1995) 2 SCC 76], while appreciating the
confessional statement recorded by the learned Magistrate under
Section 164 of the Cr.PC, has held that all the procedural
precautions must be taken at the time of recording the confession.
For the purpose of proper appreciation, it would be necessary to
reproduce paragraphs 6 and 7 of the judgment. It is extracted
below:
"6. From the plain language of Section 164 CrPC and the
rules and guidelines framed by the High Court regarding the
recording of confessional statements of an accused under 164
CrPC, it is manifest that the said provisions emphasise an
inquiry by the Magistrate to ascertain the voluntary nature of
the confession. This inquiry appears to be the most
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significant and an important part of the duty of the
Magistrate recording the confessional statement of an
accused under Section 164 CrPC. The failure of the
Magistrate to put such questions from which he could
ascertain the voluntary nature of the confession detracts so
materially from the evidentiary value of the confession of an
accused that it would not be safe to act upon the same. Full
and adequate compliance not merely in form but in essence
with the provisions of Section 164 CrPC and the rules
framed by the High Court is imperative and its non-
compliance goes to the root of the Magistrate's jurisdiction to
record the confession and renders the confession unworthy
of credence. Before proceeding to record the confessional
statement, a searching enquiry must be made from the
accused as to the custody from which he was produced and
the treatment he had been receiving in such custody in order
to ensure that there is no scope for doubt of any sort of
extraneous influence proceeding from a source interested in
the prosecution still lurking in the mind of an accused. In
case the Magistrate discovers on such enquiry that there is
ground for such supposition he should give the accused
sufficient time for reflection before he is asked to make his
statement and should assure himself that during the time of
reflection, he is completely out of police influence. An
accused should particularly be asked the reason why he wants
to make a statement which would surely go against his self-
interest in course of the trial, even if he contrives
subsequently to retract the confession. Besides administering
the caution, warning specifically provided for in the first part
of sub-section (2) of Section 164 namely, that the accused is
not bound to make a statement and that if he makes one it
may be used against him as evidence in relation to his
complicity in the offence at the trial, that is to follow, he
should also, in plain language, be assured of protection from
any sort of apprehended torture or pressure from such
extraneous agents as the police or the like in case he declines
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to make a statement and be given the assurance that even if
he declined to make the confession, he shall not be
remanded to police custody.
7. The Magistrate who is entrusted with the duty of
recording confession of an accused coming from police
custody or jail custody must appreciate his function in that
behalf as one of a judicial officer and he must apply his
judicial mind to ascertain and satisfy his conscience that the
statement the accused makes is not on account of any
extraneous influence on him. That indeed is the essence of a
'voluntary' statement within the meaning of the provisions
of Section 164 CrPC and the rules framed by the High Court
for the guidance of the subordinate courts. Moreover, the
Magistrate must not only be satisfied as to the voluntary
character of the statement, he should also make and leave
such material on the record in proof of the compliance with
the imperative requirements of the statutory provisions, as
would satisfy the court that sits in judgment in the case, that
the confessional statement was made by the accused
voluntarily and the statutory provisions were strictly
complied with."
17] The Hon'ble Supreme Court in another decision in the
case of Raju Premji Vs. Customs, NER, Shillong Unit [(2009) 16
SCC 496], while considering the case of the accused under the
NDPS Act, has held that the confessional statement is admissible,
provided the prosecution proves that it is voluntary and truthful. It
is to be noted, at this stage, that the question of truthfulness of
confessional statement needs to be gone into only when the
confession is proved to be voluntary.
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18] In view of the above settled legal position, the evidence
on record needs appreciation. In this case, the prosecution has
placed heavy reliance on the evidence of PW-7 and PW-8. PW-7 at
the relevant time was the Range Forest Officer. PW-8 was working
as Assistant Conservator of Forest. As per Section 50(8) of the Act
of 1972, any Officer not below the rank of Assistant Director of
Wild Life Preservation or an Officer not below the rank of
Assistant Conservator of Forest is authorized to record the
confessional statement. In view of this provision, PW-8 was
Competent Officer to record the confessional statement. PW-7 was
not empowered to record confessional statement. At this stage, it is
necessary to state that the main investigation was conducted by
PW-7. There is evidence on record to indicate that some part of
investigation was conducted by PW-8. With this undisputed
position, their evidence is required to be scrutinized. The main
issue required to be addressed on the basis of the evidence of PW-8
is as to whether the required procedure was followed by him under
the law at the time of recording the confessional statements. It is
also necessary to see whether the evidence and material on record
is sufficient to prove that the confessional statements made by the
accused were voluntary and without any threat, torture,
inducement, pressure etc.
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19] Before proceeding to consider the evidence of PW-8, the
appreciation of evidence of PW-6, who at the relevant time was the
Forest Guard, is necessary. In his evidence, PW-6 has stated that in
presence of the Superior Officers, he recorded the statements of the
accused persons. The statements recorded by PW-6 were signed by
PW-6. In his evidence, he has not stated that he recorded the
confessional statements of the accused in presence of PW-8. It was
suggested to him in cross-examination that he recorded the
confessional statements as stated by his superiors. He denied this
fact. In my view, this admission in cross-examination is very vital
and important. This admission indicates that he recorded the
statements of the accused. He has not stated that he only scribed
the statement as narrated by his superior officer. It is the defence of
the accused that their statements were already prepared and their
signatures were obtained on the statements by applying force.
20] The next important witness is PW-7. In his evidence, he
has admitted that PW-8 was part of the investigation in this case.
He has stated that in his presence, the statement of Najuk Gahane
was recorded. He has further stated that the Forest Guard Mr.
Khobragade recorded the statements of 18 accused in his presence.
He has further admitted that Mr. Khobragade obtained the
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signatures of the accused in his presence as well as in presence of
the panch witness on their statements. He has identified those 21
confessional statements. In his further evidence, he has stated that
when the accused No.11 (applicant No.4) showed the place of
occurrence, PW-8 was present. He has further stated that the
confessional statements of the accused were recorded in his
presence as well as in presence of PW-8 by Forest Guard Mr.
Badve. In his cross-examination, he has admitted that when the
statements were recorded, the accused were in forest custody. He
has further admitted that, by that time, the independent panch
witness was not summoned. It was suggested to him that the
accused persons were pressurized and tortured and therefore, they
were forced to sign on the statements already prepared. Overall
perusal of his evidence indicates that he played an important role
in recording the statements. He was the Investigating Officer. The
accused were in his custody. He, at the relevant time, was not
competent to record the statements. The record indicates that after
4 days from grant of forest custody, the statements of the accused
were recorded. The evidence of PW-7 is conspicuously silent about
the precautions taken by him at the time of recording the
confessional statements of the accused. He has admitted that the
statements were recorded in his presence by the Forest Guard. This
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fact would indicate that he was actively involved in recording of
the statements of the accused. The statements of the accused
produced on record were signed by him. He was not required to
sign the said statements. In my view, the evidence of PW-7
indicates that he was instrumental in recording the confessional
statements.
21] It would be necessary to consider the evidence of PW-8,
who at the relevant time, was the Competent Officer for the
purpose of recording the statement. In his evidence, he has
admitted that he was the part of the investigation. He has stated
that the seizure of the articles was made in his presence. He has
stated that the confessional statement of accused Najuk Gahane
was recorded in his presence. He has stated that the statement bears
his signature and signature of Range Forest Officer Mr. Meshram
(PW-7). He has further stated that he recorded the statements of
the remaining accused as well. He has stated that the statements
were recorded in his presence. He has categorically stated in his
examination-in-chief that since the statements were recorded in his
presence, he made the signatures on the same. His examination-in-
chief is silent about the procedure followed by him at the time of
recording the confessional statements. He has admitted that the
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statements were recorded in presence of PW-7 Mr. Meshram. In his
evidence, he has not stated the name of the person, who actually
wrote the statements. In his evidence, he has not stated that the
statements were made by the accused voluntarily in his presence
and as per his dictation, the statements were scribed by any other
officer. He has not stated that before recording the statements, he
had made any kind of enquiry with the accused to form an opinion
that the accused were making the statements voluntarily. He has
not stated that he had assured the accused that they would not be
sent to forest custody after recording their statements. He also did
not ask the accused the reason for making the confessional
statements. He did not ask the accused about the reflection time
required by them to reconsider the desire expressed by them to
make the confession.
22] Perusal of the confessional statements would show that
the time of recording the confessional statements was not
mentioned. It is seen on perusal of the record that on the same
date, almost all the confessional statements were recorded. There
are 21 confessional statements. In view of this factual position, PW-
8 was required to mention the date and time of commencement of
recording the confessional statements and completion of recording
-24- REVN.174.2016. Judgment.odt
the confessional statements. The accused have taken a defence that
their statements were already prepared and they were forced to
make the signatures on those statements. PW-8 was not only
required to follow the procedure, but he was also required to
maintain a record of the same. The record can be used as a
contemporaneous material to decide the issue as to whether the
confessional statements were made voluntarily or not.
23] In this context, perusal of his cross-examination would
be relevant. He has admitted that before recording the confessional
statements, he did not prepare any document. He has stated that all
the confessional statements were recorded by one person. He was
unable to tell the name of the said person. He has also stated that
he does not know the designation of the said person. It was
suggested to him that when he recorded the confessional
statements, the accused were in his custody. He has denied this
suggestion. In my view, this answer is contrary to the record. He
has stated that the accused were arrested on 16 th August, 2005. He
has stated that when the accused were arrested, he was present. He
has stated that some of the accused were arrested from the spot and
some of the accused were arrested from their houses.
-25- REVN.174.2016. Judgment.odt
24] Perusal of the evidence of PW-8 is sufficient to conclude
that he did not play an important role in the process of recording
the confessional statements of the accused. He played an important
part in the investigation of the crime. Sub-sections (8) and (9) of
Section 50 are exception to the general rule. The provision has its
object. It needs to be stated that every action/step taken by the
Competent Officer must be in the direction to fulfill the very
object of the provision. A confessional statement made under
pressure, threat, inducement or as a result of torture could not be
said to be voluntary confession. The evidence on record must be
sufficient to prove beyond doubt that the accused due to sheer,
remorse and repentance desired to cleanbreast of the crime and
made the confession.
25] It needs to be stated that all these facts must be
established. The Wild Life Protection Act has its object. At the
same time, one cannot be oblivious of the right of the accused in a
criminal trial. The fundamental principle of criminal
jurisprudence, while appreciating such a provision, needs to be
borne-in-mind. The accused has right to remain silent. He deserves
fair trial. The prosecution is required to prove the guilt of the
accused beyond reasonable doubt. It needs to be stated that when
-26- REVN.174.2016. Judgment.odt
the provisions like sub-sections (8) and (9) of Section 50 are
applied in a given case, the Court must ensure its compliance in
letter and spirit. In this case, the evidence of PW-8, who at the
relevant time was the Competent Officer, woefully falls short to
satisfy the basic mandatory requirements of law. The statements of
the accused relied upon by the prosecution at their face value
indicate that the same cannot be given a value greater than the
value attached to the statement recorded under Section 161 of the
Cr.PC. In this case, majority of the statements were recorded by
PW-7. He was not the Competent Officer to record the statements.
The evidence of PW-8 indicates that he was not deeply involved in
the process of recording the statements of the accused. The record
indicates that the major part in this process was played by PW-6
and PW-7. On the basis of the material on record, I am satisfied
that the prosecution has miserably failed to prove that the
confessional statements are voluntary. Once it is held that the
confessional statements are not voluntary, its truthfulness
diminishes automatically. In my view, therefore, the prosecution
cannot rely on this part of the evidence.
26] There is one more flaw in the judgment and order passed
by the learned Magistrate. The confessional statements of the
-27- REVN.174.2016. Judgment.odt
accused have been made the basis of the conviction of the accused.
The evidence in the form of confessional statements was the vital
incriminating material against the accused. As per Section 313 of
the Cr.PC for the purpose of enabling the accused personally to
explain any circumstances appearing in evidence against him, it
must be put to the accused in his examination under Section 313 of
the Cr.PC.
27] The Hon'ble Supreme Court in the case of Sharad
Birdhichand Sarda Vs. State of Maharashtra [AIR 1984 SC 1622]
has held that the provisions of Section 313 are mandatory. The
compliance of this provision must be made in letter and spirit. It is
held that the circumstances, which are not put to the accused in his
examination under Section 313 of the Cr.PC, have to be
completely excluded from consideration. Such circumstances
cannot be used against the accused to base his conviction.
28] In this case, I have minutely perused 313 Cr.PC
statements of the accused recorded by the Court. At the time of
recording the statement under Section 313 of the Cr.PC, the
contents of their confessional statements or the substance of their
confessional statements were not put to them, so as to enable them
-28- REVN.174.2016. Judgment.odt
to explain the same. The learned Magistrate was required to frame
the questions on the basis of the confessional statements. The
learned Magistrate has not framed even a single question to
indicate that the substance of the confessional statements was put
to the accused. The learned Magistrate could have done so. Perusal
of 313 Cr.PC statements of the accused would show that the
common questions were framed for all the accused. In such cases,
where there are more than one confessional statements and
particularly inculpatory confessional statements, the Court is
required not only to put the substance of the confessional
statement of the individual accused to the said accused, but also is
under an obligation to put the substance of the confessional
statements of the co-accused to each and every accused. In this
case, the conviction has been based on the confessional statements
of the accused and co-accused. Not a single question was put to
any of the accused, so as to offer them an opportunity to explain
the contents of the confessional statements. In my view, this is
material flaw in this case. The learned Magistrate has not taken
proper care, while recording 313 Cr.PC statements of the accused.
The flaw, as stated above, goes to the root of the case of the
prosecution. In view of this position, I am of the opinion that the
confessional statements cannot be made use of as an evidence for
-29- REVN.174.2016. Judgment.odt
the purpose of recording the conviction and sentence of the
accused.
29] The next important point that needs to be addressed is
whether the oral evidence of the witnesses examined by the
prosecution is sufficient to prove the guilt of the accused. The
witnesses are the Forest Officers. The prosecution has not
examined any independent witness. There were independent
panch witnesses. No plausible explanation has been put-forth for
non-examination of the independent witnesses. The Forest
Officers were interested witnesses. However, in my view, this could
not be the sole ground to reject the evidence of Forest Officers
being interested witnesses. It is, however, a settled position in law
that before placing implicit reliance on such evidence, it must be
proved that there are no inconsistencies in the evidence of the
witnesses on material aspects.
30] I have minutely gone through the evidence of the
witnesses. It is to be noted that except 5 accused, remaining 16
accused were acquitted by the learned Magistrate. The articles
seized from the spot were not produced before the Court. It is
further seen that the evidence of PW-7 and PW-8, on material
-30- REVN.174.2016. Judgment.odt
points, is inconsistent. The evidence of the prosecution witnesses,
therefore, does not inspire confidence. The inconsistencies in their
evidence are such to create doubt about the investigation as well as
the involvement of the accused in the commission of crime. In my
view, therefore, it would not be safe to rely on the evidence of the
Forest Officers. The evidence, on bare perusal, appears to be
tainted evidence. Such a tainted evidence cannot be made the sole
basis of conviction.
31] Perusal of the judgment and order passed by the learned
Sessions Judge would show that the learned Sessions Judge has not
addressed all the above issues, though the same were raised at the
time of the argument. The learned Sessions Judge appears to have
ignored all these important aspects. In my view, therefore, the
conviction and sentence cannot be maintained. The evidence is not
sufficient to maintain the conviction and sentence. The
submissions made by the learned advocate for the accused,
therefore, deserves acceptance.
32] Before parting with the matter, considering the serious
lapses committed by the Competent Forest Officers, while
recording the confessional statements, it is necessary to direct all
the concerned to take remedial steps. The Wildlife Crime Control
-31- REVN.174.2016. Judgment.odt
Bureau Ministry of Environment and Forest Government of India
has prepared and published a handbook for Wildlife Crime
Investigation Officers. The reference of the same has been made in
the earlier part of the judgment. It is observed that despite
publication of the handbook, there appear to be no improvement
at the ground level. It appears that the Investigating Forest Officers
and the Officers competent to record the confessional statements
are either not made aware of this handbook or the Officers have
not bothered to follow the guidelines from the said handbook. The
investigation of crime requires training as well as the efforts to
harness the investigation skills. In my opinion, the best possible
way to harness the investigation skills of the Forest Officers, the
Forest Officers can arrange departmental workshops. In order to
take care of this important aspect and to harness the investigation
skills and to understand the intricacies of the law in this regard, the
possibility of conducting the workshops at Judicial Academies in
the State of Maharashtra like Judicial Officers' Training Institute at
Nagpur or Maharashtra Judicial Academy at Uttan can be
explored. Such workshops organised in coordination with the
officials of J.O.T.I. and M.J.A, in my view, can help the Forest
Officers in understanding the intricacies of the subject and to
implement the same at the time of investigation at ground level. In
-32- REVN.174.2016. Judgment.odt
my view, this is the need of the hour. If timely steps are not taken
in this direction, then the flaws left in the proceeding, while
conducting the investigation, can lead to the acquittal of the
accused. The acquittal of the accused, in such a serious crime due
to mistakes and flaws in the investigation, is a serious matter. The
crimes of killing of wild animals are on rise. The crimes of killing
of wild animals directly result in affecting the ecological balance.
The crimes of killing of wild animals are generally committed for
economic/financial gains. In some cases, the crime syndicate is
involved in such offences. In view of this, training is necessary for
the Forest Officers, who are required to conduct the investigation
at ground level and particularly for the Competent Officers who
are authorised under law to record the confessional statement.
33] Learned Registrar (Judicial) shall forward the copy of
this judgment to Principal Chief Conservator of Forest, Head of
Forest Force (HOFF), Nagpur and Principal Chief Conservator of
Forest (Wild Life), Nagpur. The Principal Chief Conservator of
Forest, Head of Forest Force (HOFF), Nagpur and the Principal
Chief Conservator of Forest (Wild Life), Nagpur, on receipt of the
copy of the judgment, shall take all necessary steps in view of the
above observations.
-33- REVN.174.2016. Judgment.odt
34] Accordingly, the Criminal Revision Application is
allowed.
(i) The judgment and order dated 15th September, 2016,
passed by the learned Sessions Judge, Bhandara in Criminal Appeal
No.01/2016 as well as the judgment and order dated 29th
December, 2015, passed by the learned Judicial Magistrate First
Class, Sakoli in Regular Criminal Case No.46/2006, are quashed
and set aside.
(ii) Applicants/accused Nos.8, 9, 10, 11 and 13 are acquitted
of the offences punishable under Sections 9, 27, 29 and 31 read
with Section 51(1) of the Act of 1972.
(iii) Their bail bonds stand cancelled.
(iv) Fine amount, if any, deposited by the accused be
refunded to them.
35] The application is disposed of.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 05/10/2023 19:35:42
