Pappu Prasad vs State Of Uttarakhand And Another
2022 Latest Caselaw 2115 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

           Criminal Jail Revision No. 01 of 2018


Pappu Prasad                                       ...... Revisionist

                                     Vs.

State of Uttarakhand and Another                 ..... Respondents


Mr. Akram Pravez, Amicus Curiae.
Mr. V.K. Jemini, D.A.G. for the State.



                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in the revision is made to the

followings:-

                 (i)     The     judgment        and    order      dated

                         03.03.2017, passed in Criminal Case

                         No.01/2015,             Divisional        Forest

                         Officer,        Pithoragarh      Vs.      Pappu

Prasad, by the court of Chief Judicial

Magistrate, Pithoragarh ("the case").

                         By    it,    the   revisionist      has    been

                         convicted         and    sentenced        under

                         Section 39 read with Section 51 of

the Wild Life (Protection) Act, 1972.

(ii) The judgment and order dated

08.11.2017, passed in Criminal

Revision No.20 of 2017, Pappu

Prasad Vs. State & Another, by the

court of Session Judge, Pithoragarh

("the appeal"). By it, the judgment

and order passed in the case has

been affirmed.

2. Heard learned counsel for the parties and

perused the record.

3. Facts necessary to appreciate the

controversy, briefly stated, are as follows. According to

the prosecution case, on 24.11.2014, when PW1 SI

Shishupal Singh Rana, Incharge Special Official Group

and other officials/officers were on patrolling, they

spotted the revisionist, who was holding four bags. In all

those four bags, bones of leopard were found. Initially,

investigation was carried out but finally, a complaint

was filed against the revisionist. That is the basis of the

case. The evidence under Section 244 of the Code of

Criminal Procedure, 1973 ("the Code") was recorded.

Thereafter on 17.07.2015, charge under Section 51 of

the Wild Life Protection Act, 1972 was framed against

the revisionist, to which he denied and claimed trial.

Prosecution in all examined 5 witnesses, namely, PW1

Shishupal Singh Rana, PW2 Balam Singh Alamiya, PW3

Tej Singh, PW4 Manmohan Bhandari & PW5 Anil

Kumar.

4. The revisionist was examined under

Section 313 of the Code. According to him, he has been

falsely implicated. The revisionist categorically stated

that he does not accept the Forensic Science Laboratory

Report; it is a wrong report. By the impugned judgment

and order passed in the case, the revisionist has been

convicted and sentenced as stated hereinabove. The

order dated 08.04.2017 has unsuccessfully been

challenged in the appeal. Hence, the revision.

5. Learned Amicus Curiae would bring only

one point. According to him, articles, allegedly recovered

from the possession of the revisionist were never

produced before the court. The report, which is termed

as "Forensic Report" cannot be read into evidence in

view of Section 293 of the Code because it is not given by

any such expert as written under Section 293 (4) of the

Code. It is also argued that the experts, who examined

the allegedly recovered bones, have never been examined

before the court.

6. On the other hand, learned State Counsel

would submit that by virtue of a notification dated

20.07.2017, which was issued under Section 293 of the

Code, Director, Scientist or Nodal Officer of the Wildlife,

Forensic and Conservation Genetics Cell of Wild Life

Institute of India are the officers nominated under Sub

Section 4 to Section 293 of the Code. It is argued that

such officer has given a report.

7. The Court wanted to know from learned

Counsel for the State as to whether the notification

dated 20.07.2017 may relate back to the incident, which

took place in the Year 2014 and in which the report was

given by such technical officer on 19.12.2016.

8. Learned State Counsel very fairly concedes

that, in fact, the notification was subsequent.

9. In the instant case, PW1 Shishupal Singh

Rana is the person, who, upon information having been

received, intercepted the revisionist and recovered the

bones. He has stated about it and proved his recovery

memo Ex.A-1. He also proved other documents. PW2

Balam Singh Alamiya, PW3 Tej Singh, PW4 Manmohan

Bhandari were the other persons, who accompanied

PW1 Shishupal Singh Rana when the revisionist was

apprehended and recovery was made from him. PW2

Balam Singh Alamiya, PW3 Tej Singh and PW4

Manmohan Bhandari have also stated about the

recovery. PW5 Anil Kumar is the Forest Officer. He

investigated the matter, verified the site plan and sent

the recovered articles for examination. Till date when

this witness was examined, the Forensic Report was not

available on record.

10. In fact, in this case, the revisionist has also

adduced one witness DW1 Subhash Chandra, in his

defence. He has stated that the revisionist was suddenly

taken by someone in a vehicle.

11. It is a revision. The scope is quite restricted

to the extent of examining the correctness, legality and

propriety of the impugned judgment. Recovery of article

is one thing. Examination of the alleged article is

another most important factor in this case.

12. The sole argument is with regard to the

Forensic Report. It is being argued that such report

cannot be read into evidence. It is not established that

the allegedly recovered bones belong to leopard. Fact

remains that such bones were never produced before the

court.

13. PW1 Shishupal Singh Rana, the Incharge

Special Operation Group, in page 3 top line of his

examination under Section 244 of the Code has stated

that the Forest Officers had identified the bones that

they belong to leopard. PW2 Balam Singh Alamiya and

PW3 Tej Singh has not stated as to who identified those

bones. PW4 Manmohan Bhandari, in his examination in

chief, has stated that SDO did identify the bones, but

PW5 Anil Kumar, the Sub Divisional Officer, Forest, had

denied of having given such statement. According to

him, he was not even present at the time when the

alleged recovery of bones was made. He did not prepare

the recovery memo.

14. How can it be said that the allegedly

recovered bones belong to leopard? The court did not

have any occasion to examine them. None of the

witnesses has stated that, by his experience or

otherwise, he could say that the bones, which were

allegedly recovered from the revisionist were that of

leopard.

15. The alleged recovery of bones was made on

24.11.2014. The record reveals that the bones were

forwarded by the court for examination on 08.12.2014.

There is no evidence to even show as to where were

those alleged recovered bones kept from the time of

recovery, till they were produced before the court. Its

safe custody has not even been shown by the

prosecution. Most importantly, PW1 SI Shishupal Singh

Rana would submit that the recovered bones were kept

in four separate jars (at page 3, under Section 244 of the

Code).

16. Two sealed containers were forwarded for

examination. Where are the other two containers?

Whether the two jars, which were sent for forensic

examination, were out from those four jars, which were

allegedly recovered from the revisionist? It is not even

established. And if the allegedly recovered bones were

kept in four jars, why only two jars were sent for

examination?

17. The result of analysis done by the Wildlife

Institute of India did not reach the court till the

witnesses were examined. It came subsequently on the

record of the court.

18. In his examination, under Section 313 of

the Code, the revisionist has categorically stated that the

forensic report was wrong. He does not accept it. The

report has been given by Senior Technical Officer, the

Wildlife, Forensic and Conservation Genetics Cell of

Wildlife Institute of India. The question is, can it be read

into evidence?

19. Section 293 of the Code makes provision

for using an evidence. Such analysis and report, as given

by the Scientific Experts, are given under Sub-Section 4

of it. This Section reads as hereunder:-

"293. Reports of certain Government scientific experts.--(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.

(3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:--

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Controller of Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government;

(g) any other Government scientific expert specified, by notification, by the Central Government for this purpose."

20. A bare reading of Section 293(4) of the

Code makes it abundantly clear that Senior Technical

Officer, the Wildlife, Forensic and Conservation Genetics

Cell, Wildlife Institute of India, is not an expert, as

mentioned under Sub-Section 4 of it.

21. During the course of argument, in fact,

when the question was raised, learned State Counsel

sought time to get Government notification, as may be

issued under Section 293 (4)(g). Today, at the time of

argument, he placed before the Court a notification

dated 20.07.2017, issued by the Ministry of Home

Affairs, Government of India, by which, Director,

Scientist or Nodal Officer of Wildlife, Forensic and

Conservation Genetics Cell, Wildlife Institute of India,

Dehradun, has been nominated an expert, under Section

293(4)(g) of the Code. This notification was made on

20.07.2017. Prior to that, such officers cannot be termed

to be expert under Section 293(4)(g) of the Code.

Therefore, prior to 20.07.2017, any report given by

Senior Technical Officer, Wildlife Forensic and

Conservation Genetics Cell, may not be termed to be

one, given by an expert named under Section 293 (4) of

the Code.

22. In the instant case, such Technical Officer,

who has given has submitted the analysis report has not

been examined. In the absence of it, this report could

not have been read into evidence. There is no evidence at

all to suggest that the allegedly recovered bones were

that of leopard. As stated, they were not produced before

the court. None of the witnesses have stated that they

could identify that the bones belong to leopard. In fact,

there are contradictions in the statement of PW4

Manmohan Bhandari and PW5 Anil Kumar on this

aspect. PW1 Shishupal Singh Rana has himself not

identified those bones. According to him, he was told by

the Forest Officer that the bones belong to leopard.

23. In view of this, this Court is of the view that

prosecution has failed to establish that the allegedly

recovered bones belong to leopard. The court below has

taken into consideration the report of result of analysis

given by Senior Technical Officer, which could not have

been taken into consideration. It was, in fact, irrelevant

material. The expert was not examined.

24. In view of the above, this Court is of the

view that the revision deserves to be allowed and the

revisionist deserves to be acquitted of the charge under

Section 39 read with Section 51 of the Wild Life

(Protection) Act, 1972.

25. The revision is allowed. The revisionist is

acquitted of the charge under Section 39 read with

Section 51 of the Wild Life (Protection) Act, 1972.

.

26. The revisionist is on bail. His bonds are

cancelled and sureties are discharged of their liability.

The revisionist shall furnish personal bonds and two

sureties, each of the like amount to the satisfaction of

court concerned, under section 437-A of the Code.

27. Let the lower court record, along with a

copy of this judgment be sent back to the court

concerned.

(Ravindra Maithani, J.) 14.07.2022 Ravi Bisht