Uttarakhand High Court
Taseen vs State Of Uttarakhand And Another on 15 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.895 of 2023
Taseen ...........Revisionist
Vs.
State of Uttarakhand and another ......... Respondents
Mr. Shubham Pandey, Advocate for the revisionist.
Ms. Manisha Rana Singh, AGA for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
the followings:-
(i) Judgment and order dated
08.09.2015, passed in Criminal Case
No.141 of 2014, Deputy Regional
Forest Officer, Kalagarh Corbet Tiger
Reserve, Ramnagar vs. Taseen, by the
court of Additional Chief Judicial
Magistrate, Ramnagar, District
Nainital ("the case"). By it, the
revisionist has been convicted under
Sections 2(16), 2(35), 9, 27, 38(v),
35(8) and 51 of the Wild Life
(Protection) Act, 1972 ("the Act") and
sentenced to undergo rigorous
imprisonment for a period of three
years with a fine of Rs.10,000/-. In
default of payment of fine, to undergo
imprisonment for further period of
three months; and
(ii) Judgment and order dated
08.08.2017 passed in Criminal Appeal
No. 191 of 2015, Taseen v. State of
Uttarakhand, by the court of
Additional Sessions Judge,
Ramnagar, District Nainital. By it, the
appeal has been dismissed and the
judgment and order passed in the
case affirmed.
2. Heard learned counsel for the parties and
perused the record.
3. According to the prosecution case, on
18.12.2013, forest officials were on patrolling duty in
Dhela Bhabhar Forest Block, Pathurwa Western Beat,
Compartment No.18. At about 06:00 in the evening, they
spotted the revisionist. He was questioned. He revealed
that he has come to the forest on an invitation of one
Umar, so as to kill tigers. Forest officials prepared the
report and finally a complaint was filed against the
revisionist on 15.02.2014, which is basis of the case.
Evidence under Section 244 of the Code of the Criminal
Procedure, 1973 ("the Code") was recorded and,
thereafter, on 17.02.2014, charge under Sections 2(16),
2(35), 9, 27, 38(v), 35(8) r/w Section 51 of the Act was
framed against him, to which, he denied and claimed
trial.
4. In order to prove its case, the prosecution
examined in all six witnesses namely, PW1 Govind Singh
Dangi, the person who arrested the applicant, PW2
Mukesh Singh, PW3 Jagat Singh Bisht and PW4 Rakesh
Kumar Bhatt who were accompanying PW1 Govind
Singh Dangi, on the date of incident, PW5 K.S. Rawat,
who prepared the site plan and recorded the statement
of the witnesses and PW6 Sanjay Kumar Pandey, he also
stated about some call detail record. After prosecution
evidence, the revisionist was examined under Section
313 of the Code. According to him, he has been falsely
implicated.
5. Learned counsel for the revisionist would
submit that no offence is made out; the revisionist was
allegedly arrested with a patal. It is argued that it does
not make out any offence.
6. Learned State counsel would submit that
PW1 Govind Singh Dangi, PW2 Mukesh Singh, PW3
Jagat Singh Bisht and PW4 Rakesh Kumar Bhatt have
recovered a patal from the revisionist and PW5 K.S.
Rawat has stated that the place of incident was within
the Sanctuary.
7. PW1 Govind Singh Dangi has stated that
on the date of incident, they spotted the applicant and
recovered a patal from him; he revealed that he has
visited the forest area on an invitation to kill tigers. The
revisionist revealed that he belongs to a gang which is
involved in killing of two tigers in Amangarh Range. This
witness has proved various documents. PW2 Mukesh
Singh, Forest Guard, PW3 Jagat Singh Bisht of Dhaila
Range and PW4 Rakesh Kumar Bhatt have also
corroborated the statements of PW1 Govind Singh Dangi
is in their examination-in-chief. PW5 K.S. Rawat
prepared site plan and recorded statements of various
witnesses. According to him, the place of incident is a
declared Tiger Reserve and it is so recorded in the
Notification as Page No.2, Serial No.3 as Buffer Zone,
Dhaila Bhabhar 1-6, which this witness proved as
Ext.A17.
7. PW6 Sanjay Kumar Pandey has stated
about some call detail records.
8. The revisionist is charged for the offences
punishable under Section 2 Sub Section 16 of the Act.
This Section defines hunting. The definition clause
cannot be related to any penalty clause.
9. The revisionist has also been charged for
the offences punishable under Section 9 of the Act,
which reads as under:-
"9. Hunting of wild animals.--No person shall hunt
any wild animal specified in Schedules I and II except
as provided under Section 11 and Section 12."
10. As stated hunting is defined under Section
2 (16) of the Act, which reads as follows:-
"2. Definitions.--In this Act, unless the context
otherwise requires,--
.....................................................................
.....................................................................
....................................................................
(16) "hunting", with its grammatical variations
and cognate expressions, includes--
(a) killing or poisoning of any wild animal
or captive animal and every attempt to do
so;
(b) capturing, coursing, snaring, trapping,
driving or baiting any wild or captive
animal and every attempt to do so;
(c) injuring or destroying or taking any
part of the body of any such animal or, in
the case of wild birds or reptiles,
damaging the eggs of such birds or
reptiles, or disturbing the eggs or nests of
such birds or reptiles;"
11. It is not the prosecution case that the
revisionist was doing any kind of activities so as to bring
it within the definition of hunting as defined under
Section 2(16) of the Act. Therefore, there is no evidence
to substantiate the charge under Section 9 read with 51
of the Act.
12. The revisionist has also been convicted
under Section 2(35) of the Act read with Section 51 of
the Act. The 2(35) of the Act defines weapon. A definition
clause may not be read with a penalty clause. Section 35
of the Act makes the provisions for declaration of
National Park.
13. The revisionist has also been charged for
the offences under Section 35(8) and 38(v) of the Act.
Section 35(8), 38(v) reads as follows:-
"35. Declaration of National Parks.--
(1) ..................................
(2) ..................................
(3) ..................................
(4)..................................
(5) .................................
(6)........................................
(7)........................................
(8) The provisions of Sections 27 and 28, Section
30 to 32 (both inclusive), and clauses (a), (b) and (c) of
Section 33, Section 33-A and Section 34 shall, as far
as may be, apply in relation to a National Park as they
apply in relation to a sanctuary.
38-V. Tiger Conservation Plan.--(1) The State
Government shall, on the recommendation of the
Tiger Conservation Authority, notify an area as a tiger
reserve.
(2) The provisions of sub-section (2) of Section
18, sub-sections (2), (3) and (4) of Section 27,
Sections 30, 32 and clauses (b) and (c) of Section 33
of this Act shall, as far as may be, apply in relation to
a tiger reserve as they apply in relation to a
sanctuary.
(3) The State Government shall prepare a Tiger
Conservation Plan including staff development and
deployment plan for the proper management of each
area referred to in sub-section (1), so as to ensure-
.....................................................................
..............................................................................
............................................................................."
13. Section 35(8) and 39(v) per se are not any
penalty clause or any prohibition, which may be
punishable under Section 51 of the Act.
14. The revisionist is also charged for offence
under Section 27 of the Act read with Section 51 of the
Act.
15. Learned State counsel would submit that
the revisionist had entered into a Sanctuary without any
permission. Hence, an offence under Section 27 read
with Section 51 of the Act is made out.
16. Section 27 of the Act reads as under:-
"27. Restriction on entry in sanctuary.--(1) No
person other than,--(a) a public servant on duty,
(b) a person who has been permitted by
the Chief Wild Life Warden or the authorised
officer to reside within the limits of the
sanctuary,
(c) a person who has any right over
immovable property within the limits of the
sanctuary,
(d) a person passing through the
sanctuary along a public highway, and
(e) the dependants of the person referred
to in clause (a), clause (b) or clause (c), shall
enter or reside in the sanctuary, except under
and in accordance with the conditions of a
permit granted under Section 28.
(2) Every person shall, so long as he resides in
the sanctuary, be bound-- (a) to prevent the
commission, in the sanctuary, of an offence against
this Act;
(b) where there is reason to believe that
any such offence against this Act has been
committed in such sanctuary, to help in
discovering and arresting the offender;
(c) to report the death of any wild animal
and to safeguard its remains until the Chief
Wild Life Warden or the authorised officer takes
charge thereof;
(d) to extinguish any fire in such
sanctuary of which he has knowledge or
information and to prevent from spreading, by
any lawful means in his power, any fire within
the vicinity of such sanctuary of which he has
knowledge or information; and
(e) to assist any Forest Officer, Chief Wild
Life Warden, Wild Life Warden or Police Officer
demanding his aid for preventing the
commission of any offence against this Act or in
the investigation of any such offence.
(3) No person shall, with intent to cause
damage to any boundary-mark of a sanctuary or to
cause wrongful gain as defined in the Indian Penal
Code, alter, destroy, move or deface such boundary-
mark.
(4) No person shall tease or molest any wild
animal or litter the grounds of sanctuary."
17. A sanctuary is declared under Section 35 of
the Act. The site plans are on record of the trial court.
According to the prosecution case, the revisionist, when
arrested has revealed that he was involved in the killing
of the tigers in the Amangarh Range, which as per the
site plan, falls in the State of Uttar Pradesh. The place of
arrest has been shown in Fika Saut, which is beyond
Dhaila Range 1-B. Which range is it? What are the
boundaries of the Tiger Reserves at the place of incident?
Ext.A17 has been proved as the notification. According
to it, Dhaila Bhabhar 1-6 is a Buffer Zone for Tiger
Reserve. The prosecution has not adduced any evidence
to establish that, in fact, the alleged place of incident
falls under the Buffer Zone Dhaila Bhabhar 1-6. As
stated, in the site plan Ex A-3, it is adjoining to the State
of Uttar Pradesh. The Court cannot presume merely on
the statement of PW5 that the alleged place of incident
falls within the Tiger Reserve. There is a full fledged
process for declaring a Sanctuary. There must be some
boundaries. As stated, even as per site plan, the place of
incident falls outside Compartment No.1B Dhaila Range.
In which compartment does the place of incident fall?
The site plan Ex A-3 does not even show it. It is
somewhere in Fika Saut adjoining to compartment 1-B.
It creates doubt in the prosecution case. The prosecution
has not been able to establish that the alleged place of
incident falls within a Sanctuary. There is, in fact, no
evidence to it. Accordingly, this Court is of the view that
the prosecution has not been able to prove the charge
under Section 27 read with 51 of the Act against the
revisionist. Accordingly, the impugned judgment and
orders are bad in the eyes of law. They deserve to be set
aside and revision allowed.
18. The revision is allowed.
19. The impugned judgment and orders are set
aside.
20. The revisionist is acquitted of the charge
under Sections 2(16), 2(35), 9, 27, 38(v), 35(8) read with
51 of the Act.
21. The revisionist is in jail. He be released
forthwith, if not wanted in any other case.
22. Let a copy of this judgment alongwith
record be forwarded to the court below for compliance.
(Ravindra Maithani, J.)
15.05.2024
Sanjay
