Uttarakhand High Court
State Of Uttaranchal vs Pawan & Others on 18 June, 2024
Author: Pankaj Purohit
Bench: Pankaj Purohit
HIGH COURT OF UTTARAKHAND AT NAINITAL
Government Appeal No. 446 of 2007
State of Uttaranchal .........Appellant
Vs.
Pawan & others ........Respondents
Present:-
Mr. S.C. Dumka, learned A.G.A. for the State/appellant.
Mr. H.C. Pathak and Mr. Bhuvnesh Joshi, learned counsel for the
respondents.
Hon'ble Pankaj Purohit, J. (Oral)
This appeal is directed against the judgment and order dated 08.08.2006, passed by Chief Judicial Magistrate, Haridwar in Criminal Complaint Case No.741 of 1998, "Forest Department vs. Pawan & others", whereby the respondent-accused persons have been acquitted of the charges under Sections 9, 39 & 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as "the Act").
2. The prosecution was set in motion by complainant by lodging a complaint under Sections 9, 50 & 51 of the Act and under Section 26 of the Indian Forest, Act, 1927 against the respondent- accused persons and three unknown persons on 28.01.1998. The allegations as per the complaint Ext.Ka-2 against the respondents- accused persons were that they indulged in illegal hunting of Surkhav Birds with gun within Bishanpur Reserve Forest, Block River Ganges on 28.01.1998 at 02:00 p.m. According to the case of the Forest Department, on 28.01.1998 at about 01:00 p.m., a tip was received through Mukhbir that some police persons and five other persons were hunting Surkhav Bird, a protected bird under the Schedule IV of the Act in Bishanpur Reserve Forest Area, Block River Ganges; at this information, the informant-Dinesh Kumar (PW3), Deputy Ranger along with Shri Satyapal Singh, Ranger Haridwar, Shri R.P.S. Negi, Forester, Shri A.K. Tomar, Ranger, Raja Ji National Park went to the spot by Gypsy and motorcycle and at about 02 p.m., they saw 2 respondent-accused-Constable Balraj, Thana Pathri holding a 12 bore DBBL in his right hand and illegally hunted Surkhav bird in his left hand, respondent-accused Contable Bhagwan Sahay holding a 12 bore SBBL in his right hand and illegally hunted Surkhav bird in his left hand, Pawan S/o Jyoti, r/o Karanpur holding two illegally hunted Surkhav bird, one each in his both hands and Shamshad, S/o Mehmood holding illegally hunted Surkhav Bird in his both hands; all the culprits were intercepted and detained and the above mentioned illegally hunted six Surkhav birds and guns i.e. DBBL No.40091 & one SBBL No.2929 and a knife 6 ½ cm from Shamshad were recovered on the spot. On asking, all the culprits told their names as stated above and a recovery fard was prepared on the spot of the articles recovered from them. The respondent-accused Constable Balraj and Constable Bhagwan Sahay were caught from the place of occurrence in uniform and the recovered gun DBBL No.40091 was found affixed with a slip name Shri Inder Singh and another SBBL No.2929 no such slip was affixed. On inquiry, both constables told the Forest Officers that these guns were deposited by the villagers in Police Station Pathri due to election; Constable Ramesh Chandra of Police Station Pathri gave these guns to them and told them that the S.O. Shri Johari of Police Station Pathri asked to bring Surkhav Bird; Ramesh Chandra Constable of Police Station Pathri was also present on the spot with the respondent-accused persons and was holding live and empty cartridges with him and he fled from the spot. According to the complaint, all the respondents-accused persons were entered along with the articles recovered from them in the office of Divisional Director, Bilkeshwar. It is also reported in the complaint that the respondents-accused persons have committed offence punishable under Sections 9, 50 & 51 of the Act and under Section 26 of the Indian Forest, Act, 1927. It is further mentioned in the compliant that Surkhav bird is a protected bird mentioned in Serial No.11 (21) of Schedule IV to the Act and a request is made to punish the respondent-accused persons.
33. The first information report/complaint was lodged by PW3-Dinesh Kumar and the same was forwarded to Divisional Director by Forest Ranger, Haridwar on 28.01.1998. The post-mortem was done on all the allegedly illegally hunted surkhav birds and a charge-sheet was submitted in the court of Chief Judicial Magistrate, Haridwar, on which, a Complaint Case No.741 of 1998, Forest Department vs. Pawan & others was registered.
4. Vide order dated 13.12.2000, the learned trial court framed charges under Section 51 of the Act and 26 of the Indian Forest Act, 1927 against the respondent-accused persons, namely, Pawan, Shamshad, Constable C.P.393-Bhagwan Sahay, Constable C.P.507- Balraj. The respondents-accused persons denied the charges and claimed for trial.
5. From the record, it transpires that one of the accused person-Shamshad died during the trial and accordingly, the criminal trial was stand abated against accused-Shamshad vide order dated 11.02.2005 passed by learned trial court.
6. The prosecution examined as many as five witnesses to prove its case. PW1-Anil Kumar Singh Tomar, Forest Ranger, PW2- Narendra Pal Singh, Rtd. Chief Veterinary Medical Officer, PW3- Dinesh Kumar, Deputy Forest Ranger (complainant), PW4-Rajendra Pal Singh Negi, Forest Ranger and PW5-Kamal Kishore, Assistant Conservator of Forest, who is complainant in the present case.
7. The respondents-accused persons in their statements recorded under Section 313 of the Cr.P.C. made a statement that they were implicated due to enmity and the witnesses are giving false evidence against them. They denied hunting of Surkhav Birds and took a defence in their statement that the respondent-accused Constable Bhagwan Sahay and Constable Balraj, P.S. Pathri were going to return the guns deposited by their owner in the police station during 4 Parliament Election, 1998, the Forest Officials out of enmity taking benefit of the situation arrested them on way in Forest Pathri and framed them in a false case of illegal hunting of Surkhav Birds. The respondents-accused persons also got examined DW1-Constable Bhagwan Sahay in their defence and filed the documents evidence i.e. first information report of Case Crime No.99 of 1997 under Sections 379 & 411 IPC, Police Station Pathri and a copy of G.D. No.26, time 12:05 p.m. dated 28.01.1998 and judgment and order dated 03.02.2006 of Criminal Case No.798 of 2004, State vs. Abdul Sattar in their defence.
8. The learned trial court after discussing the evidence of the prosecution witnesses found the case of the prosecution not proved against the respondents-accused persons and acquitted the respondents-accused persons of the charges as mentioned in para 1 of this judgment. The learned trial court after analysing the evidence of the prosecution recorded finding that there is not a single paper on the record, which suggests the departure of the prosecution witnesses-Anil Kumar Singh Tomar (PW1), Dinesh Kumar (PW3) and Rajendra Pal Singh Negi (PW4) from the Range Office, Haridwar. No attempt was made to procure any independent witness. There were material contradictions in the evidence of all the three witnesses regarding the presence of witnesses and regarding any attempt to make independent witness. There were material contradictions in respect of the inquest drawn on the dead birds. The learned trial court did not believe the story of the Forest Department. It was further pointed out by learned trial court from the evidence of the prosecution witnesses that when they went to the place of spot from Range Office, there were 4 to 5 villages in between, but they did not try to take any independent witness from public. The learned trial court also recorded the finding that it is admitted to the Forest Department that none of the witnesses have heard the sound of fire and none of them had also seen hunting of Surkhav Bird by firing.
59. The learned trial court further noticed that the Inquiry Officer-Kishan Chand, who prepared the site plan, was not examined. No empty cartridges pallets, live cartridge feather of Surkhav Bird and blood stained soil were recovered by the prosecution. The another aspect which has been noted by learned trial court was that according to the case of the prosecution itself, the information was received through Mukhbir (informer) at about 01:00 p.m. and it is not believable that the respondents-accused persons would wait in the forest for one hour only to be arrested by the Forest Officers. The learned trial court also took note of the fact that no empty cartridge or live cartridge were recovered and in that event, it could not be proved that a shot was fired from the gun, despite being a FSL report dated 04.08.1998 on the record showing that some remainder of iron and nitrate were found from the barrel of the guns. The learned trial court found that due to enmity of the Forest Department and Police Station Pathri, the accused persons have been falsely implicated in the crime and accordingly, acquitted the accused persons.
10. Heard learned counsel for the parties.
11. Learned State Counsel/appellant tried to make out a case in favour of the State by reading the entire evidence of the prosecution witnesses and submitted that the prosecution was successful in proving its case against the respondents-accused persons beyond all reasonable doubt. But, when the attention of learned State Counsel was drawn to the reasoning recorded by learned trial court while acquitting the respondents-accused persons, there was no answer from the side of the State Counsel. Again, the learned State Counsel has nothing to say as to why the Investigating Officer-Kishan Chand was not examined by the prosecution.
12. It is submitted by learned counsel for the respondents- accused persons that following grounds should be culled out from the judgment of acquittal:-
6(i) Place and time of incident was not proved.
(ii) In the G.D. Entry regarding the departure of Forest Officials to the place of incident has not been proved.
(iii) The Investigating Officer was not examined.
(iv) Admitted, enmity of respondents-accused persons and complainant-Forest Officers.
(v) No independent witness of recovery.
(vi) The post-mortem reports do not record the features of the bird and there is no whisper in the post-mortem report that the birds on which post-mortem was done were Surkhav Birds.
13. Thus, according to the learned counsel for the respondents-accused persons the judgment of acquittal recorded by the learned trial court on the aforesaid reasons does not warrant any interference by this Court. He also argued that in appeal against acquittal, the interference should be done only when there are substantial and compelling reasons to do so. The innocence of the respondents-accused persons has further been re-enforced by the judgement of acquittal, therefore, the same cannot be disturbed in this appeal against acquittal.
14. Having considered the submissions of learned counsel for the parties, this Court is of the view that no ground for interference, at all, is made out in this matter, as there is no illegality and perversity in the impugned judgment and order.
15. The appeal is bereft of merit and the same is accordingly dismissed.
716. Let the T.C.R. be immediately sent back to the trial court for consignment.
(Pankaj Purohit, J.) 18.06.2024 AK