Delhi District Court
State (Wli) vs Pema Etc on 29 May, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA
ADDL CHIEF METROPOLITAN MAGISTRATE (Spl. Acts) CENTRAL
TIS HAZARI COURTS, DELHI
State (WLI) vs Pema etc
U/s 55 Of Wild Life (Protection) Act, 1972
CC No.25/1
JUDGMENT
(a) Serial no. of the case : 02401R0026621993
(b) Date of commission of offence : 30.08.93
(c) Name of complainant : Sh. Lakhvinder Singh,
Deputy Director, Wildlife Preservation,
Northern Region, Delhi
(d) Name, parentage, residence: 1) Pema s/o Karma (now expired)
2) Mohd. Yaqoob s/o Qudaratullah
r/o 4869 Foota Road, Sadar Bazar,
Delhi
3)Sansar Chand (already discharged)
(e) Offence complained of/ proved : U/s 55 of Wild Life (P) Act
(f) Plea of accused : Pleaded not guilty
(g) Final order : Acquitted
(h) Date of such order: 29.05.2015 Date of institution of complaint: 29.10.93 Arguments heard/order reserved: 20.05.2015 Date of Judgment: 29.05.2015 Brief statement of the reasons for the decision:-
1. Earlier, in this case, the accused Mohd. Yaqoob was acquitted for the offences as alleged in the complaint vide judgment dated 12.02.2013 passed by the learned Predecessor of this Court. Thereafter, the complainant department challenged the said judgment before the learned Sessions Court. By the order dated 27.01.2015, the learned Sessions Court pleased to set aside the said judgment due to omission regarding finding on the second recovery from the accused Mohd. Yaqoob relating to his factory at Bagichi Bhargava Lane dated 02.09.1993 and remanded back the matter for deciding the matter afresh by also giving finding of the second recovery dated 02.09.1993 alleged to be effected from the accused Mohd. Yaqoob from his factory.
2. For appropriate disposal of the case, it would be appropriate to discuss the State (WLI) vs Pema etc CC No.25/1 1 of 16 facts of the case first. The complainant Sh. Lakhvinder Singh, the then Deputy Director, Wildlife Preservation, Northern Region, filed the present complaint u/ s 55 of Wild Life (Protection) Act, 1972 (for short the 'Act') against deceased Pema as accused no.1, Mohd. Yaqoob as accused no.2 and Sansar Chand (now deceased) as accused no.3. During the course of trial, accused Pema expired and accordingly proceedings against him were abated vide order dated 29.07.2008 and Sansar Chand was discharged vide order dated 19.03.2010. Therefore, their roles are not being discussed hereinafter.
3. Succinctly, the facts of the case are that on 30.08.93, SHO Civil Lines Mr. B.S. Dahiya received a secret information at 4.20 pm that the deceased accused Pema, who was stated to be collecting skins of wildlife animals for and on behalf of accused Mohd. Yaqoob and Sansar Chand (already discharged) from Sadar Bazar, Delhi, would come at Majnu Ka Tila, alongwith such wildlife animal skins. The information was reduced into writing vide DD no.13A in PS Civil Lines and a raiding party was constituted. Thereafter, the raiding team reached the spot at 4.40 pm, where 4-5 persons were requested to join the raiding party but none agreed except one Ashok Kumar. In the meantime complainant Lakhvinder Singh alongwith Sh. GL Purohit from Wildlife Preservation, the ACP Civil Line and the SHO PS Timarpur also arrived there. Deceased accused Pema was found sitting on one of the bags in his possession, out of total nine bags and he was apprehended at the pointing out of secret informer. From his possession, various skins and bones of wildlife animals were alleged to be recovered, which is not detailed herein since he has already expired. An FIR no.257/93 was registered. Deceased accused Pema led the police party to house no.40, New Tibetan Camp, Majnu Ka Tila, Delhi, and accused no.2 Mohd. Yaqoob was found sitting in the room and from the said room, total 7 Leopard Cat Skins, 6 Black Buck skins, 2 Civit Cat Skins, one Fervet Sea Otter skin, 2 Desert Cat skins, 125 kg of Tiger bones were recovered. Accordingly, he was arrested in this case also. He was State (WLI) vs Pema etc CC No.25/1 2 of 16 produced before the court and was taken on police custody till 04.09.1993. During police custody, accused Mohd. Yaqoob is stated to have led the police to his factory at Bagichi Bhargav Lane, Civil Lines where one Jackal skin, one jacket made of Otters skins, 30 paws with skins of other wild animals and one coat were recovered. After completion of investigation, present complaint was filed against the accused for violation of section 44/49/49B(1) of the Act.
4. The accused was summoned for the alleged offence. After pre-charge evidence, a charge for the offence u/s 44/49/49B(1), punishable u/s 51 of the Act was framed against the accused Mohd. Yaqoob to which he pleaded not guilty and claimed trial.
5. In order to substantiate the allegations, the prosecution examined the complainant Lakhvinder Singh, the then Deputy Director, Wild Life Preservation Northern Region, Delhi, as CW1, Sh. Ashok Kumar s/o Sh. Dharmender Nath as CW2, WLI Sh. GL Purohit as PW3, Sh. Bhagwan Singh Dahiya, the then SHO PS Civil Lines as PW4, Dr. SP Goyal from Wildlife Institute of India, Dehradun as PW5, SI Hukum Chand as CW6, Inspector Pankaj Sharma as PW7 and Inspector Giris Kaushik as PW8.
6. For the just decision of the case, let the statement of PW4 Sh. Bhagwan Singh Dahiya the then SHO PS Civil Lines, who received secret information, constitute raiding team, headed it and conducted entire investigation of the case is discussed first. In his statement, PW4 deposed that on 30.08.1993 at about 4.20 pm, an informer informed him that one Tibetan person would come towards Majnu Ka Tila from ISBT side from Ring Road to deposit Wildlife animals' skins and bones near a school at Majnu Ka Tila. The information was reduced into daily diary and information was shared with DCP North and ACP Civil Lines. Thereafter, he constituted a raiding team comprising SI Rishi Pal, SI Pankaj Sharma, SI GD Kaushik, Ct. Virender Singh, Ct. Jai Kishan, Ct. Sudhir , Ct. Kishan Kumar and HC Balraj Singh. At about 4.35 pm, the raiding State (WLI) vs Pema etc CC No.25/1 3 of 16 team reached on ring road near the school, Majnu Ka Tila, requested 4-5 persons to join the raid but none agreed except one Mr. Ashok Kumar who has been examined as CW2. In the mean time, CW1 Sh. Lakhvinder Singh and PW3 WLI Sh. G.L. Purohit also reached there and they were also joined in the raid. Members of raiding team took their respective positions nearby bushes and on pointing out by the informer, the deceased accused Pema who was sitting with 9 bags at the spot near the school, was apprehended. Contraband animal articles were taken into possession, a rukka Ex.PW4/2 was prepared, FIR No.257/93 vide copy of FIR Ex.PW4/3 was got registered and case property recovered from deceased accused Pema was seized vide seizure memo Ex.CW1/1.
PW4 further deposed that deceased accused Pema took the raiding team to room no.40, Majnu Ka Tila of accused Mohd. Yaqoob who was found present in the room and 7 Leopard Cat Skins, 6 Black Buck skins, 2 Civit Cat Skins, one Fervet Sea Otter skin, 2 Desert Cat skins and 125 kg of Tiger bones were recovered. These articles were seized vide seizure memo Ex.CW1/13, accused was arrested, his personal search was conducted vide personal search memo Ex.CW4/4 and his jama talashi memo Ex.CW4/5 was also prepared. On the next day, accused was produced before the court and was taken on police remand for further interrogation. The witness further deposed that on 02.09.1993, accused Mohd. Yaqoob made disclosure statement Ex.CW4/7 and got recovered one Jackal skin, one jacket made of Otters skins and 30 paws with skins vide pointing out-cum-seizure memo Ex.CW4/8. After completion of investigation, the case file and all case properties were handed over to CW1 for further necessary action. CW1 Sh. Lakhvinder Singh who filed the present complaint, deposed that on 30.08.93 he was having information for last few days that in Majnu Ka Tila certain people are doing trade of wild animal skins etc. Accordingly they used to patrol in the said area. On 30.08.93 at around 4.30 pm while he along with inspector GL Purohit, was on patrolling in the said area, they noticed around State (WLI) vs Pema etc CC No.25/1 4 of 16 10-11 persons who informed that they are/were from PS Civil Lines and have information regarding some illegal possession of wild animal articles. CW1 further deposed that one public witness Mr. Ashok Kumar was also present with the police officials and agreed to join the raid. CW1 and WLI GL Purohit agreed to join raiding party. Thereafter, this witness has deposed more or less on the similar lines of PW4, to the extent of third recovery of the contraband animal articles effected from room no.40, Majun Ka Tilla from the accused Mohd. Yaqoob.
CW2 Sh. Ashok Kumar deposed that on 30.08.93 at about 4.45 pm he was walking near Majnu Ka Tila when he was asked by 8-10 persons disclosing themselves to be police officials from PS Civil Lines, to be a witness in the alleged seizure (from accused Pema). Thereafter, CW2 deposed more or less on the lines of CW1 and PW4.
PW3 WLI Sh. GL Purohit, PW7 Inspector Pankaj Sharma and PW8 inspector Girish Kaushik who were the member of raiding team, also deposed more or less on similar lines of PW4.
PW5 Dr. SP Goyal is the witness who examined the skins and filed his report Ex.PW5/1.
PW6 is SI Hukum Chand, the then Duty Officer who proved copy of FIR vide Ex.PW4/3 and rukka Ex.PW4/2. Except PW6, all the witnesses were cross examined extensively on behalf of the accused.
7. Statement of accused Mohd. Yaqoob was recorded u/s 313 Cr.P.C. read with section 281 Cr.P.C. In his statement. accused denied the allegations stating that he is innocent and has been falsely implicated in this case. Accused further stated that before this case, his son Mohd. Ayub got registered an FIR against three police officials of PS Civil Lines and due to this reason he has been falsely implicated in this case because police officials and the SHO wanted to put pressure on him and his son to withdraw the case against the police officials.
State (WLI) vs Pema etc CC No.25/1 5 of 16
8. In support of claim and contention accused Mohd. Yaqoob examined one HC Samender Singh as DW1 and his son Mohd. Ayub as DW2.
DW1 HC Samender Singh proved copy of FIR no.191/92 PS Civil Lines u/ s 392/434 IPC vide Ex.DW1/A which was registered against one HC Ramchandra, PS Civil Line and other two persons.
DW2 Mohd. Ayub deposed that FIR Ex.DW1/A was registered on his complaint. DW2 further deposed that he had lodged this complaint as the said police officials had snatched a sum of Rs.40,000/- from him. One evening some police officials from PS Civil Lines had come to his place for making inquiry from him and when he was not found then they took his father i.e. accused Mohd. Yaqoob.
9. I have given my thoughtful consideration to the submissions advanced on behalf of both the parties and gone through the relevant records. Both parties stated that the written arguments already filed at the time of passing of earlier judgment be also read as part and parcel of their final arguments. Learned defence counsel has further filed brief written arguments in respect to subsequent recovery of contraband animal articles on 02.09.1993 from the factory of accused Mohd. Yaqoob. I have also gone through the relevant provisions of Wild Life (Protection) Act as well as written arguments.
A) The relevant provisions of section 44, 49 and 49B are reproduced below for ready reference:-
44. Dealings in trophy and animal articles without licence prohibited. - (1) [Subject to the provisions of Chapter VA, no person shall, except under, and in accordance with, a licence granted under sub-section (4)] -
(a) commence or carry on the business as -
(i) a manufacturer of or dealier in, any animal article; or
(ii)a taxidermist; or
(iii) a dealer in trophy or uncured trophy; or
(iv) a dealer in captive animals; or
(v) a dealer in meat; or
(b) cook or server meat in any eating-house;
49. Purchase of captive animal, etc, by a person other than a licensee. - No State (WLI) vs Pema etc CC No.25/1 6 of 16 person shall purchase, receive or acquire any captive animal, wild animal, other than vermin, or any animal article, trophy, uncured trophy or meat derived therefrom otherwise than from a dealer or from a person authorised to sell or otherwise transfer the same under this act.
49B. Prohibition of dealings in trophies, animal articles, etc., derived from scheduled animals. - (1) Subject to the other provisions of this section, on and after the specified date, no person shall, -
(a) commence or carry on the business as -
(i)a manufacturer of, or dealer in scheduled animal articles; or [ia)a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]
(ii)a taxidermist with respect to any scheduled animals or any parts of such animals; or
(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or
(iv) a dealer in any captive animals being scheduled animals; or
(v) a dealer in meat derived from any scheduled animal; or
(b) cook or serve meat derived from any scheduled animal in any eating-house.
B) Learned Special Public Prosecutor argued that the case of the prosecution has been proved in view of the testimony of the witnesses and witnesses have identified the case property as well as accused beyond reasonable doubt. He has also placed reliance upon the disclosure statement Ex.CW4/7 and Ex.CW1/14 in support of claim and contentions and prays for conviction of the accused.
C) Learned defence counsel, on the other hand, argued that there are several material contradictions in the statement of prosecution witnesses. The testimonies of prosecution witnesses are not reliable as no independent public witness was joined in the raid team. Even the IO/PW4 has failed to join any public witness at the time of subsequent recovery of the wild life articles allegedly recovered from the factory of the accused. It is further argued that CW2 Mr. Ashok Kumar is a stock witness who has not completely deposed about the recovery from the accused Mohd. Yaqoob. CW2 Mr. Ashok Kumar being stock witness has always been shown to be associated with Widlife Protection Society. Police officials as well as Wildlife officials reached the spot for the same purpose on 30.08.93 which itself raises suspicion. No site plan was prepared or proved showing recovery of case property from the possession of accused. No one from the neighbourhood or staff of hotel were State (WLI) vs Pema etc CC No.25/1 7 of 16 joined. It is also argued that some of the witness could not disclose whether the case property was sealed or not, lock etc has not been taken into possession, drivers of the private vehicles were not joined. On these grounds, learned defence counsel sought acquittal of the accused. In this case, firstly the recovery was stated to be effected from deceased accused Pema and on his disclosure statement Ex.PW1/11, the articles mentioned in the seizure memo Ex.CW1/13 were stated to have been recovered from the possession of the accused Yaqoob on 30.08.1993 from house no.40, New Tibetan Camp, Majnu Ka Tila, Delhi and thereafter certain articles as mentioned in the seizure memo Ex.PW4/9 were stated to be recovered from the factory of accused situated at Bagichi Bhargav Lane, Civil Lines. But IO has prepared only one site plan Ex.PW4/1 which shows first recovery from the possession of deceased accused Pema. IO has not prepared site plan reflecting recovery of case property from the room in which accused was sitting nor from the factory of accused. It is clear from the statement of prosecution witnesses that the places of recovery i.e room as well as factory of the accused are situated, in thickly populated area.
D) From the statement of prosecution witnesses, it is clear that they did not make any effort to join any passer-by/neighbours to become a witness. Except CW2 Mr. Ashok Kumar no other independent witness was joined in any of the recovery effected at four different places. The testimony of CW2 Ashok Kumar does not appear to be trustworthy as he has clearly stated that he is/was associated with Wildlife Society for the last 3 & ½ years and is/was a witness in a number of cases. Further, in his statement, he stated that his statement was not recorded but he signed only as a witness on different recovery memo and disclosure statement. As per recovery memos and disclosure statements, CW2 is resident of 172B Lodhi Estate, New Delhi and he has not disclosed the purpose of visit in the area of Majnu Ka Tila on the date and time of incident. He has simply stated that he was walking through that area when the police State (WLI) vs Pema etc CC No.25/1 8 of 16 officials reached there. As per prosecution witnesses wildlife officials and police official did not call or share information to each other. Both department were having same information but none of them bother to join any independent public witness. From the statement of witnesses, it is clear that neither official of Wildlife Department nor the police personnel of PS Civil Lines, informed Mr. Ashok Kumar regarding the information and all of a sudden he appeared on the relevant date, time and place. All these facts, create doubt over presence of CW2 at the spot at the crucial time of recovery of the alleged case property.
E) In view of number of contradictions in the testimony of prosecution witnesses regarding incidental aspects, the non-joining of the public/independent witness makes the prosecution story doubtful and it does not inspire any confidence. When the prosecution does not examine any independent witness it casts doubt on the prosecution version and conviction should not be based on this as held in "2004(2) RCR (Criminal) 745". It is well settled law that in case of secret information, the investigating agency must join some independent witness. This requirement of joining independent witness is only to ensure that what the official witnesses are deposing is supported by such witness. It is so held in "1988(1) RCR 409 and 1989(2) RCR (Cr.) 49 (P&H)".
F) As per statement of PW4, after recovery of the case property from the aforesaid room, accused Mohd. Yaqoob was produced before the court and was taken on police custody till 04.09.1993. During police custody, he is stated to have led the police to his factory at Bagichi Bhargav Lane, Civil Lines where one Jackal skin, one jacket made of Otters skins, 30 paws with skins of other wild animals and one coat were recovered. Learned defence counsel vehemently argued that articles allegedly recovered from the aforesaid factory can not be linked with the accused as no public witness was joined to the said recovery. The alleged recovery has been shown to be effected in presence of State (WLI) vs Pema etc CC No.25/1 9 of 16 SI DD Sharma and SI Prakash Singh but none of these witnesses were examined by the prosecution and testimony of PW4, to this effect, has not been corroborated by any of the witnesses.
The plea of the accused appears to be correct. From the perusal of disclosure statement Ex.CW4/7 and pointing out memo-cum-seizure memo Ex.CW4/8, it is clearly that the contraband animal articles are shown to have been recovered from the alleged factory in presence of SI DD Sharma and SI Om Prakash. But the prosecution has failed to examine these witness and thus, the testimony of PW4 qua the recovery of contraband animal articles from the alleged factory, remained uncorroborated as other prosecution witness are mum on this particular point of last recovery.
G)Furthermore, the prosecution has also failed to establish on record that the factory from where alleged contraband animal articles mentioned in seizure memo Ex.PW4/9, were recovered, belongs to accused. From the statement of PW4, it appears that he has not done any investigation to inquire as to who is the actual owner of the alleged factory. The prosecution has not led any evidence or bring on record any document which could suggest that the alleged factory was under control and possession of accused during the relevant time. Same is the position qua the room situated in house no.40 Majnu Ka Tila, in which accused was allegedly found along with contraband animal articles mentioned in seizure memo Ex.CW1/13. The IO did not make any effort to ascertain as to who is the owner of aforesaid house and as to since when and in what capacity the accused was residing in the said room.
H) Firstly, the recovery was effected from the possession of deceased accused Pema. Rukka Ex.PW4/2 did not disclose anything about the accused Mohd. Yaqoob. On the disclosure statement of deceased accused Pema, allegedly a raid was conducted at the premises of accused Mohd. Yaqoob. Aforesaid case property was recovered vide seizure memo Ex.CW1/13 but the prosecution State (WLI) vs Pema etc CC No.25/1 10 of 16 has not produced or proved any DD entry in this regard to show their rawangi from the PS to the premises of accused Mohd. Yaqoob. In his evidence, PW4 deposed that secret information was reduced into writing in daily diary but copy of so-called daily diary is neither produced nor proved on record. In his cross examination PW4 further deposed that he recorded DD in the PS that he is going for recovery of wild life articles on receipt of the information but copy of the said DD is not proved on record to show their presence at the spot at the relevant time and date. Prosecution has not proved on record any DD entry to inspire the confidence that aforesaid police personnels actually went to the spots i.e the place of first recovery effected from the aforesaid room situated in house no.40, Majnu Ka Tila and the factory from where last recovery was alleged to be effected. In view of Chapter 22 Rule 49 of Punjab Police Rules, 1934, necessary entry in regard to the hour of arrival and departure on duty or from police station must be made in the Rojnamcha Register No.II. In the present case prosecution has neither produced nor proved on record any DD entry showing departure of the aforesaid police personnels from PS as well as wild life officials which creates doubt over their presence at the spot.
I) In his statement, CW1 stated that he was having information regarding illegal trade of wild animal's skins and and he used to patrol in the said area. PW4 deposed that on receipt of said information he shared the information with senior officers and also made DD entry in this respect but said DD entry is neither proved nor proved on record. It is clear that CW1 and PW4 have sufficient time to make effort to join any independent witness but none of them bother to join any public witness and interestingly appearance of said Ashok Kumar is shown. In his cross examination PW4 clearly stated that there were other responsible persons of the locality were present who were taking care of the premises in question and he had written the names of those persons in case diary but he had not recorded their statement. But no such case diary is State (WLI) vs Pema etc CC No.25/1 11 of 16 placed or proved on record. All these facts creates doubt regarding presence of CW2 Mr. Ashok Kumar. Even the raiding team failed to join any other independent witness at the time of subsequent raid made at the premises of the accused Mohd. Yaqoob. Sh. Ashok Kumar has not denied of his being witness in number of cases. Thus, in view of the aforesaid discussed facts and circumstances, there is no doubt to presume that said Ashok Kumar is/was a stock witness and thus his presence at the spot at the relevant time becomes doubtful and therefore, testimony of said Ashok Kumar is worthyless and unreliable. While in his defence, accused Mohd. Yaqoob taken a specific defence that prior to the case in hand, his son Mohd. Ayub got registered an FIR against three police officials of PS Civil Lines and due to this reason he has been falsely implicated in this case because police officials and the SHO wanted to put pressure on him and his son to withdraw that case against the police officials. This fact appears to be probable from the testimony of DW1 and DW2. DW1 has also proved copy of FIR Ex. DW1/A in this respect. In view of the aforesaid facts and circumstances, chances of false implication of the accused by the IO/complainant due to enmity between police officials and accused, can not be ruled out.
J) Learned defence counsel further argued that the case property produced in the court cannot be linked with the accused as no independent witness was available to witness the alleged recovery. The case property was not sealed nor any particular identification marks were placed on them. Thus, possibility of tampering with the case property cannot be ruled out. In support of claim and contention learned defence counsel relied upon the judgment reported as "1995 Supp. (3) SCC 217". Admittedly, no identification mark was given on the recovered articles at the time of its recovery nor the case property were sealed. Thus, chances of tampering of the case property cannot be ruled out. In "2003 CRI L.J. 303" it has been held by the Hon'ble High Court that identification of knife by IO which was not having any special identity mark State (WLI) vs Pema etc CC No.25/1 12 of 16 cannot be admitted in evidence.
K) It is also argued that the recovered case property was not produced on the same day before the concerned court and there are several contradictions in the testimony of prosecution witnesses, all this casts doubt over the prosecution story.
In rebuttal, learned Special Public Prosecutor argued that accused was found in possession of huge quantity of contraband animal articles and its possession or trade is prohibited under the Act. Accused has not been able to give explanation as to how he came into possession of the aforesaid articles. It is also argued that non-joining of other independent witness is not fatal to the prosecution story as one of the public witness Mr. Ashok Kumar was voluntarily agreed to be a witness. In any case if independent persons are not willing to be a witness, the prosecution cannot be blamed and evidence of other witness cannot be discarded. In support of claim and contention, learned Special Public Prosecutor also relied upon the judgment reported as "AIR 1988 SC 1998". He also argued that there is no delay in production of case property before the court as per the provisions of section 50(4) of the Act. Perused the section 50(4) of the Act which is reproduced as under:-
50(4). Any person detained, or things seized under the forgoing power, shall forthwith be taken before a Magistrate to be dealt with according to law [under intimation to the Chief Wild Life Warden or the officer authorised by him in this regard].
L) As per first JC remand application dated 31.08.1993, both accused were produced before the learned Duty Magistrate and they were taken on police remand upto 04.09.1993. But the said application as well as order dated 31.08.1993 does not find any mention of production of case property before the court. Further perusal of record reveals that after expiry of PC remand, both accused were produced before the learned Duty Magistrate on 04.09.1993 along with seized case properties for transfer of case file and case property to Wildlife Department. From the order dated 04.09.1993, it appears State (WLI) vs Pema etc CC No.25/1 13 of 16 that the case property was produced before the court in unsealed condition and remained in possession of police official during this period and even no identification mark was put. Aforesaid discussed facts and circumstances and records clearly reflects that the necessary compliance of provision of section 50(4) of the Act was not done by the IO/PW4.
M)At the time of evidence of CW1, five skins which were not identified by the witness, do not have fur and the bags from which these skins were taken out was containing the fallen fur from the skins. CW1 clearly stated that he is unable to identify these five skins due to fall of fur from the same and in absence of fur he cannot identify the same. There are other material contradictions in the testimony of prosecution witnesses. In his cross examination PW1 deposed that police official were not in uniform while PW4 testified in his cross examination that he was in uniform. PW4 in his cross examination done on behalf of accused Mohd. Yaqoob, deposed that the room of accused Mohd. Yaqoob was not locked and it was bolted. Later on during cross examination done on behalf of accused Sansar Chand, PW4 deposed that the door of the said premises was locked. The door was got opened with the help of a key-maker. No statement or particular of that key maker was recorded.
10. Present complaint was filed by CW1 Sh. Lakhvinder Singh, the then Deputy Director, Wildlife Preservation (Northern Region), Ministry of Environment and he was the senior most member/officer in the investigation team at that time. As per section sub-section 8(d) of section 50 of the Act, any evidence recorded by Wildlife Officer will be admissible in evidence. A police officer can not be aspected to do better investigation of a case pertaining to Wild Life than that of a Wild Life Officer. But the act of CW1 is not upto the mark. At the time of recovery, he did not bother to record the disclosure statement of accused persons nor to investigate the matter himself or guide State (WLI) vs Pema etc CC No.25/1 14 of 16 the IO regarding sealing and seizure of the case property and its production before the court in compliance of section 50(4) of the Act. Had, the CW1 Lakhvinder Singh recorded the disclosure statement of accused or conducted the investigation of the case himself, the fate of the case might have been different.
11. Considering all the aforesaid discussed facts and circumstances of the case it creates doubt over the prosecution story as well as two views and chances of false implication of the accused can not be ruled out. It has been held by the Hon'ble Supreme Court in para no.14 in case reported as "2014 IV AD (S.C.) 33, Basappa vs State of Karnatka" that the exercise of power under Section 378 of Cr.P.C by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilt is let scot-free. Quoting the relevant paragraph of judgment titled as "State of Punjab vs. Karnail Singh (2003) 11 SCC 271" it was held as under:-
6........ The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing out the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.....
12. It is relevant to mention at this stage that it is necessary for the prosecution to prove its case beyond reasonable doubt as held by he Hon'ble Supreme Court in Rang Bahadur Singh Vs. State of U.P. 2000 II AD(S.C.) 103;
"That the time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction can not be passed on the accused. A criminal Court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
13. Thus, in view of the aforesaid discussions and the material contradictions State (WLI) vs Pema etc CC No.25/1 15 of 16 in the testimony of prosecution witnesses, I am of the considered opinion that the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Mohd. Yaqoob s/o Qudaratullah is acquitted of charge leveled against him. Previous bail bonds of accused stand cancelled. Surety stands discharged. Original documents, if any, be returned back to the rightful applicant after endorsement cancelled thereupon. Mohd. Yaqoob is directed to furnish fresh bail bonds in the sum of Rs.25,000/- in terms of section 437A Cr.P.C. Fresh bail bond in terms of section 437A Cr.P.C. is furnished and accepted for a period of six months.
Case property, if any, be confiscated to the state.
File be consigned to record room.
Judgment be sent to server www.delhidistrictcourts.nic.in.
(DEVENDER KUMAR SHARMA) ACMM(Special Acts) CENTRAL TIS HAZARI COURTS DELHI Announced in open court on 29th May, 2015 (Total number of page 20) (One spare copy attached) State (WLI) vs Pema etc CC No.25/1 16 of 16