Delhi District Court
Wildlife vs Chirag Kotecha on 6 November, 2023
IN THE COURT OF ANURAG THAKUR
ADDL. CHIEF METROPOLITAN MAGISTRATE (Spl. Acts)
CENTRAL, TIS HAZARI COURTS, DELHI
Re: State (Wildlife Department) v. Chirag Kotecha & Anr.
U/s 49/49B/51 of the Wild Life (Protection) Act, 1972
CC No. : 516478/2016
CNR No. : DLCT02-001418-2013
Date of Institution : 16.07.2013
Name of the complainant : R. R. Meena
his parentage and address. Wildlife Inspector,
Govt. of NCT of Delhi.
Names of accused persons : (i) Chirag Kotecha
their parentage and residences S/o Jaykar Kotecha
R/o 20/62,
Shakti Nagar, Delhi.
(ii) Vikas Goel
S/o Vijay Kumar Goel
R/o 1/8, Block No. 25
Shakti Nagar, Delhi.
Offence complained of : U/s 49/49B/51 Wild Life (Protection) Act, 1972
Date of Judgment : 06.11.2023
Plea of accused : Not guilty
Final Judgment : Acquitted
Brief facts and reasons for decision of the case:-
1.The case of the complainant in brief is that on 11.06.2009 at about 06:50 PM at Deep Market, Ashok Vihar, Delhi, accused Chirag Kotecha and Vikas Goel were found in possession of uncured leopard skin and uncured leopard cub skin respectively, which both of them kept for the purpose of trade, without having any license or any authority to keep the same and Leopard is specified in Schedule I of Wild Life (Protection) Act and thereby the accused contravened the provision of Section 49/49B of Wild Life (Protection) Act, 1972 (hereinafter referred to as 'The Act') which is punishable u/s 51 of The Act.
2. The present complaint was filed by Sh. R.R. Meena, the then Wildlife CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 1 of 8 Inspector, Govt. of NCT of Delhi, on behalf of the complainant. Since the complaint was filed by a public servant while discharging his duties as a public servant and in his official capacity, so his examination under Section 200 Cr.P.C was dispensed with in terms of proviso (a) of Section 200 Cr.P.C. Cognizance of offence was taken and the accused were summoned vide order dated 16.07.2013. On appearance, copies of complaint and supporting documents were supplied to the accused persons.
3. Thereafter the complainant was given opportunity to lead pre-charge evidence. The complainant examined Inspection Richpal Singh as PW-1, SI Kuldeep Singh as PW-2, ACP Jai Bhagwan as PW-3, Ct. Ashok Kumar as PW-4, SI Sumer Singh as PW-5 and Wild Life Inspectior R.R Meena as PW-6. Thereafter, pre-charge evidence was closed on 16.10.2015. Charge for contravention of section 49/49B punishable u/s 51 of the Wild Life (Protection) Act, 1972 was framed against the accused persons on 26.04.2016. Thereafter, post charge evidence was recorded wherein all the aforementioned witnesses were cross-examined by the accused persons and additionally SI Rajbir was examined as a prosecution witness (incorrectly numbered as PW-6). The post- charge evidence was closed on 17.03.2023. Statements of accused persons u/s 313 Cr.P.C were recorded on 21.07.2023. The accused persons did not lead any defence evidence and finally, the opportunity to lead defence evidence was closed on 18.09.2023. Final arguments in the matter were heard on 20.10.2023.
4. Role of each witness as per the case of complainant:
Name of Witness Role attributed to the Witness
Insp. Richpal Singh Took secret informer to concerned ACP.
Constituted the raiding team.
Informed Wildlife Department about secret information. Went to the spot and was part of raiding team.
SI Kuldeep Singh Made DD entry regarding the secret information.
Apprehended Chirag and Vikas at the spot, recovered the CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 2 of 8 leopard skins, made pullandas and sealed them.
Prepared seizure memos of pullandas and also seized Indica car.
Prepared rukka and gave it to Ct. Ashok Kumar for lodging the FIR.
Handed over investigation to ACP Jai Bhagwan and got prepared the site plan.
ACP Jai Bhagwan Prepared site plan, interrogated both accused and recorded their disclosure statements.
Arrested and personally searched the accused persons and prepared the arrest and personal search memos.
Recorded statements of witnesses.
Produced both accused and case property before the court. Ct. Ashok Kumar Met secret informer and took him to Insp. Richpal Singh.
Was part of raiding team, signed all three seizure memos. Took rukka to PS and got FIR lodged.
Came back and gave copy of FIR to ACP Jai Bhagwan.
Signed arrest memos and personal search memos.
SI Sumer Singh Was part of raiding team that apprehended both accused. WLI R.R.Meena Reached at Crime Branch office and joined raiding team.
Identified the recovered skins as Leopard Skins Took possession of seal of SI Kuldeep Singh.
Signed all the three seizure memos.
HC Rajbir Received tehrir sent by SI Kuldeep.
Made endorsement on tehrir and registered FIR.
Handed over copy of FIR and original tehrir to Ct. Ashok.
5. Learned APP for the state argued that cogent documentary evidence is placed on record to substantiate the allegations against the accused persons. He stated that all the complainant witnesses have fully supported the case of the complainant and they had withstood the rigours of cross-examination during pre and post charge evidence. He submitted the testimonies of complainant witnesses are consistent, trustworthy and inspire confidence. He claimed that the charge against the accused persons is well established, so they be convicted of the offence punishable u/s 51 of The Wildlife (Protection) Act, 1972.
6. Per-contra, ld. defence counsels argued that there are glaring deficiencies and lacunae in the case setup by the complainant. They submitted that no public persons were made part of the raiding team or investigation despite their CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 3 of 8 availability at the spot. They also pointed out that the relevant entries of departure and arrival at police station have not been proved. They submitted that there was no scientific basis available on record to believe that the skins recovered were original leopard skins. They specifically highlighted the testimony of PW-3 to canvass that shoddy investigation was conducted by the IO. They claimed that the complainant had miserably failed to prove the case against the accused persons and the accused persons are entitled to be acquitted.
7. Leopards are mentioned at Entry 16-B in Part-I of Schedule-I appended to The Act. Section 49 of The Act prohibits the purchase, receipt or acquisition of any animal article, trophy, uncured trophy or meat otherwise than from an authorized dealer. Section 49B of The Act prohibits dealing in animal articles, trophies etc. derived from scheduled animals. The punishment for committing an offence in relation to the scheduled animal under The Act (provided in section 51 of The Act) is imprisonment for a term which shall not be less than three years but which may extend to seven years and also with fine which shall not be less than twenty five thousand rupees. Having cogitated over the rival submissions and upon perusal of record, my observations on the facts in issue are delineated hereinafter.
8. The seizure memos of leopard skin and leopard cub skin were prepared by SI Kuldeep Singh prior to the registration of FIR as consistently deposed by all the complainant witnesses who were purportedly present at the spot at the time of alleged recovery of leopard skins from accused persons. The fact of preparation of seizure memos also finds mention in the rukka Ex.PW2/B prepared by SI Kuldeep Singh and handed over to Ct. Ashok for registration of FIR. How and why the FIR number and other particulars of the FIR came to be mentioned in the seizure memos prepared prior to the registration of FIR is CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 4 of 8 beyond the comprehension of this court. In Pawan Kumar v. The Delhi Administration Criminal Appeal No. 113 of 1987 decided on 17th August 1987 it was observed by the Delhi High court that:
In the normal circumstances, the FIR no. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the FIR no. which had already come into existence before the registration of the case.
It seems that either the original seizure memos prepared at the spot have not been placed on record or the same had been tampered with subsequent to their preparation by SI Kuldeep. In either of the circumstances, the benefit of this lacuna must go to the accused persons.
9. The leopard skins were allegedly recovered from accused persons at Deep Market, Ashok Vihar. From the testimonies of complainant witnesses it is evident that public persons were available at the spot and even the shops in the market were open at the time of alleged recovery. PWs Ct. Ashok Kumar and SI Sumer Singh testified that a few shopkeepers were asked by the IO to be part of the raiding party but none of them agreed. Why no written notice was given by the IO to the shopkeepers to join the proceedings/investigation is beyond the understanding of this court. Even the names, addresses etc. of the shopkeepers who were requested to join the investigation were not noted down by the IO. Why members of general public were not requested to join the investigation is also not known. In the case of Hemraj v. State of Haryana AIR 2005 SC 2110 it was observed that:
The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case.
From the entire evidence available on record it appears that only a halfhearted CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 5 of 8 and casual attempt was made by the IO to join independent persons in the proceedings. The non-joining of public persons despite their availability at the spot casts a doubt on the case of the prosecution. Since all the witnesses are police personnel or wildlife official and the necessary safeguards in the investigation have not been followed by the investigating officer, I am of the considered view that charge of false implication cannot be ruled out.
10.Another vital discrepancy in the case of the complainant is the testimony of PW-3 ACP Jai Bhagwan. During cross-examination he disclosed that intimation about the case was received by him at 6:00 PM and investigation of the case was handed over to him by SI Kuldeep Singh at 6:30/7:00 PM. He also revealed that he remained at the spot for about two hours during which time he arrested both the accused persons and conducted their personal search as well as prepared the corresponding arrest and personal search memos. Hence, as per PW-3, he left the spot at about 9:00 or 9:30 PM. However, all the other PWs in their testimonies stated that ACP Jai Bhagwan came at the spot at about 10:00 PM and remained there till about 2:00 AM. Even the arrest memos of both the accused persons show that they were arrested at 1:15 and 1:20 AM by PW-3. Also a look at the rukka shows that the same was prepared by SI Kuldeep at about 9:50 PM, so surely the investigation could not have been handed over to PW-3 at 7:00 PM. Moreover, PW-3 was not able to tell anything about the things recovered from possession of accused persons upon their personal searches. PW-3 also stated that the Indica car seized at the spot was of blue color whereas, other PWs namely Ct. Ashok Kumar, R.R. Meena, SI Sumer Singh and SI Kuldeep Singh testified that the Indica car was of silver color. All these major deficiencies and lapses erode the credibility of the case adumbrated by the complainant.
11.There are other unexplained gaps in the case of complainant like presence of CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 6 of 8 signatures of one Kamal Gupta on the arrest memos of both the accused persons despite none of the witnesses deposing about his presence at the spot i.e. at Deep Market, Ashok Vihar. There is some confusion about the place from where the accused were apprehended. PW-6 R.R. Meena deposed that the accused persons were inside the Indica car when they were intercepted by police, whereas PW-5 SI Sumer Singh testified that both accused stood near the gate of parking for sometime and when they reached near the Indica car then they were apprehended by the police, however PW-1 Inspector Richpal Singh stated that the accused were apprehended while they were moving out of the car. At one place it is deposed by PW-1 Richpal Singh that the seal after use was given to Ct. Ashok Kumar whereas other witnesses had testified that seal after use was given to R.R.Meena. There is also no clarity as to which police official gave information to Wild life department as both PW-1 and PW-2 claimed that they shared the information with the Wild life department. Also there are different versions as to how the case property and accused were brought to the crime branch office. The witnesses have also given varied accounts of how and where the writing work was done at the spot by the IO.
12.The recovered skins were not sent to the lab at Wildlife Institute of India (WII), Dehradun to ascertain whether they were leopard skins or not. The Wild Life Inspector R.R. Meena only by touch and ocular examination came to the conclusion that the skins recovered were leopard skins. He conceded in his cross-examination that he did not conduct any test to determine whether the skins were leopard skins or not. Instances before this court are not uncommon where recovered skins thought to be of leopards or tigers etc. upon examination by the experts at WII, Dehradun were found to be fake skins or skins of other wild animals and in one instance the skin recovered upon examination was found to be the skin of a domestic animal dyed to resemble the skin of a wild animal. Mere inspection or ocular examination by Wildlife CC no. 516478/2016 Wildlife v. Chirag Kotecha & Anr. 7 of 8 Inspector is not sufficient to state with certitude that the recovered skins were indeed skins of leopards and not of other wild or domestic animal.
13.To conclude, the case against the accused persons is not proved beyond reasonable doubt. In case where all the witnesses are police personnel or government officials, it is imperative that those witnesses depose in a manner which inspire confidence to rule out the possibility of false implication and abuse of authority. A minor discrepancy here and there in depositions is bound to occur and the same may be ignored but the witnesses shall be ad idem on material facts of the case and the documentary evidence shall also support the version of the prosecution. Unfortunately, the evidence adduced in the present case is not of sterling quality and the shoddy investigation conducted by the second IO is manifest from his testimony itself. As charge against the accused persons are not proved, accordingly, they are acquitted of the offence punishable u/s 49/49B/51 of the Wild Life (Protection) Act, 1972.
Announced in the open court on this 6th November, 2023 ANURAG THAKUR ACMM (Spl. Acts), CENTRAL TIS HAZARI COURTS, DELHI This judgment consists of 8 pages.
Each and every page of this judgment is signed by me.
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