Bangalore District Court
State By: Cottonpet Police Station vs A2 : Ashar Isaq S/O Wilphred Isaq on 24 February, 2016
1 C.C.32371/2009
IN THE COURT OF III ADDL. CHIEF METROPOLITAN
MAGISTRATE
BENGALURU CITY
Dated this Wednesday the 24th day of February 2016
Present: Sri.Mohan Prabhu, B.Com., M.A, LL.B.,
III Addl., CMM.,
Bengaluru.
C.C.No:32371/2009
Complainant :State by: Cottonpet Police Station
V/s
Accused : A2 : Ashar Isaq S/o Wilphred Isaq, 23 yrs,
R/at:No:1/65, Asharwilla, Kokidi Post, near
Dhokare School, Old Shop, Mangaluru Nagar.
(By Sri.K.S Adv., Bengaluru)
---
::JUDGEMENT::
Case No. : C.C.No.32371/2009 Date of offence : 16/8/2007 Complainant : C.Siddaraju Accused : Named above 2 C.C.32371/2009 Offence : U/ss.9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act Charge : Accused No.2 pleaded not guilty Final order : Accused No.2 acquitted Date of order : 24/2/2016 The brief statement of the Reasons for the decision : As follows ---
The Police Inspector of Cottonpet Police Station has filed the chargesheet against the accused No.1 to accused No.6 for the offences punishable U/ss. 9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act.
2. In this case the Investigating Officer shown accused No.5 and accused No.6 in chargesheet as absconding. Even though accused No.1, accused No.3 and accused No.4 released on bail in Crime Stage after filing this chargesheet they have not appeared before this Court and not secured inspite of repeated NBW issued against them. Hence the 3 C.C.32371/2009 case against accused No.1, accused No.3 to accused No.6 ordered to split up as per order dated 11/8/2015 and separate split up C.C.No:21880/2015 registered against accused No.1, accused No.3 to accused No.6.
3. The case of the prosecution briefly stated as follows:
That on 16/8/2007 at about 3-30 p.m. when Cw.1 along with Cw.4 to Cw.9 were patrolling near Shantala Silk House within the jurisdiction of Cottonpet Police Station at that time Cw.1 received credible information that some culprits transporting the Crocodile Skin in order to sell the same. Hence, Cw.1 secured two independent panchas Cw.2 and Cw.3 and when he along with panchas and Cw.4 to Cw.9 watching near ATM counter situated near Shantala Silk House at that time blue colour Escort Ford Car bearing No:KA-04-N-3994 came from Upparpet Police Station Road and stopped near Shantala Silk House. Then Cw.1 checked the said Car found the accused No.1 to accused No.4 in that 4 C.C.32371/2009 Car. It is alleged that the accused No.1 stated that he by purchasing the Crocodile Skin from accused No.3 and accused No.4 he and accused No.2 trying to sell the same in Bengaluru. It is alleged that accused No.3 and accused No.4 who were sitting in back seat of the Car stated to Cw.1 that they have purchased the Crocodile Skin from Anthony and Ranga (accused No.5 and accused No.6). It is further alleged that accused No.1 shown two Crocodile Skin kept in dikky of the Car. Hence, Cw.1 seized two Crocodile Skin under a mahazar in the presence of two independent panchas Cw.2 and Cw.3 and Official witnesses Cw.4 to Cw.9. Thereafter Cw.1 brought accused No.1 to accused No.4 and seized two Crocodile Skin and Escort Ford Car to the Cottonpet Police Station and based on his first information Report registered the case in the Crime No.203/2007 for the offences punishable U/ss.9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act and u/s.379 of IPC.
4. Accused No.1 to accused No.4 were produced before the Court on 17/8/2007 and they engage counsel and later 5 C.C.32371/2009 released on bail on 22/8/2007. Cw.1 recorded the statements of witnesses. Cw.13 took up the further investigation and sent two Crocodile Skin to the C.C.M.B. Hyderabad for test. Thereafter on receipt of The Cellular and Molecular Biology Department Report and on completion of investigation has filed the chargesheet against the accused for the offences punishable U/ss. 9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act.
5. In this case accused No.2 appeared before the Court. Accused No.1, Accused No.3 to accused No.6 remain absconded, hence separate split up case registered against them. The chargesheet copies furnished to the accused No.2 as contemplated u/s.207 of Cr.P.C. Charge was framed. Accused No.2 pleaded not guilty and claimed to be trial.
6. Cw.1 to Cw.13 witnesses have been cited in the chargesheet. During the course of trial on the side of the prosecution Pw.1 to Pw.6 are examined and documents Ex.p1 to Ex.p8 are marked. Mo.1 and Mo.2 marked. 6 C.C.32371/2009
7. After closure of the evidence on the side of the prosecution accused examined u/s.313 of Cr.P.C. Accused No.2 denied all the incriminating evidence. No defence evidence is led.
8. Heard the arguments of learned Sr.APP and learned counsel for the accused No.2.
9. During the course of argument learned Sr.APP argued that though Pw.1 to Pw.7 are Official witnesses nothing is elicited in their cross examination to discard their evidence. She argued that the prosecution has proved the case against the accused beyond all reasonable doubt. On the other hand, the learned Advocate for the accused argued that in this case the prosecution has not examined Cw.2 and Cw.3 independent panchas. He argued that the oral evidence of Pw.1, Pw.2 and Pw.4 who are Official witnesses are not corroborating. He argued that the expert is also not examined. He argued that no such special mark on Mo.1 and Mo.2 is forthcoming to identify these properties. He argued that accused No.2 is not committed any offence and seizure 7 C.C.32371/2009 of the property from the possession of accused No.2 is not proved. He argued that the case against accused No.2 is not maintainable.
10. The following points arise for my consideration:
1.Whether the prosecution proves beyond all reasonable doubt that on 16/8/2007 accused No.2 possessing two Crocodile Skin and thereby committed the offences punishable U/ss. 9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act?
2. What Order?
11. My findings on the above points:
Point No.1: In the Negative Point No.2: As per final order For the following:
::REASONS::
12. Point No.1: Cw.1 is examined as Pw.4. Cw.5 is examined as Pw.1. Cw.6 is examined as Pw.2. These witnesses are the Official witnesses deposed regarding seizure of two Crocodile Skin. Two independent mahazar 8 C.C.32371/2009 witnesses Cw.2 and Cw.3 were not examined by the prosecution inspite of sufficient opportunity. Despite of issuing summons, warrant and proclamation Cw.2 and Cw.3 were not secured. Cw.13 is the Investigating Officer who filed the chargesheet is examined as Pw.5. Cw.11 examined Pw.6 and Cw.12 is examined as Pw.3 who deposed regarding carrying two Crocodile Skin to Center for Cellular and Molecular Biology, Hyderabad and bringing the Report. In this case the Report of C.C.M.B. is marked at Ex.p6.
13. On perusal of document Ex.p6 shows that the Scientific Examiner concluded that the Skin Mo.1 and Mo.2 sent for test are that of Salt Water Crocodile. The argument of learned counsel for the accused No.2 is that non- examination of examining Scientist is fatal to the case of the prosecution is not acceptable because u/s.293 of Cr.P.C., without examining the Scientific Expert the Court can rely upon the Report.
9 C.C.32371/2009
14. In this case Pw.3 deposed that he along with Cw.10 went to Hyderabad Center for Cellular and Molecular Biology on 31/1/2009 and brought back two Crocodile Skins and Report. Pw.6 deposed that he carried the Crocodile Skin to Hyderabad to DNA Test on 28/11/2007. The oral evidence of Pw.3 and Pw.6 coupled with the documents Ex.p5 Covering Letter, Ex.p6 CCMB Report, Ex.p8 Letter issued by Director of CCMB is sufficient to hold that Mo.1 and Mo.2 were sent to CCMB, Hyderabad and Scientist who tested the same came to the conclusion that these Skins are that of Salt Water Crocodile. Hence, it is proved that Mo.1 and Mo.2 are the Skins of Salt Water Crocodile. Now the question would arise whether the prosecution has proved that Mo.1 and Mo.2 were seized from the possession of the accused No.2. In this case the prosecution has not examined Cw.2 and Cw.3 independent mahazar witnesses. Pw.1, Pw.2 and Pw.4 are the official witnesses.
10 C.C.32371/2009
15. Pw.1 deposed that on 16/8/2007 he and Cw.6 to Cw.9 were on patrolling duty along with Cw.1 and when they came near Railway Station Cw.1 received credible information. Hence, they were watching near ATM situated near Shantala Circle and they summoned two panchas. At that time the blue colour Car came to the Shantala Circle then they stopped and searched the same and found four accused persons and five Crocodile Skins. He further stated that there were only two Crocodile Skin. He states that they have arrested the accused and seized two Crocodile Skins by conducting the Panchanama as per Ex.p1. During the course of cross examination by learned counsel for the accused Pw.1 admitted the fact that there is a Lodge, Hotels and Shops nearby the Shantala Circle. He states that they have not called any persons from Hotel, Shops and Security Guards as panchas. He states that no chit containing his and panchas signature affixed on Mo.1 and Mo.2 in order to identify the same. He states that Cw.1 after receiving credible information called pancha by name Shankar and 11 C.C.32371/2009 another pancha over phone. That means Cw.1 prior to calling Cw.2 and Cw.3 knows them very well including their phone number. It seems that Cw.2 and Cw.3 were stock witnesses of the Police. In Ex.p1 mahazar it is mentioned that by marking the one Crocodile Skin as "A1" panchas and Police Officials signed on the same. Similarly by marking another Crocodile Skin as "A2" panchas and Police Officials have affixed their signatures. But quite contrary to this Pw.1 deposed that in his presence no special mark was made on Mo.1 and Mo.2. He states that no chit containing his and panchas signature affixed on Mo.1 and Mo.2. Hence, the very presence of Pw.1 at the time of conducting the panchanama is doubtful. In other words the seizure of Mo.1 and Mo.2 in the presence of Pw.1 is doubtful.
16. Cw.6 is examined as Pw.2. He deposed that on 16/8/2007 when he along with Cw.1, Cw.4 and Cw.7 to Cw.9 were on patrolling duty on credible information received by Cw.1, Cw.1 brought them to Shantala Circle and asked them to watch near Shantala Circle. He states that at 12 C.C.32371/2009 the same time Cw.1 brought two panchas by name Shankara and Bhagyaraj to the Shantala Circle and when they watching in that place one blue colour Car stopped in Shantala Circle then they surrounded the Car and found accused No.1 in Driver seat and remaining accused No.2 to accused No.4 in the Car. He states that when Cw.1 enquired to accused No.3 Sri Jaipal and accused No.4 Dhanpal, then they told that accused Anthony and Ranga sent them to sell the Crocodile Skins. Then when Cw.1 asked them whereabouts of Crocodile Skins then accused No.3 and accused No.4 informed that the Crocodile Skins were in the Car dikky. Then they opened the dikky and found two Crocodile Skins and seized the same by marking as "A1" and "A2" and sealed in gunny bag by marking on the gunny bag as "VR". He states that they were seized the Car and arrested the accused.
17. During the course of cross examination by learned counsel for the accused No.2, Pw.2 also deposed quite contrary to the document Ex.p1 mahazar by stating that no 13 C.C.32371/2009 chit containing his signature affixed on Mo.1 and Mo.2 and no signatures were taken on the gunny bags. In Ex.p1 page No.3 and Page No.4 it is mentioned that signatures of Panchas and Police Officials were put on Crocodile Skin as well as on the bags. But quite contrary to this Pw.2 deposed that no signatures were taken to affix the same on Crocodile Skin as well as the bags. Pw.2 also admitted the fact that there are Hotels and Shops near by Shantala Circle. When question is put to him whether any panchas from Hotel and shops were secured then he answered that the Police Inspector himself in order to build the case called the panchas. The oral evidence of Pw.1 further strengthens that Cw.2 and Cw.3 are the stock witnesses of the Police. The oral evidence of Pw.2 creates doubt about the case of the prosecution.
18. Cw.1 is examined as Pw.4. Pw.4 deposed that on 16/8/2007 at about 3 p.m. when he was on patrolling duty along with Cw.4 to Cw.9 on the basis of credible information that somebody transporting Crocodile Skin then he secured 14 C.C.32371/2009 two independent panchas and watching near ATM Counter of Shantala Circle. He states that at about 3-45 p.m. a blue colour Ford Escort Car stopped near the Circle then by surrounding the Car checked the Car and found accused No.1 in Driver seat and accused No.2 sitting beside accused No.1 and accused No.3 and accused No.4 sitting in back seat. He states that when he enquired to the accused, accused No.1 shown the Crocodile Skin which were in that Car. Pw.4 in his cross examination by defence admitted the fact that there exists Lodges, Hotels nearby the shantala Circle. Pw.4 deposed that he called Cw.2 and Cw.3 who were present near Shantala Circle. If at all Cw.1 was seized Mo.1 and Mo.2 near Shantala Circle what prevented him to secure the panchas of the Lodge and Hotels and Shops is not properly explained by him. Even if it is presumed that Cw.1 was seized Mo.1 and Mo.2 Crocodile Skins it is not proved that these Mo.1 and Mo.2 were seized from the possession of accused No.2.
15 C.C.32371/2009
19. In this case even though in Crime Stage Section 379 of IPC incorporated in FIR but the Investigating Officer Cw.13 who is examined as Pw.5 on completion of investigation filed chargesheet only for the offences punishable U/ss. 9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act. It is needless to say that ingredients of Section 379 of IPC are not at all established. Even though in the Crime Stage Section 379 is mentioned but there was no ingredients of Section 379 of IPC mentioned in Crime Stage itself. In this case Cw.13 is examined as Pw.5. Pw.5 deposed that he after receiving the Report of Scientific Expert as per Ex.p6 has filed the chargesheet against the accused persons on 20/7/2009. Pw.5 has filed the chargesheet against the accused No.1 to accused No.6 for the offences punishable u/ss.9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act. In the chargesheet Pw.5 is not shown the reason for not incorporating section 379 of IPC. According to Pw.5 only the provisions of Wild Life (Protection) Act attracts to this case. No doubt there is no ingredients of Section 379 of IPC. If 16 C.C.32371/2009 that is so the Police Officer cannot file chargesheet against the accused only for the offences punishable under Wild Life (Protection) Act. The provision u/s.55 of Wild Life (Protection) Act is very clear that only complaint is maintainable. Looking to the provision u/s.55 of the Wild Life (Protection) Act the Police Inspector who lodged the chargesheet is not empowered to file the chargesheet before this Court for the offences punishable u/ss.9, 39, 40, 44, 49(B), 51 of Wild Life (Protection) Act.
20. As per the Section 55 of Wild Life (Protection) Act cognizance of an offences under the Wild Life (Protection) Act can be taken by a Court only on the complaint of the Officer mentioned in this Section 55. No doubt in the present case in the Crime Stage along with sections of The Wild Life (Protection) Act section 379 of IPC was initiated. But after completion of investigation Pw.5 Investigating Officer filed the chargesheet only for an offences under The Wild Life (Protection) Act. Hence the complaint should have filed of the Officer mentioned in Section 55 of The Wild Life 17 C.C.32371/2009 (Protection) Act. Since there is clear bar to take the cognizance of the said offences U/ss. 9, 39, 40, 44, 49(B) and 51 of The Wild Life (Protection) Act. Based on Police Report, it cannot be held that prosecution proved the guilt of the accused No.2 beyond all reasonable doubt. Pw.1, Pw.2 and Pw.4 are the Official witnesses. The oral evidence of Pw.1, Pw.2 and Pw.4 is not corroborating with each other. The oral evidence of Pw.1 and Pw.2 is not corroborating with the document Ex.p1 mahazar. Pw.4 even though deposed regarding seizure of Mo.1 and Mo.2 from Car bearing No:KA- 05-N-3994 but there is no cogent evidence to show that accused No.1 was possessing and transporting Mo.1 and Mo.2 Crocodile Skins. Non examination of Cw.2 and Cw.3 independent witnesses is fatal to the case of the prosecution. The oral evidence of Pw.1, Pw.2 and Pw.4 is not free from doubt. When prosecution failed to prove that accused No.2 was purchased Crocodile Skin from other accused then the question of possession of the same by the accused No.2 does not arise. It is not the case of the 18 C.C.32371/2009 prosecution is that accused No.2 has killed Salt Water Crocodiles and then brought its Skin to sell the same. There is no proper investigation by Pw.5 to show from which place Mo.1 and Mo.2 were brought. The uncorroborated oral version of Pw.1, Pw.2 and Pw.4 which is not supported by any independent witnesses creates doubt. Hence, I am of the view that prosecution failed to prove the guilt of the accused No.2 for the offences U/ss. 9, 39, 40, 44, 49(B) and 51 of The Wild Life (Protection) Act beyond all reasonable doubt. Accused No.2 is entitled to benefit of doubt. Hence, I answered Point No.1 in the Negative.
21. Point No.2: In view of my findings on Point No.1, I proceed to pass the following:
::ORDER::
Accused No.2 is not found guilty for the offences punishable U/ss. 9, 39, 40, 44, 49(B) and 51 of The Wild Life (Protection) Act.19 C.C.32371/2009
U/s.248(1) of Cr.P.C. accused No.2 is acquitted of the offences punishable U/ss. 9, 39, 40, 44, 49(B) and 51 of The Wild Life (Protection) Act.
The Bail bond of the accused No.2 stand cancelled.
Since the split up case in C.C.No:21880/2015 is pending against accused No.1, accused No.3 to accused No.6 the office is directed to keep the original records of this case and Mo.1 and Mo.2.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in open Court, this the 24/2/2016).
(Mohan Prabhu), III Addl., Chief Metropolitan Magistrate, Bengaluru City.
::ANNEXURE::
1. List of witnesses examined for the prosecution:
Pw.1: Shivaraju Pw.2: Nagaraju Pw.3: Shivakumar Pw.4: C.Siddaraju 20 C.C.32371/2009 Pw.5: Gopal K.P. Pw.6: Venkatesh
2. Documents marked on the side of the prosecution:
Ex.p1: Panchanama Ex.p1(a): Signature Ex.p2: Swa Dooru Ex.p3: FIR Ex.p3(a): Signature Ex.p4: Malu Patti Exp4(a): Signature Ex.p5: Covering Letter Ex.p5(a): Signature Ex.p6: Report Ex.p7: Enclosure Ex.p8: Thagnara Manavi Patra
3. Material objects marked: Mo.1 & Mo.2: Crocodile Skins
4. Defence: Nil
- --
III ACMM., Bengaluru.
21 C.C.32371/2009