Bombay High Court
State Of Mah.Thr.A.W.L.W. & Range F.O., ... vs Govindsing Thakur Sjurajsingh Thakur & ... on 5 February, 2018
Author: M.G.Giratkar
Bench: R.K.Deshpande, M.G.Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.356 OF 2003
State of Maharashtra,
Through Assistant Wild Life
Warden and Range Forest Officer,
Ramtek, District Nagpur. .......... APPELLANT
// VERSUS //
1. Govindsingh s/o. Surjitsingh
Thakur, r/o. Zenda Chowk,
Dharampeth, Nagpur.
2. Jernalsingh s/o. Jagatsingh
Bawa (abated).
3. Gajanan s/o. Dajiba Jambhulkar,
r/o. Thaware Nagar, Nagpur.
4. Parashram s/o. Indal Baghele,
r/o. Hatodi, Tq.Ramtek, District
Nagpur. .......... RESPONDENTS
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____________________________________________________________
Mr.M.J.Khan, A.P.P. for the Appellant/State.
Mr.R.P.Joshi, Advocate for Respondent Nos.1, 3 and 4.
____________________________________________________________
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Date of reserving the Judgment : 24.1.2018.
Date of pronouncement of the Judgment : 05.2.2018.
********
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. The State of Maharashtra has filed the present appeal challenging the Judgment of acquittal, in Regular Criminal Case No.895 of 1998 and Regular Complaint Case No.244 of 2001, by which all the accused/respondents came to be acquitted of the offences punishable under Sections 9, 51, 39, 48(a) of the Wild Life (Protection) Act, 1972, Sections 3 and 4 punishable under Section 25 of the Arms and Explosives Act and Section 429 r/w. 34 of the Indian Penal Code.
2. The case of appellant/State, in short, is as under : ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
3 apeal356.03.odt In the month of April, 1998, there was series of thefts of motor pumps of agriculturists and therefore, villagers were keeping vigil in the night. On 19.4.1998, accused persons had gone to village Kachurwahi in a jeep bearing registration No.MH-31 G-6648. The accused were having one rifle, one 375 Magnum gun and one revolver. When they were moving in the jeep, light of the jeep was witnessed by the villager namely Krushna Natkar. He came to the house of Police Patil.
3. Ramesh Jaiswal (PW-1) disclosed that he found search light. There may be thief. He informed that dacoits were wandering, so he should make arrangements in that regard. Ramesh Jaiswal (PW-1), Police Patil of the village informed police on phone. Some of the villagers brought accused/respondents with three children and one Parashram Patil r/o. Hatodi in the jeep to the house of Police Patil Ramesh Jaiswal. 300-400 people surrounded the said jeep. He saw three persons and three children and the said jeep. They were in frightened condition. He took them in his house and provided water to them. Some villagers took out black buck from the jeep and kept in the chapari of his house. Said black buck was already dead. There ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 4 apeal356.03.odt were injuries on neck and blood was oozing from nose and injuries on the dead body. Weapons were taken out from the jeep.
4. Ramesh Jaiswal (PW-1), Police Patil of village Kachurwahi informed police. Police reached to his house. PSI Dixit took custody of all the accused persons along with weapons and dead body of black buck. All the accused persons and dead black buck were taken to the Police Station. PSI Dixit registered crime against all the accused. Spot Panchanama etc. was prepared in presence of Ramesh Jaiswal (PW-1).
5. Range Forest Officer Abdul Salam Abdul Gaffar (PW18) approached to the Police Station. Range Forest Officer also started separate proceedings under POR Exh.143. Forest Department requested to hand over investigation. One petition was filed before the High Court. But it was dismissed. The whole case was investigated by Police department. After complete investigation, filed the charge sheet before the Judicial Magistrate, First Class, Ramtek.
6. Charge was framed at Exh.40. Same was read over and explained to the accused. The accused pleaded not guilty and ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 5 apeal356.03.odt claimed to be tried. Defence of the accused/respondents is that they had gone to village Hatodi. From Khindsi, they were returning. They were suspected to be thieves and caught by the villagers. The accused denied of charges about killing of wild life (black buck).
7. The following witnesses were examined by the prosecution :
1. Ramesh Madhavprasad Jaiswal (PW-1) (Exh.86).
2. Amrut Shyamraoji Natkar (PW-2) (Exh.115).
3. Laxman Godru Mohankar (PW-3) (Exh.118).
4. Gulab Dhaniram Wadibhasme (PW-4) (Exh.131).
5. Madhukar Shamrao Bawankule (PW-5) (Exh.133).
6. Atul Vishnupanth Salotkar (PW-6) (Exh.142).
7. Narendra Laxmanrao Sahare (PW-7) (Exh.144).
8. Radhyshyam Sadhuji Natkar (PW-8) (Exh.148).
9. Sukhalal Bhikaji Danve (PW-9) (Exh.150).
10. Sudam Shrawan Dhurve (PW-10)(Exh.151).
11. Ankush Namdeo Bawankule (PW-11)(Exh.155).
12. Mahadeo Sadashiv Hatwar (PW-12)(Exh.156).
13. Krushna Radheshyam Natkar (PW-13) (Exh.157). ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
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14. Ganpat Raghobaji Deshmukh (PW-14) (Exh.158).
15. Yogesh Jagatsingh Jaiswal (PW-15)(Exh.159).
16. Mahadeo Govinda Natkar (PW-16) (Exh.161).
17. Shrirang Natthuji Natkar (PW-17) (Exh.162).
18. Abdul Salam Abdul Gaffar (PW-18) (Exh.163).
19. Namdeo Chintamanrao Jumbhadkar (PW-19) (Exh.190).
8. Except Ramesh Jaiswal (PW-1), other witnesses of village Kachurwahi have not supported the case of prosecution.
9. Learned Judicial Magistrate, First Class heard prosecution and defence and came to the conclusion that prosecution has failed to prove guilt of the accused beyond reasonable doubt. Therefore, acquitted all the accused/respondents. Being aggrieved by the Judgment of acquittal, present appeal is filed by the State.
10. Heard Mr.M.J.Khan, learned A.P.P. for the State. He has pointed out evidence of Ramesh Jaiswal (PW-1) and submitted that there is no reason to disbelieve evidence of Ramesh Jaiswal (PW-1) ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 7 apeal356.03.odt who was Police Patil of village Kachurwahi. Prosecution has proved that accused persons killed black buck. They were found in possession of dead body of black buck. They were also found in possession of weapons i.e. rifle, gun, magnum revolver etc. Learned A.P.P. has submitted that the learned trial Court has wrongly acquitted all the respondents/accused. Therefore, prayed to allow the appeal and convict the respondents/accused for the offences charged against them.
11. Heard Mr.R.P.Joshi, learned Counsel for the accused/respondents. He has pointed out cross-examination of Ramesh Jaiswal (PW-1) and evidence of other witnesses. Learned Counsel has submitted that dead body of black buck was not seized from the possession of accused persons. Weapons which were seized were not used. He has pointed out report of Assistant Chemical Analyser and submitted that bullets were not fired. Seized bullets from the body of black buck were not fired from the weapons/fire arms which were seized from the accused persons. At last, it is submitted that prosecution has failed to prove the guilt of accused persons for the offences charged against them. Learned Counsel has ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 8 apeal356.03.odt submitted that the accused had gone to picnic at Khindsi along with their children.
12. Learned Counsel Mr.R.P.Joshi has submitted that there is no dispute that the accused persons were found in the jeep along with three children. They were suspected to be thieves and therefore, villagers caught them. Nothing incriminating is brought on record in the evidence of material witnesses. All the material witnesses have not supported the case of prosecution. Hence, respondents/accused are rightly acquitted by the trial Court. There is no merit in the appeal. Hence, the appeal is liable to be dismissed.
13. Perused the evidence on record. Ramesh Jaiswal (PW-1) has stated in his examination-in-chief that, in the night of incident i.e. on 19.4.1998, one Krushna Natkar came to his house and told him that he noticed search light. There might be thief. Being Police Patil, Ramesh Jaiswal (PW-1) informed to police. After sometime, villagers brought one jeep. Three accused and three children and one Parashram Patil, resident of Hatodi were brought in the said jeep. They were in frightened condition. He provided water etc. Some villagers kept dead body of black buck in the chapari. ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
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14. Ramesh Jaiswal (PW-1) informed PSI Dixit. PSI Dixit reached to the spot, took all the accused in his custody and started investigation. He has stated in his examination-in-chief that he took accused persons in confidence. They produced weapons i.e. Rapi, small axe, kartoos, catridges.
15. In the cross-examination, Ramesh Jaiswal (PW-1) supports defence of the accused. Whatever he has stated incriminating against the accused persons is brought on record as material omission. He has stated in his cross-examination that on inquiry accused persons told him that one Mukherjee Babu, resident of Wathodi was his friend and they came for dinner at his house. Accused persons were inside the house till police reached his house.
16. Ramesh Jaiswal (PW-1) has specifically admitted in his cross-examination as under :
"It is true that I cannot tell exactly the name of person who brought dead black buck at my house because there was mob. It is true that after accused persons brought to me by people, I have not gone to the jeep involved in this matter. ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
10 apeal356.03.odt It is true that I have not personally seen when dead black buck was taken out from the jeep involved in this crime but people said me that said animal was brought out from the said jeep."
17. Ramesh Jaiswal (PW-1) has further admitted that "Khindsi is a picnic spot. From Khindsi, Ramtek is at distance of 7 kms. and Kachurwahi is at distance of 3 kms. There is a boating facility at Khindsi in the lake. It is true that Khindsi is forest area. It is true that there is an agricultural land of about 40-45 acres at Hathodi village of Mukherjee Babu. It is true that, to reach village Hathodi from Khindsi, shortest way is available via village Kachurwahi. " He has further stated that wild boar and wild animals used to damage the crops and the farmers used to kill wild boar etc. He has further stated in his cross-examination that accused persons told him at his house on his inquiry that they came from Khindsi from picnic.
18. Amrut Natkar (PW-2), Laxman Mohankar (PW-3),Gulab Wadibhasme (PW-4), Madhukar Bawankule (PW-5), Narendra Sahare (PW-7), Radheshyam Natkar (PW-8), Sukhalal Danve (PW- ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
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9), Sudam Dhurve (PW-10), Mahadeo Hatwar (PW-12), Krushna Natkar (PW-13), Ganpat Deshmukh (PW-14), Yogesh Jaiswal (PW-
15), Mahadeo Natkar (PW-16), Shrirang Natkar (PW-17) all have turned hostile. Nothing is brought in their cross-examination to support the case of prosecution.
19. Atul Vishnupath Salotkar (PW-6) has stated that he was working as Van Rakshak (Forest Guard) at Tangla village, Tq. Ramtek. He was attached to the Office of Range Forest Officer, Ramtek in the year 1998. On 20.4.1998, he had registered crime No.5/98-99 against the accused persons vide POR Exh.143.
20. Abdul Salam Abdul Gaffar, R.F.O. (PW-18) has stated that he also made inquiry/investigation parallel to police investigation. He had filed Writ Petition before the High Court for transfer of investigation to the Forest Department. But, it was not allowed. Namdeo Jumbhadkar (PW-19) has stated in his evidence that he was working as a Police Constable attached to Police Headquarter, Nagpur. He was attached to Police Station, Ramtek in the year 1998. He had gone to Government Veterinary hospital. Dr.Kimatkar had given three bullets in pocket. He deposited same ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 12 apeal356.03.odt bullets in Police Station, Ramtek. Seizure panchanama (Exh.191) was prepared.
Investigating Officer Mr.Dixit was not examined by prosecution.
21. Except Ramesh Jaiswal (PW-1), Atul Salotkar (PW-6), Abdul Salam Abdul Gaffar (PW-18) and Namdeo Jumbhadkar (PW-
19), all other witnesses/villagers have turned hostile. As per the evidence of Namdeo Jumbhadkar (PW-19), three catridges were seized. But, report of Chemical Analyser, dt.2.2.2002 which is on record shows that those bullets were not fired from the arms seized from the accused persons. Observation of Chemical Analyser is as under :
"The deformed lead bullets in Exhibit 6B and 6C are not suitable for comparison as riflings are not available on these two bullets. "
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22. It is the case of prosecution that the accused persons hunted black buck by shooting. But there is no evidence to show that the accused persons killed black buck by using fire arms. Though Ramesh Jaiswal (PW-1) has stated in his evidence that accused persons were brought by the villagers, they were in frightened condition. Some of the villagers brought one skeleton of dead black buck/deer and kept in his chapari. But his cross-examination shows that he had not personally seen who brought that dead black buck to his house. Therefore, there is no evidence to show that dead black buck was found in the jeep of accused persons.
23. Evidence of Ramesh Jaiswal (PW-1) shows that being a Police Patil, he informed to Police about the information given by the villagers. His admission shows that, on his inquiry, accused persons disclosed that they had gone for picnic to Khindsi. While they were returning, villagers obstructed them and brought to his house. It is pertinent to note that his admission further shows that three accused and three children were brought to his house. Therefore, it is possible that they had gone for picnic. There was no need for accused persons to take their children for hunting. ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
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24. Admission of Ramesh Jaiswal (PW-1) clearly shows that, on the say of Forest Department, he was telling that killed animal was black buck. Material omission is brought on record in his cross- examination. He has admitted that he could not state who brought black buck at his house. Therefore, it is clear that evidence of Ramesh Jaiswal (PW-1) is not sufficient to show that accused persons were taking dead black buck in his jeep and dead body of black buck was taken out from the jeep. Other material witnesses have not supported the case of prosecution. Atul Salotkar (PW-6) has only stated about registration of crime by the Forest department vide POR Exh. No.143. Namdeo Jumbhadkar (PW-19) has stated about seizure panchanama of bullets.
25. Abdul Salam Abdul Gaffar (PW-18) has stated in his evidence that he was working as a Range Forest Officer at Ramtek Forest Range since 27.4.1997 to 10.7.2001. On 19.4.1998, he was doing patrolling in the shivar of Chor bavali Pavani. On 20.4.1998, in the morning, he returned to his Office. He received information that there was hunting of deer in Kachurwahi Shivar. Hunters were brought to Police Station, Ramtek. Therefore, he went to Police Station, Ramtek. He requested to hand over investigation, but PSI ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 15 apeal356.03.odt Dixit told him to bring order of Court. He has stated that an application was filed before the Judicial Magistrate, First Class. It was rejected. Therefore, Writ Petition was filed before the High Court. It was not allowed. He has stated that he also made inquiry about hunting of deer. In the cross-examination, Abdul Salam Abdul Gaffar (PW-18) has stated as under :
"It is true during my investigation period I had been found one skeleton of black buck. I had brought the said skeleton of black buck to my office at Ramtek. I do not know at present where is the said skeleton of black buck. I had not keep any record of the said skeleton of black buck. I had found the said skeleton of black buck in the field of one Bavankule at shivar of village Kachurwahi. "
26. Specific admission of Abdul Salam Abdul Gaffar (PW-18) shows that he found skeleton of black buck in the field of Bavankule. Therefore, the case of prosecution that villagers brought accused persons with their jeep at the house of Ramesh Jaiswal (PW-1) and took out dead black buck from the jeep of the accused is falsified. ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::
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27. Prosecution has failed to prove that accused persons in furtherance of their common intention killed wild animal/black buck and thereby committed the offences charged against them. Prosecution has miserably failed to prove any of the charges against the accused/respondents. Learned trial Court has rightly acquitted all the accused/respondents. We do not find any merit in the appeal. Hence, we pass the following order.
// ORDER // The Criminal Appeal is dismissed.
No order as to costs.
Bail bonds of accused stand cancelled.
The record and proceedings be sent back to the trial Court.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 ::: 17 apeal356.03.odt ::: Uploaded on - 05/02/2018 ::: Downloaded on - 06/02/2018 02:19:28 :::