Delhi District Court
Cbi vs . Mangal Lama @ Tashi on 3 November, 2018
1
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ACMM(Spl. Acts):CENTRAL:TIS HAZARI COURTS, DELHI
CC No. 14225/2018
RC No. 220(E)/18, 0006,EOU-V dt. 28.5.18
CBI Vs. Mangal Lama @ Tashi
JUDGMENT
(a) Name of complainant : CBI, EOU-V, EO-II, New Delhi through Ms. Risinamol K.C. DY. Supdt. of Police
(b) Name, parentage : Mangal Lama @ Tashi and residence of accused S/o. Sh. Chhang Topkel Lama R/o. Ward No. 8, Similkot, Distt.
Humla, Nepal
(c) Offence complained of : U/s 51 r/w 49 & 49 B of the
Wildlife(Protection) Act, 1972
(d) Plea of accused : Pleaded not guilty.
(e) Final order : Convicted
(f) Date of such order : 03.11.2018
Date of institution : 25.07.2018
Date of order reserved : 31.10.2018
Date of Judgment : 03.11.2018
Brief statement of the reasons for the decision:-
1. Brief facts of the complaint are that on the basis of secret information received by CBI on 25.05.2018 about illegal business of wildlife articles specially bones of tiger, the accused was CBI Vs. Mangal Lama CC No.14225/2018 1 of 39 2 apprehended on 27.05.2018 having found in possession of tiger body parts/bones which are kept in a blue color trolley bag near Indian Oil Petrol Pump, Libaspur, Delhi. It is further stated in the complaint that the recovered suspected wildlife articles were sent to the Wildlife Institute of India and as per lab analysis report, the articles on the basis of DNA, sequence data were found to be of tiger (panthera tigris) .
2. Accused was arrested and taken on police custody remand to trace out the other accomplice but despite detailed investigation other suspects could not be located and thereafter accused is remanded to Judicial Custody and was provided with legal aid. The complaint was filed on 25.08.18. Copy of complaint and documents were supplied to the accused.
Complainant Evidence
3. In support of allegations, complainant examined CW-1 CBI Inspector Vijay Kumar Singh , CW-2 Dy. SP Dhiraj Khetrapal, CW-3 Sh. Pankaj Sharma, CW-4 Sh. Rakshak Singhai, DW-5 Mr. Norbu Tsering, CW-6 Tenzin Lantok, CW-7 Sh. Saurabh Aggarwal, CW-8 SI Yogesh Kumar, CW-9 DSP, CBI Ms. Risinamol K.C., CW-10 Sh. Shiv Bhola Gupta, CW-11 Sh. Vinod Jaiswal, CW-12 Sh. Chandra Prakash Sharma and CW-13 Sh. Satyabir Singh.
4. CW-1 stated that a source information was received in the branch on 25.05.18 to the effect that a suspect Mangal Lama @ Tashi R/o. Nepal was doing illegal business of wildlife articles CBI Vs. Mangal Lama CC No.14225/2018 2 of 39 3 specially bones of tiger and accordingly, he arranged two independent witnesses by sending e-mail to circle office, PNB Noida who deputed Sh. Rakshak Singhai and Sh. Abhinav Kumar to join the raid. He further stated that on 27.05.18 a raiding team was formed under the supervision of Sh. Dheeraj Khetrapal DSP who after briefing and completing legal formalities of personal search of the team proceeded to the spot and reached alongwith members of raiding party at service lane of NH-1 going from Delhi to Sonepat at about 3.10 pm near Indian Oil Petrol Pump, Libaspur. He stated that the source was also available who pointed out towards the accused appearing to be of Nepalese origin carrying big trolley bag of navy blue color as the person who is carrying tiger bone/body parts. He further stated that identity of the suspect was conveyed to the other members through pre decided signals and accused was intercepted by him and on questioning accused admitted that he is carrying tiger bones for selling to some unknown person.
Accused was offered to take personal search of the CBI team but he denied the same and after opening the trolley bag shown the tiger bones carried by him kept in a cardboard carton and plastic gunny bag inside the trolley bag. CW-1 further stated that number of persons gathered but none came forward to join the proceedings despite warning given by him. He further stated that since place of interception was having lot of noise, air pollution, movement of heavy traffic apart from no sitting arrangements, it was decided with independent witnesses that in the interest of security of suspect, recovered material and CBI team, it would be appropriate to move to CBI office for further proceeding and before leaving the CBI Vs. Mangal Lama CC No.14225/2018 3 of 39 4 spot, a rough site plan was prepared and thereafter, the suspect alongwith the trolley bag were taken to CBI office where the articles were taken out and weighed with the electronic weighing machine available in the CBI office and it found to be weighing about 7.24 kg. He stated the manner in which the case property was sealed with CBI seal and stated that the pulanda was signed by all concerned and the blue color trolley bag and the carton box were also seized separately and specimen seal was taken in separate white sheets and the brass seal was handed over to independent witness Sh. Rakshak Shanghai. CW-1 further stated that accused Mangal Lama was questioned and he disclosed that he is staying in Punda House, Majnu Ka Tila, New Delhi and accordingly, accused was arrested. CW-1 further stated that he prepared the special report and submitted the same for registration of FIR which is Ex. CW-1/A. He also identified the accused as the person from whose possession the suspected wildlife articles were recovered. He also stated his presence at the time of preparation of seizure memo Ex. CW-1/B, site plan Ex. CW- 1/C, arrest cum personal search memo Ex. CW-1/D, facsimile of seal impression Ex. CW-1/E. He proved the copy of email dt. 25.05.18 through which independent witnesses were arranged as Ex. CW-1/F. He also identified the case property when produced before him as well as the items of personal search of the accused. He also stated about issuance of certificate U/s 65-B of Indian Evidence Act. This witness was not cross examined at pre charge stage and was cross examined at post charge evidence. During cross-examination in post charge evidence, he stated CBI Vs. Mangal Lama CC No.14225/2018 4 of 39 5 that the source information as received on 25.05.18 at about 3.00 pm and the distance from CBI office to Libaspur is about 25-30 km. He stated that he has not checked any CCTV footage from the spot but denied the suggestion that he had not visited the spot and therefore, had not checked the CCTV installed there. He admitted that he had not asked the employees of petrol pump to join the raid and stated that he had requested all the other public person who all refused. He stated that due to previous experience dealing with wildlife cases, he has the knowledge to identify tiger body parts but admitted that he was not associated with any raiding party relating to tiger cases. He also admitted that no wildlife expert was asked to join the investigation but denied the suggestion that in order to false implicate the accused, no wildlife expert was joined in the investigation. He admitted that he had not made any effort to use the office of petrol pump or drawing the proceedings but denied the suggestion that since they haven not gone to the spot, therefore, office of petrol pump was not used. He admitted that in other cases like NDPS and Antiquity Act he had seized the case property at the spot itself. He further stated that he got issued the seal on 27.05.18 but admitted no proof has been filed to show the issuance of brass seal. He further stated that after use the seal was handed over to Rakshak Singhai but no handing over memo was prepared. He stated that however, same was found mentioned in the recovery cum seizure memo. He denied the suggestion that accused has been falsely implicated in the present case.
CBI Vs. Mangal Lama CC No.14225/2018 5 of 39 65. CW-2 stated that on 27.05.18 he was ordered to supervise the operation of Wildlife information which was to be executed by Insp. Vijay Kumar Singh. He further stated that Insp. Vijay Kumar Singh informed about the source information and had arranged two independent witnesses and raiding party was formed under his supervision. He also stated that after completing the legal formalities and personal search, raiding party reached at the spot. He stated about the manner in which the accused was apprehended with the case property and raid was conducted. He stated that having satisfied about the presence of prohibited item under Wildlife Act, Insp. Vijay Kumar Singh ordered resealing of items in the CBI office. He also explained that since the spot did not have proper sitting place, it was felt expedient to move to CBI office. He also identified the accused as well as the case property. He also identify his signatures on Ex. CW-1/B to CW-1/E as well as search list dt. 28.05.18 i.e. CW-2/A and bill receipt Ex. CW-2/B. During cross examination in post charge evidence, he stated that he had not made any request to join public witnesses as two independent witnesses were already accompanying them. He also stated that no personal search of independent witness was carried out, however, offer was made to conduct search of all members of raiding party. He admitted that no staff from the petrol pump or any wildlife expert were joined the raiding party. He also stated that Sh. Vijay Kumar Singh identified the case property as wildlife articles on the basis of stinking smell, shape and size of the bone, it was opined that these are the tiger body parts. He admitted that the investigation was not carried out at the petrol CBI Vs. Mangal Lama CC No.14225/2018 6 of 39 7 pump or at the spot but explained that due to security constraints the accused and the case property was shifted to CBI office as sometimes the accomplice of accused may attack and try to take away the case property. He denied suggestion that he had not gone to the spot and therefore, employees of petrol pump or public persons at the spot were not joined as witnesses. He also denied the suggestion that no tiger bones were recovered from the accused. This witness was re examined wherein he admitted that case property remained in the hands of accused and stated that independent witnesses and staff ensured that no tampering was done with the case property. In his further cross-examination, he stated that accused as well as independent witnesses carrying the case property simultaneously. This witness was put to Court questions wherein he stated that vehicle was parked at a distance of 200 mtrs. and same were called at the spot itself.
6. CW-3 was working as Nodal Officer in Reliance Jio. He stated that in compliance of notice U/s 91 Cr.P.C., he produced letter dt. 14.06.2018 Ex. CW-3/A, Customer application form Ex. CW-3/B, CDR for the period 24.05.2018 to 27.05.2018 of accused Ex. CW- 3/C, decoded cell ID location chart of mobile no. 8810578951 of accused for the period 24.05.108 to 27.05.2018 Ex. CW-3/D and certificate U/s 65 B of Indian Evidence Act Ex. CW-3/E. He further stated that as per the CDR, the mobile number of the accused was in roaming on 26.05.2018 in East & West UP and the cell ID no. 4058700147532 was located in the area of village Bhopatpur Bari Bhujiya, Town Puranpur, Distt. Peelibheet U.P. and the cell ID No. CBI Vs. Mangal Lama CC No.14225/2018 7 of 39 8 40587101A8830 is located in the area of village Bilabdpur, Town Powayan, Distt. Shajanpur, U.P.. He further state that on 27.05.18 at 15:25:37 to 15:25:51 hrs, the user of the said mobile number was in the area Libaspur, New Delhi.
During cross-examination CW-3 admitted that on Ex. CW-3/B the name of accused Mangal Lama is not mentioned. He failed to state whether the photograph on Ex. CW-3/B is matching with facial features of accused. He admitted that he had not given the certificate U/s 65-B of Indian Evidence Act in support of cell ID chart i.e. Ex. CW-3/D. He admitted that the location is determined as per the specific cell ID of the tower. He admitted that he had not given complete cell ID chart but stated that he has provided the requisite information as sought by the CBI. He admitted that Ex. CW-3/D and Ex. CW-3/E are not on the letter head of the company. But stated that he is authorized to certify the documents. He denied the suggestion that Ex. CW-3/B, CW-3/C & CW-3/D are forged and fabricated documents. He denied the suggestion that he is deposing falsely at instance of CBI.
7. CW-4 stated that on 25.05.2018 his senior officer informed him that he had been deputed by the bank to join CBI proceedings as independent witness. He reported to Sh. Vijay Kumar Singh Insp.in the CBI office at 12.00 noon on 27.05.2018 alongwith another independent witness Sh. Abhinav Kumar from PNB where they have been introduced to other CBI officials. He further stated that Insp. Vijay Kumar Singh briefed about the secret information received on 25.05.2018 to the effect that one Nepali origin person CBI Vs. Mangal Lama CC No.14225/2018 8 of 39 9 namely Mangal Lama @ Tashi indulging in illegal trafficking of wild life material which is banned under the provision of Wild Life Act, for his personal gain and the suspect will come near to Indian Oil Petrol Pump, Libaspur, New Delhi. He further stated that they assembled in the exit gate of CBI where two Bolero Car were parked and he and Mr. Abhinav Kumar took personal search of the driver and the CBI officials and the vehicles but nothing incriminating was found except the stationary item, laptop printer, sealing material etc. He further stated that at about 2.20 pm, they left from the CBI office and reached near Indian Oil Petrol Pump at the area of Libaspur, Delhi at about 3.10 pm and on reaching there, all the team members were took their positions by the direction of Inspector Vijay Kumar Singh and they were instructed to follow his signal. He further stated that after about 10 minutes, one Nepali Origin person came with a big trolley bag of navy blue color and was standing at the left side of Indian Oil petrol pump towards Karnal who was waiting for someone and at about 3.30 pm, the accused started leaving that place to some unknown place and just then Inspector Vijay Kumar Singh intercepted him. Inspector Vijay Kumar Singh introduced himself and other team members and the purpose of our visit. He further stated that accused disclosed his name as Mangal Lama from Nepal and he was also informed about his legal rights. He further stated that the accused admitted that the trolley bag contains bones/body parts of tiger and opened it in presence of all team members and found containing a cardboard carton captioned as "Nippo Color Bheem"
tied with plastic rope. He further stated that opening the said CBI Vs. Mangal Lama CC No.14225/2018 9 of 39 10 carton box, it contained white coloured plastic gunny bag, the mouth of which was tied with the similar plastic rope and on opening of the said gunny bag, bones/body parts were found inside the bag. He further stated that many people were gathered at the spot and Inspector Vijay Kumar Singh asked the public persons to join the proceedings but all refused and left the spot on one or the other reason and without disclosing their identity. He further stated that since the place of interception was having lot of noise and there was no sitting arrangement, it was decided by the CBI team to go to CBI office for further proceedings and a rough site plan indicating the point of interception at the spot and at about 3.50 pm they left the spot and reached the CBI office at about 4.40 pm. He further stated that after reaching at CBI office, accused Mangal Lama was repeatedly questioned by Inspector Vijay Kumar Singh about the source of recovered tiger bones/body parts and details of person to whom he was going to deliver the same but the accused did not disclose anything in this respect and he admitted that the bones/body parts recovered from him are of tiger and he was indulging in this illegal activity and doing this illegal act to earn illegal money for his personal gain. He further stated that the recovered bones/ body parts alongwith white plastic gunny bag were weighed using an electronic weighing machine available in CBI office and found to be 7.24 kg and the carton box was wrapped with white marking cloth stitched and sealed with the CBI Brass seal having seal impression CBI * EOU-V*ND*04. He further stated that the recovered articles were taken into police possession after getting signed by all concerned. The specimen/fascimine of the CBI Vs. Mangal Lama CC No.14225/2018 10 of 39 11 abovesaid brass seal was taken in separate white sheets and the specimen was handed over to him to keep it in a safe custody and produce the same as and when directed by the court. He further stated that upon enquiry accused disclosed he is camping at Delhi and stayed at room no. 106 of Pundha House, Majnu ka tila, New Delhi and at about 8.15 pm, accused was arrested and after his search, personal search memo was prepared. He further stated that wife of accused was also telephonically informed about his arrest. All the proceedings were concluded at about 8.30 pm. He then proved driving license no. 06-021071 of accused Mangal Lama issued by Govt. of Nepal Ex.CW4/A and Nepali Citizen certificate having citizenship no. 1/3869 in the name of Mangal Lama issued by Govt. of Nepal Ex.CW4/B. Thereafter, accused identified the trolley bag Ex. P-1, the yellow envelope Ex. P-2, rope P-3, pullanda Ex. P-4, cardboard cartoon Ex. P-5. Thereafter, witness identified one golden coloured mobile phone make Samsung Galaxy Note 5 due Jio Sim No. 8810578951 and extra Sim of Nepal Telecom bearing no. 899 7010 4169 3285 483F as the same phone which was recovered from the accused during the personal search of accused and stated that the Jio sim was inside the phone and another sim of Nepal Telecom was inside a separate transparent cover of the mobile phone. He further stated that one key of room no. 106 Ex. P-7 of hotel Punda House was seized by Inspector Vijay Kumar in his presence and the weighing machine through which tiger bones/body parts were weighed as Ex.P-8. He further stated that the search was conducted in room no. 106 of hotel Pundha House, B-113, Block no.5, Majnu Ka Tila, New Delhi in CBI Vs. Mangal Lama CC No.14225/2018 11 of 39 12 his presence as well as in the presence of Sh. Abhinav Kumar alongwith other CBI officials. He further stated that passport bearing no. 08298789 dated 28.12.2014 Ex. P-9 of accused Mangal Lama issued by Authority of Nepal which is found in hotel room no. 106 of Pundha House, Majnu ka tila, Delhi in his presence. He further stated that disclosure statement of accused Ex. CW-4/C was recorded in his presence as well as in the presence of Sh. Abhinav. During cross examination CW-4 stated that he ahs been working as Field Marketing Officer in Noida and Ghaziabad since 23.07.18 and he has not been involved as witness in any other case by CBI. He further stated that the HR Manager Noida circle has deputed him to join the CBI proceedings as independent witness on the basis of email of CBI. He admitted that as per his appointment letter his job profile did not mention that he can be appointed as independent witness for any police proceeding which is not related to the bank. He stated that on 27.05.18 Sh. Ketrapal DSP CBI had shown him picture of accused in his mobile phone. He admitted that CBI official did not show any secret information claimed to have been received on 25.05.18. He further stated that he was carrying a smart mobile phone at the time of investigation which was turned off for 5 mins. He admitted that near the spot there was an Indian Oil Petrol Pump, showroom of Royal Enfiled bike and few shops but CBI officials did not ask anyone from the said shops to join the investigation. He voluntarily stated that CBI officials asked the people who were gathered at the spot to join the investigation. He further stated that insp. Vijay Kumar Singh orally informed to the people that if they do not join the investigation, CBI Vs. Mangal Lama CC No.14225/2018 12 of 39 13 appropriate legal action will be taken against them. He further stated that he alongwith CBI officials and Abhinav Kumar went to Indian Oil Petrol Pump and Insp. Vijay Kumar intercepted the accused at the corner of the petrol pump. He admitted that CBI official did not take any CCTV footage from Indian Oil Petrol Pump in his presence. He admitted that local police was not informed in his presence by the CBI officials. He stated that site plan was prepared by Insp. Vijay kumar in his presence. He further stated that the raiding party alongwith accused returned to CBI office at about 4.40 pm and he stayed at CBI office till 10.00 pm. He denied the suggestion that he has already been informed by CBI that accused will come with Navy blue bag. He stated that he had not seen the accused coming at the spot in any vehicle. He stated that insp. Vijay Kumar intercepted the accused while he was walking towards Sonepat side. He showed his ignorance whether any wildlife expert was also part of any raiding team. He admitted that case property was not sealed at the spot but stated that it was locked by the accused himself. He also stated that he did not click the photograph of case property at the spot. He failed to state whether any paper work was done at the spot. He admitted that interrogation was done by CBI officials in his presence and disclosure statement of accused was recorded. He denied the suggestion that no disclosure statement of accused was recorded in his presence. He stated that entry in CBI office was made before departure to the spot. He failed to state who had taken the bag from vehicle to CBI office. He further stated that he was marked "on duty" on the date of raid and brass seal was handed over to CBI Vs. Mangal Lama CC No.14225/2018 13 of 39 14 him on the same day at about 9.45 pm. He denied the suggestion that no recovery was effected from the accused Mangal Lama and he has been falsely implicated. He admitted that personal search memo was not prepared at the spot. He failed to state the name of the CBI official who prepared the pulanda or who opened the trolley bag in the CBI office. He also failed to state who had made the specimen of the seal, but stated that multiple documents were prepared in his presence which were signed by him. He denied suggestion that he had put signature on blank papers. He further stated that on 28.05.18 he alongwith other independent witness and CBI officials went to hotel Punda House, Majnu ka Tila and visited room no. 106. He denied the suggestion that he never visited Punda House with the CBI officials. He denied the suggestion that Ex. CW-2/C i.e. payment receipt of Rs. 5000/- is a fabricated document prepared by CBI. He stated that the case property was weighed by the CBI official by weighing machine. He denied the suggestion that accused Mangal Lama has given his disclosure statement in fear and coercion of CBI.
8. This witness was re examined by Ld. PP for CBI. During re examination he admitted that disclosure statement of accused Ex. CW-4/C was prepared in his presence. He further stated that since it is his first appearance as witness in court of law, he could not comprehend the question correctly and mistakenly stated that he did not sign the disclosure statement of accused Mangal Lama. He also stated his presence at the time of preparation of search list Ex. CW-2/A of the items recovered at Punda House. He furthe CBI Vs. Mangal Lama CC No.14225/2018 14 of 39 15 stated that the tiger bone/body parts were weighed by the CBI official with the machine owned by CBI and not the machine which was recovered on 28.05.18.
During further cross-examination he stated that he was aware about the meaning of disclosure statement when it was recorded. He denied the suggestion that he is giving contradictory statement pertaining to disclosure statement of accused as it was not recorded in his presence and he has never been part of any investigation in the present case. He denied the he is an interested and planted witness and deposing falsely at the instance of investigating officer. He denied the suggestion that he had not visited Punda house on 28.05.18 and no seizure list was prepared in his presence.
9. CW-5 who was working as receptionist/care taker in hotel Pundha House stated that on 28.05.18 he was on duty at the said hotel and at about 2 to 2.30 pm, CBI officials alongwith accused Mangal Lama came to the hotel and checked the room no. 106 in his presence as well as in the presence of Mangal Lama. He further stated that cash, passport, mobile phone and cash bill of hotel room were recovered and seized in his presence. He further stated that a search list Ex. CW-2/A was prepared and he signed on both the pages as a token of its correctness. Thereafter, he identified the passport Ex. P-9 bearing no. 08298789 dt. 28.12.2014 of accused Mangal Lama issued by Authority of Nepal and key of room no. 106 Ex. P-7 of hotel Punda House. He stated that the hotel Manager was not present in the hotel at the time of search.
CBI Vs. Mangal Lama CC No.14225/2018 15 of 39
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He also identified weighing machine through which tiger
bones/body parts Ex. P-8. He further stated that accused Mangal Lama made payment of Rs. 5000/- on 25.05.18 for the hotel room, left his baggage in the room and returned to the room in the intervening night of 26/27.05.18 alongwith navy blue colour trolley bag.
During cross examination he stated that he is working in hotel for the past six months but he do not know the name of owner of the hotel. He voluntarily stated that manager Tenzin Lantok is managing the hotel and he has not issued any I card. He admitted that in his refugee card there is no mention of Punda House as his residence. He denied the suggestion that he is deposing falsely at instance of I.O. He further stated that about 5-6 police in civil clothes came to the hotel alongwith accused. He stated that the room of the accused could not be cleaning on 27.05. 18 and 28.05.18 as the accused was not available. He admitted his signature in Ex. CW-2/A and stated that he signed the same after IO read over and explained the contents of Ex. CW-2/A. This witness was also re examined by L;d. APP wherein he admitted that the weighing machine recovered in search was not used in his presence on 28.05.18 for weighing the recovered items. This witness was not further cross examined.
10. CW-6 stated that he was working in hotel Punda House. He handed over hotel register book vide memo Ex. CW-6/A, the last page containing his signature is Ex. CW-6/B. He stated that the accused Mangal Lama stayed in the hotel from 17.05.18 to CBI Vs. Mangal Lama CC No.14225/2018 16 of 39 17 27.05.18 which is at Sr. no. 884 Ex. CW-6/C. He further stated that he had taken the photocopy of DL No. 06-021071 Ex. CW-6/D issued by Govt. of Nepal as identity proof of the accused. During cross examination, he stated that he cannot read or write English language and stated that the owner of the hotel is "Lama". He admitted that the name of the hotel is not mentioned in Ex. CW-6/B. He stated that the entry at sl. no. 818 at page no. 184 and entry at sl. no. 835 at page no. 187 were made in his presence. He denied suggestion that Ex. CW-6/B is a false and fabricated register and all the entries are falsely made lateron at the instance of IO. He admitted that there is no signature of accused Mangal Lama in Ex. CW-6/D. He denied the suggestion that no hotel in the name of Punda House is in existence and he is interested and planted witness.
11. CW-7 is working with Vodafone since October 2010. He sated that vide letter Ex. CW-7/A, he handed over covering letter in reference to notice U/s 91 Cr.P.C. Ex. CW-7/B, customer application form Ex. CW-7/C, call data record Ex. CW-7/D and cell ID chart of mobile no. 8398911881 Ex. CW-7/F. He further stated that there are multiple conversation between mobile number 8398911881 and 9198998891 on 26.05.2018 and as per CDR, the subscriber was in roaming in UP East Circle. He also proved certificate U/s 65- B of Indian Evidence Act Ex. CW-7/E bearing his signatures at point A. He further stated that the mobile phone was active on 18.06.18 when he handed over the documents to CBI.
During cross-examination he admitted that on Ex. CW-7/C name CBI Vs. Mangal Lama CC No.14225/2018 17 of 39 18 of accused Mangal Lama is not mentioned. He admitted that Ex. CW-7/F is not saved in official computer as on date. He admitted that the contents of Ex. CW-7/D & CW-7/F are not on the letter head of the company and are not certified by seniors. He admitted that he had taken the record i.e. Ex. CW-7/B by official computer using official software. He denied the suggestion that software is prone to manipulation and he is deposing falsely at instance of CBI.
12. CW-8 stated that on 04.06.18, he reached at Pushpanjali hotel and met Sh. Vinod Jaiswal who told that accused has stayed in the said hotel alongwith Sh. Shiv Bhola. He proved the entry at Sl. No. 112 of register Ex. CW-8/A and entry at Ex. CW-8/B. He further stated that the said register was seized vide seizure memo Ex. CW- 8/C. During cross-examination he stated that he had not seized any ID proof of the accused. He admitted that he had not made any effort to examine the person who was maintaining the register. He denied the suggestion that he is deposing falsely.
13. CW-9 stated that she has filed the complaint in the present case Ex. CW-9/A U/s 55 of Wildlife Protection Act against accused Mangal Lama @ Tashi for the offence punishable U/s 51 r/w Section 49 & 49(b) of Wildlife Protection Act, 1972, after going through the case diary, statement of witnesses recorded U/s 161 Cr.P.C., documents collected in the case.
During cross examination she stated that she is covered U/s 55(a) "The Director of Wildlife Preservation or any other officer CBI Vs. Mangal Lama CC No.14225/2018 18 of 39 19 authorized on behalf of Central Government and notification Ex. CW-13/G issued by the Government of India, Ministry of Environment & Forests, for filing the present complaint. She admitted that she has not examined any witnesses and filed the present complaint on the basis of official recorded received from the IO and denied the suggestion that she has not applied her mind as she had not met any wildlife officer for the purpose of investigation.
14. CW-10 stated that he is a Innova Taxi driver which was booked by the accused on 24.05.18 for Rs. 15,000/- to go to Palia Kalan (ahead Sahajahanpur, U.P.). He further stated that they started their journey on 25.05.18 about 5.30 pm . He identified the blue colour trolley bag which was carried by the accused during the travel. He further stated that they stayed at one dhaba situated near Sahajanpur as they have been informed that the destination place is very dangerous due to wildlife animals and thus they slept in the vehicle. He further stated that on 26.05.18 they again started their journey about 6.00 am and reached hotel Pushpanjali, Palia Kalan and after taking breakfast Mangal Lama went outside the hotel alongwith blue colour trolley bag, while he stayed back in the room. He further stated that when accused returned, he was not carrying the said bag and again after taking lunch, the accused left the hotel room and returned with the same trolley bag. He further stated that they started their return journey at 6.00 pm and at that time accused was carrying the said trolley bag and two mobile phones. He dropped the accused at Majnu Ka Tila at about CBI Vs. Mangal Lama CC No.14225/2018 19 of 39 20 1.30 am and after receiving the booking amount , he went back to his house.
During cross-examination he stated that the Innova vehicle is a commercial vehicle bearing no. DL IV B 8367 and is not in his name. He is having All India Permit. He admitted that at the time of booking he had not enquired the name of accused or taken his mobile number. He admitted that when they started the journey accused was carrying one blue colour trolley bag which was never opened by accused in his presence. He stated that during return journey accused never went out from the vehicle. He denied the suggestion that the accused had not hired his taxi and that he is a planted witness. He also denied the suggestion that he is deposing falsely at the behest of IO to implicate the accused. He stated that he had made the entry in the register as Mangal Lama has gone to the room and the manager at the counter asked him to make the entry. He denied the suggestion that he had made the entry at the behest of IO later on.
15. CW-11 is a Manager at Pushpanjali Hotel. He stated that vide memo Ex. CW-8/C he had handed over one blue colour register Ex. CW-8/A to the CBI officer. He stated that as per register Ex. CW- 8/A, accused Mangal Lama and another person Shiv Bhola booked room in his hotel for an initial deposit of Rs. 500/- on 26.05.2018. He further stated that accused Mangal Lama left the hotel on 26.05.2018 evening and never returned to the hotel and waited for him till 9.15 am on 27.05.18 i.e. the check out time and accordingly made the check out entry at 9.50 am on Ex. CW-8/B. CBI Vs. Mangal Lama CC No.14225/2018 20 of 39 21 During cross-examination he stated that no identity card was issued to him by Pushpanjali Hotel. He stated that the entries at serial no. 111 and 113 were made in his presence. He admitted that he has not made the entry on Ex. CW-8/B. He denied that the name of accused was inserted lateron. He further stated that accused had not furnished his identity proof at the time of booking the room and told that they will submit the same later on. He further stated that the customer has taken room no. 207 which is a double bed room. He denied the suggestion that register Ex. CW- 8/A is a fabricated document and entry at serial no. 112 was made at instance of CBI in order to falsely implicate the accused in the present case. He admitted that he cannot read and understand English language. He also admitted that his statement was recorded in English, but stated that same was read over to him by CBI who informed that the seizure of register is mentioned in the statement. He denied suggestion that accused never booked room no. 207 in the said hotel and he is falsely deposing at the instance of CBI.
16. CW-12 is a Senior Technical Officer, Wildlife Institute of India, Dehradun. He stated that on 31.05.2018, he got a letter from SP, CBI sent in a sealed white cloth stitched pulanda sealed with the seal of 'PSR' marked as F-3605. He further stated that it contained one HDPE bag containing bones. He then proved the photographs Ex. CW-12/A1 clicked at the time of opening of the sealed pulanda. He further stated that the analysis of the bones was done by Dr. S.K. Gupta, Scientist, based on molecular techniques(DNA based) CBI Vs. Mangal Lama CC No.14225/2018 21 of 39 22 and report was sent to SP, CBI on 06.06.2018 in sealed cover and the case property and the report in sealed condition was handed over by him to Ct. Parveen Kumar, CBI on 07.06.2018. He further proved authorization letter dated 06.06.2018 Ex. CW12/A2 and report Ex. CW12/C, letter dated 29.05.2018 written by SP, CBI, EOU-V/EOII, New Delhi to Director, Wildlife Institute of India, Dehradun Ex. CW12/A, letter dated 31.05.2018 written by him to SP, CBI, EOU-V/EOII, New Delhi for receipt of sample for analysis Ex. CW12/B, the result of analysis dated 06.06.2018 Ex. CW12/C. He then identified tiger bones/body parts/carton/marking cloth/plastic gunny bag as the same which were received by them for the purpose of examination. He further stated that the sample seal of WII DDUN dated 07.06.2018 Ex. CW12/D. He further proved the envelope in which report was sent to CBI in a sealed condition Ex. CW12/E. During cross-examination, he stated that he had not conducted the lab analysis of the case property. He stated that whenever any case property is received in a sealed condition, it is opened to check the contents and prepare check list. He further stated that the case property was handed over to Dr. S.K. Gupta in unsealed condition which was opened in his presence in the lab of Dr. S.K. Gupta. He admitted that the lab analysis was not conducted in his presence. He denied the suggestion that faulty procedure has been adopted by him which have chances of tampering with the case property.
17. CW-13 is the CBI Inspector who deposed about the investigation CBI Vs. Mangal Lama CC No.14225/2018 22 of 39 23 conducted and deposed about various memos prepared and also proved FIR Ex CW-13/A bearing the signature of SP, Sh. Anil Singh, CBI, EOU-V at point 'A' & 'B'. He further stated that he perused the FIR, interrogated accused Mangal Lama and recorded his discloser statement in the presence of both independent witnesses namely, Rakshak Singhai and Abhinav Kumar without any pressure, fear and coercion. He further stated that accused disclosed that he was staying in Room No. 106 of Hotel Pondha House at B-113, Block No. 5, New Aruna Nagar, Majnu Ka Tilla, Delhi. He then deposed about the search conducted by CBI team in presence of both the independent witnesses, accused Mangal Lama and care Taker Sh. Norbu Tsering of the Hotel for which a search list dt. 28-05-2018 was prepared. He further stated that through the said search list , five articles i.e., cash of Rs. 1.85 lakh, passport of accused Mangal Lama, LAVA mobile phone having SIM of Vodafone no. 8398911881, receipt/bill of Rs. 5,000/- and weighing machine black color(without battery) were seized from the hotel room no. 106 of above said hotel which was occupied by accused Mangal Lama @ Tashi from 17.05.2018 to 27.05.2018 i.e., the date of his arrest. He then identified the articles mentioned in the search list Ex.CW2/A. He stated that Rs. 1,85,000/- as mentioned as serial no. 1 of said exhibit have been deposited in bank account of CBI by malkhana. He stated that the seized articles along with relevant documents were produced before the Court on 28.05.2018 and thereafter, the case property was again sealed with the seal of court bearing impression 'PSR'. Facsimile seal impression Ex. PW13/B of the court seal 'PSR' were taken on two sheets. He further stated that CBI Vs. Mangal Lama CC No.14225/2018 23 of 39 24 accused was taken on one day police custody for investigation and subsequently, he was produced in court on 29.05.2018 and was sent to JC. He further stated that the seized case property containing 7.24kg bones/body parts of Tiger was sent through Sh. M.C. Sharma, HC, CBI, EOU V, New Delhi to WII, Dehradun, Uttrakhand for analysis and examination through letter dated 29.05.2018. He further stated that during investigation, he also collected guest check-in check-out details register maintained by hotel Pundha House along with photocopy of certain documents. He further stated that during investigation, records i.e,. CDR, CAF, Cell ID location, certificate u/s 65B of Indian Evidence Act etc were obtained through notice u/s 91 Cr.P.C from Nodal Officers of Reliance JIO, Vikaspuri which is Ex. CW13/C bearing his signature at Point A. He further stated that during investigation, he issued notice U/s 91 Cr.P.C Ex. CW-13/D for producing original documents i.e. CAF, CDR, decoded location chart etc. He further stated that the nodal officer vide letter Ex. CW-13/E provided the required documents. He further stated that he also collected notification dt. 06.03.14 & 07.04.2000 issued by Ministry of Personal, Public Grievance & Pension Ex. CW-13/F and Ex. CW-13/G, Gazette notification dt. 20.07.17 Ex. CW-13/H. He lastly stated that the part investigation of the case was entrusted to SI Yogesh Kumar and SI T.D. Tripathi of EOU V, CBI.
During cross-examination he admitted that he was not part of the raiding party and he had not recorded statement of HC Mam Chand and Ct. Ashok Kumar. He denied the suggestion that members of raiding party were not visited the spot. He further CBI Vs. Mangal Lama CC No.14225/2018 24 of 39 25 stated that the raiding party proceeded for the spot after making GD entry but admitted that the said GD entry was not on record. He denied the suggestion that no GD entry was recorded. He stated that on 28.05.18 he conducted search of room no. 106 Hotel Punda House. He admitted that no handing over memo was prepared for handing over the case property to the CBI official who has brought the case property to the court complex, but stated that SI T.D. Tripathi was instructed not to tamper with the case property and to take the same to the court with all care and caution. He denied the suggestion that no handing over memo was prepared as he has not taken the case property in a sealed condition from SI Tripathi. He denied the suggestion that owner of hotel was not examined as witnesses were planted against the accused. He further stated that he had conducted investigation in the area of Palia Kalan, Tehri UP and examined many people in the area of police station Palia Kalan in August 2018. He denied suggestion that he had not visited Palia Kalan to find out the source of alleged wildlife articles. He stated that he had not asked the members of raiding party whether they had taken any expert in wildlife. He voluntarily stated that their branch is specilised in wildlife cases and regular training is conducted in this regard. He denied the suggestion that he had not conducted any investigation and case property has been falsely planted upon the accused as the same was not seized at the spot. He admitted that usually case property is seized at the spot. He voluntarily stated that keeping in view the circumstances, at times, case property are seized at secured place also. He denied suggestion that no bone/body part CBI Vs. Mangal Lama CC No.14225/2018 25 of 39 26 of time was recovered from the accused and he is deposing falsely.
18. In terms of section 293 Cr.P.C. accused Mangal Lama was asked to admit or deny the genuineness of lab analysis report. Vide separate statement accused admitted the genuineness of lab analysis report issued by Dr. S.K. Gupta which is Ex. CW-12/C. The genuineness of said report was also confirmed by CW-12 C.P. Sharma who categorically stated that he received the case property in sealed pulanda and the lab analysis was conducted by Dr. S.K. Gupta which was handed over alongwith case property in a sealed cover to the CBI official.
19. After completion of complainant evidence, statement of accused was recorded u/s 313 r/w 281 of Code of Criminal Procedure (hereinafter called Cr.P.C.).
20. I have heard Ld. Counsel for both the parties. I have given my thoughtful consideration to the submissions in advance on behalf of both the parties and have gone through the relevant records and also the relevant provisions of the Act.
21. The relevant provisions of section 49 and 49B(1) are reproduced for ready reference:-
49. Purchase of captive animal, etc, by a person other than a licensee. - No 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 authorized to sell or otherwise transfer the same under this act.
CBI Vs. Mangal Lama CC No.14225/2018 26 of 39 27 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.
22. Complainant has to prove that accused Mangal Lama was found in possession of body/parts of tiger which he was having for the purpose of trade. Official witnesses have specifically deposed that a team consisting of Inspector Insp. Vijay Kumar Singh, Insp. Yogender Prasad, HC Mam Chand, CT. Ashok Kumar under the supervision of DSP Dheeraj Khetrapal and two independent witnesses namely Sh. Rakshak Singhai and Sh. Abhinav Kumar were also summoned for the purpose of conducting raid and accused Mangal Lama came at the spot carrying the case property in a taxi. He was apprehended by them and tiger bones were recovered from the bags. Accordingly, he was arrested. Witnesses were cross examined at length by Ld. Defence counsels, but Ld. Defence Counsel could not extract anything from the mouth of these witnesses to support the case of accused. These witnesses have successfully passed the test of cross examination. Further CBI Vs. Mangal Lama CC No.14225/2018 27 of 39 28 CW-12 Sh. Chandra Prakash Sharma Sr. Technical Officer from Wildlife Institute of India, Dehradun also specifically deposed that the analysis of the bones was done by Dr. S.K. Gupta scientist, based on molecular techniques (DNA based) and proved result of analysis Ex. CW-12/C. It is to be kept in mind that the case property is not easily available in the market. CW Rakshak Singhal and Abhinav Kumar, Independent witnesses testified in detail about their visit to the spot and about seizure of the trolley bag containing tiger bone/body parts, arrest of accused and about his personal search and also about other facts on the similar lines of the complaint. All the witnesses have correctly identified the accused as well as the case property in the Court during their examination. From the report Ex. CW-12/C, it is clear that the recovered bone/body parts are of tiger which are banned under the Act.
23. Ld. Counsel for accused argued that the sanctity of recovery is vitiated as the alleged case property was not seized at the spot and the explanation furnished by the witnesses is not plausible.
24. On the other hand Ld. PP for CBI submits that the case property was not tampered with during the entire investigation.
25. The argument of Ld. Counsel that the defect of not seizing the case property at the spot has adversely effected the case of prosecution is humbly rejected as the explanation furnished by all the witnesses to the recovery is plausible. It is common knowledge CBI Vs. Mangal Lama CC No.14225/2018 28 of 39 29 that there is heavy traffic flow on NH-I i.e. the spot of recovery near Libaspur, Delhi at all times. The recovery witnesses have stated that due to heavy movement of traffic and no sitting arrangement at the spot, and in the interest of security of suspect, recovered material and CBI team it was decided with consultation with independent witnesses to take suspect and case property to the CBI office. The Ld. counsel for accused has not denied that there is heavy traffic near the spot and admittedly, there is no arrangement for sitting for carrying out the recovery proceedings. It is also not been denied that in such heavy traffic, there is likelihood of danger to the life of suspect and members of the raiding party. However, the argument of Ld. Counsel that the raiding party could have utilized the facilities/office of the Indian Oil Petrol Pump which was located near the spot of recovery has some weight. All the witnesses have admitted that no effort has been made to utilize the office of petrol pump. This non utilization of office of petrol pump is a lacuna on the part of the incharge of the raiding party. But, such failure or omission on the part of I.O. itself does not render case of prosecution as improbable as held in Amar Singh Vs. Balwinder Singh : AIR 2003 SC 11. Similarly, in the matter of Dhanraj Singh Vs. Punjab : AIR 2004 SC 1920 it was held that an accused cannot be acquitted on the sole ground of defective investigation, to do so would be playing into the hands of the IO where investigation was defective by design. Moreover, during testimony, the members of raiding team have offered the explanation for not utilizing the facility of Indian Oil Petrol Pump for carrying out the proceedings. In the matter of Abuthagir Vs. CBI Vs. Mangal Lama CC No.14225/2018 29 of 39 30 State : AIR 2009 SC 2797 it was held that if during cross examination IO had offered an explanation which is plausible, there would be no reason for any suspicion.
26. Ld. Counsel for accused also argued that apart from officials of PNB, no independent witness who were available at the spot or at the CBI office were joined in the proceedings and this has cast doubt on the whole case of the complainant. No suggestion has been put to CW-3& CW-4 that they being bank officials have colluded with the CBI team in falsely implicating the accused. No previous enmity has been shown against the accused from CW- 3&CW-4. Both CW-3 & CW-4 have categorically stated that this is their first operation as members of raiding party for CBI and therefore, they cannot be taken as stock witness of CBI. Both the witnesses have despite detailed cross-examination have stood the test and no material contradiction is noted in their testimony. The chain of circumstance is unbroken as both the witnesses remained with the raiding team from reaching the spot till the time the proceedings were concluded at CBI office. The independence and impartially of CW-3 & CW-4 cannot be doubted. Moreover, even if no other independent witness was associated with recovery, that itself is not sufficient to create doubt regarding truth of prosecution as held in Sanjay @ Kaka Vs. Delhi :AIR 2001 SC 979.
27. Effect of shortcoming on the part of IO are part of the task of judge in appreciation of evidence. It is the judges who has to appreciate the evidence & while doing so, assess the effect of such CBI Vs. Mangal Lama CC No.14225/2018 30 of 39 31 defects, such defects become marginal in case where the main testimony of eye witnesses inspire confidence & appear truthful. The cumulative effect of testimony of all witnesses taken together does shows that the case of the prosecution stood the detailed scrutiny of cross-examination undertaken on behalf of the accused.
28. It is pertinent to mention here that during the course of cross examination of the witnesses, Ld. Defence Counsel did not give any suggestion as to why the witnesses are deposing against the accused. Even otherwise, it is not the case of accused that witnesses were inimical towards the accused. Witnesses have totally supported the case of the prosecution regarding the recovery of tiger body parts and also they all are corroborating each other on all material aspects and there is no inconsistency or major contradictions in their statements. The statements of witnesses on record are found to be cogent, inspires the confidence of the Court and there is no reason to disbelieve the same. Further, minor discrepancies which have been pointed out, I am of the view that they are not of such nature which create infirmity in the complainant's case. I do not find any reason that why complainant would falsely implicate the accused. Further non joining of public witnesses from the spot does not affect the merits of the case specially when efforts were taken in this regard by the raiding team and independent witnesses were joined in the proceedings. The case property i.e. tiger bones is not such a commodity which is easily available in the market and the defence has failed to show that the case property are not body parts/bones CBI Vs. Mangal Lama CC No.14225/2018 31 of 39 32 of tiger.
29. All the witnesses have stated the manner in which case property was sealed and seized. The sanctity of the seal is not compromised as all the recovery witnesses have stated about the seal impression and CW-4 stated that after use seal was handed over to him to keep in safe custody. The said seal having seal impression "CBI*EOU-V*ND*04" was produced by CW-4 during his testimony in the Court and same is now part of Court record. The witness from Wildlife Institute of India have stated that he received the case property in a sealed condition with the above mentioned CBI seal and after examination the case property was returned to CBI in a sealed condition. During testimony of witnesses, the case property was produced in the Court with the seal of "WII DDUN" of Wildlife Institute of India.
30. The witnesses from the mobile service provider of Vodafone and Reliance Jio who were examined as CW-3 & CW-7 have proved the Cell ID location at the time of raid in the area of Libaspur, Delhi. The reports of the nodal officers CW-3& CW-7 are accompanied with the certificate U/s 65-B of Indian Evidence Act to ensure the genuineness of the report being electronic evidence. No evidence has been put forth by the accused to shake the foundation of such cell Id locations. This also proves the presence of accused at the spot at the time of recovery.
31. CW-5 who is the caretaker of hotel Punda house also proved CBI Vs. Mangal Lama CC No.14225/2018 32 of 39 33 presence of accused in the said hotel on 25.05.18 and intervening night of 26.05.18/27.05.18. The recovery of personal articles and weighing machine alongwith cash amount of Rs. 1,85,000/- from the said room was also proved by CW-5 & CW-6. Apart from giving suggestions, no credible evidence has been brought on record on behalf of accused to show that he had not stayed in the said hotel.
32. CW-11 who was the Manager at Pushpanjali hotel alongwith CW- 10 who was the driver who had taken the accused to Palia Kalan have proved the visit and stay of accused for procuring the tiger body parts for the purpose of sale. The relevant registers and categorical identification of the accused by the witnesses have shown that it was the accused who stayed in the hotel Pushpanjali and he had taken Innova car no. DL 1VB 8367 from Delhi to Palia Kalan for procuring the tiger body parts for the purpose of sale.
33. All the witnesses have duly identified the accused as well as the case property.
34. At this stage it would be relevant to go through section 57 of the Act which says:
Presumption to be made in certain cases.
Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part of derivative thereof} it shall be presumed, CBI Vs. Mangal Lama CC No.14225/2018 33 of 39 34 until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part of derivative thereof}.
35. Hence, as per section 57 of the Act, prosecution has to prove that accused was found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be proved by the accused, custody of such person will be treated to be unlawful custody. The accused has not lead any evidence to rebut the presumption of Section 57 of the Act. From the cross examination of prosecution witnesses, accused has failed to bring anything on record to rebut the said presumption. Complainant has also complied with the Section 50(4) of the Act wherein any person detained or things seized shall forthwith be taken before a Magistrate.
36. As far as contradictions pointed out in the testimony of complainant witnesses are concerned, minor discrepancies are bound to occur due to lapse of time. However, these discrepancies does not throw away the case of the prosecution as the prosecution witnesses remained consistent regarding the recovery of case property from the possession of accused. Further no ground shown for the false implication of the accused. Reliance can be placed upon in case titled as " Jugendra Singh vs State of U.P., reported in AIR 2012 SC 2254, held as under:-
CBI Vs. Mangal Lama CC No.14225/2018 34 of 39 35"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
37. Further, minor contradictions, if any, are bound to occur due to and individual appreciation and narration of the facts. It is so held in Shankar vs. State of Karnataka, AIR 2011 Supreme Court 2302 that :-
CBI Vs. Mangal Lama CC No.14225/2018 35 of 39 36 "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due o mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness CBI Vs. Mangal Lama CC No.14225/2018 36 of 39 37 cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e, materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
38. Lastly, this Court is remindful of the dictum of Hon'ble Justice Sh. V.R. Krishna Iyer in the case of Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973)2 SCC 793 wherein it is held that :-
"Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerations devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that the acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand CBI Vs. Mangal Lama CC No.14225/2018 37 of 39 38 guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to CBI Vs. Mangal Lama CC No.14225/2018 38 of 39 39 punish marginal innocents."
39. Hence, in view of the above findings, I am satisfied that complainant has successfully able to prove that accused Mangal Lama found in possession of bone/body parts of tiger for the purpose of sale. The tiger is protected under Wildlife (Protection) Act and is specified in schedule I of the Act and thus the accused have contravened the provisions of Section 49 and 49B(1) of the Act. Accordingly, accused Mangal Lama is held guilty and is convicted for the offence U/s 49 and 49B(1) punishable U/s 51 of the Wild Life (Protection) Act, 1972. Case property be confiscated to the State and destroyed after the expiry of statutory period of appeal.
40. Copy of the judgment be given free of cost to the convict.
41. The soft copy of the judgment be uploaded on the server with digital signature.
Digitally signed PAWAN by PAWAN
SINGH
SINGH RAJAWAT
RAJAWAT Date: 2018.11.03
15:54:05 +0530
Announced in open court
on 3rd of November, 2018. (PAWAN SINGH RAJAWAT) ACMM(Special Acts) :CENTRAL TIS HAZARI COURTS: DELHI CBI Vs. Mangal Lama CC No.14225/2018 39 of 39