Delhi District Court
Wildlife vs Abdul Sattar on 3 February, 2025
IN THE COURT OF SH. MAYANK MITTAL
ADDITIONAL CHIEF JUDICIAL MAGISTRATE (SPECIAL ACTS)
CENTRAL, TIS HAZARI COURTS, DELHI
State VS. Abdul Sattar & Anr.
CC No. : 514653/2016
CNR No. : DLCT02-000944-2013
Date of Institution :
Name of the complainant : State through Sh. V.B. Dasan
Wild Life Inspector, Delhi
Name of accused : (i) Abdul Sattar S/o. Allah Mehar
R/o. Nahar Walo Ka Makhan
Yashin Garhi, Mustafa Masjid,
Dasna, Ghaziabad (UP)
(Proclaimed Person)
(ii) Rahisuddin @ Lallan
S/o Zaheer Ahmed
R/o Village Massorie, Dasna
Ghaziabad, UP
Offence complained of : U/s 5 5 o f The Wild
Life (Protection) Act, 1972
Plea of accused : Not guilty
Date of judgment : 03.02.2025
Final Judgment : Accused No.2 Acquitted
Brief facts and reasons for decision of the case:-
1 That the complainant has filed the present complaint u/s 55 of The
Wild Life (Protection) Act, 1972 against the accused persons.
Present complaint was filed through V.B. Dasan. That the
complainant was working as Wild Life Inspector in the office of
the Chief Wild life Warden and he is also designated as Forest
CC No. 514653/2013 Page no.1 to 37
Officer vide notification dated 20.11.1998.
1.1 That on 31.07.2011, vide DD No.7 dated 31.07.2011, an information was received by Sh. Jeet Singh SI in his office at Special Staff, south District Pushp Vihar regarding trade in Wild animal products in Delhi. That the informer informed the special staff that the accused persons would supply the leopard Skins at Sainik Farms, Central Avenue Road, Near Gate as per site plan enclosed and if a raid be conducted, they could be caught red handed with having in possession of leopard skins. The SI Jeet Singh has shared this information to his senior officer, who deputed two wild life inspectors Sh. V.B. Dasan from Delhi Govt. and Sh. B.S. Khati from WCCB, Government of India to join raiding party. A joint team consisting of Sh. V.B.Dasan, Wild Life Inspector, Sh. B.S. Khati Wild Life Inspector, ASI Phool Singh, Head Constable Bhoop Singh, Head Constable Mahender, Constable Yashbir, Constable. Sachin, DHC Rajender, ASI Dharampal alongwith informer and incharge of raiding team Sh. Jeet Singh reached the spot i.e. in front of Sainik Farms, main gate, near MB Road, Delhi and all the staff took their position. That at about 04.25 pm two persons were seen coming from MB Road to main gate side and one person carrying a white plastic polythene bag in his hand, in his hand, the informer identified both accused persons and they both were caught by raiding party and they disclosed their name as Abdul Sattar and Rahisuddin. The polythene bag in their possession were checked, resulting in recovery of two leopard skin uncured (Panthra pardus, partly damaged condition) which were identified by the wild life inspector of the government. That both the leapord skins were CC No. 514653/2013 Page no.2 to 37 sealed at the spot with the seal of JS. They were asked to show any ownership certificate and legal possession of the skins but they failed to do so. Both the accused persons disclosed that they were involved in the trade of wild life animal skins. The skins were seized vide seizure memo dated 31.07.2011. An FIR No.185/2011 dated 31.07.02011 was registered in PS Neb Sarai and both the accused persons were arrested vide arrest memo and their personal search was taken and their disclosure statement were recorded. That on 01.08.2011 vide application u/s 50(4) of the wild life protection Act, 1972 both the accused persons and case property were produced before the court. The two leopard skins with the seal of court were sent to Director Wildlife Institute of India, Dehradun (Uttrakhand) for scientific analysis. That the seized skins are derived from the wild animal 'Leopard', a scheduled animal specified in Schedule-I of he Wild life Protection Act, 1972. That the accused has contravened the provisions of Section 9, 39, 40, 49 & 49(b)(i) of the wildlife (Protection) Act, 1972 punishable u/s 51 of the said Act read with proviso thereto.
2 Charge was framed against accused persons on 30.01.2016 to which they pleaded not guilty and claimed trial.
3 The complainant examined ASI Phool Singh as PW-1, SI Jeet Singh as PW-2, Mr. B.S. Khati as PW-3, HC Bhoop Singh as CW-4, Ex. Ct. Yashbir Singh as CW-5, Sh. V.B. Dasan as CW-6, SI Anupam Gautam as CW-7, SI Mahender Kumar as CW-8 in evidence:-
3.1 PW-1 ASI Phool Singh: PW-1 deposed that on 31.07.2011, he was posted in Special Staff, South District, New Delhi and on that day secret informer informed SI Jeet Singh that two persons along with leopard skins will go to Sainik Farm, via MB Road to sell the CC No. 514653/2013 Page no.3 to 37 said skins to a person resident of Mehrauli. That on receiving the said information, SI Jeet Singh shared the same with Inspector Aishbir Singh who directed to take further necessary action. That thereafter SI Jeet Singh (IO) formed a raiding party comprising of himself, PW-1 ASI Phool Singh, HC Bhoop Singh, HC Mahender, Ct. Yashbir, Ct. Sachin and called two Wild Life Inspectors. That at about 3:30 PM, they left out office and reached near the gate of Sainik Farm, MB Road, at about 3:45 PM. That there SI (IO) asked HC Bhoop Singh and Ct. Yashvir to take their position inside and near the gate and also aksed the remaining staff to take their position inside the Sainik Farm. IO along with Wild Life Inspector and secret informer remained near the gate of said Sainik Farm. That IO told them that he will give signal with his handkerchief when the said persons will come there. That at about 4:25 PM, both accused persons came there and entered inside the Sainik Farm through main gate. That at that time, accused Abdul Sattar was having a polythene bag in his hand. That at that time, IO gave signal towards us through his handkerchief. That on receiving the said signal, HC Bhoop Singh apprehended accused Abdul Sattar while Ct. Yashbir apprehended accused Raisuddin.
That IO offered their personal search to both accused persons before conducting their search but they refused. Thereafter, IO checked the polyethen bag after taking the same from the possession of accused Abdul Sattar and found containing two leopard skins in the same polythene bag. That both the said Wild Life Inspectors examined the recovered leopard skins and verified to be that of skins of leopard. That IO measured both the recovered leopard skins and verified to be that of skins of leopard. That IO measured both the recovered skins and gave serial CC No. 514653/2013 Page no.4 to 37 number 1 and 2. That thereafter IO prepared one pullanda of the above said recovered skins and sealed the same with his seal JS and after use, seal was handed over to HC Mahender. That IO seized the case property Ex. PW 1/A, prepared rukka and got the FIR recorded through HC Mahender. That IO prepared the site plan and interrogated both accused persons and asked them to produce any legal source for keeping the said skins but they refused. That IO arrested both the accused and conducted their personal search vide memo Ex. CW PW 1/B, Ex. PW 1/C, Ex. PW 1/D and Ex. PW 1/E and also recorded their disclosure statement Ex. PW 1/F and Ex. PW 1/G and also exhibited case property Ex. P1, P2 and Ex. P3.
3.1.1 During his cross examination witness stated that the information was received in the office of special staff at about 1:00 PM. However, again said that the wild life officials reached the office at about 1:00 PM. However, he did not remember as to when the information was received in the office. That he did not know as to who has called the wild life officials to the office. That at the time of receiving of information, he was present in the office itself. That the raiding team has left the office in two vehicles one of them was a government vehicle, however, he did not know as to what was the other vehicle. Witness denied the suggestion that the alleged place of apprehension of the accused is a public road, thronged by public. That IO has asked the public person to join the proceedings but none agreed and left the spot without disclosing their names and addresses, however, IO did not serve notice to those persons. That place from where accused CC No. 514653/2013 Page no.5 to 37 persons were apprehended was not thronged by public persons as it was little away from main M.B. Road. The accused persons were apprehended inside the gate of Sainik Farm Colony. Witness admitted the suggestion that Sainik Farm Colony is a residential area. That no residence from the colony were asked to join any of the proceedings. That only the serial numbers were put upon the recovered skins and no specific identification mark was put upon them. That he did not remember, if he had signed the said recovered skins or not. He further admitted the suggestion that IO did not offer the personal search of any member of raiding team through any independent public person. It is denied by witness that neither he visited the spot nor he took part in any proceedings or that no recovery was effect from possession of accused persons or that accused persons were not arrested at the spot or that all the paper work was done while sitting in the office of special staff or that he was deposing falsely.
3.2 PW-2 SI Jeet Singh: On 31.07.2011, witness was posted as Sub Inspector at Special Staff, South District and he received an information through informer regarding unlawful possession of wild animal skins for trade purpose. That he shared the said information with his senior officers namely, Inspector Aishvir Singh and ACP Kulwant Singh. That as per the direction of his senior officers, the said information was sent to Wild Life Department by phone. That information was reduced in writing vide DD No.7 Ex. PW 2/A of Special Staff, New Delhi. That at 3:00 PM Sh. V.B. Dasan and Sh. B.S. Khati Wild Life Inspectors reached their Pushp Vihar Special Staff office and their arrival was CC No. 514653/2013 Page no.6 to 37 reduced vide DD No.8 Ex. PW 2/B. That information was shared and briefed with the Wild Life Inspectors and police officials and a raiding team consisting of Wild Life Inspector Sh. V.B. Dasan, Wild Life Inspector B.S. Khati, ASI Phool Singh, HC Bhoop Singh, HC Rajender, HC Mahender, Ct. Sachin, Driver ASI Dharampal and PW-2 Jeet Singh was formed and made departure entry vide DD No.9 Ex. PW 2/C. That at 3:45 PM they reached at Sainik Farm, Main Gate, M.B. Road, New Delhi and the raiding team was briefed by SI Jeet Singh to take positions near the entry gate and witness along with Wild Life Inspector Sh. V.B. Dasan and Wlid Life Inspector Sh. B.S. Khati and the secret informer took positions inside the gate. That at about 4:25 PM two men came from M.B. road towards main gate of Sainik Farm and one man had a white colour polythene bag in his hands and the secret informer pointed out towards the persons. That immediately PW-2 signaled the raiding party and the said persons were apprehended by the raiding team at the spot. That PW-2 disclosed his identity to accused persons and offered search of team and accused persons also informed the team that they have in possession of wild animal skin in their bag. That they stated that the information is correct and they refused for the personal search of the raiding team. Witness further deposed that the person who was carrying the white colour polythene bag stated his name as Abdul Sattar and the name of other person was stated as Raisuddin. That both the said persons neamely Abdul Sattar and Raisuddin were apprehended by HC Bhoop Singh and Ct. Yashbir. That the white polythene bag which was recovered from the possession of Abdul Sattar was opened in the presence of Wild Life Inspectors Sh. V.B. Dasan and Sh. B.S. Khati. That said bag was found containing two CC No. 514653/2013 Page no.7 to 37 skins which were taken out and the same were measured by giving them Serial No.1 and 2 and the same skins were identified by the both Wild Life Inspectors as leopard skin uncured in partly damaged condition covered under Schedule-1 of the Wild Life Protection Act. That thereafter, witness kept the said leopard skins in two plastic bags and thereafter he sealed the same with the seal of JS. That after that bot the above said bags were kept in the above said white colour plastic bag and sealed with the same seal and seal after use was handed over to HC Mahander vide handling over memo Ex. PW 2/D. PW-2 seized the above said sealed case property and prepared a rukka Ex. PW 2/E and got the FIR recorded through HC Mahander Ex. PW 2/F. That PW-2 prepared site plan Ex. PW 2/G. That PW-2 arrested both the accused persons and conducted their personal search vide memo Ex. Ex. PW 1/B to Ex. PW 1/E respectively and were also interrogated by PW-2 and witness recorded their disclosure statements Ex. PW 1/F and Ex. PW 1/G. It is further deposed by witness that he rcorded statement of witnesses. That on the very next day witness produced both the accused persons along with the case property in the court vide application under Section 50(4) of Wild Life Act Ex. PW 2/H. That on 01.08.2011, PW-2 received his seal from HC Mahender vide memo Ex. PW 2/J. That thereafter, he got the above said case property deposited in the Wild Life Institute, Dehradun through Ct. Yashbir. It is deposed by witness that he collected the analysis report Mark A and the case property duly sealed with the seal of Wild Life Institute, Dehradun. That the case property was deposited in the malkhana PS Neb Sarai. That on 23.02.2012, witness handed over the case property to Wild Life Department and on 29.05.2012, PW-2 handed over the file to Wild CC No. 514653/2013 Page no.8 to 37 Life Inspector Sh. V.B. Dasan for further necessary action. That witness had correctly identified the case property Ex. P1 and Ex. P2 and accused persons. Witness further deposed that he had put his signatures on the leopard skins before sealing the case property as he had also obtained the signatures of both the accused on the above said skins after the recovery of the skins and before sealing the same.
3.2.1 During cross examination witness deposed that he did not inform the Wild Life Department in writing regarding the information received at his office about the present matter. Witness voluntarily stated that he informed telephonically due to paucity of time. That on the day of recording of cross examination witness unable to recall whether he recorded the said telephone number in writing in the charge sheet and further voluntarily stated that he could answer the same after going through the charge sheet. After going through the judicial file witness stated that however, no such recorded information was found in the file. That the information regarding the arrest of accused Rahisuddin was shared with one person namely Mohd. Abdullah known to accused. Witness admitted the suggestion that parentage, address and other particulars including mobile and telephone number are not mentioned in the arrest memo Ex. PW 1/C and also the fact that how the said information was shared. That at the time of preparation of the seal handing over memo, the entire team including two Wild Life Inspectors and six / seven of his staff members were present. Witness further admitted the suggestion that no such staff member or the Wild Life Inspector had signed the seal CC No. 514653/2013 Page no.9 to 37 handing over memo and voluntarily stated that the person to whom the seal was handed over his signatures were obtained. That the person to whom such seal was handed over could retained the same or got it deposited in malkhana as per his own discretion. That the seal of JS was received by witness vide memo Ex. PW 2/J in the office of the Special Staff. Witness admitted the suggestion that other staff members were also present at that time or that no such staff members have put their signatures on the seal receiving back memo or that the alleged place of apprehension of the accused persons is a residential colony. That though the request was made to the public persons who were moving about the spot of the apprehension to join the investigation but nobody came forward. Witness further admitted the suggestion that no notice was given by him to any such person to join the investigation. That after the apprehension of the accused persons no public person gathered at the spot that as the spot was a farm house so there was no opportunity for witness to call the nearby residents who could have participated and joined the investigation. Witness further admitted the suggestion that no such residential colony was highlighted in the site plan. That PW-2 did not offer his personal search as well as of his team to the accused in the presence of any public person. That the entire raiding team including the two Wild Life Inspectors and 6/7 staff members travelled in a government vehicle which was driven by Dharampal. That the said vehicle was of white colour, however, the place where it was parked was not shown in the site plan. That they remained at the spot for about 6-6.5 hours. That no public person was joined by PW-2 to witness CC No. 514653/2013 Page no.10 to 37 the recovery of the skin of the wild life animal. Witness denied the suggestion that he had not conducted the investigation in a free and fair manner or that he had falsely implicated the accused persons in the case or that no recovery was effected from the accused persons or that the same has been plated upon them or that accused Rahisuddin was picked from this house i.e. Massorie (Hapru) and has been falsely implicated in the present case or that for that reason only the arrest memo does not contain the particulars of the person with which the information of arrest was shared or that all the proceedings were conducted while sitting in the office of special staff and for this reason no public person was cited as a witness or joined in the investigation or that the seal was never handed over to anyone rather it remained with witness and for this reason only the memos of seal have not been signed by any witness or that witness deposed falsely.
3.3 PW-3 deposed that on 31.07.2011 that he was posted as Wild Life Crime Control Bureau in Delhi. That he received telephonic call from SI Jeet Singh, Special Cell, Pushp Vihar, New Delhi and he stated to witness to join the raiding team regarding illegal trade of the wild animal skins. That immediately witness ring to WLI V.B, Dasan. Thereafter, they reached at office of Special Cell, Pushp Vihar at about 3.00 pm. They met to SI Jeet Singh and he briefed regarding case and he constructed a raiding team comprising of WLI V.B. Dasan, SI Jeet Singh, Ct. Phool Singh, Ct. Bhoop Singh and other police officials of the said cell. Thereafter they left for M.B. Road, Sainik Farm, New Delhi at about 3.30 pm. They reached at the spot at about 3.45 pm and took the position accordingly. That at about 4.30 pm CC No. 514653/2013 Page no.11 to 37 secret informer gave a signal that two persons were coming from the direction of M.B. Road to Sainik Farm. That they apprehended two persons and disclosed their identity to accused. That they conducted cursory search of the accused persons recovered two leopard skins from possession of accused persons. That they investigated about the name of accused persons on which they disclosed their name as Abdul Sattar and Rahisuddin and were correctly identified by the witness in the court. That the leopard skins were taken into possession vide seizure memo Ex. PW 1/A bearing signature of PW-3 at point A. PW-3 further stated that he could identify the case property, if shown to him and and upon production of case property witness identified the same as recovered from the possession of accused Ex. P1 and Ex. P2.
3.3.1 During his cross examination CW-3 stated that the information received in wildlife department to which he had not reduced into writing. Witness admitted the suggestion that there is no record in writing as to whether on 31.07.2011 any information was received from Special staff or not. That whenever some information as regard in illegal trade wildlife Act is received in the department, the same is shared with senior officers and instructions are received or that there is no record in writing that the information received from special staff on 31.07.2011 was shared with the seniors or some instructions were received. However, voluntarily stated that the instructions are shared verbally due to paucity of time and to manage the emergency. That at times they submit the report in writing to their department regarding the raid but mostly it depends on the gravity of the crime. That no such report was submitted in this CC No. 514653/2013 Page no.12 to 37 case. It is further admitted that illegal possession of skins of lion, tiger, leopard comes under serious offences under wildlife act. It is denied by witness that no report in the present matter was given, as neither any raid was conducted nor any illegal skin was recovered. It is further admitted that a spot of recovery is a public place and public persons passed through it. That IO did not ask public person to become the raiding party member in the presence of witness. That some public persons gathered when accused persons were apprehended. That IO asked those public persons to become the witness of recovery but none agreed. That witness did not remember whether any notice was given to those public persons or not by IO. That Sainik Farms Colony is a residential colony. That IO did not ask those residents of the area in the presence of witness to join the investigation. That I did not remember whether any special identification marks were put on the recovered skin of leopard or not. Witness voluntariy stated that signatures of the accused were taken on the recovered skin, however, CW-3 did not remember whether he had put his signatures. That there were two vehicles in which raiding team was went to the spot and one of them was Qualis. That CW-3 did not remember whether IO asked public persons to take the search of our raiding team members or not. It is denied by witness that neither he was part of raiding team member nor any skin was recovered from the possessions of the accused persons or that witness had not visited the spot nor he had participated in the proceedings and that CW-3 had put his signatures on the memos and the documents at the asking of the IO while sitting in the office of the special staff. It is further denied that the accused persons CC No. 514653/2013 Page no.13 to 37 were not apprehended at the spot or that witness deposed falsely.
3.4 CW-4 HC Bhoop Singh deposed that on 31.07.2011, he was posted as HC at Special Staff, South District, Delhi. That on that day, SI Jeet Singh received an information that two persons had come with skins at Sainik Farm, so he prepared a raiding team including ASI Phool Singh, HC Rajender, HC Mahender, Ct. Yashvir Singh, Ct. Sachin and Sh. B. N. Khatti, WLI and Sh. V. B. Dasan, WLI and CW-4. That they went in a Quatis car bearing registration no. DL-ICJ-0568, which was beiIng driven by ASI Dharam Pal and reached at Sainik Farm Main Gate, M. B. Road, Delhi around 3.45 PM, where they took positions and they hid the car. That CW-4 took his position in a room which was situated near the main gate and the rest of the raiding party members took their positions inside the gate. After some time, SI Jeet Singh gave signal to CW-4 when two persons came there with a bag. That CW-1 apprehended one person who was carrying a bag, whose name after investigation disclosed as Abdul Sattar and correctly identified by the witness. That anoth person was apprehended by Ct. Yashvir, whose name after investigation disclosed as Raisuddin @ Lallan and said accused was correctly identified by the witness. That SI Jeet Singh told them the reason of their search and also disclosed their identity. That they opened the bag and found that it was containing skin which was identified as leopard skin by the WLls. That at that time, some public persons gathered there, to whom SI Jeet Singh asked to join the investigation, but none has agreed. Further that leopard skins were assigned serial number 1 and 2 and those were taken into police possession vide memo Ex. PW-1/ A CC No. 514653/2013 Page no.14 to 37 and bears signature of CW-4. That signature of accused Abdul Sattar and Raisuddin were also obtained on seized leopard skins. That pullanda of seized skins was sealed with the seal of JS. IO also asked the accused to show any licence for keeping the same but they have not produced any such licence. That accused Abdul Sattar was arrested and his personal search was conducted vide memo Ex. PW-1/B and Ex. PW-1/E. That both memos bear signature of CW-4. That disclosure statement of accused Abdul Sattar Ex. PW-1/F was recorded. That one sack bearing case particulars of case sealed with the seal of 'PS' produced before the court and opened with the permission of the court and found containing another two transparent bags, which contains leopard skins and shown to the witness, who correctly identifies the same as recovered from the possession of accused.
3.4.1 During his cross examination witness stated that the information was received in the office of Special Staff at about 1.00 PM and again said, that the Wildlife officials reached the office at about 1.00 PM. However, witness did not remember as to when the information was received in the office. CW-4 stated that he did not know as to who has called the wildlife officials to the office. That at the time of received of information witness was present in the office itself. That the raiding team has left the office in two vehicles, one of them was government vehicle, however, he did not know as to what was the other vehicle. It is admitted by witness that the alleged place of apprehension of the accused is a public road, thronged by public. That the IO has asked the public person to join the proceedings but none agreed and left the spot without CC No. 514653/2013 Page no.15 to 37 disclosing their names and addresses, however, IO did not serve notice to those persons. That the place from where accused persons were apprehended was not thronged by public persons as it was little away from the main M.B. Road. That the accused persons were apprehended inside the gate of Sainik Farm Colony. It is further admitted by witness that Sainik Farm Colony is a residential area. That no residence from the colony were asked to join the any of the proceedings. That only the serial numbers were put upon the recovered skins and no specific identification mark was put upon them. That witness did not remember, if he had signed the said recovered skins or not. It is further admitted that IO did not offer the personal search of any member of raiding team through any independent public person. It is denied by witness that neither he visited the spot nor he took part in any proceedings or that no recovery was effected from possession of the accused persons or that accused persons were not arrested at the spot or that all the paper work was done while sitting in the office of Special staff. It is further denied that witness deposed falsely.
3.5 CW-5 Ct. Yashbir Singh deposed that on 31.07.2011, he was posted as constable in Special Staff, South District, Delhi. That on that day, an information was received by SI Jeet Singh, who discussed the same with the senior officials and also informed the WL officials. That at about 3.30 PM after making departure entry, that they all i.e. ,SI Jeet Singh, ASI Phool Singh, HC Bhoop Singh, HC Rajender, HC Mahender, constable Sachin and myself and Driver ASI Dharam Pal, left for the spot i.e. Sainik Faqm in a Qualis car bearing Registration no. DL-ICJ-0568. He further deposed that when they CC No. 514653/2013 Page no.16 to 37 reached at Sainik Farm, SI J eet Singh had briefed them and instructed the driver to hide the car. That at that time, two WL Inspectors were also accompanied them. That they took position as per directions of SI Jeet Singh. Witness took hisposition near the Security Booth. That at about 4:25 PM, two old persons came from the directions of M. B. Road and having seeing them, SI Jeet Singh gave signal and CW-5 rushed and apprehended one person whose name after investigation disclosed as Raisuddin and correctly identified by the witness. That SI Jeet Singh told them that they can take their search as they have information as accused persons were having leopard skin. It deposed by witness that accused persons denied to take search. That the other person was apprehended by HC Bhoop Singh was carrying the bag and was correctly identified by the witness. It is further deposed that the bag has been opened by SI Jeet Singh and informed containing the skin and Wildlife officials checked the same and informed that the same is leopard skin. That some public persons were also gathered there and they have been asked by St Jeet Singh to join the investigation but they refused and left the spot without disclosing their whereabouts and both the skins were kept in two separate pullandas and sealed with the seal of JS and seal after use was handed over to HC Mahender. That skins were seized vide seizure memo Ex. PW-1/A and bears signature of witness at point D. Witness further deposed that accused Raisuddin was arrested vide memo Ex. PW-1/C and his personal search was conducted vide Personal Search Memo Ex. PW-1/D and both memos bears signatures of witness at point A. Witness deposed that disclosure statement Ex. PW 1/G of accused Raisuddin was also recorded which bears his signatures at point B. It is stated by witness that he CC No. 514653/2013 Page no.17 to 37 can identify the case property if shown to him. After that case property bearing case particulars of the present case and sealed with 4 seal of the court 'PS' produced and out of the said four seals one is broken and three are intact and same were broken with the permission of the court, sack is opened and found containing another two transparent bags, which contains leopard skins. Those were shown to the witness to which he correctly identified same as recovered from the possession of accused. Both the skins already Ex. P-1 and P-2 and sack is already Ex. P-3.
3.5.1 During cross examination witness stated that when the information was received he was present in the office of Special Staff. That wild life officials reached the office of the Special Staff at about 3:00 PM. That they left the office of the Special Staff in two vehicles, however, he did not remember the registration number of the said vehicles. That witness was in the government vehicle Qualis which was being driven by ASI Dharmpal. Witness admitted the suggestion that the alleged place of apprehension of accused persons is a public person. That the IO has asked the public persons to join the raid but nobody agreed to participate. That the IO did not serve any notice to those public persons who have refused to participate in the proceedings. It is admitted that Sainik Farm Colony is a residential area. That IO did not ask any resident from the said colony to join either the raid proceedings or the investigation conducted thereafter. That the accused were apprehended near the gate of the Sainik Farm Colony and they remained at the spot for about four hours. That witness did not remember as to whether any other public person came at the CC No. 514653/2013 Page no.18 to 37 spot after the accused were apprehended. That IO did not offer personal search of any member of the raiding team through any independent persons. That at the time of the arrest of the accused persons the entire raiding team and the wild life officials were present. That he did not remember as to how the information of the arrest of accused Rahisuddin was conveyed to his relative / next of kin. Witness admitted the suggestion that document Ex. CW 1/C, Ex. CW 1/D and Ex. CW 1/G does not bear signature of any of the other raiding team member or wild life officials. CW-5 denied the suggestion that accused was lifted from his house from Village Masuri, Ghaziabad and subsequently arrested or that accused was not apprehended at the spot nor any recovery was made from him and the same is planted upon the accused or that witness had not participated in the proceedings or that he had signed all the documents at the asking of the IO while sitting in the office of Special Staff or that witness deposed falsely.
3.6 CW-6 Sh. V.B. Dasan deposed that he was working as Wild Life Inspector in the office of the Chief Wild Life Warden, Delhi since 02.04.1990. That on 31.07.2011, he received an information from Special Cell, police official as well as from Wild Life officers that witness will have to join the raid with the Special Staff, South District, Delhi at Pushp Vihar, Sector-4, Delhi. That accordingly, witness communicated the information to his officer on special duty and B.S. Khatti, Wild Life Inspector, WCCB (NR), Govt. of India, New Delhi. That they reached the Special Cell Office, Pushp Vihar, Delhi at 3:00 PM, where they met Inspector Ishvir and Kulwant Singh, ACP who had given further instructions to CC No. 514653/2013 Page no.19 to 37 join raid as per the information given by SI Jeet Singh and they shared the information. That accordingly a raiding party formed at about 3:30 PM and they reached at Sainik Farm Gate at around 3:45 PM and the government vehicle was hidden aside and the raiding party took positions at the main gate area of Sainik Farm. That at around 4:25 PM two persons out of which one is holding a bag reached and waiting in front of the gate side upto 4-5 minutes. That SI gave the signal to the police persons and police officials apprehended both the persons and the raiding team disclosed their identity and the purpose of the raid of the spot. That they both were asked to make personal search of the officials but they refused. That then CW-6 was asked to open the bag and on opening the same, it was found containing two skins which was seen by witness as well as Sh. B.S. Khatti, Wild Life Inspector physically verified and identified the same as uncured leopard skins, covered under Schedule-1 of the Wild Life (Protection) Act, 1972. that IO asked the accused persons to produce any legal sources of procurement or any document or any licence to possess / keep the same under their control and custody but they failed to produce any legal source of documents, so same were seized vide memo Ex. PW1/A bears signature of witness at point E. Witness correctly identified the accused present in the court on the day of recording of testimony of accused. That on 23.02.2012 SI Jeet Singh handed over the case property to CW-6 which was received by witness vide RC dated 23.02.212 Mark A and bears signature of witness at point A. That on 29.05.2012 SI Jeet Singh handed over the case file to CW-6 and same was also received by witness vide RC dated 29.05.2012 Mark B bears his signature at point A. That on the basis of case file and record, CW-6 filed the CC No. 514653/2013 Page no.20 to 37 present complaint on 26.02.2013 Ex. CW 6/A and correctly identified the case property Ex. P1, Ex. P2 and Ex. P3.
3.6.1 During his cross examination witness stated that the information received in wildlife department, and he had not reduced into writing. It is admitted by witness that there is no record in writing as to whether on 31.07.2011 any information was received from Special staff or not. That whenever some information as regard in illegal trade wildlife Act is received in the department and same was shared with senior officers and instructions are received. It is admitted by witness that there is no record in writing that the information received from special staff on 31.07.2011 was shared with the seniors or some instructions were received, however, voluntarily stated that the instruction are shared verbally due to paucity of time and to manage the emergency. That at that time they submit the report in writing to the department regarding the raid but mostly it depends on the gravity of the crime. That no such report was submitted in this case. It is admitted by witness that illegal possession of skins of lion, tiger, leopard comes under serious offences under wildlife act. It is denied by the witness that no report in the present matter was given, as neither any raid was conducted nor any illegal skin was recovered. It is further admitted by witness that a spot of recovery is a public place and public persons passed through it. That IO did not ask public person to become the raiding party member in his presence. That some public persons gathered when accused persons were apprehended. That IO asked those public persons to become the witness of recovery but none agreed. That CW-
CC No. 514653/2013 Page no.21 to 37 6 did not remember whether any notice was given to those public persons or not by IO. That Sainik Farm Colony is a residential colony. That the case property was sealed in the presence of witness. That witness did not remember to whom the seal was handed over and whether seal handing over memo was prepared or not. That accused Rahisuddin was arrested in the presence of witness. It is further admitted that arrest memo Ex. CW-1/C, personal search memo Ex. CW-1/D and disclosure statement Ex. CW-1/G do not bear his signatures. It is denied by witness that he did not sign the said documents as he was not present at the spot and he was called in the office of Special Cell for the investigation. That IO did not ask those residents of the area in the presence of witness to join the investigation. Further that witness did not remember whether any special identification marks were put on the recovered skin of leopard or not, however, voluntarily stated that signatures of the accused were taken on the recovered skin, however, he did not remember whether he had put his signatures. That there were two vehicles in which their raiding team was went to the spot and one of them was Qualis. That he did not remember whether IO asked public persons to take the search of raiding team members or not. It is further denied that neither he was part of raiding team member nor any skin was recovered from the possession of the accused persons. It is further denied by the witness that he had not visited the spot nor he had participated in the proceedings and that he had put his signatures on the memos and the documents at the asking of the IO while sitting in the office of the special staff. It is further denied that the accused persons were not apprehended CC No. 514653/2013 Page no.22 to 37 at the spot or that accused Rahisuddin was lifted from his home from Village Masuri, District Ghaziabad and has been falsely implicated in the present case or that he deposed falsely.
3.7 CW-7 SI Anupam Gautam deposed that on 31.07.2011 he was posted as HC at PS Neb Sarai and on that day HC Mahendra produced one tehrir and CW-7 registered the present FIR Ex. CW 7/A on the basis of the said tehrir and made an endorsement on the said tehrir. That after registration of FIR it was handed over to HC Mahendra with original tehrir.
3.7.1 During cross examination witness denied the suggestion that present FIR was ante dated and ante time.
3.8 CW-8 SI Mahender Kumar stated that On 31.07.2011, he was posted as Head Contsable at Special Staff, South District, Delhi. That on that day, he had joined investigation with IO SI Jeet Singh as a member of raiding party alongwith other police officials i.e. ASI Phool Singh, HC Bhoop Singh, Ct. Yashbir, Ct. Sachin, HC Rajender and ASI Dharampal as driver of govt. vehicle alongwith secret informer and wild life officials who joined the raiding party later on. That on that day at about 3.30 pm vide DD no.9 they left the govt. vehicle i.e. Tyota Qualis no. DL-6CJ-0568 and went to the spot i.e. in front of Sainik Farm, main gate, near M. B. Road, Delhi and at about 3.45 pm, they reached at main gate and took their positions as per the directions of IO. CW-8 stated that he remained outside the main gate as per directions of IO and IO alongwith wildlife officers, secret informer positioned themselves near the main gate. It is further deposed by witness that they were instructed to take action after the signal. That at about 4.25 pm two persons came and entered inside the Sainik Farm through main CC No. 514653/2013 Page no.23 to 37 gate and one of them was carrying white plastic polythene bag in his hand and secret informer identified them. That IO signaled them through his handkerchief and raiding team went towards the accused persons and accused persons were apprehended. That HC Bhoop Singh apprehended accused Abdul Sattar (since PO) and Ct. Yashbir apprehended accused Rahissuddin and correctly identifed accused Rahissuddin. That accused Abdul Sattar was carrying the polythene in his hand. That IO offered the personal search to both the accused persons but they refused. That IO checked the polythene and found it containing two leopard skins and Wild Life Inspectors present with raiding party checked and verified the skins as leopard and said skins were seized by the IO after preparing pullanda and sealed it with the seal of JS. That the seal after use was handed over to CW-8 vide memo Ex PW2/D bearing his signature at point B. That IO prepared rukka and handed over the same to CW-8 for registration of FIR. It is further deposed by witness that he left the spot at about 7.30 pm and went to PS to get the present FIR registered. After registration of FIR, CW-8 came back to the spot with original Tehrir and copy of FIR and handed over the same to IO SI Jeet Singh. That accused persons were arrested and their disclosure statement was recorded by the IO. That IO recorded statement of CW-8 and relieved him. That the seal was handed over to IO on 01.08.2011 vide memo Ex PW2/J bearing signature of CW-8 at point B. Witness stated that he could identify the case property if shown to him. That the case property i.e. skins are already ExP-1 & ExP-2 in the testimony of PW2 and the plastic bag was Ex. P 3.
3.8.1 During his cross examination CW-8 stated that he did not CC No. 514653/2013 Page no.24 to 37 receive the secret information and therefore, he could not say at what time it was received by IO. That the seal was handed over to him at the spot and members of raiding party were present at that time. CW-8 admitted the suggestion that the seal handed over memo does not bear the signature of any of the said team members. That the seal was returned back to the IO at the staff office and members of the office of the staff were present at that time. CW-8 further admitted the suggestion that the seal return over memo does not bear the signature of any of the said office members. That the alleged spot of apprehension lies at the entrance of the Sainik Farm towards M B Road and residential area starts thereafter. That CW-8 left the spot after 9.00 pm. That IO asked some public persons to join the investigation but they refused citing personal difficulty. That he did not remember whether any notice was given to them by the IO. That CW-8 did not offer his personal search to accused persons as he did not apprehend them and was some far away distance. That member of the team who apprehended accused persons offered their personal search to the accused persons before taking their search. That accused persons were arrested in the presence of CW-8. It is further admitted by CW-8 that personal search memo, arrest memo and disclosure statement does not bear his signature. That CW-8 left the spot with rukka at 7.30 pm and came back to the spot after registration of FIR by 8.30 pm. That the distance between spot and police station Naib Sarai was around 3 kms. That CW-8 went to PS in a Auto rickshaw for registration of FIR and he did not use the govt. vehicle. That during their entire stay at the spot, only 3 -4 persons who were labourer visited the spot. It denied by the CC No. 514653/2013 Page no.25 to 37 witness that he did not join the investigation at the spot with IO and that the documents were prepared and signed in the special staff office and that for this reason only, neither the seal handed over nor seal returning memo bear signature of any other witness apart from him. It is further denied by CW-8 that as he had not participated in the investigation, therefore, his signatures are not on arrest memo/ personal search memo / disclosure statement / seizure memo or that accused Rahissuddin was not arrested at the spot, rather he was picked up from his house i.e. Village Mussorie, Distt. Ghaziabad, UP or that he deposed falsely.
4 Upon conclusion of CE, statement of accused u/s 313 Cr.P.C recorded on 21.09.2024.
5 Accused in his defence evidence examined two witnesses as under:-
5.1 DW-:1 Sh. Rijavan deposed that he is son of accused Rahishuddin.
And on the day of alleged incident he along with his father were present at tea stall situated in front of his house. That in the afternoon one four wheeler came at the said tea stall and about 4-5 persons were there in the vehicle and they were inquiring about one Sattar and asked his father if he knew Sattar. When father of DW-1 replied that he did not know Sattar, the aforesaid person asked his father to take them to the house of village Pradhan and accordingly, his father boarded the car at the asking of aforesaid person, however instead of taking his father to the Pradhan's house, they drove away stating that they were from wild Life and took his father for inquiry. Subsequently father of DW-was falsely implicated in present case.
5.1.1 That during cross examination witness admitted the suggestion CC No. 514653/2013 Page no.26 to 37 that he had not made any written complaint to any authority for illegally taking away his father from the tea stall. It is denied by witness that his father had committed the alleged offence therfore he has been arrested in the present case or that being the son of accused he is interested witness or that deposed falsely.
5.2 DW-2 Noushad deposed that he is the neighbour of accused Rahishuddin and on the day of alleged incident he was present at the tea stall situated in front of house of accused Rahisuddin, where accused and his son were also sitting. That in the afternoon one four wheeler came at the said tea stall and about 4-5 persons were there in the vehicle, who inquired about one Sattar and asked accused Rahisuddin if he knew Sattar. And when he replied that he did not know Sattar, the aforesaid person asked accused Rahisuddin to take them to the house of village Pradhan and accordingly, he boarded the car at the asking of aforesaid person, however instead of taking him to the Pradhan's house, they drove away stating that they were from Wild Life and taking accused Rahisuddin for inquiry and subsequently he was falsely implicated in present case.
5.2.1 During cross examination witness stated that he had not made any written complaint to any authority for illegally for taking away accused Rahisuddin from the tea stall. It is denied by witness that said accused had committed the alleged offence therefore he has been arrested in the present case or that being the neighbour of the accused as witness or that he deposed falsely.
6 During arguments it is submitted by learned APP that in the present CC No. 514653/2013 Page no.27 to 37 case, the office of Special Staff received information about the accused carrying the leopard skins and about their visiting at Sainik Farms at the time fixed. It is submitted that the complainant has examined all the witnesses who were part of the raiding team formed by the officials of Special Staff including two Wild Life Officers to prove the conduct of raid, apprehension of accused persons and also placed on record and proved the report of Wild Life Institute, Dehradun whereby after examination of the wild life article seized from the accused persons it has been concluded by Wild Life Institute that the same are the skins of leopard. It is submitted that the witnesses examined on behalf of complainant have been consistent during their testimonies and minor inconsistencies which do not affect the merit of the case and which has resulted due to lapse of time should be ignored. A request has been made to convict the accused and to punish accordingly.
7 Learned counsel for accused has vehemently opposed the submissions advanced by learned APP and has vehemently submitted that present complaint has been filed on the basis of false and concocted facts as neither any such raid was conducted nor accused persons were arrested by the officials of Special Staff at the said date and time. Firstly, it is submitted that as per the story of prosecution, the alleged team of raid was having seven members and one driver. It is submitted that some of the prosecution witnesses have deposed that they had go to the spot from the office of Special Staff in a Qualis car which was a government vehicle and some of the witnesses have deposed that they had went in two cars, one was government vehicle Qualis stated above and other was not known to them. It is submitted that the complainant's witness have been inconsistent regarding number of vehicles in which they had reached to the spot and CC No. 514653/2013 Page no.28 to 37 secondly they have been very consistent in not remembering the details of another vehicle used by them. It is further submitted that despite the fact that raid was conducted at about 4:00 PM at the gate of a residential area, no public witness has been joined the raid or the proceeding of investigation. It is submitted that complainant's witness have been inconsistent with regard to fact whether or not IO had offered his personal search to the accused persons at the time when they were apprehended. It is further submitted that these facts / inconsistencies gives a irrebuttable inference that no such raid was conducted and accused were picked from their place to frame the false case against them. It is submitted that when the said facts are considered along with fact that the complainant in the present case has himself investigated this case, it can be stated with certainty that he had misused the provisions of law to cover up all the lacunas and irregularities in the investigation and concealed upto a certain aspect the factors, which would have otherwise shown that no such raid was conducted. It is further submitted that the very basic fact which was required to be proved by the complainant was that material allegedly received from the accused was leopard skins, however, no witness from Wild Life Institute was called to prove the report of Wild life Institute of India, Dehradun to prove the said report. It is further submitted that seal handing over memo was not signed by any of the member of the raiding party, which shows that it was prepared to cover up the gaps and was prepared belatedly. It is submitted that in fact none of the members of raiding team were made witness in arrest memo, personal search memo, disclosure statement, site plan and seal handing over memo, which shows that members of raiding team were not present at the time when these documents were prepared. 8 Before proceeding ahead, it is beneficial to refer to the relevant CC No. 514653/2013 Page no.29 to 37 provisions of Wild Life Protection Act with regard to question and issues which this court has to decide.
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 authorised to sell or otherwise transfer the same under this Act: [Provided that nothing in this section shall apply to a recognised zoo subject tothe provisions of section 38-1 or to a public museum.
51. Penalties.--(1) Any person who 1[contravenes any provision of this Act 2[(except Chapter VA and section 38J)]] or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to 3[three years], or with fine which may extend to 4[twenty-five thousand rupees], or with both:
5[Provided that where the offence committed is in relation to any animal specified in Schedule I or Part II of Schedule II or meat of any such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in a sanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable with imprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall not be less than ten thousand rupees:
Provided further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term of the imprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less than twenty-five thousand rupees.]6 [(1A) Any person who contravenes any provisions of Chapter VA, shall be punishable with imprisonment for a term which shall not be less than 7[three years]but which may extend to seven years and also with fine which shall not be less than 8[ten thousand rupees].]9 CC No. 514653/2013 Page no.30 to 37 [(1B) Any person who contravenes the provisions of section 38J, shall be punishable with imprisonment for a term which may extend to six months,or with fine which may extend to two thousand rupees, or with both:Provided that in the case of a second or subsequent offence the term of imprisonment may extend to one year or the fine may extend to five thousand rupees.] [1C) Any person, who commits an offence in relation to the core area of tiger reserve or where the offence relate to hunting in the tiger reserve or altering the boundaries of the tiger reserve, such offence shall be punishable on first conviction with imprisonment for a term which shall not be less than three years but may extend to seven years, and also with fine which shall not be less than fifty thousand rupees but may extend to two lakh rupees; and in the event of a second or subsequent conviction with imprisonment for a term of not less than seven years and also with fine which shall not be less than five lakh rupees but may extend to fifty lakh rupees.] [1D) Whoever abets any offence punishable under sub-section 1(c) shall, if the act abetted is committed in consequence of the abetment, be punishable with the punishment provded for that offence.] (2) When any person is convicted of an offence against this Act, the Court trying the offence may order that any captive animal, wild animal, animal article, trophy,10[uncured trophy, meat, ivory imported into India or an article made from such ivory, any specified plant, or partor derivative thereof]in respect of which the offence has been committed, and any trap, tool, vehicle, vessel or weapon, used in the commission of the said offence be forfeited to the State Government and that any licence or permit, held by such person under the provisions of this Act, be cancelled.
(3) Such cancellation of licence or permit or such forfeiture shall be in addition to any other punishment that may be awarded for such offence.
(4) Where any person is convicted of an offence against this Act,the Court may direct that the licence, if any, granted to such person under the Arms Act, 1959 (54 of 1959),for possession of any arm with which an offence against this Act has been committed, shall be cancelled and that such person shall not be eligible for a licence under the Arms Act, 1959, for a period of five years CC No. 514653/2013 Page no.31 to 37 from the date of conviction.
[(5) Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a National Park or of an offence against any provision of Chapter VA unless such person is under eighteen years of age.] 9 From the consideration of arguments and from perusal of record, it is noted that though Prosecution is arguing the proof of case beyond reasonable doubt, however, on behalf of accused the very fact of conducting of raid has been challenged on the ground that the accused were picked from their place and falsely framed in the present case. On behalf of accused number of facts have been highlighted so as to show that no raid was conducted. The court will now consider these points separately, so as to arrive its conclusion whether the submissions advanced on behalf of accused carry some substance:-
9.1 The learned counsel for accused has firstly pointed out that there is no such record has been brought by the witnesses from Wild life Department, so as to show the information received by them and there authorization to join the raiding party. The perusal of evidence led by complainant specially the evidence of witnesses CW-3 Sh. B.S. Khati and CW- 6 Sh. V.B. Dasan show that no document has been placed on record from the Wild Life Department showing receiving of an information and authorization of CW-3 and CW-6 to join the raiding team. Though CW-3 and CW-6 have stated that they submit report in writing to their department regarding the raid, but mostly it depends on gravity of crime. Both of them have admitted that illegal possession of skin of lion, tiger, leopard come under serious CC No. 514653/2013 Page no.32 to 37 offence under wild Life Act, they could not explain the reason as to why in the present case no such report was submitted by them in writing to their department regarding their participation in raid and the outcome of the raid. Though it may be believed that the Wild Life Inspectors might have come to the spot hurriedly due to paucity of time without receiving written authorization from their seniors, non informing / reporting by them to their seniors after the raid is found to be unbelievable. Further the fact that CW-3 and CW-6 have not signed the arrest memo, the seizure memo, disclosure statement of accused persons, personal search memo, seal receiving memo, site plan, further make their presence at the spot doubtful.
9.2 There has been a mystery of number of cars used by the raiding team to the spot of raid from the office of Special Staff. CW-1 Phool Singh has deposed about using of two vehicles, one of which was government vehicle i.e. Qaulis car, however, he did not remember the details of other car. IO CW-2 Jeet Singh has not deposed specifically about number of vehicles used, however, in his cross examination he has stated that the raiding team travelled in a government vehicle driven by ASI Dharampal. CW-4 has also testified during his cross examination one of which was government vehicle i.e. Qualis car, however, he did not remember the details of other car. CW-6 Sh. V.B. Dasan has also testified about use of two vehicles in going from the office of Special Staff to the spot of raid. It is pertinent to mention that it is difficult if not impossible to travel by seven persons and a driver by one Qualis car from the office of Special Staff to the spot, however, IO has not specifically testified about the other vehicle used. In fact none of the members of raiding team, examined as witness has testified CC No. 514653/2013 Page no.33 to 37 that he has travelled from office of Special Staff to the spot in the second vehicle and none of the members of raiding team deposed as witness could give details of second vehicle. The use and concealment of second vehicle by the raiding team again makes the fact of conducting of raid suspicious as not only there is inconsistency in the number of vehicle used but also because of the fact that even in the members of raiding team who have testified the use of second vehicle as well have not testified that they have travelled in the second vehicle or who had travelled in the second vehicle or about the make and model of second vehicle. When neither of member of raiding team had travelled in the second vehicle and use and purpose of second vehicle has not been explained by complainant in a case of raid, it again makes the conducting of raid and actual recovery doubtful. 9.3 All of the witnesses examined on behalf of complainant had admitted the fact that the spot where raid was conducted and accused were apprehended is a residential area and number of persons were there at that time. Even otherwise the time of raid was 4:00 PM when the public persons are presumed to be present at the spot which is near the entry gate of the residential colony, it becomes important for complainant / prosecution to explain the reason for not joining a public person at the time of raid. In the case at hand, there is no explanation on behalf of complainant for not joining a public person at the time of raid except that despite asking of IO, no one has joined the investigation. IO had not served any notice to anyone who had refused to join the raiding team. IO also did not call any person from the houses situated adjacent to the sport of raid and apprehension. Hon'ble Apex Court and hon'ble High Courts in number of judgments have CC No. 514653/2013 Page no.34 to 37 explained that mere non joining of public or independent witnesses shall not necessarily vitiate the prosecution or trial.
Hon'ble Apex Court in Gian Chand and Ors vs. State of Haryana AIR 2013 SC 3395 has quoted with approval the view of its earlier bench in Appabhai & Anr. vs. State of Gujrat wherein, it has been observed by hon'ble Apex Court:-
"The prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether -in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties."
As per the position of law explained by hon'ble Apex Court, the non joining of public / independent person does not per se vitiate the case of complainant / prosecution and the facts of the case have to be considered in totality, so as to arrive the correct conclusion by the court whether or not the non joining of public / independent person has vitiated or affected prejudically the right of accused person. In the case at hand where the joining of Wild Life Officers is disputed at the time of raid, when the recovered material was not properly numbered, when the complainant and investigating officer is same and when the seal handing over memo was not signed by all the members of raiding team and seal was obtained by IO from the office before conclusion of investigation, the non joining independent / public persons again create doubt regarding the correctness and proprietory of the raid CC No. 514653/2013 Page no.35 to 37 conducted by the raiding party.
9.4 It is undisputed fact that complainant in the present case has himself investigated the present case. There is no explanation from the side of complainant as to why on apprehension of accused persons along with the alleged leopard skin, why another IO was deputed for investigation of the case. The case of raid and apprehension as the present one where the subject matter of raid and recovery is subject to examination by the expert agencies, requires the investigation of case by an independent officer who was not involved in the raid and recovery, so as to avoid any inference or doubt in the proprietory of such raid and recovery. Hon'ble High Court of Delhi in Vikash Kumar vs. State NCT of Delhi decided on 01.07.2024 has quoted the judgment of hon'ble Apex Court in Mohan Lal vs. State of Punjab (2018)17 SCC 627 whereby hon'ble Apex Court in Para Number 30 has observed as follows:-
"30. In view of the conflicting opinions expressed by different two- Judge Benches of this Court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof."
CC No. 514653/2013 Page no.36 to 37 10On the basis of above discussion, the court is of opinion that as complainant could not prove the number of car used by the raiding party, the purpose of using of second car, details of which have been concealed by the complainant, the non reporting of Wild Life Officers to their seniors about the raid, the non joining of public / independent witnesses by the raiding team at the time of raid (discussed above), the initiation and completion of investigation of the case by the complainant, the complainant could not prove the conducting of raid, apprehension of accused persons and recovery of leopard skin from the accused persons beyond reasonable doubts. Accordingly, accused No.2 Rahisuddin is hereby acquitted for offence under Section 49/51 of the Wild Life (Protection) Act, 1972.
Announced in open court on this 3 r d F e b r u a r y 2 0 2 5 Digitally signed by MAYANK MAYANK MITTAL MITTAL Date: 2025.02.03 17:23:15 +0530 MAYANK MITTAL ACJM (Spl. Acts), CENTRAL TIS HAZARI COURTS, DELHI This judgment consists of 37 pages and each and every page of this judgment is signed by me.
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