Bombay High Court
Shrikrushna Rambhau Orivkar vs The State Of Maharashtra Thr. Forest ... on 5 October, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
2023:BHC-NAG:14759
1 REVN.06.17 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO. 06 OF 2017
APPLICANT : Shrikrishna Rambhau Orivkar,
Aged about 40 years, Occu. Business
R/o Hiwarkhed, Vijay Nagar,
Tah. Telhara, Dist. Akola
VERSUS
NON-APPLICANT : State of Maharashtra,
through Forest Range Officer,
Sindhi Camp, Akola,
Tq. and Dist. Akola.
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Ms. Poonam Pisurde, Advocate h/f Mr. S.V. Sirpurkar, learned
advocate for the applicant.
Mr. Amit R. Chutke, A.P.P. for the non-applicant/State.
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CORAM : G. A. SANAP, J.
Date of Reserving Judgment : AUGUST 17, 2023.
Date of Pronouncement of Judgment : OCTOBER 05, 2023
JUDGMENT
1. In this revision application, challenge is to the judgment and order dated 12.01.2017 passed by learned Additional Sessions Judge, Akola, whereby the learned Additional Sessions Judge dismissed the appeal filed by applicant/accused no.2 against his conviction and sentence for the offences punishable under Sections 26(1)(f) and 41(1) 2 REVN.06.17 (J).odt
(b) read with Section 42 of the Indian Forest Act, 1927 (hereinafter referred to as "the Act of 1927" for short) awarded by learned Chief Judicial Magistrate, Akola, on 27.02.2013. Learned Chief Judicial Magistrate, on conviction, had sentenced the applicant/accused to undergo simple imprisonment for one month and to pay fine of Rs.500/- and in default to suffer simple imprisonment for 15 days, on each count, for the offences under Section 26(1)(f) and 41(1)(b) read with Section 42 of the Act of 1927.
BACKGROUND FACTS :-
2. On 05.05.2005 in the evening, RFO Sanjay Pardikar (PW5) had received secret information that teakwood was being transported from Hiwarkhed in a jeep. He conveyed the said information to RFO Ramrao Khopde (PW2) and instructed him to take necessary steps. PW2 Ramrao Khopde and Forest Guard S.P. Raut (PW3) went to Akot by government vehicle. One M.G. Gadge, Round Officer Bordi and S.G. Gosavi, Forest Guard accompanied them. They went towards Hiwarkhed. On reaching Hiwarkhed, they came to know that some persons had loaded teak wood in a jeep and went towards Akola. PW2 and his team, therefore, came to Akola. They took search of the jeep. They found a jeep bearing registration No. MH-30/E-8929 3 REVN.06.17 (J).odt parked near Jangam math area, Lakadganj, Akola. 4-5 persons were standing by the side of the jeep. They apprehended four persons. The driver ran away from the spot. They carried out inspection of the jeep.
They found that teak wood was concealed in the jeep. They took those four persons in custody. PW2 drew the spot panchanama. They carried the accused and the jeep with Teak wood to the Range Forest Office. Teak wood was unloaded from the jeep. Teak wood was cut by axe and hacksaw. It was freshly cut teak wood. They found 21 teak wood logs admeasuring 0.911 sq. meter. Teak wood and jeep were seized in the crime in presence of the panchas. PW2 registered the offence being Crime No. 321/6 on 06.05.2005. Custodial interrogation of the accused was carried out. The information provided by the accused led to recovery of 12 more teak wood logs. PW5 made enquiry with the accused. Accused confessed the crime before PW5. PW5 recorded their confessional statements. After completion of investigation, charge-sheet was filed.
3. Prosecution examined in all five witnesses to bring home the guilt. Learned Chief Judicial Magistrate convicted and sentenced all the accused. The appeal qua accused nos.1, 3 and 4 was allowed and 4 REVN.06.17 (J).odt they were acquitted. Conviction and sentence of accused no.2/applicant was maintained. He is, therefore, before this Court.
4. I have heard Ms. Poonam Pisurde, learned advocate holding for Mr. S.V. Sirpurkar, learned advocate for the applicant and Mr. Amit R. Chutke, learned Additional Public Prosecutor for the non- applicant/State. Perused the record and proceedings.
5. Learned advocate for the applicant/accused submitted that in this case there is no independent witness to corroborate evidence of the Forest Officers. Learned advocate took me through the evidence of the witnesses and pointed out that there are material inconsistencies in the evidence of the witnesses and therefore, the evidence does not inspire confidence. Learned advocate pointed out that there are major lacunae in the investigation and on the basis of those lacunae, a doubt is created about the case of the prosecution. There is no cogent and convincing evidence to establish conscious possession of the seized teak wood by the accused. Learned advocate further submitted that the place from where teak trees were cut, was not traced out by the Forest Officers. Learned advocate submitted that confessional statements of the accused recorded by PW5 were signed by PW2 Ramrao Khopde, an 5 REVN.06.17 (J).odt Investigating Officer as well as by PW5. Learned advocate pointed out that time of recording of the confessional statements and the precautions taken while recording the said statements, have not been mentioned either in the statements or stated at the time of evidence by PW5. Learned advocate submitted that the prosecution has failed to prove that the confessional statement was made voluntarily by the accused. Learned advocate pointed out that PW2 has admitted that on the confessional statement, he made an endorsement that it was recorded in his presence and he singed the same. Learned advocate submitted that therefore, there is no evidence to prove the charge against the accused.
6. Learned Additional Public Prosecutor submitted that evidence of the Forest Officers cannot be discarded on the ground that they are interested witnesses. Learned APP took me through the evidence and pointed out that the witnesses have stated categorically the chronology of the events, which led to arrest of the accused and seizure of teak wood from the jeep, which was hired by the accused for the purpose of transportation of teak wood. Learned APP submitted that the confessional statement has been proved to be voluntary and 6 REVN.06.17 (J).odt truthful. Learned APP pointed out that the Courts below have properly appreciated the evidence and found the accused guilty of the charge. Learned APP submitted that no interference is warranted in the well reasoned judgment and order passed by learned Additional Sessions Judge.
7. It is true that all the witnesses, who have supported the case of prosecution, are Forest Officers. PW1 is the panch witness. He has not supported the case of prosecution. PW2 Ramrao Khopde is the Investigating Officer. PW3 and PW4 were the members of the investigation team at the time of apprehension of the accused. In this case, it is seen that learned Chief Judicial Magistrate, after recording evidence of PW2, copied said evidence while recording evidence of PW3 and PW4. Examination-in-chief of PW3 and PW4 and their cross-examination is in verbatim. It is to be noted that learned Additional Sessions Judge has failed to take into consideration all these important facts. Recording of evidence in this manner causes prejudice to the prosecution as well as to the accused. Even if it is assumed that the APP and advocate for the accused consented for such an exercise, it cannot be undertaken. The record does not indicate that copy of 7 REVN.06.17 (J).odt evidence of PW2 was made with the consent of the prosecutor as well as defence advocate. In my view, this is a vital aspect of this matter. The witness is required to depose the facts known to him by memorizing those facts. Copying of evidence of one witness for other witnesses is, therefore, not permissible.
8. Keeping this aspect in mind, appreciation of evidence of PW2 is required. He has stated that he received information of occurrence of offence from PW5. He, therefore, went to Hiwarkhed in search of the accused and jeep. He could not locate the jeep either on road or at any place there. He received an information that the jeep had gone to Akola. He has stated that while taking search, they found the jeep parked in Jangam math area, Lakadganj, Akola. He has stated that five persons were present there. In the process of apprehension, one person ran away from the spot and four persons were taken in custody. He has deposed that thereafter teak wood was seized. Accused were arrested. He has further stated that during the course of the investigation, accused led them to recovery of 12 more teak wood logs. In his examination-in-chief, he has not provided the particulars as to the place from where these 12 teak wood logs were recovered. This is the 8 REVN.06.17 (J).odt sum and substance of examination-in-chief of PW2.
9. Examination-in-chief of PW2 is silent as to how the jeep with teak wood was traced out. He has stated that Somthana Forest beat was not examined to locate the place of cutting teak trees. He has admitted that no one was sitting in the jeep along with teak wood. He has admitted that Jangam math area is a crowded locality. He has admitted that his investigation revealed that the jeep was owned by one Mr. Patki of village Adgaon. He has admitted that owner of the jeep was required to be made an accused. He has admitted that the owner was responsible for teak wood found the jeep. He has further admitted that 12 teak wood logs were found in an agricultural field of one Mr. Bobde. His explanation was not called. Mr. Patki and Mr. Bobde were not made accused. They were not examined as witnesses. In his further cross-examination, he has admitted that in Jangam math area, they found the jeep in abandoned condition and therefore, they took search of that jeep and they found teak wood in that jeep. In my view, cross- examination of this witness is sufficient to create a doubt about his evidence with regard to the involvement of the accused. Evidence of this witness, if perused in entirety, would show that the account of the incident narrated by him is not probable. The jeep was found near 9 REVN.06.17 (J).odt Jangam math area. PW2 and other Forest Officers went to the spot in government vehicle. He has stated that five persons were found standing by the side of the jeep. None was found sitting in the jeep. If five accused were standing near the jeep loaded with stolen teak wood, then after seeing the Forest Officers with government/forest vehicle, they could have ran away from the spot. This fact indicates that the accused were not found on the spot. This fact is corroborated by the admission of PW2 that near Jangam math, they found the jeep in abandoned condition and therefore, they took search of the jeep and found teak wood in that jeep. Evidence of this witness is shaky for one more reason. According to him, 12 teak wood logs were found from the agricultural field of Mr. Bobde. Explanation of Mr. Bobde was not called. The owner of the jeep was neither made an accused nor examined as witness. In my view, these are the doubtful circumstances. Evidence of PW3 and PW4 is replica of evidence of PW2. Therefore, in my view, this evidence is not believable.
10. The next important piece of evidence relied upon by the prosecution is the confessional statement of the accused at Exh.75. This confessional statement was recorded by PW5. PW5, at the 10 REVN.06.17 (J).odt relevant time, was Range Forest Officer. The trial Court has recorded a finding that the Government of Maharashtra vide Notification dated 21.04.2001, issued in terms of Section 72 of the Act of 1927, has empowered the officer of rank of Range Forest Officer to record the confessional statement. I do not see any reason to unsettle this finding. The question that needs to be addressed is whether the confessional statement of the accused at Exh.75 has been proved to be voluntary and truthful ? Before addressing this question on the basis of available evidence, the legal position needs to be stated and considered.
11. The next important aspect is with regard to the admissibility and proof of the confessional statements of the applicants/ accused, relied upon by the prosecution. A confessional statement made before the Competent Officer, as provided under Section 72 (1)
(d), is admissible in evidence in view of the provisions of sub-section 2 of Section 72 of the Act of 1927. The provisions of sub-sections (1)(d) and (2) of Section 72 are analogous to the provisions of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act"), Section 108 of the Customs Act, 1962 and Section 50 of The Wild Life (Protection) Act, 1972. The provisions of Section 11 REVN.06.17 (J).odt 72 of the Act of 1927 is a part of special Statute. It has overriding effect and prevails over the general provisions of the Indian Evidence Act, particularly Sections 25 and 26. Sub-sections (1)(d) and (2) of Section 72 are exception to the general rule that the confession made before the Police Officer during the custody is not admissible in evidence against the accused.
12. It needs to be stated, at this stage, that the fundamental protection provided under law against self-incrimination has to some extent been diluted by this special provision. This provision is an exception to the general rule. In view of this exceptional provision, corresponding duty has been cast upon the Competent Officer to follow the procedure and ensure that the safeguards provided to the accused under law are sufficiently met. Section 164 of the Code of Criminal Procedure, 1973 (for short "Cr.PC") provides the procedure for recording the confessional statements of the accused by the Magistrate. Similarly, the special criminal enactments provide for the admissibility of the confessional statements of the accused. The special enactments contain the procedure and inbuilt mechanism, while recording the confessional statement. The procedural mechanism has to be proved as 12 REVN.06.17 (J).odt a fact. It is necessary, in such cases, to prove that the confessional statement made by the accused was voluntary and truthful.
13. The question is whether the safeguards provided to the accused under the law can be taken away by undertaking such an exercise mechanically. It is trite law that the confession made by the accused during the custody under Section 72(1)(d) must be voluntary and truthful. In such cases, the question of fact that needs to be addressed by the Court is whether the confessional statement is voluntary or not. A confessional statement is said to be voluntary, if it is not caused by threat, inducement, torture or pressure etc. If a confession is caused by threat, inducement, torture or pressure etc., then it could not be said to be a voluntary confession and as such has to be discarded in entirety. The Officer empowered to record the confession, therefore, has to be independent officer having no concern with the investigation. Before recording the confessional statement, such Officer is required to make an enquiry with the accused about any pressure, threat or inducement by the Investigating Officer. The Officer must try to know from the accused as to why he intends to make confession and cleanbreast of the crime. The Officer is required to give an 13 REVN.06.17 (J).odt understanding to the accused that he is not bound to make a confession and despite such a warning, if he makes a confession, then it could be used as an evidence against him in the trial. The Officer is supposed to enquire with the accused about the time required for reflection. The Competent Officer before recording the confessional statement must be satisfied that on account of repentance and remorse, the accused has made up his mind to cleanbreast of the crime committed by him. The Competent Officer is required to maintain a contemporaneous record of all the precautions and the procedure followed by him. Whenever the confessional statement is questioned on the ground that it was the result of threat, inducement, promise or torture, the contemporaneous record must be sufficient to rule out the said possibility.
14. The question whether the confessional statement is voluntary or not has to be decided keeping in mind the facts and circumstances of each and every case. The evidence on record needs proper scrutiny and appreciation. It is common knowledge that the Forest Officers, like Police Officers are not required everyday to conduct the investigation. The wildlife crime investigation methodology is in the process of evolution. The lapses and lacunas in 14 REVN.06.17 (J).odt the investigation result into the acquittal of the accused in a serious crime. It is not out of place to mention that after realizing this phenomena, the Wildlife Crime Control Bureau Ministry of Environment and Forest Government of India has prepared and published a handbook for Wildlife Crime Investigation Officers. The first edition was published in 2013. Chapter 6 of the guidelines is with regard to the investigation and complaint. Clause 6.25 specifically deals with interrogation of the accused/suspect. In my view, it would be appropriate for the purpose of proper understanding and to throw light on all these aspects, it would be appropriate to reproduce the guidelines Clauses 6.25 to 6.33 of Chapter 6 interrogation of the accused/suspect. Clauses 6.25 to 6.33 of Chapter 6 are extracted below:
"6.25. Skillful interrogation of the accused/suspect is essential for any successful criminal investigation. In order to get further leads, preliminary interrogation of the accused should be conducted at the seizure site. He should be interrogated further, in detail subsequently, and his statement should be recorded by an authorised officer. Such statement of an accused recorded by a forest officer will be extra-judicial confession of the accused. 6.26. As provided in Section 50(9) of Wild Life (Protection) Act, 1972, the evidence recorded by the authorised officer under Section 50(8) (d), in the presence of the accused, is admissible as evidence.
6.27. Accused should be interrogated for backward
15 REVN.06.17 (J).odt linkages like source of procurement of the wildlife materials, monetary transactions, details of middlemen involved in the trade, modus operandi in poaching & transportation, other members of the gang, place or places where the wildlife materials are concealed and for forward links like prospective buyers, involvement of middlemen or brokers, existence of organised gangs in the trade etc. All the replies elicited by the accused should be clearly documented.
6.28. The evidentiary value of a confession statement depends on its voluntary character. A confession made under any inducement, threat or promise loses its credibility. Thus a confession should be voluntary, true and trustworthy. It must be clear and unequivocal and admitting the commission of the crime. As per Section 30 of Indian Evidence Act, the statement of an accused can be taken into consideration against another accused involved in the same crime.
6.28. Confession statement should be recorded within 6- 12 hours of the arrest of the accused. Undue delay in recording the confessional statement has an adverse effect on its credibility. The accused may also make up his mind not give such statement.
6.29. It is also advisable not to record the confession statement immediately after the arrest of the accused. The authorised officer recording the confession should give some time to the accused for making up his mind to confess. It is also the bounden duty of the authorised officer to explain the accused that he is not bound to make a confession. This fact should be recorded in the statement.
6.30. As far as possible the confession should be recorded in same language and exact words told by the accused. Once it is recorded, the statement should be read over to 16 REVN.06.17 (J).odt the accused in the language in which it was made and explained.
6.31. Every page of the confession should be signed by the accused and the officer recording the statement. If the accused refuses to sign the statement, the same should be mentioned in the statement.
6.32. Where the confession discloses chance of recovery of article/ weapons, any other incriminating evidence, involvement of other accused etc., the Investigating Officer should seek custody of the accused and go for recoveries. It has been held by various courts that forest officers are competent to get remand of the accused for the purpose of investigation. Confession made before any forest officer falls in the category of extra-judicial confession and the same is admissible in evidence provided the same is made voluntarily and there is other evidence to corroborate the facts disclosed in the confession.
6.33. Accused/suspect should not be subjected to physical duress or other coercive methods to elicit confession."
15. The sum and substance of the above guidelines indicate that a great care is required to be taken at the time of recording the confessional statement. The confessional statement recorded by the Forest Officer falls in the category of extra-judicial confession and the same is admissible in evidence, provided the same is made voluntarily and there is other evidence to corroborate the facts disclosed in the confession. It is, therefore, apparent that the Ministry of Environment and Forest Government of India also realised that there were 17 REVN.06.17 (J).odt shortcomings and in order to overcome the said shortcomings, the guidelines in the form of handbook was felt necessary. The Forest Officers are required to make use of this handbook.
16. The Hon'ble Supreme Court in the case of Shivappa Vs. State of Karnataka [(1995) 2 SCC 76], while appreciating the confessional statement recorded by the learned Magistrate under Section 164 of the Cr.PC, has held that all the procedural precautions must be taken at the time of recording the confession. For the purpose of proper appreciation, it would be necessary to reproduce paragraphs 6 and 7 of the judgment. It is extracted below:
"6. From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non- compliance goes to the root of 18 REVN.06.17 (J).odt the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self- interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody.
7. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that 19 REVN.06.17 (J).odt the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a 'voluntary' statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with."
17. The Hon'ble Supreme Court in another decision in the case of Raju Premji Vs. Customs, NER, Shillong Unit [(2009) 16 SCC 496], while considering the case of the accused under the NDPS Act, has held that the confessional statement is admissible, provided the prosecution proves that it is voluntary and truthful. It is to be noted, at this stage, that the question of truthfulness of confessional statement needs to be gone into only when the confession is proved to be voluntary.
18. In view of the above settled legal position, the evidence on record needs appreciation. It is the case of the prosecution that the confessional statement was recorded by PW5. Apart from the applicant/accused, PW5 had recorded the confessional statements of 20 REVN.06.17 (J).odt remaining three accused, who have been acquitted. In his examination-in-chief, PW5 has stated that he had recorded the statements of the accused persons. He has identified his signature, signature of the accused on their respective confessional statement and signature of PW2 Ramrao Khopde. In his examination-in-chief, he has not deposed about the contents of the confessional statement. PW5 was required to state the substance of the confessional statements of the accused persons. It is further seen on perusal of his evidence that he has not stated the time of recording of confessional statements. He has also not stated a word about the procedure followed by him while recording the confessional statements. He has also not stated that the accused made the confessional statement voluntarily. The question whether the confessional statement was voluntary or not is a question of fact. The said question has to be decided on the basis of evidence. The accused, at the relevant time, were in custody of PW2 RFO Khopde. PW2 was the Investigating Officer. He has admitted in his cross-examination that he has no document to show that he has recorded the statement of accused at about 11.00 am. He has admitted that the person, who recorded the statements, has to write 'before me'. He has admitted that on all the statements there is mention that the same were recorded before him.
21 REVN.06.17 (J).odt
19. It appears that the main role in the process of recording confessional statements was played by RFO Khopde (PW2). It is a trite law that the confessional statement has to be recorded by an independent officer not connected with the investigation. Perusal of the confessional statement of the applicant/accused would show that it was reduced into writing by PW2 Khopde. After completion of the statement, PW2 had made an endorsement 'before me' and signed below the endorsement. The pen used for writing the statement and the pen used by PW2 Khopde for signature was one and the same. Below the signature with endorsement of PW2, there is endorsement and signature of PW5, which is in different ink. These two endorsements by two different officers create a doubt. First and foremost, PW2 Khopde was not supposed to sign the statement. He was also not supposed to attend the proceeding of recording of the statements. The accused were in his custody. Time of commencement and completion of the statement has not been mentioned. The statement does not indicate the precautions taken at the time of recording the statement. It does not indicate the procedural compliance made by PW5. Therefore, in my view, this statement could not be said to be voluntary statement. Evidence of PW2 and PW5 would show 22 REVN.06.17 (J).odt that the major role in recording the statement was played by PW2. This can be seen on perusal of the cross-examination of PW5. In the facts and circumstances, I am of the view that the evidence on record is not sufficient to conclude that the confessional statement of the accused at Exh.75 was voluntary. Truthfulness of the statement is an independent aspect. This aspect needs to be gone into, if the confession is proved to be voluntary. In my view, on this count, learned Additional Sessions Judge has not properly considered the evidence.
20. It is seen that in addition to the evidence of the Forest Officers, the main evidence relied upon to base conviction of the applicant/ accused is the confessional statement at Exh.75 as well as the confessional statements of co-accused. In my view, learned Additional Sessions Judge has failed to take note of one important fact. It is seen that learned Chief Judicial Magistrate did not frame any question on the contents of the confessional statement and put the same to the accused so as to grant him an opportunity to explain the same and without putting it to the accused in his 313 Cr.P.C. statement, the confessional statement has been made the basis of conviction. It is seen that only two questions touching to the confessional statement were put to the applicant/accused in his 313 Cr.P.C. statement, which are question 23 REVN.06.17 (J).odt nos.20 and 21. Question no.20 is a general question. It would be appropriate to reproduce question nos.20 and 21 with the answers. They are as follows :
Q.20 : He further stated that he has recorded the statements of Isriel, Shrikrishna, Mustafa and Vinod which are permitted as per the Forest Law, what you have to say about it ?
Ans. : It is false.
Q.21 : He further stated that you made the statements of admission before him of the transport of teak logs, what you have to say about it ?
Ans. : It is false.
21. Perusal of these questions would indicate that the contents of the confessional statement were not put to the accused so as to enable him to offer his explanation. On the basis of these two cryptic and ambiguous questions, the confessional statement was used against the accused. In my view, this is one more ground to discard the evidence in the form of confessional statement.
22. In the facts and circumstances, I am of the view that learned Additional Sessions Judge has not properly appreciated the evidence on record. The findings of fact recorded by the Courts below are not supported by evidence. The evidence is not sufficient to prove
24 REVN.06.17 (J).odt the guilt against the applicant/accused beyond reasonable doubt. Therefore, in my view, on the basis of such shaky and doubtful evidence, the accused could not have been convicted and sentenced. Therefore, the judgment and order passed by learned Additional Sessions Judge and also by learned Chief Judicial Magistrate, are liable to be set aside.
23. Before parting with the matter, considering the serious lapses committed by the Competent Forest Officers, while recording the confessional statements, it is necessary to direct all the concerned to take remedial steps. The Wildlife Crime Control Bureau Ministry of Environment and Forest Government of India has prepared and published a handbook for Wildlife Crime Investigation Officers. The reference of the same has been made in the earlier part of the judgment. It is observed that despite publication of the handbook, there appear to be no improvement at the ground level. It appears that the Investigating Forest Officers and the Officers competent to record the confessional statements are either not made aware of this handbook or the Officers have not bothered to follow the guidelines from the said handbook. The investigation of crime requires training as well as the efforts to harness 25 REVN.06.17 (J).odt the investigation skills. In my opinion, the best possible way to harness the investigation skills of the Forest Officers, the Forest Officers can arrange departmental workshops. In order to take care of this important aspect and to harness the investigation skills and to understand the intricacies of the law in this regard, the possibility of conducting the workshops at Judicial Academies in the State of Maharashtra like Judicial Officers' Training Institute at Nagpur or Maharashtra Judicial Academy at Uttan can be explored. Such workshops organised in coordination with the officials of J.O.T.I. and M.J.A, in my view, can help the Forest Officers in understanding the intricacies of the subject and to implement the same at the time of investigation at ground level. In my view, this is the need of the hour. If timely steps are not taken in this direction, then the flaws left in the proceeding, while conducting the investigation, can lead to the acquittal of the accused. The acquittal of the accused, in such a serious crime due to mistakes and flaws in the investigation, is a serious matter. The crimes of killing of wild animals are on rise. The crimes of killing of wild animals directly result in affecting the ecological balance. The crimes of killing of wild animals are generally committed for economic/financial gains. In some cases, the crime syndicate is involved in such offences. In view of this, training is 26 REVN.06.17 (J).odt necessary for the Forest Officers, who are required to conduct the investigation at ground level and particularly for the Competent Officers who are authorised under law to record the confessional statement.
24. Learned Registrar (Judicial) shall forward the copy of this judgment to Principal Chief Conservator of Forest, Head of Forest Force (HOFF), Nagpur and Principal Chief Conservator of Forest (Wild Life), Nagpur. The Principal Chief Conservator of Forest, Head of Forest Force (HOFF), Nagpur and the Principal Chief Conservator of Forest (Wild Life), Nagpur, on receipt of the copy of the judgment, shall take all necessary steps in view of the above observations.
25. The Criminal Revision Application is, therefore, allowed.
(i) The judgment and order dated 12.01.2017 passed by learned Additional Sessions Judge, Akola in Criminal Appeal No. 26 of 2013 as well as the judgment order dated 27.02.2013 passed by learned Chief Judicial Magistrate, Akola in Regular Criminal Case No. 261/2006, are quashed and set aside.
27 REVN.06.17 (J).odt
(ii) Applicant/accused - Shrikrishna Rambhau Orivkar is acquitted of the offences punishable under Sections 26(1)(f) and 41(1)
(b) read with Section 42 of the Indian Forest Act, 1927.
(iii) His bail bonds stand cancelled.
(iv) The application is disposed of.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 13/10/2023 16:18:29