Delhi District Court
Wildlife vs . Ashok Kumar & Ors. on 11 April, 2018
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IN THE COURT OF SH. PAWAN SINGH RAJAWAT:ACCMM(Spl. Acts):
CENTRAL:TIS HAZARI COURTS, DELHI
CC No. 301845/2016
Wildlife Vs. Ashok Kumar & Ors.
JUDGMENT
(a) Name of complainant : Sh. V.B. Dasan, WLI
(b) Name, parentage : (1) Sh. Ashok Kumar,
and residence of accused S/o Sh. Hakumat Rai
R/o. 28-A, Old
Roshanpura,
Najafgarh, New
Delhi.
(2) Sh. Nand Kumar@
Nandu
S/o Sh. Bhaiya Ram
R/o. G-332, Sunil
Dairy, Wazirpur,
JJ Colony, Delhi.
(3) Sh. Naresh Kumar
S/o Sh. Rai Singh
R/o 16/286,
Dakshinpuri,
New Delhi.
(c) Offence complained of : U/s 39/49/49B(1)/52 of
the Wildlife(Protection)
Act, 1972 punishable U/s
51 of the said Act.
(d) Plea of accused : Pleaded not guilty.
(e) Final order : Accused Ashok Kumar, Nand
Kumar@ Nandu and Naresh
Kumar for the offence U/s
49/49(B) punishable U/s 51 of
the Wild Life (Protection) Act,
1972.
(f) Date of such order : 11.04.2018
Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 1 of 20
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Date of institution : 20.08.2010
Arguments heard/order reserved : 03.04.2018
Date of Judgment : 11.04.2018
Brief statement of the reasons for the decision:-
1. The present matter was remanded back by Ld. Sessions Court vide orders dated 13.07.2017 and 24.07.2017 with the direction to put specific questions to the accused persons with respect to raising of presumption U/s 57 of Wildlife (Protection) Act. Accordingly, the additional statement of accused persons U/s 313 Cr.P.C. was recorded on 26.09.2017.
2. Brief facts of the complaint are that on the basis of secret information received by Inspector Vivek Tyagi of Special Cell of Delhi police accused persons namely Ashok Kumar S/o Sh. Hakumat Rai, Nand Kumar @ Nandu S/o Sh. Bhaiya Ram and Naresh Kumar S/o Sh. Rai Singh were apprehended with one baby leopard skin having brown colour and black spots (uncured skin). It is mentioned that a raiding team headed by Inspector Vivek Tyagi including SI Vinay Tyagi, SI Abhinash, ASI Dinesh, HC Anil, HC Pradeep Kumar, Ct. Sat Prakash and informer was constituted which reached near Birla Mandir Red Light, Kali Bari Marg, New Delhi and on identification by secret informer the accused persons come there in an Indica Car bearing Registration No. HR-55 DT-6580 driven by accused Naresh Kumar while the other two were sitting in the car, were apprehended after signal by decoy customer HC Pradeep Kumar. It is further mentioned that as accused persons failed to produce any legal document or any authority to possess or keep or to deal with the skin, same was seized and rukka was prepared and FIR No. 35/2010 was got registered at PS Special Cell, Lodhi Colony, New Delhi. All the three accused persons were arrested vide their arrest memos. The Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 2 of 20 3 vehicle was also seized vide seizure memo. Disclosure statement of accused persons were recorded. It is alleged that the seized leopard skin is a scheduled animal specified in Schedule-I of Wildlife (Protection) Act, 1972 and that accused persons have contravened Section 2(2),9,39,49,49(B)(1) and 52 r/w Section 51of the Wildlife (Protection) Act, 1972. Hence, the present complaint.
3. All accused were summoned and on their appearance, copy of complaint and other documents were supplied to them and the matter was fixed for pre-charge evidence.
4. In order to substantiate the allegations, the complainant examined five witnesses i.e. HC Pradeep Kumar (PW-1), IO Inspector Vivek Tyagi (PW-2), SI Yudhbeer Singh (PW-3), SI Vinay Tyagi (PW-4) and WLI V.B. Dasan as PW-5, in pre-charge evidence.
5. Witnesses PW-1 to PW-4 are the material witnesses who deposed about recovery/investigation proceedings and PW-5 Sh. V.B. Dasan filed the complaint on behalf of the complainant department.
6. PW-1 HC Pradeep Kumar deposed that on 06.07.2010 at about 11.00 am a secret informer informed Inspector Vivek Tyagi that some person will come to Kali Bari Marg near Red light, Birla Mandir alongwith the skin of wild animals. Thereafter, Inspector Vivek Tyagi shared the said information with the senior officer and after entering the information in rojnamcha, he (witness PW-1) alongwith inspector Vivek Tyagi, SI Vinay Tyagi, SI Avinash, ASI Dinesh Kumar, Ct. Satya Prakash and secret informer left the office in two vehicles and one motor cycle. He further deposed that they all reached in front of Birla Mandir at about Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 3 of 20 4 12.40 pm and parked their vehicles on the road. He further deposed that inspector Vivek Tyagi requested 5/7 passerby to join the invetigation, but none agreed. He further deposed that inspector Vivek Tyagi made him a decoy customer and alongwith secret informer they stood near Red light and started waiting for the accused persons. He further deposed that at about 1.45 pm , one white Indica Car bearing no. HR 55 DT 6580 came from Gol Dak Khana Side and stopped near the Red light on the road. The secret informer pointed towards the said car and revealed the names of the accused persons who were present in the car. He further deposed that at about 1.50 pm, he alongwith secret informer reached the said accused persons and started dealing with them regarding purchase of leopard skin. He was informed by accused Ashok Kumar that they have three leopard skins, they have brought only one and remaining two leopard skins are with Rajesh and Sameer. He further deposed that accused Ashok told the price of the said leopard skin to be Rs. 8 lacs. He further deposed that accused Nand Kumar took out one polythene from the said vehicle and handed over the same to accused Ashok Kumar. Accused Ashok Kumar and Naresh opened the said polythene and took out one brown colour skin bearing black colour spots. Witness further deposed that after seeing the said skin, he gave signal by lifting right hand in the air, to the raiding team at about 2.00 pm and after receiving the signal, all the police officials surrounded all the accused and apprehended them. He further deposed that SI Vinay Tyagi seized the said leopard skin and all the accused alongwith the leopard skin were taken to their office where WLI Sh. V.B. Dasan was called from the office of Wildlife department who came and inspected the said leopard skin and identified the same to be of baby leopard. Thereafter, SI Vinay Tyagi prepared the pulanda of the said skin, sealed and seized the pulanda vide seizure memo Ex. PW-1/A, FIR was prepared Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 4 of 20 5 and SI Yudhvir seized the car of the accused persons vide seizure memo Ex. PW-1/B. He further deposed that IO interrogated all the accused persons and arrested them vide arrest memo Ex. PW-1/C, PW-1/D and PW-1/E. The witness identified the said leopard skin Ex. P-1, in the Court. This witness was cross-examined at length by Ld. counsels for the accused wherein he denied various suggestions given by Ld. Defence counsels.
7. PW-2 Inspector Vivek Tyagi deposed on the same lines as PW-
1. He too deposed about the investigation and proceedings conducted by the raiding party at the spot. He further deposed about the personal search memo of the accused Ex. PW2/A, Ex. PW2/B and Ex. PW2/C. This witness was also cross-examined at length.
8. PW-3 is SI Yudhbeer Singh. He deposed that he received the copy of Tehrir, seizure memo of animal skin and case property and also received the custody of accused persons namely Ashok Kumar, Nand Kumar and Naresh. He further deposed about the arrest memo and personal search memo and further deposed that he visited the spot during investigation and prepared the site plan Ex. PW-3/A and recorded disclosure statements of accused Ex. PW-3/B to PW-3/D and also seized the car. He further deposed that he deposited the case property in malkhana and produced the same alongwith accused in the concerned court on 07.07.2010. He further deposed that the the case property alongwith case file was handed over to wildlife department, Delhi and recorded the statement of witnesses on 06.07.2010. He identified the car seized vide Ex. PW-1/B.
9. PW-4 is SI Vinay Tyagi who deposed about receiving of secret Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 5 of 20 6 information, apprehending the accused persons, recovery of leopard skin(uncured) from the possession of the accused persons and about other formalities conducted during investigation and proved rukka Ex. PW-4/A which was prepared by him.
10. PW-5 is Wildlife Inspector Sh. V.B. Dasan. He deposed that on 06.07.2010, he received a call from Special Cell of Delhi Police, Lodhi Colony regarding recovery of one leopard skin and reached their office on the same day where SI Vinay Tyagi produced one skin which was recovered from the accused persons. He further deposed that he identified the said skin as uncured leopard skin measuring 101x35 cm. He further deposed that on 07.07.2010, SI Yudhvir handed over the seized property Ex. PW-5/A in a sealed condition which was received by him upon the court order and on 11.08.2010, he also received case file from SI Yudhvir Singh vide Road Certificate Ex. PW-5/B on the basis of which he filed the present complaint Ex. PW-5/C. He identified the case property in the Court.
11. After pre charge evidence, a charge under section 39/49/49B(1)/52 r/w Section 51 of the Act were framed against accused Naresh Kumar and U/s 49/49B(1)/52 against Ashok Kumar and Nand Kumar on the allegation that they were found in possession and dealing of one baby leopard skin (uncured) and they failed to show any valid licence or document for keeping the said leopard skin which is specified in schedule-1 of the Act. All the accused pleaded not guilty and claimed trial.
12. All the witnesses were recalled in post charge evidence, wherein they adopted their testimony recorded during their pre-charge Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 6 of 20 7 evidence. These witnesses were cross-examined at length by Ld. Defence counsels.
13. After completion of the post charge evidence, statement of accused recorded u/s 313 r/w 281 of Code of Criminal Procedure (hereinafter called Cr.P.C.). Accused denied all the allegations and stated that they were falsely implicated in this case and further submitted that they do not want to lead any defence evidence. However, in compliance of orders of Ld. Sessions Court further statement of accused was recorded and all incriminating evidence with respect to their possession of leopard skin were put to them. Accused Nand Kumar also led defence evidence. In his defence evidence, in terms of section 315 Cr.P.C, he examined himself as DW-1, apart from two experts from Wildlife institute, Dr. S.P. Goel and Sh. C.P. Sharma.
14. DWs S.P. Goel and C.P. Sharma both were numbered as DW-2, hence testimony of Dr. S.P. Goel shall be read as DW-2 and of Sh. C.P. Sharma as DW-2A.
15. DW-1 i.e. accused stated that he has been falsely implicated in case in the year 2010 date of which he do not remember. He further stated that while he was doing business of selling socks as roadside vendor in Karol Bagh, one car stopped him and asked him to sit in the car. He further stated that initially he refused but lateron, he entered the car in which five persons were already sitting and one of them deboarded the car at some distance having one small bag. He further stated that he was taken to Lodhi Colony police station where his belonging were taken away and he was produced before the Court but he was not told for what offence he has been arrested. He stated that he Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 7 of 20 8 met co-accused in the present case while he was produced before the Court. During cross examination by Ld. APP he failed to state the name of the persons from whom he used to purchase the socks for selling. He further stated that while he was standing at Karol Bagh some of the passerby were also present. He admitted that persons who were sitting in the car were in the civil clothes and have not shown any weapon to make him sit in the car. He also admitted that he had not made any complaint regarding his false implication to any authority. He also admitted that he has never told the Court that he has been falsely implicated when he was produced before the Court. He denied the suggestion that he was apprehended at red light Birla Mandir on 06.07.2010 alongwith Naresh Kumar and Ashok Kumar with leopard skins. He also denied that he was dealing with Pradeep for sale of leopard skin. He admitted his signatures on Ex.PW-1/A and PW-1/B but claimed that he do not know when these signatures were obtained. He also admitted his signatures in Ex. PW-1/D.
16. DW-2 Dr. S.P. Goel during his examination stated that he is expert in examination of wild life items including skins, trophies etc. of wild life animals. He stated that various methods are used for identification of wildlife articles including morphological examinations, hair characteristics and DNA methods in the meat cases where it is difficult to identify the species based on morphological features. He stated that during examinations, he gets fake skins but those are entirely different based on the actual morphological characteristics of the species, hence, these can be identified on the features of the wild life species. He stated that based on the visual examinations only, the type of wild life skin can be identified by an expert. He explained that Morphological means typical characteristics of that species which Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 8 of 20 9 commonly deployed for species identification. This includes stripe patterns, blotch patterns, spots, colour, horns which are usually present in most of the skins. He further stated that during examination of the skins he also adopt tests which includes microscopic hair characteristics and reference samples along with the physical examination to confirm the identity of the animal skin. He stated that skin which have typical characteristics like of tiger, leopard, jungle cat or any skin having any typical spot patterns can be identified with 100% certainty through visual examination only. He admitted that leopard skins are being sent regularly for the examination He further stated Leopard has got typical blotch pattern where inner part of the blotch is light yellow to dark yellow colour and there is no change in the pattern and colour with respect to the age or the sex of the animal. He further deposed that it is not possible to create fake skin having similar pattern/characteristics of natural skin of an wild animal with artificial methods and this is due to the natural characteristics which are found in an animal. He admitted that there is manual issued by WCCB but showed his ignorance where it is mentioned in its preface that animals cannot be identified with visual examination only. He further stated that it is a uniform practice to conduct corroborative tests to confirm with 100% certainty the nature of the item received for examination. He stated that based on the items, appropriate scientific approach is adopted for the identification of the item. He further deposed that they regularly and uniformly perform the microscopic hair characteristics and reference samples along with the physical examination to confirm the identity of the leopard skin and other animal skin.
During cross examination, he stated that there is no instance where the initial opinion based on visual examination has been changed after conducting further microscopic and other tests.
Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 9 of 20 10
17. DW-2A Sh. Chandra Prakash Sharma, a Senior Technical Officer from Wildlife Institute of India, Dehradun deposed that he has analysed around 900 wildlife cases and provided scientific opinion. He further stated that he has applied morphological techniques which includes visible characteristics that give fair idea about the species and for corroboration microscopic hair analysis is also done. He stated that he is aware of the manual published by Wildlife Crime Control Bureau (WCCB) for the identification of animal articles and admitted that as per its preface initial test are recommended for legal action. He further stated that at Wildlife Institute of India, a separate similar manual being followed for the purpose of examination of samples. He further stated that fake leopard skins can be easily identified because of the unnatural blotching pattern which is different from the real leopard skins. He stated that they also do the microscopic hair analysis of the fake skin to confirm the skin type. He further stated that he can distinguish between the skin of leopard cub and adult leopard. He further stated that they do not have any manual/instructions in the Wildlife Institute which says that only by mere visual examination, the skin type can be ascertained. But stated that with experience of more than 20 years, he can identify the skin type by mere visual examination also. He further stated that he has not given any report only on the basis of visual examination and has conducted all the examination as per the SOPs.
During cross examination he stated that he has never changed his opinion formed after visual examination of the skin on further conducting microscopic examination.
18. I have heard Ld. Counsel for both the parties. I have given my thoughtful consideration to the submissions in advance on behalf of both the parties and have gone through the relevant records and also the Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 10 of 20 11 relevant provisions of the Act. Relevant provisions of Section 39/ 49/ 49B(1) of the Act have reproduced for ready reference....
39. Wild Animals, etc. to be Government property:
(1) Every---
(a) Wild animal, other than vermin, which is hunted u/s 11 or sub-
section (1) of section 29 or sub-section (6) of section 35 or kept or [bred in captivity or hunted] in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed by mistake; and
(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in clause (a) in respect of which any offence against this Act or any rule or order made thereunder has been committed;
[(c)ivory imported into India and an article made from such ivory in respect of which any offence against this Act or any rule or order made thereunder has been committed;
(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized under the provisions of this Act,] shall be the property of the State Government, and , where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat [derived from such animal, or any vehicle, vessel, weapon, trap or tool used in such hunting] shall be the property of the Central Government.
(2) Any person who obtains, by any means, the possession of Government property, shall, within forty-eight hours from obtaining of such possession to the nearest police station or the authorised officer and shall, if so required,hand over such property to the officer-in-charge of such police station or such authorised officer, as the case may be.
(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or th e authorised officer--
Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 11 of 20 12
(a)acquire or keep in his possession, custody or control, or
(b)transfer to any person, whether by way of gift, sale or otherwise, or
(c) destroy or damage, such Government property.
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.
49B(1). Prohibition of dealings in trophies, animal articles, etc. derived from scheduled animals - Subject to the other provisions of this section, on and after the specified date, no person shall,-
(a) commence or carry on the business as-
(I) a manufacturer of, or dealer in scheduled animal articles; or (ia) a dealer in ivory imported into India or articles made therefrom or a manufacturer of such articles; or]
(ii) a taxidermist with respect to any scheduled animals or any parts of such animals; or
(iii) a dealer in trophy or uncured trophy derived from any scheduled animal; or
(iv) a dealer in any captive animals being scheduled animals; or
(v) a dealer in meat derived from any scheduled animal; or
(b) cook or serve meat derived from any scheduled animal in any eating-house.
Explanation.-For the purposes of this sub-section, "eating-house"
has the same meaning as the Explanation below sub-section (1) of section 44.
19. Ld. APP for the state has argued that all the complainant witnesses have fully supported the case of the prosecution and complainant proved its case beyond reasonable doubts. She pointed out Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 12 of 20 13 that in view of Section 134 of Indian Evidence Act, the number of witnesses who were examined should not decide the fate of the case and it is the quality of the witness which should be considered. She also pointed out that the measurement of the skin recovered has been proved by the witnesses and in view of the judgment in the matter of State of U.P. Vs. Pyare Lal:Criminal Appeal No.622 of 1988, AIR 1995 SC 1159, case of the complainant has been proved beyond reasonable doubt.
20. Per contra Ld. Counsel for the accused persons vehemently argued that all the witnesses of recovery examined by the complainant are police officials and in the absence of any public witnesses, their testimony alone should not be held sufficient for convicting the accused person for the offences for which they have been charged with. Ld. Counsel further submitted that there were various contradictions in the deposition of prosecution witnesses regarding the identity of the vehicles of the raiding team, who brought out the skin from the car, colour of the skin etc. Ld. Defence counsels further argued that even the relevant DD entries are not on record and site plan does not bear the signatures of any witness and no vehicle number was stated by any of the witnesses. It is pointed out that the raiding team also did not offer their personal search before apprehending the accused persons. Lastly, the Ld. defence counsels argued that in view of these contradictions coupled with the fact of non joining of independent witnesses, the entire complainant's story becomes doubtful and thus benefit of doubt should be given to the accused persons. It is also argued that no photographs or seal impression were produced. Further, Ld. Defence counsel for accused Naresh submits that accused Naresh was merely a taxi driver and was not aware about anything transpired between the remaining Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 13 of 20 14 accused and the police and having no conscious possession of the alleged recovered skin. It is also argued that no identification was put on the case property and PW-5 admitted that he is not an expert who has given only opinion without any reasons.
21. On the other hand, the defence witness has stated categorically that scientific analysis is required to form 100% opinion regarding the nature of the case property.
22. Heard. Considered.
23. Whether non joining of independent public witnesses have proved fatal for the case of the complainant:- As far as non joining of independent witnesses are concerned, the law is crystal clear that police witnesses are as trustworthy and credible as any independent witness can be. The testimony of police witnesses should be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration their testimony cannot be relied upon. It is not a proper approach to distrust and suspect the testimonies of police witnesses without good grounds and to this effect help can be taken from the judgment titled as "Karamjeet Singh Vs. State : AIR 2003 Supreme Court 1311. Therefore, non joining of public witness is not fatal to the prosecution case. In any case, if independent person is not willing to be a witness, the prosecution cannot be blamed and evidence of other witnesses cannot be discarded. The argument of Ld. counsel that even the police officials of PS Mandir Marg were also not joined proves fatal for the case of prosecution is rejected as it is not obligatory upon the raiding team to call the police officials from PS Mandir Marg as special cell, Delhi Police itself is a designated Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 14 of 20 15 police station and such non joining cannot be seen with suspicion.
24. It is pertinent to mention here that during the course of cross examination of the witnesses, Ld. Defence Counsel did not give any suggestion as to why the witnesses are deposing against the accused. Even otherwise, it is not the case of accused that witnesses were inimical towards the accused. Witnesses have totally supported the case of the prosecution regarding the recovery of uncured leopard skin and also they all are corroborating each other on all material aspects and there are no major inconsistency or contradictions in their statement. Their statements on record are found to be cogent, inspires the confidence of the Court and there is no reason to disbelieve the same. Further, minor discrepancies which have been pointed out, I am of the view that they are not of such nature which create infirmity in the complainant's case. I do not find any reason that why complainant would falsely implicate the accused.
25. Whether the identification of skin by Wildlife inspector is sufficient or not:- It is further argued that the genuineness of the case property is doubtful as same were not sent to any Wildlife Institute for expert opinion. Only visual identification was carried out by the wildlife inspector and therefore, it can not be assumed to be conclusive proof of the identification.
26. In rebuttal, learned APP argued that PW5 WLI Sh. V.B. Dasan has clearly identified the case property and stated that recovered skin is of leopard. Learned APP submitted that even if the case property was not sent to CFSL for expert opinion, it is not fatal to the prosecution story because a WLI inspector can very well identify the skins and this court is Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 15 of 20 16 in agreement with this contention. PW5 WLI Sh. V.B. Dasan saw the case property at the police station after its recovery and by virtue of his training and experience being Wild Life Inspector he is competent to identify the wild animal skin. It is pertinent to note that a wild life inspector can not be said to be a common man. A wild life inspector can very well identify the wild life articles/animal even if he does not have any diploma or degree in the same. The seized case property was identified by the Wildlife Inspector/PW5 Sh. V.B.Dasan who is competent to identify animal articles as held by the Hon'ble Supreme Court in "Criminal Appeal No.622 of 1988, AIR 1995 SC 1159, titled as Pyare Lal vs State (Delhi Administration)".
27. Moreover, DW-2 and DW-2A who both are experts in their respective field of analysis of wildlife articles have categorically stated that with experience they can identify correctly the species of the skin by mere visual examination also. Even in cross examination they have stated that their opinion arrived after visual examination has never been changed on further scientific tests conducted. The emphasis of Ld. counsel for accused on the manual of WCCB which is Ex. DW-1/A is misplaced as it nowhere stated that the additional scientific tests are mandatory for identification of the species. It only says that additional tests like morphological, microscopic analytical and forensic tests may have to be undertaken for legal action. By no stretch of imagination, such guidelines could be inferred as mandatory. Accused Nand Kumar has admitted that he is not made any complaint before any authority about his alleged false implication. He also admitted that at no point he has informed the Court during his production about the false implication. He also admitted that he is not aware from whom he was procuring the socks for selling. He even admitted that he has not raised alarm despite Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 16 of 20 17 presence of passersby. He even identified his signatures on the seizure memo as well as arrest memo. The non marking of the case property is not fatal as the complainant has complied with the statutory requirement of Section 50(4) of the Act since case property was produced before the Court on 07.07.2010 i.e. the very next day of recovery. In order dated 07.07.2010 it was specially mentioned that case property produced in sealed pulanda having six seals intact of VKT and fresh seal of the Hon'ble Court was put and said order has been proved as Ex. PW-5/A. The accused have not been able to show any falsity in the testimony of PW-5. PW-5 very categorically stated that the case property is of uncured leopard skin which has been measured as 101x35 cm. The order dated 07.07.2010 also includes As such, this court does not find any thing on record which shows that there has been any manipulation of the case property.
28. At this stage it would be relevant to go through section 57 of the Act which says:
Presumption to be made in certain cases.____ Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part of derivative thereof} it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part of derivative thereof}.
Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 17 of 20 18
29. Hence, as per section 57 of the Act, prosecution has to prove that accused was found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be proved by the accused, custody of such person will be treated to be unlawful custody. The accused has not lead any evidence to rebut the presumption of Section 57 of the Act. From the cross examination of prosecution witnesses, accused has failed to bring anything on record to rebut the said presumption. Complainant has also complied with the Section 50(4) of the Act wherein any person detained or things seized shall forthwith be taken before a Magistrate. Accused Ashok Kumar and Naresh have not led any defence evidence to rebut the said presumption. Accused Nand Kumar had led defence evidence but in respect to the scientific analysis of the case property. Even he has not led any evidence to rebut the said presumption.
30. As far as contradictions pointed out in the testimony of complainant witnesses are concerned, minor discrepancies are bound to occur due to lapse of time. However, these discrepancies does not throw away the case of the prosecution as the prosecution witnesses remained consistent regarding the recovery of baby leopard skin from the possession of accused persons. Further no ground shown for the false implication of the accused. Reliance can be placed upon in case titled as " Jugendra Singh vs State of U.P., reported in II (2012) CCR 431 (SC)=IV (2012) SLT 244=II (2012) DLT (Crl.) 794 (SC)= AIR 2012 SC 2254, held as under:-
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 18 of 20 19 discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
31. The argument of Ld. counsel that there are material deviations with respect to complinances of Punjab Police Rules is humbly rejected as it is held in Yogesh Singh Vs. Mahabeer Singh & Anr. : AIR 2016 SC 5160 by Hon'ble Supreme Court with respect to lapses in investigation that if the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. Further, it needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The Apex Court, relying upon Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 19 of 20 20 C. Muniappan & Ors. V. State of Tamilnadu : AIR 2010 SC 3718 further laid down the there may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The Law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. Further, where there has been negligence on the part of the investigating agency or omissions etc. which resulted in defective investigation, there is a legal obligation on the part of the Court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. The lapses with respect to non joining of independent witnesses or failure in conducting of personal search of the raiding team are not fatal to the case of the complainant.
32. Hence, in view of the above findings, I am of the considered opinion that complainant has successfully able to prove that accused Ashok Kumar, Nand Kumar and Naresh were found in possession and were dealing of baby leopard skin for the purpose of trade. The leopard skin is specified in schedule I of the Act and thus the accused persons have contravened the provisions of Section 49 and 49(B) of the Act. Accordingly, all three accused persons are held guilty and are convicted for the offence U/s 49 and 49(B) punishable U/s 51 of the Wild Life (Protection) Act, 1972. Case property if any, be confiscated to the State U/s 39 of Wildlife (Protection) Act.
Announced in open court on 11th of April, 2018. (PAWAN SINGH RAJAWAT) ACMM(Special Acts) : CENTRAL TIS HAZARI COURTS: DELHI Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 20 of 20