Bahadur Ram And Another vs State Of Uttarakhand & Another

Ravindra Maithani, J

This revision is directed against the judgment and order dated 18.09.2013 passed by learned District and Sessions Judge, Almora, in Criminal Appeal No. 15 of 2012, Nand Ram and another Vs State and another (for short "the appeal"). By the impugned judgment and order, the conviction of the revisionists under Section 50/51 of the Wild Life (Protection) Act, 1972 (for short "the Act") and the sentences, as imposed by the court of learned Chief Judicial Magistrate, Almora on 25.04.2012, in Criminal Case No. 328 of 2010, P.B. Upreti Vs. Nand Ram and another (for short "the case), has been upheld and confirmed.

Briefly stated, according to the prosecution on 10.10.2001, PW1 Ram Pal Singh, Forest Guard alongwith Watcher PW4 Janardhan Pandey found a leopard (Guldaar) dead, which had no skin. A report was given by PW2 Ram Pal Singh to the Police Station Someshwar on the same day, and the post mortem of the leopard was conducted. According to the post mortem, the death was caused due to poisoning. It was informed to the Forest Officers that the revisionists removed the skin of leopard on 08.10.2001. From the house of the revisionist Nand Ram, skin of the leopard and instruments like knife etc. were recovered. The record reveals that based on the FIR lodged by PW2 Ram Pal Singh, after investigation, charge sheet was submitted. Cognizance was taken and proceeding of criminal case No. 185 of 2002, State Vs. Nand Ram and another, was instituted in the court of learned Chief Judicial Magistrate, Almora ("the former case"). In the former case, at the stage of framing of charge, an application was moved by the revisionists for their discharge. It was rejected on 10.11.2003. This order dated 10.11.2003 was challenged in Criminal Revision No. 19 of 2003, Nand Ram and another Vs. State before the court of Sessions Judge, Almora. The revision was allowed and the order taking cognizance as well as the charge framed in the former case on 16.07.2003, were quashed. The entire proceedings of the former case were quashed.

Thereafter, PW1 B.B. Upreti filed a complaint under Section 50/51 of the Act against the revisionists. It is basis of the case. After inquiry, cognizance was taken. On 24.02.2007, the court discharged the revisionists. The order discharging the revisionists was challenged in Criminal Revision No. 8 of 2007. The revision was allowed and the trial court was directed to decide the case. In evidence, total six witnesses, namely, PW1 B.B. Upreti complainant, PW2 Ram Pal, PW3 Manmohan Tiwari, PW4 Janardhan Pandey, PW5 Hira Singh Kanyal and PW6 Bali Ram Arya were examined.

Revisionists were examined under Section 313 of the Code. According to the revisionists, they have been falsely been implicated in the case. By the impugned judgment and order, the trial court convicted the revisionists and appeal preferred by the revisionists was also dismissed by the impugned order. Hence, the revision.

Heard learned counsel for the revisionists, learned counsel for the State and perused the record.

During pendency of the revision, the revisionist Nand Ram died. This Court on 08.11.2019, held that since notice had already been issued in the revision, therefore, the revision shall be considered irrespective of the fact that the revisionist Nand Ram has died.

On behalf of the revisionists, learned counsel would argue that there is no evidence against the revisionist Bahadur Ram; Complainant is not a person competent to file complaint under the provisions of the Act; there is no forensic report, which may establish that the skin allegedly recovered was that of the leopard. No independent witness of recovery has been examined. It is argued that prosecution has failed to prove the charge, but learned courts below committed illegality in convicting the revisionists. Therefore, revision be allowed and revisionists be acquitted of the charge.

On the other hand, on behalf of the State, learned counsel would argue that the case has been proved by the prosecution. There is no scope for any interference.

This is a criminal revision. The scope is very limited. In the case of Amit Kapoor Vs. Ramesh Chander and another, (2012) 9SCC 460, Hon'ble Court, inter alia, held that " revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative, Each case would have to be determined on its own merits". It is further observed that "Where the court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."

Undoubtedly, the jurisdiction of the court in revision may be exercised, so as to examine the correctness, legality or propriety of the order passed by the trial court or the courts subordinate to it. There may not be reappraisal of the evidence. This scope is not similar to that of an appeal. Interference could also be made if there is a case of no evidence or when material evidence is ignored.

It is a complaint case. Complainant B.B. Upreti has been examined as prosecution witness PW2. He has, in fact, not seen the incident. What was told to him, on that basis, he filed the complaint, which he has proved. First and foremost, the question regarding the competence of the complainant in filing the complaint has to be seen.

According to learned counsel for the revisionists, in view of Notification No. 2387/XIV-3-7-90, dated 23rd Nov., 1990, published in U.P. Gazette (Extra), Part 4, Section (kha), dated 29th Nov. 1990, only Assistant Conservators of Forest are authorised to file a complaint under the Act. This notification is as hereunder:

"(x) Noti. No. 2387/XIV-3-7-90, dated 23rd Nov., 1990, published in U.P. Gazette (Extra), Part 4, Section (kha), dated 29th Nov. 1990.

In exercise of the powers under Section 55 of the Wild Life (Protection) Act 1972 (Act No. 53 of 1972), the Governor is pleased to direct that all Assistant Conservator of Forests in Uttar Pradesh shall be the authorised officers on the complaint of whom the Court shall take cognizance of offences under the said Act within their respective jurisdiction."

On the other hand, on behalf of the State, it is argued that the Assistant Conservator of Forest can file a complaint, but by virtue of earlier notification of the year 1976, even Range Officers are also competent to file the complaint under the Act. Reference has been made to Notification No. 4003/14-3-67/1974, Government of UP Forest Department (3) Lucknow dated 30.04.1976. In fact, this question has been raised in the appeal also.

The notification dated 30.04.1976 has been placed before the Court alongwith counter affidavit by the State. According to it, Range Officers are also competent to file complaint under the Act. It is also true that by the subsequent notification of the year 1990, Assistant Conservators of Forest have been authorized to file complaint under the Act. But, it is to be noted that in the subsequent notifications 03.03.1990 earlier notification has not been superseded. Therefore, subsequent notification shall be considered in addition to the earlier notification, on the subject. Therefore, Range Officer, who are authorised to file complaint, under the Act, by virtue of notification dated 30.04.1976 shall continue to be competent to file a complaint under the Act.

In the instant case, B.B. Upreti is the Range Officer and he has filed a complaint. Therefore, he is the person competent to file a complaint under the Act. Arguments advanced on this aspect by learned counsel for the revisionists has no substance.

Learned counsel for the revisionists has also referred to judgment of this Court in Government Appeal No. 162 of 2002, State of Uttaranchal Vs. Gaje Pal Singh and others and the connected matters, to impress upon that a Forest Range Officer is not authorized to institute a complaint under the Act. In fact, in the Government Appeal No. 162 of 2002 the notifications issued under the Act, were not discussed by the Court. What was noted was that under Section 55 of the Act, the Range Officer is not a person competent person to file a complaint. It is true that under Section 55 of the Act, Range Officer is not named a person competent to file a complaint under the Act, but according to Section 55 (b) of the Act the Chief Wild Life Warden, or any other officer authrorised in this behalf by the State Government subject to such condition as may be specified by that Government may also file complaint under the Act. In the instant case, it is being argued that Range Officer is a person authorized by the State Government to file a complaint under the Act and this Court has also held that Range Officer is a person competent to file a complaint under the Act, by virtue of a notification issued by the State Government under Section 55 of the Act. Therefore, what was held in Government Appeal No. 162 of 2002 and connected matters by this Court has no application in the instant case.

An argument has been raised that the skin was not sent for forensic examination. It is true that skin of the leopard was not sent for forensic examination. PW2 Ram Pal Singh and PW5 Hira Singh Kanyal, Range Officer have stated that they recovered the skin of leopard from the house of Nand Ram. The skin is proved before the Court as Ex. 1. No suggestion was given on behalf of the revisionists that the skin does not belong to leopard. PW2 Ram Pal Singh is Forest Guard and PW5 Hira Singh Kanyal is the Range Officer. They may be presumed to be experienced and trained persons to identify the skin of the leopard.

In the case of Pyarelal Vs. The State (Delhi Admn.), AIR 1995 SC 1159, the Hon'ble Supreme Court relied on the evidence of the Wild Life Inspector with regard to the identity of trophies of the animals, holding that he is experienced and especially trained officer. Similar is the case, even if skin was not sent for forensic examination, the evidence of PW2 Ram Pal Singh a Forest Guard and PW5 Hira Singh Kanyal a Range Officer establishes that the skin, which was recovered from the house of Nand Ram was that of a leopard.

The basis of conviction is two-fold. Firstly, the recovery of the skin from the house of Nand Ram. Secondly, the confession made by Nand Ram.

Can confession before the Forest Officer is admissible or it will be hit by Section 25 of the Indian Evidence Act, 1872. Under the provisions of the Act, Forest Officers are not conferred with all the powers of the Station House Officer of a Police Station. Therefore, for the purpose of the confession under Section 25 of the Indian Evidence Act, 1972, the Forest Officers cannot be termed as Police Officer (See E.C. Richard Vs. Forest Range Officer, Mettupalayam, AIR 1958 Madras 31 and Criminal Appeal No. 27 of 1967, Ramesh Chandra Mehta Vs. The State of West Bengal, AIR 1970 SC 940.)

PW2 Ram Pal Singh is the person, who found the dead body of leopard without skin and subsequently, recovered the skin and other instruments from the house of the revisionist Nand Ram. He has stated about it and proved the recovery memo as well as the statement of revisionist Nand Ram. He identifies the signatures, in the recovery memo. PW4 Janardhan Pandey has not stated about the recovery. There is another witness, namely, PW5 Hira Singh Kanyal, who has supported the statement of PW2 Ram Pal Singh about the recovery of skin from the house of revisionist Nand Ram. There appears to be no illegality in accepting this evidence of recovery of skin from the house of revisionist Nand Ram. Learned counsel could not indicate any impropriety or illegality in it. It has also not been shown as to what material evidence has been ignored or which inadmissible evidence has been accepted. But, the fact remains that the recovery was not made from the revisionist Bahadur Ram.

Confession, was allegedly made by revisionist Nand Ram. Confession was not made by the revisionist Bahadur Ram. Although, this confession is not exhibited, as such, the witnesses have stated about it. This is paper no. 11 A/1. Although PW5 Hira Singh Kanyal has stated that both the revisionists confessed before him, but there is no confession of the revisionist Bahadur Ram. Merely, because on the confession made by revisionist Nand Ram, the revisionist Bahadur Ram also put his thumb impression, it cannot be said that he made confession or he agreed to as to what was stated by the revisionist Nand Ram. It is not a case of the complainant that the confession made by revisionist Nand Ram, was ever read over or explained to the revisionist Bahadur Ram.

According to the complaint, the post mortem report reveals that the death was caused due to poisoning. PW6 Bali Ram Arya has proved the signature of veterinary doctor on the post mortem report Ex. A4. This post mortem report does not appear to be prepared professionally. It is stated in it that perhaps the leopard died due to consuming poisonous substance. But, there is no ground for arriving at such conclusion. How could a doctor ascertain that the death was due to poison without a chemical examination of viscera or other body parts. What was a special condition of body of the leopard to ascertain it. More particularly, in the instant case, it is important because there was no skin on it. In fact, it may not be concluded that any of the revisionists killed the leopard by poisoning. What is proved is that the skin of leopard was recovered from the house of revisionist Nand Ram. It is violation of Section 39 sub-Section (2) of the Act. That is non reporting to the authorities about the death of a leopard and taking his skin without due permission.

On the basis of above discussion, it is clear that recovery from the house of the revisionist Nand Ram is proved. He has confessed about it also that he had a skin. He did not confess that he had killed the leopard. In fact, there is no evidence that leopard was killed by poisoning. The prosecution has been successful to prove the charge under Section 51 of the Act, against the revisionist Nand Ram. Hence, so far as, the revisionist Nand Ram is concerned, revision deserves to be dismissed.

Insofar as, the case of the revisionist Bahadur Ram is concerned, neither any recovery was made from him, nor had he made any confession. There has been no evidence against him. He has been convicted without any evidence. Therefore, he ought to have been acquitted of the charge under Section 51 of the Act. Since, without any evidence, he has been convicted, interference is warranted in this revision and the revision insofar as the revisionist Bahadur Ram is concerned deserves to be allowed.

The revision, insofar as, revisionist Nand Ram is concerned, is dismissed. The revisionist Nand Ram had already died.

Insofar as, revisionist Bahadur Ram is concerned, revision is allowed. Impugned judgment and order, to the extent, it convicts and sentenced the revisionist Bahadur Ram, is set aside. Revisionist Bahadur Ram is acquitted of the charge under section 51 of the Wild Life (Protection) Act, 1972.

Revisionist Bahadur Ram shall file a personal bond and two sureties, each of the like amount to the satisfaction of court concerned under Section 437-A of the Code within a month from today.

Let a copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.