Chhanga Baretha vs The State of Madhya Pradesh

M.A. Siddiqui, J.—This Criminal Revision mentioned above u/s 397 read with Section 401 Code of Criminal Procedure, 1973 (hereinafter referred to for short, " Cr. P. C".) preferred by the applicant, being aggrieved from the orders/Judgment dated 4.7.2005 in Criminal Case No. 166/01 by Judicial Magistrate First Class, Katni by which the applicant/petitioner Chhange son of Dhanu Baretha has been convicted u/s 51 of Wild Life (Protection) Act, 1972 (53 of 1972)(hereinafter referred to for short, " the Act".) and sentenced to R.I. for two years with fine of Rs. 5,000/-(Rs. Five thousand only) in default RI for 3 months. In an appeal preferred by applicant/petitioner Chhange bearing No. 99/05 before First Additional Judge to the Court of First Additional Sessions Judge, Katni vide Judgment and findings dated 28.11.2005 has dismissed the appeal by maintaining conviction and sentence as mentioned above. Hence this Criminal revision has been filed on the following grounds:

A.) That the impugned judgment passed by the learned court below is against law, procedure and facts.

B) That, the learned court below has failed to consider that the prosecution has failed to establish the most important relevant fact regarding explanation of the area of reserve forest from where alleged hunting was made by the accused. It is, therefore, respectfully submitted that the impugned judgment of conviction and order of sentence is against the provisions of section 51 of the Act.

C) As per allegation, the alleged hunting was made in the village Bichpura under Sub Range Barahi as per statement of the witnesses examined by the prosecution. It is, respectfully submitted that the village Bichpura is neither Sanctuary nor National Park. The prosecution has failed to produce any evidence in order to prove that the alleged hunting was made in area of reserve forest. It is, therefore, the impugned conviction and sentence is contrary to the provisions of the Act.

D) That, as per provisions contained in Section 50 of the Act, the Dy. Ranger was not competent to make the alleged seizure. The alleged seizure and investigation made by Dy. Ranger is vitiated in the eye of law for want of jurisdiction. The alleged seizure and investigation made by Dy. Ranger is contrary to Section 50(8) of the Act. For ready reference the Section 50(8) of the Act is being reproduced herewith:

50(8) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Director of Wild life Preservation or Wild life Warden shall have the powers, for the purpose of making investigation into any offence against any provision of this Act.

(a) to issue a search warrant;

(b) to enforce the attendance of witness;

(c) to compel the discovery and production of documents and material objects, and;

(d) to receive and record evidence.

Thus, it is evidence that the impugned judgment of conviction and order of sentence is vitiated in the eye of law.

E) That, the learned court below has failed to consider that POR No.1142/6 was entered by Forest Guard Vidyadhar Pandey. Forest Guard is equal to forest Choukidar who was not authorised to enter POR as per relevant provision of law.

F) That, the learned court below has failed to consider that whole investigation was contrary to provision of the Act and, therefore the impugned judgment of conviction and order of sentence passed by learned trial Court is bad in the eye of law.

G) That, the learned court below has failed to consider that the prosecution has failed to produce notification regarding area of the reserve forest, list or any document by which the Investigating Officer was authorised to make the investigation and therefore, the impugned judgment is illegal.

H) That, the witnesses examined by the prosecution are interested witnesses being employee of the Forest department. They were also directly related with the prosecution story. None of the independent witness has supported the prosecution story. Only one independent witness namely Bahadur Kol has been examined by the prosecution who has not supported the prosecution story. It is, therefore, the reliability of the prosecution witnesses is liable to be discorded.

I) As per prosecution story, the boiled meat has been seized from the house of the accused. This fact alone is sufficient to demonstrate that the accused has been falsely implicated by the prosecution as it is not only difficult but far away to make identity that the seized meat was a wild animal. It is respectfully submitted that the prosecution has failed to establish the fact that the alleged meat was of wild animal.

J) That, the learned court below has failed to consider that the PRO with FIR was not sent to the Judicial Magistrate as required by Law. It is, therefore, the impugned judgment is contrary to law.

K) That, the learned court below has failed to consider that the accused was not seen by anyone in making the alleged hunting.

L) In the facts and circumstances of the case and also reasons detailed hereinbefore, the impugned judgment of conviction and order of sentence is bad and contrary to the settled provisions of law.

M) That, the learned court below has failed to consider oral as well as documentary evidence produced by the parties properly.

N) That, the prosecution has failed to establish the prosecution story beyond shadow of doubt.

O) That, the impugned judgment of conviction passed by the learned court below is based on conjuncture and surmises.

P) That, the alleged offence has not been established by the prosecution against the accused and, therefore, the applicant is entitled for acquittal.

In nutshell the prosecution case is that on 15.11.97, three kilogram wild meat of wild animal (Pig) was seized from the house of the accused. The seizure proceeding was made by Dy. Ranger Shri R.N. Parihar (PW 2), Forest Guard, Shri Vidyadhar Pandey (PW 3) and Security Guard Shri Raj Kumar Pathak (PW 5) on information received by Mukhbir. It has been alleged that accused/applicant was guilty for hunting the pig (wild animal) For that accused has been prosecuted for the offence u/s 51 of the Act

I have heard both the sides and perused the original record.

Learned counsel for the applicant submitted that u/s 50 of the Act there are so many, wide power of entry, search, arrest and detention has not been complied with in toto and as such power has not been made in accordance with the provisions of Section 50 of the Act. Even if the seizure of Pork meat ( meat of pig ) is presumed to be seized from applicant even it is not proved that the alleged meat was of wild animal.

Learned counsel for the applicant submitted that both the courts below erred in holding the guilt of applicant as there is no single word about identity of the alleged meat/flesh that it was of wild animal. He further submits that only by scientific test it can be ascertained that whether the flesh is of any wild animal or of tame animal as pig is also a tame animal. In order to differentiate the tame animal or wild animal can only be ascertained by a scientific test for which a scientific laboratory has been established at Deharadoon but in this case the alleged flesh/meat was not sent for scientific analysis so it can not be said that the said flesh/meat was of wild animal.

Learned counsel for the respondent/State submited that the applicant has accepted and has confessed and recovery of meat has been done on his behalf but as recovery was prior to memorandum hence the fact which has been already in knowledge hence no memorandum is legally acceptable.

Learned counsel for the respondent/ State has conceded that it has not been brought on record and not proved by scientific test or by evidence of an expert that the alleged meat was of wild animal.

Looking to the facts and circumstances of the case and the fact that it has not been proved by evidence the alleged meat/flesh was of wild animal the conviction of both the courts below as mentioned above is not tenable. The result of the aforesaid discussion is that this criminal revision succeeds and is allowed. The judgments and findings of both the courts below are hereby set aside. The conviction u/s 51 of the Act and sentence imposed of the applicant/petitioner is hereby quashed. If fine amount has been deposited by the applicant be refunded to him. The applicant is on bail his bail bond and surety bond stands discharged.

Petition allowed.