Liyakat @ Bhadi vs State Of Uttarakhand

Sharad Kumar Sharma, J

List revised. None appears on behalf of the revisionist to assist the Court and press the Revision. Since the present Criminal Revision has been preferred under Section 397 to be read with 401 of the Cr.P.C., it cannot be dismissed for want of prosecution and it has to be adjudicated on its own merits.

By the impugned judgment dated 30th April, 2011, as rendered in Criminal Appeal No. 176 of 2010, Liyakat @ Bhadi Vs. Forest Department, Haridwar passed by the learned Additional Sessions Judge / IInd F.T.C., Haridwar, the revisionist has been convicted for commission of the offences under Sections 9, 27, 35, 39 and 51 of the Wild Life Protection Act. As a consequence of the aforesaid judgment dated 30th April, 2011, the Appellate Court has affirmed the judgment of conviction rendered by the Additional Civil Judge (J.D.)/Judicial Magistrate Haridwar on 25.11.2010, as rendered in Complaint Case No. 391 of 2010, Forest Department Vs. Liyakat @ Bhadi . As a consequence of the order of conviction, the revisionist has been directed to undergo a simple imprisonment for a period of two years and a fine of Rs.2,000/- has been imposed upon him for established commission of offence under the aforesaid provisions, which concurrently stood proved by both the Courts below.

After having gone through the records, the fact, which is apparent and as revealed from records, it is to the effect that when the official of the Forest Department were on their regular patrolling duty on 5th April, 2004, in Rajaji National Park, near Dhaulkhand Range, the Team, which constituted of a Wild Life Warden Ram Saran, Van Daroga Mahendra Giri and Forest Guard Jagdesh Singh, they during the course of their normal vigilance in the forest area, they have found that a man was standing with the motor cycle, along with a bag, which was being carried by him and on the said person being apprehended and interrogated by the aforesaid Team of Forest Official, he was searched by them and ultimately, it was found that the plastic white bag, which he was carrying on the right shoulder, it was found that it contained in it two pieces of horns of the cheetal/deer and after the aforesaid recovery of the horn from him, which he was about to carry and take it away from the territory of the reserved forest area, he was apprehended along with the motor cycle, baring No. U.A.-08C-0957 was also recovered from the possession of the revisionist.

Consequent to the aforesaid incident of 5th April, 2004, an F.I.R. was registered against him for commission of the offences as narrated above and, consequently, the charges were formulated against him for the aforesaid offences and as a result thereto, a Complaint Case No. 391 of 2010, Forest Department Vs. Liyakat @ Bhadi was initiated against him. At the time, when the trial was proceedings, the prosecution in support of the contention has produced the documentary evidence, i.e. confession note as exihibit-1, the sample of the contraband article as exhibit 2 and various other documents to substantiate their case with regard to the commission of the offence under Section 51 of the Wild Life Protection Act. Apart from the above, the prosecution has also adduced the oral testimony of PW1 Wild Life Warden Ram Saran, PW2 Forest Guard Jagdish Singh and PW3 Van Daroga Mahendra Giri, who had supported the incident of 5th April, 2004 and the apprehension of the revisionist by the Forest Official along with horns of the cheetal/deer, which was recovered from his custody.

On the culmination of the evidence and recording of the statement of the revisionist, which was recorded under Section 313 Cr.P.C., wherein, he in his statement recorded, had only submitted that the statement, which has been recorded by the Forest Officials, who had conducted the investigation and has apprehended the revisionist, the entire set of allegations mentioned therein are false and concocted and he contended that no such incident as of 5th April, 2004 had ever taken place or chanced as narrated in the complaint case.

Further, in support and for clarifying the set of allegation, the revisionist has adduced evidence of DW1 Khurshid Ali and DW2 Smt. Julekha, were recorded in order to show that no such incident of 5th April, 2004 has ever chanced.

If the statement of DW1 Khurshid Ali, if it is taken into consideration, which has been recorded in the proceedings before the learned Trial Court, DW1 Khurshid Ali in his statement has specifically come out with the case that as far as the occurrence of the incident dated 5th April, 2004 is concerned and the fact pertaining to the recovery of the horns of the cheetal / deer from his custody is a fact, which has been admitted by witnesses of defence only as adduced by the revisionist, who has fortified the fact that revisionist was apprehended on the said date and from his custody, two horns of the protected animal contained under Schedule 1 of the Wild Life Protection Act was found in his custody.

Apart from it, the prosecution has adduced the evidence and recorded the statement of PW3 Mahendra Giri, who has admitted the fact of occurrence of the said incident of 5th April, 2004, whereby the revisionist was apprehended and recovery was made from him, he stated that the incident did chanced and, consequently, they controverted the statement of the witness of the defence, i.e. DW1 Khursid Ali and that of DW2, i.e. Smt. Julekha.

As far as the witnesses of the prosecution is concerned, the statement of PW1, i.e. Wild Life Warden, he in, his cross examination has narrated the circumstance of the incident of 5th April, 2004, which has occurred at 4:00 p.m. and he has also supported the contention pertaining to the recovery of the motor cycle from the custody of the revisionist as well as that of the contrabanded material, i.e. the horns of the cheetal/deer from his custody. Furthermore, the recovery made from the revisionist was witnessed by the team of Forest Officials, who had apprehended him under suspicious circumstances.

If the simplicitor perusal of the statement of PW1 Wild Life Warden is taken into consideration, who was also cross examined by the defence in the proceedings before the Court below, it has been pointed out that at about 15-20 meter away from the motor cycle, the accused person was standing and on his shoulder, he was carrying a bag, which was carrying the aforesaid restricted material, i.e. horns of cheetal/deer protected under Schedule I of the Act being a protected animals.

After considering the aforesaid evidence and the evidence of the prosecution, the Court has accepted the version as narrated by the prosecution witnesses with regard to the occurrence of the offence dated 5th April, 2004 and after placing reliance on the ratio as propounded by the Allahabad High Court judgment. The Court has come to the conclusion that when there is no procedural anomaly and on the scrutiny of the statement of the witnesses of the prosecution, it is prima facie establishing the commission of the offence, which is otherwise prohibited under Section 51 of the Wild Life Protection Act and if on the bare perusal of the statement recorded of the witnesses, the commission of offence prima facie is established and that itself is sufficient to draw a conclusion with regard to the commission of the offence under the aforesaid provision.

Similarly, the Court of 2nd Additional Civil Judge (Junior Division)/Judicial Magistrate, Haridwar has placed reliance on another judgment of the Hon'ble Allahabad High Court as reported in 2002 CRI.L.J. 2673 (D.B), Shivshankar @ Chaukidar Vs. State of U.P., wherein, the Hon'ble Ape Court has determined as to in what manner the cross examination of the witnesses adduced in the proceedings would be taken into consideration in order to establish the commission of the offence by the accused person. Para 25, 29, 33, 41, 40 and 42 of the aforesaid judgment read as under :-

"25. To prove the factum of occurrence and complicity of the appellant, the prosecution relied on ocular testimony of Bharat Singh (P.W. 1), Smt. Usha Devi (P.W.2) and Jagram (P.W.3), who had given eye witness account of the occurrence.

The next witness of the occurrence is Pushpa Devi (P.W.2) Admittedly, she is younger sister of Smt. Usha Devi deceased. She claimed that she had gone with Smt. Usha Devi deceased to maize field to throw filth. After throwing filth she was returning to her house along with Smt. Usha Devi deceased. On the way, appellant caught hold of Smt. Usha Devi and in an attempt to commit rape on her made her fall down and on her resistance inflicted knife blows. On challenge of witnesses the appellant ran away after removing Lar, Kundal and Payal of the deceased. There is nothing in her cross-examination to show that she did not accompany her elder sister or that she is not a truthful witness.

The ocular testimony of the witnesses noted above finds corroboration from F.I.R., medical evidence and other circumstances of the case referred to above.

As such non examination of Investigating Officer is not fatal to the prosecution case and non examination of Investigating Officer is not a ground to disbelieve the ocular witnesses. As mentioned above, the learned counsel for the appellant could not show that any prejudice has been caused to the appellant on account of non examination of the Investigating Officer. The evidence of the ocular witnesses further shows that no contradiction was put to them regarding any fact stated by the eye witnesses from their statements under Section 161 Cr. P.C.. or about the place of occurrence. There was also no cross examination regarding the place of occurrence stated by the witnesses and as such the appellant was not put to any prejudice by non examination of Investigating Officer and therefore, we find no substance in the submission that non examination of Investigating Officer was fatal to the prosecution story.

From the evidence of ocular witnesses, medical evidence and other circumstances it was proved beyond all reasonable doubts that the appellant committed murder of Smt. Usha Devi deceased and therefore, the offence punishable under Section 302 I.P.C. was fully established against him.

The appellant was further charged with the offence punishable under Section 394 I.P.C. for having robbed the deceased of her ear tops, Lar (Chain) and Payal. Jagram (P.W.3), who had reached the spot has categorically stated that when he challenged the appellant, the appellant left the spot removing ear tops, lar and Payal of the deceased. He had also stated that he had seen Smt. Usha Devi deceased wearing those ornaments prior to the occurrence. Bharat Singh (P.W. 1) and Pushpa Devi (P.W.2) have also stated about the above robbery. Thus, the prosecution has successfully established the guilt of the appellant for the offence punishable under Section 394 I.P.C."

The Court of 2nd Additional Civil Judge (Junior Division)/Judicial Magistrate, Haridwar has also placed reliance on yet another judgment reported in (1999) 9 SCC 525, Leela Ram Vs. State of Haryana and another has accepted the prosecution story, particularly, when the arrest has been made of the revisionist/accused, now convict, from the spot, in question, along with the contrabanded goods, which was recovered from his possession. Para 8 and 9 of the said judgment read as under :-

Before however, proceeding with the matter on the counts as above, it would be convenient to note another aspect of the matter, namely, the observations pertaining to the investigation by the investigating agency. It is now a well-settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring to a decision of this Court (vide State of Rajasthan v. Kishore).

Be it noted that the High Court is within its jurisdiction being the first appellate court to reappraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in State of U.P. v. M.K. Anthony. In para 10 of the Report, this Court observed: (SCC pp. 514-15)

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."

Consequently, for the reasons aforesaid, the learned Trial Court has after hearing the revisionist on the quantum of sentence to be imposed on the establishment of the aforesaid offences, had imposed punishment of two years of simple imprisonment and a penalty of Rs.2,000/- has been imposed. The said sentence as imposed by the learned Trial Court vide its judgment dated 25.11.2010 on a challenge before the Appellate Court has been affirmed on 30.04.2011 and the Appellate Court too on a concurrent appreciation of the oral testimony and the report which has been submitted by the team of Forest Official who conducted the investigation has held that as far as the incident dated 5th April, 2004 is concerned, the offence stands established beyond doubt. If the co related statement of the prosecution witnesses is taken into consideration, it has established beyond doubt that the incident did occur where the revisionist was apprehended with the prohibited material with the horns of cheetal/deer. Hence, offence under Section 51 of the Wild Life Protection Act was already established by the Appellate Court as well as Trial Court beyond any reasonable doubt.

After having considered the finding, which has been concurrently recorded by both the Courts below and also after having considered that the theory of revisionist being arrested on the spot on 5th April, 2004, along with the contraband material before the Team of Forest Officials and the circumstances under which he has been arrested, it goes to show beyond doubt that he was indulged in commission of the aforesaid offence, which was apparently violative of the provisions contained under Section 51 of the Wild Life Protection Act. Consequently, the sentence imposed upon him by both the Courts do not suffer from any apparent error, which calls for any interference by this Court, while exercising the revisional power under Section 397 to be read with 401 of the Cr.P.C.

Consequently, the Revision is dismissed. The sentence as imposed by the Courts below is affirmed. The revisionist, who is on bail in pursuance to the order passed by this Court on 22nd July, 2011, is being directed to surrender forthwith and the Judicial Magistrate, Haridwar is directed to ensure his surrender in order to take him in custody and call upon him to serve the sentence as imposed by the Courts below. Consequently, the bail bonds as extended by him while availing the bail stands discharged.

The Criminal Revision is consequently dismissed for the aforesaid reasons, as it lacks merits.