SRI SUKHDEV KUTUM vs THE STATE OF ASSAM and ANR

This appeal is directed against the judgment and order dated 25/05/2017 passed by the learned Addl. Sessions Judge, Golaghat in Sessions

Case No. 1/2017. By the said judgment, learned Addl. Sessions Judge convicted the appellant u/s 51 (1) of the Wild Life (Protection) Act,1972

and sentenced him to imprisonment for seven years and to pay fine of Rs. 25,000/-, in default, to further imprisonment for one year.

The prosecution case as revealed during trial is that on 02/11/2013, the forest officials heard a sound of firing and was trying to locate the place

where it took place. Thereafter, the Forest Range Office got an information that three hunters were moving around the forest and there was an

encounter. However, those miscreants made good their escape leaving a 303 rifle, which was seized by police. After 2/3 days of the incident, one

Naga person was apprehended by police and was brought to the forest office, where he disclosed that he along with two other persons, namely,

Sukhdev Kutum and Jugendra Saro killed one female rhino. On the basis of the disclosure by the Naga person, the forest personnel made a search

to trace out the carcass, which was ultimately recovered and sent for post mortem examination. On the basis of the information given by said Naga

person, namely, Muwangpu Jamir, an attempt was made to apprehend the co-accused Sukhdev Kutum and Jugendra Saro. After getting the

information from said Naga person, the forest officials made endeavour to apprehend the co-accused Sukhdev Kutum and Jugendra Saro, but

could not succeed and ultimately on 09/08/2016 the ACF, Romen Das along with Forest Battalion apprehended the appellant Sukhdev Kutum

from Gugamukh and he was arrested and brought to the Forest Range Office. Deputy Ranger, Eastern Range, Agoratoli Kaziranga National Park,

recorded the statement of the accused/appellant Sukhdev Kutum, wherein he confessed to have killed the rhino along with Muwangpu Jamir and

Jugendra Saro. The accused/appellant Sukhdev Kutum was forwarded to the court and eventually an offence report was submitted against him

showing the other two persons as absconders. On the basis of the said offence report, learned Addl. Sessions Judge, being Spl. Court, took

cognizance, and eventually framed charge u/s 51 (1) of the Wild Life Protection Act against the accused, to which he pleaded guilty.

In order to substantiate the charge, two witnesses were examined by the prosecution and on appreciation of evidence, learned trial court

convicted the accused/appellant /s 51 (1) of the Wild Life Protection Act and awarded sentence, as indicated above.

Feeling aggrieved, the accused/appellant preferred the instant appeal.

Learned counsel for the appellant submitted, that there was no evidence, except the confessional statement (Ex- 1) recorded by Deputy Ranger

and such confessional statement was not voluntary one and it was also not recorded by an officer, competent u/s 50 of sub section (8) of the Wild

Life Protection Act.

Learned Addl. P.P., Mr. D. Das, referring to a certificate given in Ex- 1, contended that the statement was recorded in presence of Assistant

Conservator of Forest and therefore, there was no reason for disbelieving the confessional statement.

From perusal of the oral testimony and the impugned judgment, it appears, that basically relying on the Ex- 1, confessional statement, the

learned trial court recorded the conviction. Evidently, Ex- 1, is not a judicial confession and it can, at best, be considered as an extra judicial

confession. Learned Addl. P.P. submits that the confession having been recorded by the forest officials and not by police officer, such confessional

statement is not hit by section 25/26 of the Evidence Act.

Sub-section (8) of section 50 of the Wild Life Protection Act provides that for the purpose of making investigation into any offence against any

provision of the Wild Life Protection Act, any officer not below the rank of Assistant Director of Wild Life Preservation or an officer not below the

rank of Assistant Conservator of Forests is authorized to receive or record evidence. Sub-section (9) of the Act provides that any evidence

recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, provided that it has been taken in

presence of the accused person.

A conjoint reading of Sub-section (9) and Clause (d) of Sub-Section 8 of section 50 of the Act makes it appear, that the officer, as provided in

Sub-section (8) for the purpose of making investigation into an offence, who is empowered to receive and record any evidence should not be

below the rank of Assistant Conservator of Forest or the Assistant Director of Wild Life Preservation.

Apparently in the instant case, the statement was not recorded by an officer competent under sub-section (8) of section 50 of the Wild Life

Protection Act. The Ex- 1, confessional statement, though recorded by the forest officials not being a police officer, before acting upon any

confessional statement, two things have to be ascertained. Firstly, that the confession has been made voluntarily and such confession contains the

truth. Because the sanctity of any confession, be it judicial or extra-judicial, lies in its voluntariness. The accused had disowned the extra judicial

confession. It appears from the evidence of PW 1, that the accused/appellant was arrested by the forest officials along with the battalion on

08/09/2016 and his confessional statement was recorded on 09/09/2016, meaning thereby, the confessional statement was recorded after he was

arrested and taken into custody of the forest personnel and battalion. When the accused person was arrested by the forest personnel along with

the battalion and the confession was recorded after his arrest, it is difficult to hold that the confession was made voluntarily.

Evidently, the occurrence took place on 02/11/2013 and the accused/appellant was arrested in the year 2016. It is also in the evidence that a

gun was seized and the post mortem examination of the carcass was done, but neither the P/M report was produced, nor the doctor, who

conducted the post mortem examination, was examined to establish that the rhino concerned was killed. There is no evidence on record as to

whether the rhino was killed or it met with natural death. The prosecution has not been able to prove that the rhino was killed by the

accused/appellant in the year 2013, as there is no material on record to connect the accused with the killing of the rhino in the year 2013. The gun,

evidently, seized was also not produced, nor any evidence was adduced as to whether the said gun was used for killing the rhino in the instant

case. The accused/appellant was arrested on the basis of disclosure/confession made by co-accused Muwangpu Jamir, who was initially arrested

and upon his disclosure, the present accused/appellant was apprehended after three years of the occurrence. It is surprising to note, that there is no

material on record, as to what had happened to the said co-accused though he was admittedly arrested. Although an explanation has been given in

the offence report that he absconded, the question remains unanswered as to how and in what circumstances the person, who was arrested could

escape from the custody.

Be that as it may, the basic thing in a criminal case being the offence, i.e., a rhino was killed has not been proved in the instant case, which cast

a serious doubt on the prosecution case. When the prosecution has neither been able to establish the killing of the rhino nor any material could be

brought on record to connect the accused/appellant with the killing of any rhino, by way of direct or circumstantial evidence, no conviction could

be based solely on the ""so-called"" confessional statement, which is also found to be totally unworthy of placing reliance.

In view of the above facts and circumstances of the case, I am of the view that prosecution has not been able to establish the charge against the

accused/appellant beyond all reasonable doubt necessitating interference by this Court. Accordingly the conviction and sentence of the

accused/appellant is set aside and the appeal stands allowed.

The accused/appellant be released forthwith, if not required in any other case.

Send back the LCR.