Case No. – 218 of 2003
THE HIGH COURT OF BOMBAY
BENCH: Hon’ble Mrs. Swapna Joshi J.
DATE OF JUDGEMENT: 14 August 2017
RELEVANT ACTS/SECTIONS
Section 9 of the wildlife protection act 1972 (Prohibition for hunting)
Section 31 of the wildlife protection act 1972 (Prohibition of entry into the sanctuary with the weapon)
Section 39(2) of the wildlife protection act 1972 (Wild animals, etc., to be government property)
Section 39(3)(a) of the wildlife protection act 1972 (Acquire or keep in his possession, custody or control)
Section 39(3)(b) of the wildlife protection act 1972 (Transfer to any person, whether by way of gift, sale or otherwise)
Section 40(1)(2) of the wildlife protection act 1972 (Declarations)
Section 42 of the wildlife protection act 1972 (Certificate of ownership)
Section 48(a) of the wildlife protection act 1972 (Restriction on transportation of wildlife)
Section 49(b) of the wildlife protection act 1972 (Prohibition od dealings in trophies, animals’ articles, etc., derived from scheduled animals.)
Section 51 of the wildlife protection act 1972 (Penalties)
Section 26(1) of the Indian Forest Act, 1927 (Acts prohibited in such forests)
Section 41 of the Indian Forest Act, 1927 (Power to make a rule to regulate the transit of forest-produce)
BACKSTORY
This appeal was filed by the appealing party against the judgment and request dated 20-12-2002 conveyed in Regular Criminal Case No.15 of 1999 by the learned Judicial Magistrate First Class, Brahmapuri, along these lines absolving the respondents of the offences culpable under Sections 9, 39(2), 39(3)(a), 39(3)(b), 40(1)(2), 48(a), 49(b) read with Section 51 of the Wild Life (Protection) Act, 1972 and Sections 26(1) and 41 of the Indian Forest Act, 1927.
It was the case of the prosecution that in an enquiry in Preliminary Occurrence Report No.268/3, dated 20-01-1996, the Forest Office received a unanimous letter about the information that accused was done was possessing trophy, the skin of the wild animal and he was involved in hunting of wild animals. The Forest Department found that they charged people who are engaged with the current case were having the skin of Tiger on the statement given by one Dewendra Mahadeo Choudhari, who was the accused in that. Subsequently, on 24-01-1996, a court order was acquired from the Assistant Conservator of Forest and the raid was led by the R.F.O.(E.G.S.) Deepak Tirpude in the premises of the Vishesh Nivasi Apang Vidyalaya, Brahmapuri. During the raid, one skin of spotted Deer and another skin of Tiger found in the storeroom kept in a plastic gunny bag in still Kothi.
During the span of the inquiry, it was discovered that the accused Wasudeo had given the rest of the pieces of the skin to the accused no.2 khushal for sale purposes. The accused admitted that a few people have murdered Bibtya in the jungle (forest) and gave the skin to him and the skin is utilized in the cultural programmers’ like Dandar and show. He further admitted that he had given the skin to accused khushal who also admitted that the skin of Tiger and Deer was given to him by his relative Wasudeo.
Three pieces of tiger skin were found in this examination procedure. Out of those 3 pieces, one level piece was seized from accused khushal, and two little pieces of the tail and right palm were taken charged from accused Wasudeo and it found that those three pieces were of a similar Tiger. The seized pieces were sent to the Zoological Survey of India for discovering whether they were of a similar Tiger and also the report was furnished by the Zoological Department. Throughout the examination, it was transpired that accused no.1 committed hunting in the forest of Government and gave the skin of animals to accused no.2 Khushal and he had the skin with no grant and permit. Wasudeo transported the skin for wild animals with no license and both accused had failed to give declaration about the possession of skin of wild animals amounting to Rs. 1 Lac.
From the declaration of Investigating official, it was seen that the R.F.O. was not approved by the State Government or Central Government to hold up a complaint against the accused people according to Section 55 for the Wild Life Protection Act, 1972. Additionally, it was seen that the court order got by the official during the search of accused no.1 at Akapur, was not according to the provisions under Section 100 of the Criminal Procedure Code, 1973. It was pointed out that A.C.F. had not signed before on the court order. Neither the search warrant reveals the residence of panchas nor A.C.F. Mr. Thaware examines to support the contents of the search warrant. In this way, the search warrant doesn’t help the prosecution case. Thus, the search warrant of the Vishesh Nivasi Apang Vidyalaya, Bramhapuri was additionally not according to the provisions of 100 of the Cr.P.C. It was seen that search warrant doesn’t show the name of the proprietor of the house and plot number. The details about the search were not mentioned in the search warrant. Both the search warrant was in the printed format having filled in with the ink. A bare perusal of the details/contents therein, the documents were not found to be a reliable one. Thus, the testimony of the officer does not inspire confidence at all.
The confessional statements of the Wasudeo and Kushal were not supported by any independent witnesses and as such not found to be a reliable one. Similarly, there were discrepancies in the testimony of the witnesses examined by the prosecution. The independent witnesses had not supported or corroborated the prosecution case. The testimony of a prosecution witness who is a government servant was also not supported by the prosecution case. It was also not proved by the prosecution that Wasudeo used to do hunting of the wild animals and he was involved in the transportation of the skin of the wild animals or other forest produce. Even the presence of forest officials at the place of seizure was doubtful. In view of the facts and circumstances and lacunae in the testimony of the prosecution witnesses, the accused persons are entitled to the benefit of the doubt.
Considering the facts and conditions, the learned trial Judge had properly acquitted the accused people for the offences culpable under Sections 9, 39(2), 39(3)(a), 39(3)(b), 40(1)(2), 48(a), 49(b) read with Section 51 of the Wild Life Protection Act, 1972 and Sections 26(1) and 41 of the Indian Forest Act, 1927.
The court didn’t find any illegality or perversity in the judgment passed by the learned trial Judge. It was the very much settled rule of law that in the exercise of its appellate jurisdiction particularly in an appeal against acquittal, it was not open to the Court to substitute its view with a view taken by the lower Court except if the view taken by the lower Court is unlawful, unreasonable or contrary to the guideline of law.
JUDGEMENT
The court found that as there were no adequate grounds made out by the appealing party to meddle with the reviled judgment and request. Finally, the appeal was dismissed.