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2010 DIGILAW 144 (MP)

BHIMRAJ MAHAR v. STATE OF MP.

2010-02-03

K.S.CHAUHAN

body2010
Judgment K.S.Chauhan, J. ( 1. ) This criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred being aggrieved by the judgment dated 6/10/2008 passed by the First Additional Sessions Judge, Balaghat in Criminal Appeal No. 183/2008 arising out of the judgment, finding and sentence dated 7/8/2008 passed by the Chief Judicial Magistrate, Balaghat in Criminal Case No.332/2007, whereby the applicant has been convicted under Section 39 read with Section 51 (Proviso) of the Wild Life (Protection) Act, 1972 (hereinafter referred to as the "Act, 1972*") and sentenced to RI. for 4 years with fine of Rs.20,000/-, in default SI for 120 days. ( 2. ) Prosecution case in short is that on 4/2/2007 Sanjay Singh, Sub Inspector, Police Station Bharveli received information that three persons are coming towards Amerha having tiger trophy to hand over to the smuggler. He recorded this information on Rojnamcha Sanha and proceeded to the spot for verifying such information. After sometimes three persons viz. Bhimraj, Pardesi and Gendlal came there. A search was conducted. The applicant was found having possession of tiger trophy in a plastic bag, which was seized from him. They were arrested. Disclosure statement of Pardesi was recorded and in pursuance thereof an iron cutter used in removing trophy was seized. FIR was recorded whereby Crime No. 10/07 was registered against the accused persons under Sections 9, 49-B and 51 of the Act, 1972. Spot map was prepared. Statements of witnesses were recorded. The seized trophy was sent for chemical examination to Wildlife Institute of India, Dehradun from where report received. After completing the usual investigation, a charge sheet was filed in the Court of Additional Chief Judicial Magistrate, Balaghat. ( 3. ) The accused persons were charged under Section 39 read with Section 51 of the Act, 1972. This applicant was further charged under the proviso of Section 51 of the Act, 1972. The charges were read over and explained to the accused persons. They abjured the guilt and claimed to be tried. Prosecution examined as many as 10 witnesses. Accused persons did not examine any witness. After appreciating the evidence, trial Court acquitted the accused persons from the charges under Section 39 read with Section 51 of the Act, 1972, but this applicant was found guilty under Section 39 read with Section 51 (Proviso) of the Act, 1972 and sentenced thereto. Prosecution examined as many as 10 witnesses. Accused persons did not examine any witness. After appreciating the evidence, trial Court acquitted the accused persons from the charges under Section 39 read with Section 51 of the Act, 1972, but this applicant was found guilty under Section 39 read with Section 51 (Proviso) of the Act, 1972 and sentenced thereto. Being aggrieved by the judgment, finding and sentence he preferred Criminal Appeal No. 183/2008 before the Sessions Court, which was dismissed. Being aggrieved by the impugned judgment, finding and sentence, instant revision has been preferred on the grounds mentioned in the memo of revision. ( 4. ) Shri Surendra Verma, learned counsel for the applicant submitted that the offence as alleged has not been proved beyond reasonable doubt against the applicant. Two accused persons have been acquitted from the same set of evidence, therefore the similar standard ought to have been applied in the case of present applicant. The independent witnesses have not supported the prosecution case. The finding of guilt is erroneous which deserves to be set aside and applicant is entitled for acquittal. ( 5. ) On the contrary Shri R.P.Tiwari, learned .counsel appearing on behalf of the respondent/State supported the impugned judgment mainly contending that the prosecution has proved the case beyond reasonable doubt against the applicant. The applicant has been rightly convicted and sentenced, hence does not call for any interference. ( 6. ) The main point for consideration in this revision is that whether the Courts below have committed an illegality in convicting and sentencing the applicant under Section 39 read with Section 51 (Proviso) of the Act, 1972. ( 7. ) Sanjay Singh (PW-8) has deposed that tiger trophy was seized from the possession of this applicant vide seizure memo (Ex.P-4) and the FIR (Ex.P-11) was recorded. The seized trophy was sent for chemical examination to Wildlife Institute of India, Dehradun from where report received, This witness has been subjected to lengthy and piercing cross examination but his evidence is intact on the material point. ( 8. ) Ravishankar Singrauli (PW-2), Pramod Kumar (PW-3) and Nishikant Sharma (PW-4) have given the evidence in support of Sanjay Singh (PW-8). ( 8. ) Ravishankar Singrauli (PW-2), Pramod Kumar (PW-3) and Nishikant Sharma (PW-4) have given the evidence in support of Sanjay Singh (PW-8). Seizure witnesses Sunil Kumar Maravi (PW-1) and Sagar (PW-7) have not supported the prosecution case, but the evidence of Sanjay Singh (PW-8) and other witnesses is sufficient to prove that the tiger trophy was seized from the possession of this applicant. There is nothing to disbelieve their statements. There is no reason to falsely implicated this applicant. The Courts below after relying upon their evidence found that tiger trophy was seized from the possession of this applicant. The seized trophy was examined by three DFOs viz. Sujoy Majumdar (PW-5), Ramayan Pratap Singh (PW-6) and Kirti Shah Netam (PW-9), who found that it was the trophy of leopard. The Panchanama (Ex.P-9) was prepared which contains their signatures. ( 9 ) Chandra Prakash Sharma (PW-10) who was the Laboratory Technician in the Wildlife Institute of India, Dehradun has given the evidence that the trophy was examined and it was found of leopard. ( 10. ) Thus it is established that the trophy which was seized from the possession of this applicant was of leopard and this animal is included in Schedule-1. In the aforesaid circumstances, the Courts below have not committed any illegality in finding the applicant guilty under Section 39 read with Section 51 (Proviso) of the Act, 1972. There is no scope of re-appreciation of evidence at the revisional stage. Finding of the Courts below is not perverse or contrary to the evidence available on record, therefore does not call for interference. The finding of guilt under Section 39 read with Section 51 (Proviso) of the Act, 1972 is hereby affirmed. ( 11. ) So far as sentence is concerned, learned counsel submitted that the applicant has suffered substantial part of jail sentence, therefore he be released on the period already undergone. But this prayer is not acceptable for the simple reason that the minimum sentence is provided for this offence. However the sentence being excessive deserves to be reduced. ( 12. ) Consequently this criminal revision succeeds and is partly allowed. The conviction passed under Section 39 read with Section 51 (Proviso) of the Act, 1972 by the Courts below is hereby maintained. However the sentence being excessive deserves to be reduced. ( 12. ) Consequently this criminal revision succeeds and is partly allowed. The conviction passed under Section 39 read with Section 51 (Proviso) of the Act, 1972 by the Courts below is hereby maintained. However, the sentence is reduced to 3 years RI and fine to Rs.10,000/-, in default of payment of fine he shall undergo SI for 60 days. The applicant is reported to be in jail serving out the sentence. Revision partly allowed.