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2014 DIGILAW 236 (CHH)

Ishwari v. State of Chhattisgarh

2014-06-25

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Questioning the legal acceptability of impugned judgment affirming the order of Chief Judicial Magistrate passed in Criminal Case No. 352/98 by which the trial Magistrate has recorded the finding of conviction against the applicant for offence under Section 51 of the Wild Life (Protection) Act, 1972 (henceforth 'the Act, 1972') and sentenced him to undergo simple imprisonment for 1 year and to pay fine of ` 5,000. 2. The core facts required for adjudication of this revision are as under: 2.1. On 24-3-1998, the applicant entered into reserved forest to cut leaves and in the reserved compartment of No. 82 he caused the death of bird namely peafowl (male peacock) and he was carrying the same in a covered cloth which was seized by Forest Ranger T.N. Kumbhaj (PW-5) and others in presence of witnesses Shyamlal (PW-1) and Bir Singh (PW-2) vide Ex. P-1. A Panchnama was prepared vide Ex. P-2. Post mortem was conducted vide Ex. P-4 and thereafter the competent officer filed a charge-sheet in the jurisdictional criminal Court for offence under Section 51(1) of the Act, 1972. 2.2. The applicant abjured the guilt and entered into defence stating that the prosecution case is out and out false and he has been falsely implicated in the case. 3. In order to bring home the above-stated offence, during the course of trial, the prosecution examined as many as seven witnesses in support of the prosecution case and exhibited nine documents. Whereas, the defence neither examined any witness nor filed any document in support of its case. 4. The trial Magistrate, after appreciating the oral and documentary evidence on record, found the applicant guilty for the offence under Section 51 of the Act, 1972 and sentenced him to undergo simple imprisonment for 1 year and to pay fine of ` 5,000. 5. In an appeal filed by the applicant, the appellate Court maintained the judgment of conviction as well awarding the sentence against which this revision has been filed. 6. Shri Ajit Singh, learned counsel appearing for the applicant would submit that the prosecution has absolutely failed to bring home the offence under Section 51 of the Act, 1972. Alternatively, he would submit that the sentence awarded is excessive looking to the guilt of the applicant and as such the period undergone by the applicant be held sufficient so far as sentence is concerned. Alternatively, he would submit that the sentence awarded is excessive looking to the guilt of the applicant and as such the period undergone by the applicant be held sufficient so far as sentence is concerned. 7. Opposing the submission made on behalf of the applicant, Shri Raj Kumar Gupta, learned Deputy Advocate General appearing for the State/non-applicant would submit that the concurrent finding recorded by the Courts below finding the applicant guilty for the offence under Section 51 of the Act, 1972 for killing a national bird peacock, rightly reached to the conclusion that he is guilty for the offence under Section 51 of the Act, 1972. He would further submit that looking to the fact that the applicant has killed a national bird, no leniency should be shown while sentencing the applicant. 8. I have heard learned counsel appearing for the parties and considered the rival submissions and have also perused the record with utmost circumspection. 9. The question falls for consideration is whether the applicant is guilty of causing death of a prohibited bird namely peafowl which is a scheduled bird provided in Sl. No. 11 of Part III of Schedule I enacted under the provisions of the Act, 1972. It is the case of the prosecution that on 24-3-1998, the applicant was coming from the reserved forest compartment No. 82 having the covered cloth and the prohibited bird peacock which was seized by Forest Ranger T.N. Kumbhaj (PW-5) in presence of witnesses Shyamlal (PW-1) and Bir Singh (PW-2) and seized vide Ex. P-1. Shyamlal (PW-1) and Bir Singh (PW-2), in their statements before the Court have duly supported the prosecution case that on being inquired by the Forest Officers and from the applicant the peacock (dead) was recovered vide Ex. P-1. They were subject to lengthy cross-examination by the defence but nothing has been brought on record to show that the dead peacock was not recovered from the possession of the applicant. The testimony of Shyamlal (PW-1) and Bir Singh (PW-2) unmistakably states that the body of peacock was seized from the possession of the applicant and he only stated that he killed the said bird by the Axe, which was also found in his possession. The body of the peacock was sent for post mortem/medical examination to Dr. Jagdish Sharan Vaishnav (PW-4), who conducted post mortem examination and submitted report (Ex. The body of the peacock was sent for post mortem/medical examination to Dr. Jagdish Sharan Vaishnav (PW-4), who conducted post mortem examination and submitted report (Ex. P-4) in which he found that the suspected cause of death is infestation of worms and also causing fracture, haemorrhage and shock. Thus, the prosecution version is duly supported by the seizure notice and other witnesses. 10. Admittedly, the male peacock is a prohibited bird Sl. No. 11 Part 3 enacted under the Act, 1972. Section 57 of the Act, 1972 provides for presumption to be made in certain cases as under: 57. Presumption to be made in certain cases.--Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, trophy, uncured trophy, specified plant, or part or derivative thereof it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat, trophy, uncured trophy, specified plant, or part or derivative thereof. 11. Section 9 of the Act, 1972 provides for prohibition of hunting as under: 9. Prohibition of hunting.--No person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under section 11 and section 12. 12. The applicant has also failed to rebut the presumption as provided in Section 57 of the Act, 1972 by explaining as to how he came into possession of body of peacock. On the other hand, he admitted the killing of the peacock on inquiry which is duly supported by the medical evidence and, therefore, the applicant has committed the act which is a violation of Section 9 of the Act, 1972 punishable under Section 51(1) of the Act, 1972. 13. Thus, the conviction recorded by the trial Magistrate for offence under Section 9(1) of the Act, 1972 which is punishable under Section 51 of the Act, 1972 is duly upheld by the appellate Court. Upon hearing learned counsel appearing for the parties and perusal of the record and in view of the aforesaid discussion, I do not find any illegality in the finding so recorded by the two Courts below. Accordingly, I affirm the finding so arrived at. 14. Upon hearing learned counsel appearing for the parties and perusal of the record and in view of the aforesaid discussion, I do not find any illegality in the finding so recorded by the two Courts below. Accordingly, I affirm the finding so arrived at. 14. The determination of the question of conviction brings me to the question of sentence. 15. Shri Ajit Singh, learned counsel appearing for the applicant would submit that looking to the fact that the applicant has remained in jail for fairly long time and that he had been facing the trial for last 16 years, the period undergone by the applicant be held sufficient and sentence awarded to him be reduced accordingly. 16. On the other hand, Shri Raj Kumar Gupta, learned Deputy Advocate General appearing for the State/non-applicant would submit that the peacock is a duly notified national bird in addition to the bird duly notified in Part III of Schedule I of the Act, 1972 and, therefore, the applicant is not entitled for any leniency in the sentence. I have also heard and considered the submission with regard to sentence. 17. I find that the applicant in the pretext of collection of leaves entered the reserved forest and killed the bird peafowl and thereafter carried it in a closed cloth which offence the prosecution has duly established and considering the fact that the applicant has caused the death of bird which is not only a scheduled bird but also notified as national bird, I consider it is not a case where leniency should be shown to the applicant in awarding sentence. The sentence of simple imprisonment for 1 year and payment of fine of ` 5,000 awarded by the trial Magistrate to the applicant is hereby affirmed. Consequently, the revision is dismissed.