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2015 DIGILAW 1193 (GUJ)

Sibtehussain Gulame Abbas v. State of Gujarat

2015-11-06

G.R.UDHWANI

body2015
JUDGMENT : G.R. Udhwani, J. 1. Aggrieved by the judgment and order passed in Criminal Appeal No. 18/1999 confirming the judgment and order passed in Criminal Case No. 1887/1991 convicting and sentencing the petitioners for the offences punishable under Sections 9(1), 39(1), 51, 52 and 54(3) of the Wild Life (Protection) Act, 1972 (for short “the Act”), the petitioners are before this Court. 2. Petitioner-Mohammed Hasan Fulame Rasul was the original accused no.1 and petitioner-Sibtehussain Gulam E. Abbas was the original accused no.2 (hereinafter referred to as “accused nos.1 and 2”, respectively). 3. As per the prosecution case, accused nos.1 and 2 committed the offence in question on 17.01.1989 in the evening in the jungles of Dhareswar Village. A black deer is alleged to have been gunned down by the accused persons. Forest Guard-Bhagwanbhai Rambhai and Beat Guard-Rukhadbhai Gorakbhai approached the scene of offence on hearing the gunshot and found both the accused standing near the deer which, according to the witness still had some life. Accused no.2 was found with licenced gun accompanied by accused no.1. It is the prosecution case that witness-Rukhad suspected the accused persons, and therefore, accused were asked to handover the gun to them, but instead of obeying their direction, they made their escape good. Subsequently, beat-guard Rukhad was asked to guard the prey by forest guard-Bhagvanbhai. Forest guard-Bhagvanbhai then went to Amreli to meet Range Forest Officer (for short “RFO”) for apprising him about the incident, who in turn apprised the RFO-Mr. Jani of the incident in question. RFO-Mr. Jani drew the panchama of the scene of offence with the help of two panchas on 18.01.1989, and thereafter, the accused persons were arrested, muddamal gun was recovered and on conclusion of the investigation, the chargesheet was filed for the offences aforestated and Section 52 of the Act came to be subsequently added. 4. The accused having denied to the charge framed against them, were tried and ultimately, after recording their statement under Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”) and following other necessary procedures, the impugned judgment and order came to be pronounced. The matter was unsuccessfully taken in appeal. 5. 4. The accused having denied to the charge framed against them, were tried and ultimately, after recording their statement under Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C”) and following other necessary procedures, the impugned judgment and order came to be pronounced. The matter was unsuccessfully taken in appeal. 5. Various contentions have been raised by the learned counsel for the petitioners, but only those necessary for the decision in the Revision Applications are dealt with, having regard to the limitation spelt out in Section 397 of the Cr.P.C. 6. The argument is that there was discrepancy in the date of the offence; the discrepancy in the evidence as to the injured part of the body of the prey; that it was not permissible for the complainant to be the Investigating Officer; that Exh:95 i.e. so called confession of the petitioner was allegedly recorded on 19.01.1990 i.e. almost after a period of a year of the incident in question; that their so called confession was recorded at Exh:95 after arrest and therefore, the RFO having the powers to arrest and he having recorded the statement in the capacity akin to Police Officer, it is hit by Section 25 of the Indian Evidence Act and thus, the confessional statement was not admissible in evidence and has been wrongly relied upon by the Court-below; that as per the testimony of the panchas, no written confessional statement of accused no.1 was recorded, but only oral inquiry was made; thus, a very clear statement was made by the panchas that neither RFO-Mr. Saxena nor RFO-Mr. Jani recorded the statement of accused no.1 in writing. It is argued that thus, the defence of accused no.1 in his statement under Section 313 of the Cr.P.C. that his signature was obtained on the blank paper, is probabalised by the aforesaid evidence. It is argued that no other material except the confessional statement formed the basis of the conviction of the petitioners; that the production of the accused is shown as on 19.01.1989, whereas the incident is alleged on 17.01.1989 and thus, a serious discrepancy existed in the evidence; 7. It is argued that no other material except the confessional statement formed the basis of the conviction of the petitioners; that the production of the accused is shown as on 19.01.1989, whereas the incident is alleged on 17.01.1989 and thus, a serious discrepancy existed in the evidence; 7. That the statement of accused no.1 was allegedly recorded on 18.01.1989 in the Village Panchayat where he was arrested and the statement of accused no.2 at Exh:89 was allegedly recorded on 19.01.1989; that as per the testimony, accused no.1 was called to Panchayat Office and he allegedly had discovered the scene of offence. That no ballistic report was sought and Beat-Guard-Rukhad was not an eye witness as he reached to the scene of the offence only after the alleged incident occurred. 8. The learned counsel while questioning the evidence of Rukhad would submit that a mere site of the petitioners in front of the deer with the gun by Rukhad would not prove the case against the petitioners beyond reasonable doubt. In support of the aforesaid submission, the reliance is placed upon Manjappa Vs. State of Karnataka ( 2007 (6) SCC 231 ). 9. The learned APP would strenuously urge to dismiss the Revision Applications with the submission that the clear cut evidence was rendered by witness-Rukhad at Exh:76. It was submitted that applying the rule of res gestae emerging from Section 5 of the Indian Evidence Act, as also considering the conduct of the petitioners under Section 8 of that Act, the accused deserve to be convicted and no more evidence was necessary. It was submitted that hearing of gunshot; the witnesses spontaneously approaching the scene of offence; accused presence there with gun in possession of accused no.2; the existence dying animal in front of the accused, succumbing of the animal to bullet injury as established by medical evidence; the guilty conscience of the accused in fleeing the scene instead of surrendering when called upon to do so were strong circumstances against the accused. It was argued that these circumstances were much as formed the part of the same transaction and therefore the rule of res gestae was attracted and no other evidence was necessary. 10. It was argued that these circumstances were much as formed the part of the same transaction and therefore the rule of res gestae was attracted and no other evidence was necessary. 10. The learned APP would also contend that being authorized to record the statement under Section 50 of the Act, the RFO recorded the statement of the two accused and being satisfied with the trustworthiness and creditworthiness of the said statement, submitted the chargesheet along with other material. While drawing the attention of this Court to the evidence of panchas, the learned APP would submit that the entire case was corroborated by panchas and thus there is no room for interference with the impugned orders in the Revision Applications. 11. This Court in Criminal Revision Application No. 3337/2015 found recording of the statement by officer specified in Section 50 of the Act bereft of authority under that provision. It was held that in absence of conferment of the powers under the Wild Life (Protection) Act or the Code of Criminal Procedure, the RFO lacked authority to record the statements of the accused akin to the one possessed by the police officer under the Cr.P.C. or any other law for the time being in force. Therefore, the statements treated as confessional statement by the Court-below could not have formed the basis for conviction of the petitioners. That part of the evidence is therefore required to be excluded from the evidence on record. 12. However, the matter does not rest there. The prosecution had examined the most crucial witness-Rukhad at Exh:76. True that he did not witness the actual gunning down of the animal by the accused, but the fact remains that he was drawn to the scene of offence alongwith other witness on hearing the gunshot and found the two accused near the dying animal; accused no.2 with gun and the other accompanying him. It was successfully deposed by the witness that on being asked to handover the gun, both the accused made their escape good. Under such circumstances, the question is as to whether the evidence of Rukhad can exclusively hold the field for the prosecution. 13. It cannot be disputed that the fact closely connected with the fact in issue is the fact forming part of the same transaction and is most relevant fact under Section 5 of the Indian Evidence Act. Under such circumstances, the question is as to whether the evidence of Rukhad can exclusively hold the field for the prosecution. 13. It cannot be disputed that the fact closely connected with the fact in issue is the fact forming part of the same transaction and is most relevant fact under Section 5 of the Indian Evidence Act. The two guards were duty bound to guard the forest. On hearing the gunshot, they were duty bound to approach the place wherefrom the gunshot was heard. Both the guards thus approached the scene of offence on hearing the gunshot, in discharge of their duty. Accused no.2 was found with the gun, at the scene of offence by the two guards. Thus, the hearing of gunshot by them and possession of gun by accused no.2 was one of the strongest circumstances linking the accused with the offence. The accused could not establish their authorized presence in the protected forest. This was also thus a strong circumstance against the accused. The guards found the dying animal in front of the accused. Thus hearing of gunshot by them and possession of gun by accused no.2 and existence of dying animal in front of the accused was again a strongest of the circumstances against accused. Hesitation of the accused to surrender the gun to two guards and their escape from the scene of the offence represented their guilty conscience. This was again a very strong circumstance against the accused. Thus these chain of circumstances led to the only belief that the accused and only the accused committed the offence in question. Accused no.2, who was found with the gun by witness-Rukhad, came out with the defence under Section 313 that he had never been to the scene of offence on the day of the incident, but this remained a hollow defence and could not cut through the cogent evidence tendered by Rukhad Exh.76. It is argued that accused no.2 was authorized to possess the gun. However, he failed to explain his presence in the protected forest without authorization or permission. The possession of licenced gun does not render his criminal acts; a legal in absence of the authority to be present in the forest and perform such acts. 14. It is argued that accused no.2 was authorized to possess the gun. However, he failed to explain his presence in the protected forest without authorization or permission. The possession of licenced gun does not render his criminal acts; a legal in absence of the authority to be present in the forest and perform such acts. 14. When the presence of the witness at the scene of offence is natural and the witness is shown to be discharging his official duties at the scene of offence and he has no axe to grind against the accused and his testimony is found to be voluntary and trustworthy, the conviction can be rested on such solitary testimony. 14.1 If such witness deposes the hearing of the gunshot and the presence of the accused at the scene of offence near the victim with weapon of offence and the accused fails to account for his presence there, particularly when his presence is found to be unauthorized and the subsequent conduct of the accused reveals his guilty conscience, such facts can be said to be so closely connected to the fact in issue as to form the part of the same transaction i.e. the injury or death of the victim in the present case and thus, the rule of res gestae gets attracted and the conviction of the accused can be rested thereon in absence of the contrary evidence. 14.2 The rule of res gestae emerging from Section 6 of the Indian Evidence Act has thus been explained in the State of Maharashtra Vs. Kamal Ahmed Mohammed Vakil Ansari and others (AIR 2013 Supreme Court 1441): “The test to determine admissibility under the rule of "res gestae" is embodied in words "are so connected with a fact in issue as to form a part of the same transaction." It is therefore, that for describing the concept of "res gestae", one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations of hurt, seeking help, of disbelief, of cautioning, and the like arising out of the fact, spontaneous reactions to a fact, and the like. (Para 29)” 14.3 Similar view has been expressed in Krishan Kumar Malik Vs. (Para 29)” 14.3 Similar view has been expressed in Krishan Kumar Malik Vs. State of Haryana (AIR 2011 Supreme Court 2877) thus: “Section 6 of the Act has an exception to the general rule whereunder, hearsay evidence becomes admissible. But as for bringing such hearsay evidence with the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. (Para-35)” 14.4 In Bhairon Singh Vs. State of M.P. (AIR 2009 Supreme Court 2603); the Apex Court explained the rule in Para-16 thus: “16. The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence.....” 14.5 The following observations made in Ramashray Yadav and others Vs. State of Bihar (AIR 2006 Supreme Court 201) are relevant in the context of Section 6 of the Indian Evidence Act: “Then the question is, within how much time the statement should have been made ? If it was made contemporaneous with the occurrence the statement has a greater value as res gestae and then it is substantive evidence. But if it was made only after some interval of time the statement loses its probative utility as res gestae, still it is usable, though only for a lesser use.” (emphasis supplied) 14.6 The reference may also be made to Para-8 of Sukhar Vs. State of U.P. (AIR 1999 Supreme Court 3883). It was held thus: “8. But if it was made only after some interval of time the statement loses its probative utility as res gestae, still it is usable, though only for a lesser use.” (emphasis supplied) 14.6 The reference may also be made to Para-8 of Sukhar Vs. State of U.P. (AIR 1999 Supreme Court 3883). It was held thus: “8. This Court in Gentela Vijayavardhan Rao v. State of A.P. (1996) SCC 241, (1996 AIR SCW 3555, AIR 1996 SC 2791 , 1996 Cri LJ 4151) considering the law embodied in Section 6 of the Evidence Act held thus (Para 15 of AIR SCW, AIR and Cri LJ) : "The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae." 14.7 The reference to pertinent observation in the context of Section 8 of the Indian Evidence Act in relation to the conduct of the accused can thus be noted in Smt. Basanti Vs. State of H.P. (AIR 1987 Supreme Court 1572): “In the instant case, it has been established by the prosecution witnesses beyond all reasonable doubt that the deceased was murdered in his bedroom by a blow with an axe on the neck while he was asleep, as a result of which the head was decapitated from the body. State of H.P. (AIR 1987 Supreme Court 1572): “In the instant case, it has been established by the prosecution witnesses beyond all reasonable doubt that the deceased was murdered in his bedroom by a blow with an axe on the neck while he was asleep, as a result of which the head was decapitated from the body. There was evidence that accused, a wife of the deceased put the villagers including her brother-in-law on a false track by telling them that deceased had gone away from the village and had not returned. That conduct of hers was clearly admissible under S. 8 of the Evidence Act as part of res gestae as a evidence of conduct immediately after the occurrence.......” 14.8 In Yusufalli Esmail Nagree Vs. State of Maharashtra (AIR 1968 Supreme Court 147), the contemporaneous dialogue between the accused and the witness was held to be formed part of the res gestae and relevant and admissible piece of evidence under Section 8 of the Indian Evidence Act. 14.9 If the evidence is adduced establishing contemporary and spontaneous reaction of the witness to the occurrence; if the action/conduct has a live link to the facts in issue; if the evidence is adduced to show that the acts were perceived as the part of the occurrence and if it is shown that there was reaction, there is no interval between the transaction and words or conduct and the offence, there cannot be any hesitation to hold that facts not in issue, were so connected with the facts in issue so as to form part of the same transaction i.e. the fact in issue; and in such a case, the evidence on such facts can be relied upon as substantive piece of evidence and conviction can be rested on such evidence alone. 14.10 In the instant case, the fact in issue was as to whether the accused were responsible for hunting the dear ? The facts not in issue but closely connected with the fact in issue and conduct of the accused are as indicated in Para-13 above. Such facts were established by cogent evidence and formed part of the transaction of hunting the animal. Therefore, they were relevant under Section 6 of the Evidence Act and conviction can be rested on such facts and conduct alone. 15. Such facts were established by cogent evidence and formed part of the transaction of hunting the animal. Therefore, they were relevant under Section 6 of the Evidence Act and conviction can be rested on such facts and conduct alone. 15. It is settled legal position that when the ocular version is trustworthy and reliable, its corroboration is unnecessary. Therefore, merely because no ballistic report was sought or merely because there was some irrelevant contradictions as to the part of the body of the injured animal, the other reliable evidence cannot be rejected. 15-A. Further, as would be clear from the following discussion, causation of death is not sine qua non for offences aforestated. 16. Hunting is prevented under Section 9 of the Act and has been defined in Section 2(16) of the Act as under; “"hunting", with its grammatical variations and cognate expressions, includes, (a) capturing, killing, poisoning, snaring and trapping of any wild animal and every attempt to do so; (b) driving any wild animal for any of the purposes specified in sub-clause (a); (c) injuring or destroying or taking any part of the body of any such animal or, in the case of wild birds or reptiles, damaging the eggs of such birds or reptiles, or disturbing the eggs or nests of such birds or reptiles;” 17. Thus, the expression “hunting” has wide connotation as to include not only killing of the animal but other acts not entailing into death of the animal. Thus the offence in question was made out even in absence of proof of immediate death of the animal. It is worthwhile to note that the testimony of the doctor who performed the postmortem of the animal is sufficient enough to conclude that the animal succumbed to the gunshot. Therefore, notwithstanding that there was some life in the animal when witness Rukhad noticed it, it is more than clear that the animal succumbed to the gunshot. 18. As this Court has held that the power to record the statement of the accused is lacking with the RFO or the officer specified in Section 50 of the Act, it is unnecessary to examine wider issue as to whether the RFO enjoys powers akin to that of the Police Officer and whether his acts would be hit by the provision of the Indian Evidence Act and/or the Code of Criminal Procedure. It is, therefore, unnecessary to discuss the case law sighted at the bar, on the point. Consequently, other related arguments concerning the confessional statements are also not required to be answered. 19. Furthermore, the factual discrepancies as narrated in the Paragraphs-6 & 7 of this judgment cannot be re-appreciated in the Revision Application more particularly when two Courts-below have rendered concurrent findings of facts. 20. It was argued that except the presence of accused no.1 with other accused, no culpability against him in the offence was established. This argument ignores the fact that this accused was found in the company of accused no.2 under suspicious circumstances. Circumstances on record indicate that he was one of the partners in the offence. No leniency can therefore be shown to him. 21. It is a misconception to argue that the date of the death of the animal was traced beyond the date of the offence in the postmortem. On perusal of the postmortem report and the testimony of the doctor concerned, it is more than clear that the death of animal could be traced to the date and time of the offence. 22. The learned counsel would argue that looking to the present age of the accused and passage of about 25 years after the offence, fine is an appropriate option to serve the ends of justice. In the opinion of this Court that mere factor would not suffice for taking a lenient view more particularly when many species of wild life face extinction or are endangered species. Hunting for hobby or greed is wide spread. Large scale killing of wild animals is causing environmental and ecological imbalance. Call of the day is to suppress such activities with strong hands. Therefore, the punishment under the Act must be deterrent so that the offender desists repeating the offence and the strong message is received by similar offenders. 23. The reliance placed upon State of Punjab Vs. Bira Singh and others (1995 Supp. (3) SCC 708) and Manjappa Vs. State of Karnataka ( 2007 (6) SCC 231 ), which dealt with criminality in relation to the offence under the IPC, to plead dispensation of incarceration is misconceived and cannot be applied to the facts of the case. 24. 23. The reliance placed upon State of Punjab Vs. Bira Singh and others (1995 Supp. (3) SCC 708) and Manjappa Vs. State of Karnataka ( 2007 (6) SCC 231 ), which dealt with criminality in relation to the offence under the IPC, to plead dispensation of incarceration is misconceived and cannot be applied to the facts of the case. 24. However, considering the time lag between date of offence and the date of conviction confirmed by the Appellate Court and the current age of the accused, the only lenient view that can be taken is in the matter of reduction of the sentence and not its dispensation altogether. Considering the fact that this was the only offence reported against the petitioners, the sentence of one year will suffice. 25. It is however seen that the maximum fine imposable on the date of the offence was only Rs.2,000/- and the Court-below has imposed a fine of Rs.5,000/- on each of the petitioners. The said part of the order of punishment is therefore required to be corrected. Accordingly, a fine of Rs.2,000/- on each of the petitioners is imposed. The excess of the fine deposited by the petitioners shall be refunded. 26. Bail bond and surety stand cancelled. 27. Time to surrender to the jail authorities is granted upto 16.01.2016. 28. Under the circumstances, the Revision Applications are partly allowed. Rule is made absolute to the aforesaid extent.