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2017 DIGILAW 335 (MP)

Prem Singh v. State of M. P.

2017-03-07

SUSHIL KUMAR PALO

body2017
JUDGMENT : Sushil Kumar Palo, J. The petitioners preferred this revision under section 397 read with section 401 of the Cr. P.C., assailing the judgment dated 27.8.1999 passed by the Sessions Judge, Mandla in Criminal Appeal No. 110/1999 whereby the learned Sessions Judge affirmed the conviction and sentence dated 10.9.1997 passed by J.M.F.C. in Criminal Case No. 221/1996 whereby the petitioners were convicted for offence under section 51 of the Wild Life Protection Act, 1972 and sentenced to rigorous imprisonment for three years and fine of Rs. 5,000/- each and in lieu of fine, they have to undergo additional rigorous imprisonment for five months each. 2. The prosecution story in brief is that on 14.7.1996, Police Station Mohgaon received information that at village Baniyatara, the accused persons Prem Singh and Sonu Gond are in possession of panther trophy and are trying to sell the same for Rs. 7,000/- and are in search of customers. The Police party along with witnesses Asgar Ali and Sukal Singh arrived at Village Bnaiyatara in a hired jeep Bearing No. M.P. 20-H/0607. The Sub-Inspector and the Head Constable were in civil dress. Keeping the jeep at a few distance, they entered into the village and represented them as traders and went into the house of Prem Singh and proposed to purchase the trophy. Accused Prem Singh called co-accused Sonu. Both of them produced the trophy of the panther, four claws and piece of liver, agreed to sell them for Rs. 7,000/-. When a bundle of Rs. 50/- note was shown to them by the Police party, accused Prem Singh took out a polythene bag and accused Sonu took out a polythene bag. Both the bags contained the trophy of panther, four claws, bone, nails and the piece of liver. 3. As per the complaint, the other police party and the panch witnesses entered into the scene and caught the accused persons along with the trophy, claws bone and piece of liver of the panther. Seizure was made by Ex. P/1 and P/2. Map Ex. P/3 was drawn. By preparing arrest memo, the accused persons were taken into custody. Dehati Nalisi Ex. P/6 was drawn. The departure for the spot was written in Ex. P/6 (Rojnamcha Sanha) and after returning from the spot, Ex. P/7 Rojnamcha sanha was lodged. Crime No. 69/96 was registered under sections 9, 15, 16, 39 and 51 of the "Act, 1972". By preparing arrest memo, the accused persons were taken into custody. Dehati Nalisi Ex. P/6 was drawn. The departure for the spot was written in Ex. P/6 (Rojnamcha Sanha) and after returning from the spot, Ex. P/7 Rojnamcha sanha was lodged. Crime No. 69/96 was registered under sections 9, 15, 16, 39 and 51 of the "Act, 1972". The seized property and trophy was sent to the Director, Kanha Tiger Reserve for examination. The report Ex. P/7 has been received confirming the trophy, claws of wild life "Tendua" (panther). 4. After investigation, charge-sheet has been filed. 5. The accused persons abjured guilt. In their examination under section 313 of the Cr.P.C., they denied the possession and contended that they have falsely been implicated, due to enmity by the opposite group of sarpanch as they are supporters of the preset sarpanch. 6. Learned Trial Court after having adduced evidence, found the petitioners guilty for offence under section 39 of the Wild Life Protection Act, 1972 and convicted them under section 51(1) of the Act, 1972 and sentenced them to rigorous imprisonment for three years with fine of Rs. 5,000/- each and in default of fine, they have to undergo additional sentence of five months rigorous imprisonment. 7. The petitioners preferred Criminal Appeal No. 110/1997. Learned Sessions Judge, Mandla vide judgment dated 27.8.1999 affirmed the judgment passed by the J.M.F.C., Mandla maintaining the conviction and sentence. 8. The petitioners contended that independent witnesses did not support the prosecution story. The learned Trial Court failed to appreciate the evidence properly. The petitioners are not directly involved in the crime. The petitioners claimed that the investigation agency has not recorded memorandum of the petitioners. Therefore, prima facie no case is made out against them. 9. Per contra, learned P.L. for the respondent/State opposing the contentions claimed that the learned Courts below have properly appreciated the evidence on record and the charges have been rightly found proved. Therefore, the same does not require any interference. 10. Perused the record. The materials seized was sent for examination to the Assistant Director, Kanha Project, Shri R.K. Sharma (P.W. 5). He after examining the articles has given the report Ex. P/4. After examining the items on 1.8.1996, he found that the trophy is of "Tendua" (panther) and the claws, nails, bone are also of Wild Life "Tendua" (panther). 10. Perused the record. The materials seized was sent for examination to the Assistant Director, Kanha Project, Shri R.K. Sharma (P.W. 5). He after examining the articles has given the report Ex. P/4. After examining the items on 1.8.1996, he found that the trophy is of "Tendua" (panther) and the claws, nails, bone are also of Wild Life "Tendua" (panther). Panther is also called as leopard and in Hindi, it is known as "Tendua" and "Gulbagh" because it has the round spotted skin and does not strips skin. He also stated that he has experienced of twenty years in the Kanha National Park. No reason to disbelieve this witness. Leopard or panther is Scheduled wild animal under the Act, 1972 and Panthera Pardus is its geological name. The Assistant Director, R.K. Sharma is an experienced and specially trained officer in the forest. Therefore, his evidence cannot be ruled out. 11. In the case of Pyarelal v. The State (Delhi Admn.) AIR 1995 SC 1159 It has been held that an experienced and specially trained officers’ evidence may be relied upon. Thus, establishes that the accused was in possession of those trophy and Courts below have accepted the same. Therefore, the accused who was in possession of the trophy, without licence, for the purpose of sale is liable to be convicted. 12. Indralal Pandey (P.W. 6) the Assistant Sub-Inspector of Police is the person who has led the team for the seizure. His evidence also found support from the evidence of Hemant (the Head Constable) and Abhay Kumar (the Constable) P.W.-3 and P.W.-4. 13. Asgar Ali (P.W. 1) and Sukal Singh (P.W. 2) have also corroborated the prosecution story though their evidence is slightly shaky but their evidence as regarding the seizure of the trophy and subsequent drawing of map of the spot cannot be disbelieved. They have agreed to the suggestion that when sarpanch dictated the accused Prem Singh, Sonu to bring the trophy from flour mill and claws from Durga Singh's place, the accused persons brought them. But in the examination-in-chief, they have clearly stated that the trophy was seized from Prem Singh when he brought the same from the flour mill and claws were seized from co-accused Sonu. They not only accepted their signature in Ex. P/1 and Ex. P/2 seizure memo, but also agreed that they signed the spot map Ex. P/3. But in the examination-in-chief, they have clearly stated that the trophy was seized from Prem Singh when he brought the same from the flour mill and claws were seized from co-accused Sonu. They not only accepted their signature in Ex. P/1 and Ex. P/2 seizure memo, but also agreed that they signed the spot map Ex. P/3. The statement of Indralal Pandey who led the team, indicates that the accused persons were incited to sell the trophy and the claws. The seizures were made promptly and arrest memo was drawn. He also states that Dehati Nalisi Ex. P/6 was drawn. After arriving to the Police Station, he has lodged report at Crime No. 69/96. 14. The possession of the trophy of panther was found proved. Therefore, the provision of section 57 of the "Act, 1972" comes into play. Once, it is established that a person is in possession or custody or control of any trophy or animal article or meat or part of any Wild Animal it shall be presumed, until contrary is proved. The burden of proof shall lie on the accused that such person is in unlawful possession, custody or contrary of such wild animal article, trophy or part of or derivative thereof. 15. Therefore, the burden was on the accused persons to prove that they are innocent. The petitioners did not discharge the onus. 16. Considering the evidence on record which is reliable and cannot be discarded for certain minor discrepancies. It is found proved that the accused persons were in possession of panther trophy and panther claws and were attempting to sale the same. 17. The statement of Indralal Pandey, an experienced specially trained officer, cannot be disbelieved and his evidence establishes that the accused persons were in possession of the trophy and the claws and the Court below had accepted the same. This Court, therefore, held that no interference is warranted. 18. Now coming to the sentence part, there accused persons have hunted the animal is not proved. Yet the possession of the trophy and the claws are found proved. No doubt it was for the accused persons to have given an explanation but what is clear form the evidence is that there is a contravention of section 39 of the "Act, 1972". 19. Yet the possession of the trophy and the claws are found proved. No doubt it was for the accused persons to have given an explanation but what is clear form the evidence is that there is a contravention of section 39 of the "Act, 1972". 19. Learned Counsel for the petitioners pleaded that the accused persons were held guilty for the offence under section 51 of the Act, 1972 but considering the part that the alleged offence was committed on 14.7.1996, i.e., about 20 years ago and the accused persons were 31 ad 29 years then and 20 years have been elapsed in between. Therefore, they be liberally dealt with. 20. In the case of Pyarelal v. The State (Delhi Administration), 1995 CrLJ 2075 the Hon'ble Supreme Court has reduced the sentence of six months as provided under the proviso to two months which was already undergone by the accused. 21. In the case of Jagdish Singh and others v. State of Bihar, 1985 CrLJ 1314 . the Patna High Court has convicted the petitioner for offence under section 52 of the Act, 1972 or unlawful killing of Bison and considering that the offence was committed ten years ago, altered the sentence of imprisonment into fine of Rs. 50 each. 21. In the case of Jagdish Singh and others v. State of Bihar, 1985 CrLJ 1314 . the Patna High Court has convicted the petitioner for offence under section 52 of the Act, 1972 or unlawful killing of Bison and considering that the offence was committed ten years ago, altered the sentence of imprisonment into fine of Rs. 50 each. In the case of Karamjit Singh v. State Delhi Administration), (2003) 5 SCC 291 the Hon'ble Apex Court has held that : "A. Terrorist and Disruptive Activities (Prevention) Act, 1987, - Sections 3 and 5, Explosive Substances Act 1908-Sections 3 and 4 - Involvement of accused-appellant (a police driver) in terrorist activities-Police raid-Recovery of explosive substances and other incriminating articles from appellant's residence-Conviction based on testimony of police witnesses-Propriety of-Testimony of Police witnesses conclusively establishing the charge levelled against the appellant Testimony of defence witness, on facts, of no assistance to appellant Defence contention that on account of non-examination of any public witness, the testimony of the police witnesses should not be relied upon, held could not be accepted-No material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who has none else but -a colleague of theirs-Further, no reason why P.W.-7 (father-in-law of appellant and a constable in whose allotted quarter the appellant was residing) would depose falsely to implicate his own son-in-law-On facts, the testimony of P.W.-5, held, could not be discarded merely on account of a stray sentence appearing tin the cross-examination-Thus, prosecution established its case against the appellant beyond any shadow of doubt-Conviction and sentence, upheld." 22. The petitioner remained in custody from 15.6.1996 to 4.11.1996 before the Trial Court and from 27.8.1998 to 2.11.1999 after the judgment. 23. Considering the facts that the petitioners have passed through the rigour of trial and 20 years have been passed in between. In such circumstances, it is not deemed necessary to send the petitioners to jail immediately. The sentence is reduced to already undergone and the fine of Rs. 5,000/-is enhanced to Rs. 25,000/- each which shall be deposited before the Trial Court within 30 days from today failing which the petitioners would have to go sentence of three months rigorous imprisonment each 24. With the aforementioned modification, the petition is allowed in part.