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2018 DIGILAW 130 (GAU)

Sukhdev Kutum v. State of Assam

2018-01-25

MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : 1. This appeal is directed against the judgment and order dated 25/05/2017 passed by the learned Addl. Sessions Judge, Golaghat in Sessions Case No. 1/2017. By the said judgment, learned Addl. Sessions Judge convicted the appellant u/s 51 (1) of the Wild Life (Protection) Act, 1972 and sentenced him to imprisonment for seven years and to pay fine of Rs. 25,000/-, in default, to further imprisonment for one year. 2. The prosecution case as revealed during trial is that on 02/11/2013, the forest officials heard a sound of firing and was trying to locate the place where it took place. Thereafter, the Forest Range Office got an information that three hunters were moving around the forest and there was an encounter. However, those miscreants made good their escape leaving a 303 rifle, which was seized by police. After 2/3 days of the incident, one Naga person was apprehended by police and was brought to the forest office, where he disclosed that he along with two other persons, namely, Sukhdev Kutum and Jugendra Saro killed one female rhino. On the basis of the disclosure by the Naga person, the forest personnel made a search to trace out the carcass, which was ultimately recovered and sent for post mortem examination. On the basis of the information given by said Naga person, namely, Muwangpu Jamir, an attempt was made to apprehend the co-accused Sukhdev Kutum and Jugendra Saro. After getting the information from said Naga person, the forest officials made endeavour to apprehend the co-accused Sukhdev Kutum and Jugendra Saro, but could not succeed and ultimately on 09/08/2016 the ACF, Romen Das along with Forest Battalion apprehended the appellant Sukhdev Kutum from Gugamukh and he was arrested and brought to the Forest Range Office. Deputy Ranger, Eastern Range, Agoratoli Kaziranga National Park, recorded the statement of the accused/appellant Sukhdev Kutum, wherein he confessed to have killed the rhino along with Muwangpu Jamir and Jugendra Saro. The accused/appellant Sukhdev Kutum was forwarded to the court and eventually an offence report was submitted against him showing the other two persons as absconders. On the basis of the said offence report, learned Addl. Sessions Judge, being Spl. Court, took cognizance, and eventually framed charge u/s 51 (1) of the Wild Life Protection Act against the accused, to which he pleaded guilty. 3. On the basis of the said offence report, learned Addl. Sessions Judge, being Spl. Court, took cognizance, and eventually framed charge u/s 51 (1) of the Wild Life Protection Act against the accused, to which he pleaded guilty. 3. In order to substantiate the charge, two witnesses were examined by the prosecution and on appreciation of evidence, learned trial court convicted the accused/appellant /s 51 (1) of the Wild Life Protection Act and awarded sentence, as indicated above. 4. Feeling aggrieved, the accused/appellant preferred the instant appeal. 5. Learned counsel for the appellant submitted, that there was no evidence, except the confessional statement (Ex-1) recorded by Deputy Ranger and such confessional statement was not voluntary one and it was also not recorded by an officer, competent u/s 50 of sub- section (8) of the Wild Life Protection Act. 6. Learned Addl. P.P., Mr. D. Das, referring to a certificate given in Ex- 1, contended that the statement was recorded in presence of Assistant Conservator of Forest and therefore, there was no reason for disbelieving the confessional statement. 7. From perusal of the oral testimony and the impugned judgment, it appears, that basically relying on the Ex- 1, confessional statement, the learned trial court recorded the conviction. Evidently, Ex- 1, is not a judicial confession and it can, at best, be considered as an extra judicial confession. Learned Addl. P.P. submits that the confession having been recorded by the forest officials and not by police officer, such confessional statement is not hit by section 25/26 of the Evidence Act. 8. Sub-section (8) of section 50 of the Wild Life Protection Act provides that for the purpose of making investigation into any offence against any provision of the Wild Life Protection Act, any officer not below the rank of Assistant Director of Wild Life Preservation or an officer not below the rank of Assistant Conservator of Forests is authorized to receive or record evidence. Sub-section (9) of the Act provides that any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, provided that it has been taken in presence of the accused person. 9. Sub-section (9) of the Act provides that any evidence recorded under clause (d) of sub-section (8) shall be admissible in any subsequent trial before a Magistrate, provided that it has been taken in presence of the accused person. 9. A conjoint reading of Sub-section (9) and Clause (d) of Sub-Section 8 of section 50 of the Act makes it appear, that the officer, as provided in Sub-section (8) for the purpose of making investigation into an offence, who is empowered to receive and record any evidence should not be below the rank of Assistant Conservator of Forest or the Assistant Director of Wild Life Preservation. 10. Apparently in the instant case, the statement was not recorded by an officer competent under sub-section (8) of section 50 of the Wild Life Protection Act. The Ex-1, confessional statement, though recorded by the forest officials not being a police officer, before acting upon any confessional statement, two things have to be ascertained. Firstly, that the confession has been made voluntarily and such confession contains the truth. Because the sanctity of any confession, be it judicial or extra-judicial, lies in its voluntariness. The accused had disowned the extra judicial confession. It appears from the evidence of PW 1, that the accused/appellant was arrested by the forest officials along with the battalion on 08/09/2016 and his confessional statement was recorded on 09/09/2016, meaning thereby, the confessional statement was recorded after he was arrested and taken into custody of the forest personnel and battalion. When the accused person was arrested by the forest personnel along with the battalion and the confession was recorded after his arrest, it is difficult to hold that the confession was made voluntarily. 11. Evidently, the occurrence took place on 02/11/2013 and the accused/appellant was arrested in the year 2016. It is also in the evidence that a gun was seized and the post mortem examination of the carcass was done, but neither the P/M report was produced, nor the doctor, who conducted the post mortem examination, was examined to establish that the rhino concerned was killed. There is no evidence on record as to whether the rhino was killed or it met with natural death. There is no evidence on record as to whether the rhino was killed or it met with natural death. The prosecution has not been able to prove that the rhino was killed by the accused/appellant in the year 2013, as there is no material on record to connect the accused with the killing of the rhino in the year 2013. The gun, evidently, seized was also not produced, nor any evidence was adduced as to whether the said gun was used for killing the rhino in the instant case. The accused/appellant was arrested on the basis of disclosure/confession made by co-accused Muwangpu Jamir, who was initially arrested and upon his disclosure, the present accused/appellant was apprehended after three years of the occurrence. It is surprising to note, that there is no material on record, as to what had happened to the said co-accused though he was admittedly arrested. Although an explanation has been given in the offence report that he absconded, the question remains unanswered as to how and in what circumstances the person, who was arrested could escape from the custody. 12. Be that as it may, the basic thing in a criminal case being the offence, i.e., a rhino was killed has not been proved in the instant case, which cast a serious doubt on the prosecution case. When the prosecution has neither been able to establish the killing of the rhino nor any material could be brought on record to connect the accused/appellant with the killing of any rhino, by way of direct or circumstantial evidence, no conviction could be based solely on the "so-called" confessional statement, which is also found to be totally unworthy of placing reliance. 13. In view of the above facts and circumstances of the case, I am of the view that prosecution has not been able to establish the charge against the accused/appellant beyond all reasonable doubt necessitating interference by this Court. Accordingly the conviction and sentence of the accused/appellant is set aside and the appeal stands allowed. 14. The accused/appellant be released forthwith, if not required in any other case. 15. Send back the LCR.