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2018 DIGILAW 336 (BOM)

State Of Maharashtra v. Tukaram Deepla Chavan

2018-02-03

ARUN D.UPADHYE

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JUDGMENT Arun D. Upadhye, J. (Oral) - Being aggrieved by the judgment and order dated 24.01.2003 passed by the Judicial Magistrate First Class, Deulgaonraja in Regular Criminal Case No. 6/99, the Appellant-State of Maharashtra has preferred this appeal. 2. By the impugned judgment and order dated 24.01.2003, all the accused were acquitted for the offence punishable under section 9 of the Wildlife (Protection) Act, 1972 and section 261 (i) of the Indian Forest Act, 1927. The brief facts of the case are as under: 3. The complainant Range Forest Officer and the Assistant Wildlife Conservator have filed the complaint. According to the prosecution, Mehkar Forest is declared as reserve forest and also reserved for the Wildlife (Protection) Act, 1972. It is the case of the prosecution that on 26.4.1998 there was hunting of Nilgai in the reserve forest of Pimparkhed Tq. Sindkhed Raja, Dist. Buldana. According to the prosecution, on that day, the accused went towards Khairkhed Forest and hunted Nilgai. Thereafter, all the accused brought one jeep on hire and lifted Nilgai to village Pimparkhed, they cut the meat of the Nilgai and distributed amongst them. It is also alleged that they burnt the skin of Nilgai. 4. The prosecution also came with a case that the Forest Officer has recorded the statement of all the accused on 30.6.1998, the accused have given confession statement and admitted the guilt. After completion of necessary investigation, the complaint was lodged before the Judicial Magistrate First Class, Deulgaon Raja. 5. All the accused appeared before the learned Magistrate, a charge came to be framed against them and they pleaded not guilty and claim to be tried. After recording the evidence in the matter of hearing both the sides, the learned Magistrate has acquitted all the accused by the impugned judgment and order dated 24.1.2003. The said order is assailed by the State of Maharashtra by way of filing appeal. 6. I have heard Shri N.R. Patil, Additional Public Prosecutor for the State and Shri A.J. Thakkar, learned counsel for the accused at length. Shri Patil, learned A.P.P. has submitted that the learned Magistrate has wrongly acquitted the accused for the offence charged. The learned Magistrate should have considered the confessional statement of the accused and convicted them. The appeal filed by the State, therefore, be allowed. 7. Shri Patil, learned A.P.P. has submitted that the learned Magistrate has wrongly acquitted the accused for the offence charged. The learned Magistrate should have considered the confessional statement of the accused and convicted them. The appeal filed by the State, therefore, be allowed. 7. Shri A.J. Thakkar, learned counsel for the accused has vehemently submitted that the confessional statement was neither proved nor Exhibit-ed and, therefore, the same cannot be considered. He further submitted that there are contrary statements of witnesses recorded by the State and confessional statement of the accused. He also submitted that no chemical analyser report is filed on record in respect of blood and dung. The alleged offence is shown on 26.4.1998, the complaint was filed on 30.6.1998 and therefore there is a delay in lodging the complaint and same is not explained by prosecution. He further submitted that no question of incriminating circumstances were put to the accused except accused no.1 Tukaram. The learned Magistrate has rightly considered the evidence on record and acquitted the accused and therefore, no interference by this Court is called for. 8. Considering the submission of both the sides and having gone through the evidence on record, I find much substance in the submission of learned counsel for the accused. The impugned judgment dated 24.12.003 passed by the learned Judicial Magistrate First Class, Deulgaon Raja in Regular Criminal Case No. 6/99 does not require interference of this Court. 9. The prosecution has strongly relied upon evidences of P.W. 4 Prakash Madhavrao Kedar (Forest Guard) examined at Exhibit-42, P.W. 7 Ramdular Ramnandan Yadeo (Vanpal) at Exhibit-51, P.W. 8 Pandurang Sakharamji Musale (R.F.O.) Exhibit-59 and P.W. 9 Vidhyasagar Malhari Misalkar at Exhibit-62. The evidences of all these witnesses will have to be considered and examined minutely. 10. P.W. 4 Prakash Madhavrao Kedar, is Forest Guard: As per his evidence on 30.6.1998, he was attached to Bibi Forest Office and he received information that on village Sonosi, there was hunting of Nilgai. Therefore, they went to the jungle and saw blood clotted earth and cow dung and after calling mobile squad, statement of accused was recorded. He also deposed that thereafter, Rifle of one bore Exhibit-43 and spot panchanama was drawn vide Exhibit-45. He was cross-examined on earth, in the cross-examination, he stated that at that time, one Gawai was the Forest Guard for Sonosi Beat. He also deposed that thereafter, Rifle of one bore Exhibit-43 and spot panchanama was drawn vide Exhibit-45. He was cross-examined on earth, in the cross-examination, he stated that at that time, one Gawai was the Forest Guard for Sonosi Beat. In the cross-examination, he stated that hunting took place on 26.4.1998 and then went on spot of incident on 30.4.1998. In the cross-examination, he stated they have not seized skin of Nilgai. He also admitted that Nilgai cannot maintain by the common man. It is also stated that he has not impleaded the rifle owner in the present matter. He recorded the statement of the accused after 2 to 3 months of the incident. It was suggested to him that no blood stains on earth and cow-dung was seized from spot, but he denied. In the cross-examination, he stated that the spot of incident is at bullock-cart road. 11. P.W. 7 Ramdular Ramnandan Yadeo (Retd. Vanpal), is also attached to Forest Bibi as Forester. As per his version, the incident took place on 26.4.1998 and they had gone on the spot on 28.6.1998 and drawn the spot panchanama. He also deposed that thereafter, complaint was lodged vide Crime No. 140/3 vide Exhibit-53. According to him in the hunting, the gun was used of Banshi Chavan and same was seized vide Panchanama (Exhibit-43). He was cross-examined at length, in the cross-examination, he stated that information was received on 28.4.1998. In the cross-examination, it is stated that the date 28.4.1998 is not mentioned in the spot panchanama (Exhibit-45). He admitted that the spot of incident rest beside the road. There is no list of wildlife at their offices. He also stated that there is no record of existence of Nilgai in the forest. He again stated that there were 7 to 8 Nilgai''s in the forest. It was suggested to him that the panchanama was drawn in the office at Bibi, but he denied. 12. P.W. 8 Pandurang s/o Sakharamji Musale, attached to the Mobile Squad has deposed that the accused Tukaram has made a statement before the forest official that they have hunted Nilgai. He also deposed that as per the statement of Tukaram, the accused Nos. 1 to 11 have hunted Nilgai and thereafter have distributed the meat of Nilgai. He was cross-examined at length, in the cross-examination, he stated that the spot panchanama was prepared on 4.7.1998. He also deposed that as per the statement of Tukaram, the accused Nos. 1 to 11 have hunted Nilgai and thereafter have distributed the meat of Nilgai. He was cross-examined at length, in the cross-examination, he stated that the spot panchanama was prepared on 4.7.1998. It was suggested to him he was not present at the time of investigation but he denied. 13. P.W. 9 Vidhyasagar Malhari Misalkar (R.F.O.): According to him, he has recorded the statement of all accused as per their say and they have confessed before him that they have hunted Nilgai. He also deposed that he has seized the gun and sent to Forensic Laboratory for opinion. In the statement, he has deposed that in the investigation, it is transpired that the accused have committed offence therefore, complaint was lodged against them. He was cross-examined at length, in the cross-examination, he stated that Khairkhed village belongs to Sonosi Forest. In the cross-examination, he has stated that he had been to village Sonosi for petrolling and got information about the incident. In the cross-examination, he stated that on 4.7.1998, he had first visited to spot along with other officials. In the cross-examination, he has stated that he has not seized ash which was received from burning of the skin of the Nilgai. In the cross-examination, it is stated that Nilgai cannot be maintained by private person. In the cross-examination, it was suggested to him he has obtained signature of the accused on the blank paper and thereafter, recorded the statement but he denied. 14. After careful perusal of evidence of the witnesses P.W. 4, P.W. 7, P.W. 8 and P.W. 9, one thing is clear that the offence is registered after three months of the incident. No part of the Nilgai was seized by the forest official. The seized rifle and vehicle are also not enough to connect the accused for the offence charged. The statement of the accused recorded by the forest official are not proved that they have given confession of hunting of the Nilgai. There is inconsistent statement made by these forest officials on the point of recording statement. The evidence on record does not show that the accused have made confessional statement about the incident of hunting of Nilgai. Moreover, no chemical analyser report is filed on record showing the blood and dung was of Nilgai. There is inconsistent statement made by these forest officials on the point of recording statement. The evidence on record does not show that the accused have made confessional statement about the incident of hunting of Nilgai. Moreover, no chemical analyser report is filed on record showing the blood and dung was of Nilgai. The panchanama of seizure of the same is also not proved. The complaint appears to be filed against accused on the hearsay evidence. The alleged incident took place on 26.4.1998. However, no explanation is given by the prosecution for delay of lodging complaint vide Exhibit-53. On 30.6.1998, the delay is about three months. The prosecution story thus, raises doubt that the accused persons have committed an offence as alleged. The prosecution has not established the chain of circumstances against the accused and only relied upon the alleged statement of the accused. There is no evidence on record to show that the accused have given details of commission of offence and therefore the evidence of the forest official that the accused have stated they have committed offence cannot be accepted. The statement of the accused No. 1 is filed on record. The statement of the accused no.1 vide Exhibit-56 is also not proved and therefore cannot be relied upon. The evidence of the investigation officer is also vague and in general and cannot rely upon. 15. It appears that as per the prosecution story given, Gun of Banshi Chavan was used in the hunting. However, he has not made accused in this case. No explanation was given by the Investigation Officer to that effect. The pancha witnesses on seizure panchanama, spot panchanama have not supported the prosecution and they turned hostile. They have denied all the facts mentioned in the panchanama. The evidence remains only of forest official which also creates doubt. The spot panchanama also appears to be cart-road which is used for traffic. Therefore, seizure of blood stains and dung on the spot raises doubt. 16. After considering the evidence on record on hearing both the sides, I am of the considered view that prosecution has miserably failed to prove the guilt of the accused beyond the doubt. The evidence of the prosecution witnesses are inconsistent to each other. In such circumstances, the accused are entitled for acquittal. 17. 16. After considering the evidence on record on hearing both the sides, I am of the considered view that prosecution has miserably failed to prove the guilt of the accused beyond the doubt. The evidence of the prosecution witnesses are inconsistent to each other. In such circumstances, the accused are entitled for acquittal. 17. The learned Magistrate has considered the evidence on record and rightly recorded findings that prosecution failed to bring home the guilt of the accused and acquitted all the accused. The findings recorded by the learned Magistrate are just and proper and no interference of this Court is called for. The impugned order acquitting all the accused therefore, cannot be interfered. The appeal filed by the State is devoid of any merit and liable to be dismissed and accordingly dismissed.