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2022 DIGILAW 276 (UTT)

Shyam Singh v. State of Uttarakhand

2022-08-31

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the following:- (i) Judgment and order dated 29.08.2007, passed in Criminal Case No.405 of 2006, State vs. Shyam Singh, by the court of Chief Judicial Magistrate, Bageshwar (for short, “the case”). By which the revisionist has been sentenced under Sections 9/50/51 of the Wild Life (Protection) Act, 1972 (for short, “the Act”) and sentenced to three years rigorous imprisonment with a fine of Rs.10,000/- and; (ii) The judgment and order dated 09.04.2009, passed in Criminal Appeal No.10 of 2007, Shyam Singh vs. State, by the court of Sessions Judge, Bageshwar (for short, “the appeal”). By which the order dated 29-08-2007, passed in the case has been confirmed. 2. The facts necessary to appreciate the controversy briefly stated as follows. PW1 Kamla Devi gave a report on 05.04.2004 to the Sub Divisional Magistrate alleging therein that the dog of the revisionist was killed by a leopard. Aggrieved by it, the revisionist poisoned the corpus of the dog, the leopard consumed it and died. Thereafter, the revisionist removed the skin of the leopard and kept it in his house. Based on the report, according to the prosecution, the Sub Divisional Magistrate, Kapkot directed departmental officer to look into the matter. Thereafter, a raid was conducted on 07.04.2004 by the forest and police officers. The informant indicated the place where the skin was kept by the revisionist. It was on a tree which was at about 20 meter from the residence of the revisionist. The remains of the leopard was also recovered from a place. Thereafter, Forester, Narayan Singh Bisht gave a report to the Revenue Police Officer to lodge a report. This report is Ex.A-4. Based on it, Chik FIR Ex.A-6 was lodged under Sections 9/50/51 of the Act. Postmortem of the skin was done by PW7 Dr. R.P. Singh. Thereafter, the Investigating Officer prepared the site plan Ex.A-7 and submitted the charge-sheet. 3. On 14.09.2004, charge under Section 9/50/51 of the Act was framed against the revisionist. He denied the charge and claimed trial. 4. The prosecution examined eight witnesses namely, PW1 PW1 Kamla Devi, PW2 Darban Singh Koranga, PW3 Manohar Ram Vishwakarma, PW4 Narayan Singh Bisht, PW5 Guman Singh, PW6 Dhan Singh Kapkoti, PW7 Dr. R.P. Singh and PW8 Bal Kishan, Patwari. The revisionist was examined under Section 313 of the Code. He denied the charge and claimed trial. 4. The prosecution examined eight witnesses namely, PW1 PW1 Kamla Devi, PW2 Darban Singh Koranga, PW3 Manohar Ram Vishwakarma, PW4 Narayan Singh Bisht, PW5 Guman Singh, PW6 Dhan Singh Kapkoti, PW7 Dr. R.P. Singh and PW8 Bal Kishan, Patwari. The revisionist was examined under Section 313 of the Code. According to him, he has not committed any offence. After hearing the parties, by the judgment passed, in the case, the revisionist has been sentenced, which was upheld in the appeal. Hence, the revision. 5. Learned counsel for the revisionist would submit that it is a case of no evidence; the FIR is delayed; nothing was recovered from the possession of the revisionist; the alleged recovery of skin from an open place, as stated, was done at the instance of the witnesses; it is categorical case of the prosecution that the revisionist poisoned the corpus of his dog, so that the leopard may consumed it and die. It is argued that there has been no forensic examination, which may confirm that any poison was found in the remains of the leopard and in the skin. Hence, it is argued that the finding recorded is based on no evidence. Therefore, in the revision interference is warranted. 6. Learned counsel for the revisionist has also referred the statement of the prosecution witnesses. 7. On the other hand, learned State counsel would submit that the FIR is not delayed; the skin of the leopard was found at a distance of 20 meter from the residence of the revisionist; the remains of the leopard was found at the instance of the revisionist. 8. It is a revision. Appreciate of evidence is not a routine in such matters. This scope is much restricted to the extent of examining correctness, legality and propriety of the judgment and order. In case, the finding is based on no evidence or material evidence is ignored or irrelevant material is considered, in such eventuality, the Court may well with its jurisdiction appreciate the evidence. 9. In the instant case, the report dated 25.03.2004, allegedly given by PW1 Smt. Kamla Devi is not file. Some brief of it is mentioned in Ex.A-1, a document proved by PW3 Manohar Ram Vishwakarma. Why the original report allegedly given by PW1 Smt. Kamla Devi is not filed by the prosecution. 10. 9. In the instant case, the report dated 25.03.2004, allegedly given by PW1 Smt. Kamla Devi is not file. Some brief of it is mentioned in Ex.A-1, a document proved by PW3 Manohar Ram Vishwakarma. Why the original report allegedly given by PW1 Smt. Kamla Devi is not filed by the prosecution. 10. The star witness is Smt. PW1 Kamla Devi. She speaks that on 25.03.2004, at 08:00 in the morning, she has gone to a place called Bhaisi Gadera, there she saw that the revisionist was removing the skin of a leopard. She did not do anything then. In third paragraph of her statement, she would say that on the same date at 08:00 in the morning, she had seen that the revisionist had poisoned his dog and she had also seen that the revisionist was killing the leopard. In fourth paragraph of the examination-in-chief, PW1 Smt. Kamla Devi has stated that a day prior to it, the leopard had killed the dog of the revisionist. Therefore, the revisionist had poisoned the remains of the dog and threw it in the Bhaisi Gadera. It is then, she had seen the revisionist removing the skin of a leopard. She has stated about the report given by her on 05.04.2004 to the Sub Divisional Magistrate, it is not on record. 11. PW2 Darban Singh Koranga has not supported the prosecution case. PW3 Manohar Ram Vishwakarma, PW4 Narayan Singh Bisht. PW5 Guman Singh is also a witness of recovery, but according to him, he did not see the revisionist killing the leopard or buried the remains of it and PW6 Dhan Singh Kapkoti are the persons, who according to them visited the village of the revisionist based on the directions of Sub Divisional Magistrate, as contained as Ex. A-1. There, according to them, they questioned the revisionist and told him that he had kept the skin in his house, but he did not respond. Thereafter, according to the witnesses it is PW1 Kamla Devi, who indicated a skin on a tree, it was then recovered and recovery memo prepared. It is also been stated by the witnesses that the revisionist then confessed his guilt. Thereafter, according to the witnesses, the remains of the leopard was also found from the Bhaisi Gadera where the revisionist had secretly buried it. PW7 Dr. It is also been stated by the witnesses that the revisionist then confessed his guilt. Thereafter, according to the witnesses, the remains of the leopard was also found from the Bhaisi Gadera where the revisionist had secretly buried it. PW7 Dr. R.P. Singh examined the skin of the leopard and gave his report Ex.A-5. According to him, he was not in a position to tell, as to how the leopard was killed. PW8 Bal Kishan, Patwari, is the Investigating Officer, who took the entire investigation. 12. Recovery of the skin was not made from the house of the revisionist. When his house was visited by the witnesses, according to them, the revisionist did not respond to anything. It was the PW1 Smt. Kamla Devi, who indicated, as to where the skin is. PW4 Narayan Singh Bisht, in page 4 his statement, categorically stated that the alleged recovery of skin was made from a place, which was at about 20 meter from the house of the revisionist. It was an open place, not within the limited restrictions of the revisionist. 13. It is specific charge against the revisionist that he killed a leopard by poisoning. Which poison is it? Why any forensic examination was not done? The statement of PW1 Smt. Kamla Devi, in fact, does not prove any case against the revisionist. First and foremost FIR is much delayed. Her statement revealed that everything was happened before her. She has stated that the dog of the revisionist was killed by the leopard. Have she seen it? Of course not. She would say that the revisionist had thrown his dog in the Bhaisi Gadera, he poisoned it and she saw that on 25.03.2004, he was poisoning, but if so, how could she say that the leopard was killed on the same day and at the same time the revisionist was removing the skin. In fact, it is a no evidence case. The finding of conviction recorded against the revisionist is not based on any evidence. Therefore, this Court is of the view that the impugned judgments and orders, which are not in accordance with law, are liable to be set aside and the revisionist deserves to be acquitted of the charges levelled against him. 14. The revision is allowed. The finding of conviction recorded against the revisionist is not based on any evidence. Therefore, this Court is of the view that the impugned judgments and orders, which are not in accordance with law, are liable to be set aside and the revisionist deserves to be acquitted of the charges levelled against him. 14. The revision is allowed. The judgment and order dated 29.08.2007, passed in the case, which was confirmed by the judgment and order dated 09.04.2009, in the appeal, are hereby quashed. The revisionist is acquitted of the charges levelled against him. The revisionist be released forthwith, if not wanted in any other case. 15. Let a copy of this order along with the record be sent to the court concerned for compliance.