IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.1043 of 2001 Date of decision: July 16, 2010 Abid Mohd. and another .. Petitioners Vs. U.T. Chandigarh .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Raj Mohan Singh, Advocate for the petitioners. Mr. Gautam Kaile, Advocate for Mr. Rajiv Sharma, Advocate for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 5.7.2001 passed by the Additional Sessions Judge, Chandigarh, dismissing the appeal filed by the accused-petitioners (herein referred as 'the accused') against the judgment dated 4.2.2000 passed by the Chief Judicial Magistrate, Chandigarh, convicting and sentencing them to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- each under Section 51 read with Section 39, 43 and 44 of the Wild Life Protection Act, 1972 (herein referred as 'the Act'). In nutshell, the prosecution version is that on 10.8.1989, M.P. Sharma Assistant Wild Life Warden apprehended the accused Ali Akbar near Durga Nursery, Chandigarh and recovered the birds (wild animals) from his possession, which on inspection found to be 24 Parakeets, 3 Cuckoos, 5 Pigeons, 10 Finches and 63 Munias. On enquiry, Ali Akbar confessed his guilt while stating that he was working for his father Abid Mohd, who was sick. M.P. Sharma, took the birds into his possession, prepared the damage report, recorded the statement of Ali Akbar and ultimately preferred the complaint. After recording the preliminary evidence, the accused were charged under Section 51 and 55 of the Act, to which they pleaded not guilty and opted to contest. Criminal Revision No.1043 of 2001 -2- *** In order to substantiate the charges, the complainant examined Jaswant Singh (PW1), Santosh Singh (PW2), M.P. Sharma (PW3) and Surinder Singh (PW4). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. However, no evidence was led in defence. The trial ended in conviction. The appeal preferred by them also failed. Arguments heard. Record perused. The first contention raised by the learned counsel for the appellants is that the statement of Ali Akbar recorded by M.P. Sharma Range Forest Officer-cum- Assistant Wild Life Warden does not amount to extra judicial confession leading to the recovery of the birds, therefore, the same deserves to be taken out of consideration. While concurring with the aforesaid argument, it would be observed that the object of Section 27 of the Indian Evidence Act is the recovery of the incriminating article, disclosure about which has been made by the accused vide said statement. The Evidence Act has excluded the admissibility of the statement of the accused before the police officer, from consideration. However, that much part of the statement which may lead to the fact discovered has been made admissible. But, in the instant case, the statement recorded by M.P. Sharma Range Forest Officer-cum- Assistant Wild Life Warden after effecting the recovery cannot be treated as a statement leading to the discovery of a fact, therefore, the said statement would certainly be excluded from consideration and the complainant had to prove the case by leading independent evidence. Though, the case of the complainant is that the recovery of the wild animals was effected in the presence of some official witnesses but none of such witnesses was examined and no independent witness was associated at the time of effecting the recovery or to attest the recovery memo. Thus, in the absence of any corroboration to the testimony of M.P. Sharma, no reliance could be placed on his solitary testimony. According to the complainant, about 105 birds were taken into possession, yet, nothing has come on record, as to what was the age of these birds. Criminal Revision No.1043 of 2001 -3- *** Further more, the birds, in possession of the accused, were not produced in the court. The witnesses were also not shown those birds which were taken into possession from the accused. The birds so seized were not produced before the Magistrate, therefore, there is serious non compliance of the provisions of Section 50 (4) of the Act and the order of the Magistrate was obtained for releasing the birds without producing them in the court. It appears that both the courts below have not taken note of the aforesaid facts and circumstances of the case. The conviction recorded against the accused is based on mis-reading and mis-appreciation of the evidence, warranting interference by this Court. Resultantly, I accept the revision petition, set aside the impugned judgment, acquit the accused of the charges framed against them and direct that they be set at liberty forthwith. Bail bonds and surety bonds furnished by them stand discharged. Fine, if any deposited by them, be refunded. July 16, 2010 (A.N. Jindal) deepak Judge