IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 414 of 2002 Date of decision: 3. 6. 2009 State of H.P. ……Appellant Versus Jai Singh and others. …..Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the appellant: Mr. Vikas Rathore, Dy. Advocate General. For the respondents : Mr. Bhupinder Ahuja, Advocate. Surinder Singh, J. (Oral) The State has challenged the acquittal of the respondent for the offences punishable under Section 51 of the Wild Life (Protection) Act, 1972 and Section 25 and 27 of the Arms Act, 1959 read with Section 34 of the Indian Penal Code. In nutshell, the case of the prosecution can be stated thus. PW-1 Ram Dayal, is the Pradhan of Gram Panchayat Dehra. According to him, on 17.3.1993, he had come to village ‘Dhar’ to inspect the construction work of the School in the morning at 10 a.m. It is alleged that DW- 1 Kheti Ram informed him that some Poachers 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes - 2 - had been indiscriminately shooting the wild animals in the Jungle since the previous day i.e., from the morning of 16th March, 1993. On this, Ram Dayal aforesaid went to village ‘Kunda’ and informed the villagers about the happening. As per the case of the prosecution, said Shri Ram Dayal, in order to find out as to who were the hunters, poaching in the forest associated Narad Ram, Kishan Gurdayal (PW-3) Bhagi, Sh. Rupoo, Sh Damodar, Sh Chatter, Sh. Tej Singh, Sh. Kakhu, Sh. Deed PW-2 Sh. Bhagat Ram and proceeded towards Gadhalla forest. When they reached near the ‘gharat’ of Bhagi Ram on the bank of the river, they found the skined off female animal lying nearby. The accused Devi Singh (A-4) was cooking meal inside the ‘gharat’. The complainant party also found a 12 bore gun lying there which was not bearing any number. Ram Dayal aforesaid inquired from Devi Singh about the gun and also regarding female skinned off animal. On this, Devi Singh accused is alleged to have told them that said gun belonged to Jai Singh (A-1) and further informed that Jai Singh along with other co-accused were hunting the animals in the forest w.e.f. 15.3.1993 whereas he was preparing the meals for them. The complainant - 3 - seized the gun along with skined off animal and handed it over to PW Bhagat Ram. Thereafter, they proceeded towards the forest. When they covered a few distance, they noticed accused Palnu (A-5) and Ganesh Dutt (A-3), who were found carrying skinned off ‘Himalayan Tahr’ locally known as “karth” on their shoulders whereas the accused Jai Singh (A-1), Bhagi Ram (A-2) and Tek Chand (A-6) were having guns in their hands who, on seeing the complainant party ran inside the forest. The accused persons Ganesh Dutt and Palnu both were apprehended by the complainant party. The animal skins, which they were carrying were inspected and it was found to be that of male “karth”. On inquiring the matter from them, they admitted that they were poaching the wild animals along with other co- accused persons in the forest area but they did not reveal anything about the details of the guns being carried by others. The two animals skins, which were recovered from Palnu and Ganesh Dutt were also handed over to Bhagt Ram Up-Pradhan. On 20.3.1993, the police happened to be present in the area in connection with an inquiry in some other case and it was then Ram Dayal informed the police. His statement was recorded under Section 154 of the Code of - 4 - Criminal Procedure (Ext. PW-1/A) which was sent for registration of the case and on its basis FIR was formally recorded. PW-2 Bhagat Ram had produced one 12 bore gun (Ext. P-1)to the police which was not having any number along with three wild animals skins (Ext. P-2 to P-4) which were sealed with seal impression ‘A’ and were taken into possession vide memo Ext. PW-2/A. Site plan of the place of incident and the recovery both were prepared by the police. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. The gun in question was sent for the examination to the Ballistic expert F.S.L. Shimla. As per report Ext. P-A, Gun was found to be in a working condition, it had a spent cartridge in it. The animals skin were got examined from the veterinary doctor PW-10 Dr. Devinder Kumar. According to him, the animal skin No. 1, 3 bore the gun shot injury except skin No. 2. To this effect he issued slip Ext. PW-10/A and further detailed opinion was given by him vide certificate Ext. PW-10/C. The flesh/meat of the wild animals was rotten and was emitting foul smell, as such it was buried on the spot. - 5 - The said skins were shown to D.F.O, Wild Life, Chamba. According to him, animal skins were that of ‘Himalayan Tahr’ which were locally called “karth”. To this effect, he issued certificate Ext. PW-5/A. During the investigation of the case, the police took into possession a notification dated 12.9.1988 (Ext. P-6) whereby the entire State of H.P. was closed for hunting for a period of five years w.e.f. the hunting season of 1988 to 1989 to 1992- 1993 and the hunting of the wild animals was totally banned. After completing the investigation of this case, sanction Ext. PW-11/A to prosecute the accused persons under the Arms Act was also obtained from the District Magistrate, Chamba and challan was presented in the court for the trial of the respondent for the aforesaid offences. Finding a prima facie case against the respondents for the offences aforesaid, they were charge sheeted, to which the respondents pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the code of - 6 - Criminal Procedure. They also led evidence in defence. In short, the defence raised by the respondents was that it was the complainant party who were poaching the wild animals in the Forest and it was DW-1 Kheti Ram with whom the respondents had deposited 12 bore gun No. Poplur=120893-82 Popular Gun Works India India HP 12 2¾ 719 3¼ and alleged that the complainant party was found hunting the wild animals and further that the skins and the meat was also in possession of Bhagat Ram PW- 2, with a request to inquire into the matter. An application was handed over by DW Kheti Ram on 19.2.1993, to Head Constable Karam Chand PW-2 on the basis of which Rapat Mark-A was also registered. To prove the defence, DW-1 Kheti Ram and DW-2 Head Constable Sat Pal were also examined. Learned trial court jettisoned the prosecution evidence with respect to the recovery of skins and the gun and acquitted the respondents. In this appeal their acquittal has been challenged. Sh. Vikas Rathore, learned Deputy Advocate General vehemently argued that learned trial court gave undue importance to the minor contradictions occurring in the - 7 - prosecution evidence. Further that the recovery of the gun and the animals skins stood proved from the possession of the respondents as such they should have been convicted for the offences aforesaid. Shri Bhupinder Ahuja learned counsel for the respondents in response to the above argument supported the findings of acquittal arrived at by the learned trial court and ventilated that there are no grounds to convert the acquittal into conviction. It is a settled principle of criminal jurisprudence that initially onus to prove the offence lies on the prosecution and the case against the accused is required to be proved to its hilt. Whereas the accused can discharge the onus by preponderance of the probabilities and the onus on the accused is not that much heavy, what is on the prosecution. In the instant case to probablize the defence, accused specifically put their defence to all the prosecution witnesses that Ram Dayal (PW-1), Bhagat Ram (PW-2), Gurdayal (PW-3) and Tej Singh (PW-4) who belonged to the same village named ‘Kunda’ were found poaching the wild animals in the forest and the respondents had snatched the gun from them and handed over to Kheti Ram Pradhan (DW-1) of - 8 - their village on 17.3.1993, to which, of course they denied. PW-4 Constable Karam Chand was also informed in writing to this effect. Even this suggestion was put to Karam Chand aforesaid in his cross-examination which was neither admitted nor denied by him rather he feigned ignorance and stated that without referring to the record, he was unable to say anything. Whereas this fact has been substantiated by the respondents by examining DW-1 Kheti Ram. He proved his application Mark-X which was allegedly given to Head Constable Karam Chand on 19.3.1993 and DW-2 Head Constable Sat Pal has proved its entry against Rapat No. 7 recorded on 23.3.1993 (Mark-A).But the original record to this effect is stated to have been destroyed as per the rules. The record shows that the statement of PW-1 Ram Dayal was recorded on 20.3.1993 (Ext.PW-1/A) at 5.30 p.m. in the forest itself by H.C. Karam chand (PW-9). As stated above, the police was already present in the area in connection with the investigation of another case FIR No. 23/1993 under Sections 341, 323 and 506 of the Indian Penal Code, in village Gandhola. In cross-examination PW-9 denied that information Mark-K in writing was presented to him by Kheti Ram (DW-1) Whereas there is an endorsement on the said - 9 - application pertaining to the aforesaid date, further this fact stands established from the Rojnamcha Mark-A recorded on 23.3.1993, the correctness of which is admitted by DW-2 Head constable in so many words. Against the aforesaid background when the gun was deposited by the accused party (the respondents) with Kheti Ram DW-1 on 17.3.1993 then it is not understood how the same was shown to have been presented by Bhagat Ram (PW-2) along with flesh and animal skin to the police on 20.3.1993. Thus,the story of the prosecution has become doubtful in view of the aforesaid facts which surfaced on record and, I find that the evidence of both the sides are equi-balanced, one points towards the guilt of the accused-respondents and another towards their innocence. It is also a well settled principle of law that where two views are deducible from the evidence on record, the view favouring the accused has to be accepted. In Vijay Kumar vs. State, 2009 (7) JTSC 36, Dr. Mr. Justice Arijit Pasayat speaking for the court, while reiterating the principles and guidelines in an appeal against acquittal, inter alia, observed that if the High Court, on a fresh scrutiny and reappraisal of the evidence and other material - 10 - on record, is of the opinion that there is another view which can be reasonably drawn, then the view which favours the accused should be adopted. Otherwise also, in the statement of PWs 1 to 4, there are material contradictions which were also noticed by the learned trial court with respect to handing over the gun in the evening whereas he stated that gun was handed over in the morning. PW-1 in the cross- examination has stated that the gun in question was not seized from the possession of the accused but it was found lying near the “gharat” of Bhagi Ram. None of the prosecution witnesses have found or noticed any of the accused persons firing at any wild animal. Further, PW-1 Ram Dayal stated having reported in writing on 19.3.1993 but there is no such document. As per the case of the prosecution, the police visited the spot and recorded the statement of Ram Dayal on 20.3.1993 which means that there was no information prior to it with the police. PW-2 Bhagat Ram made the statement contrary to Ram Dayal PW-1, stating that when they reached the “gharat” they found Devi Singh cooking food and on inquiry, he informed them that he along with six other persons had - 11 - come to forest for the purpose of hunting but this fact has not been stated by PW-1 when examined in the court. PW-3 Gurdayal Singh has not stated anything about the gun lying in or near the “gharat” and he did not say anything about disclosure made by Devi Singh that it belonged to Jai Singh. PW-4 Tej Singh has stated that they could only apprehend Tek Chand, Palnu and Ganesh Dutt and were handed over to Up-Pradhan Bhagat Ram (PW-2) and they were kept in his custody till 21.3.1993 in his house till the police arrived there. The police had already arrived on the spot on 20.3.1993 but there is nothing on record that they were handed over to the police on 21.3.1993. Thus, on the examination of the statement of PWs-1 to PW-3 carefully, this statement appears to be contradictory to their version for the reasons that they did not say that Tek Chand was also apprehended by them, as stated by PW-4 aforesaid. In this way, statements of the alleged eye witnesses, make the story of the prosecution dicey, more specifically in view of the dent caused by the defence version and the witnesses of the accused examined in defence. - 12 - In result, the true story remains hidden like an iceberge and in these circumstances, it is difficult to hold the respondents guilty of the offences charged as a reasonable doubt has arisen in the authenticity of prosecution case to which a reasonable person honestly and consciously would entertain as to the guilt of the accused, as such in my considered opinion, the evidence led by the prosecution is not worth inspiring confidence for the reasons aforesaid. Thus, the findings of the acquittal recorded by the learned trial court are not worth warranting interference, as such appeal sans merit and is accordingly dismissed. The respondents are discharged from the bail bonds entered upon by them at any stage during the proceedings of this case. The matter stands disposed of. Send down the record. June 3, 2009 (Surinder Singh),J. (cm)