IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 722 of 2001. Date of decision: 25.11.2008. State of H.P. ... Appellant Versus Kali Dass … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mrs. Shubh Mahajan, Deputy Advocate General. For the respondent: Mr. M.L. Brakta, Advocate. V.K. Ahuja, J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Kinnaur, Session Division at Rampur, dated 8.8.2001, vide which he acquitted the respondent and set aside the judgment passed by the learned Sub Divisional Judicial Magistrate, Rampur, dated 12.7.2000, vide which the respondent had been held guilty under Section 51 of the Wild Life (Protection) Act, 1972 and was sentenced to simple imprisonment for a period of one year and a fine of Rs.5000/-. In default of payment of fine, the respondent was to undergo further simple imprisonment for one month Briefly stated, the facts of the case are on 6.11.1997, at about 3.30 P.M., Additional S.H.O. Jagdish Chand alongwith ASI Rupinder Singh, constable Pradeep Kumar and L.C. Ranjna were on 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - patrolling and VIP duty at Kasba Bazar Rampur. He received a secret information that the respondent who is residing near Janki Mata Temple is indulging in selling of Panther and Tiger skins and if a raid is conducted, the same can be recovered since the said respondent/Baba is drying the skins in the sunlight. On the said information, Jagdish Chand associated two independent witnesses Ravi Kant and Sohan Lal of Rampur Bushahr, formed a raiding party and sent Ruka to Police Station for registration of the case, on the basis of which FIR was registered subsequently. The said raiding party visited Janki Mata Temple, Rampur, where the respondent was seen drying the skins in sunlight and on seeing the raiding party, he tried to rush to his room by taking those skins with him. The police party nabbed the accused, took into possession the skins of panther and in the mean while, gave a telephonic message to the office of D.F.O. Rampur, from where Chet Ram, Deputy Ranger and Dharam Dass, Forest Guard, also reached the spot. The recovered skins were identified by them and were taken into possession by the police in presence of the witnesses. A search was also conducted in the house of respondent but nothing was recovered therein. S.I. Jagdish Chand prepared site plan, effected the recoveries, took certificate of recovery of skins from Deputy Ranger, sealed the case property and accordingly, handed over the file to Wild Life Warden-cum-Divisional Forest Officer, for preparation of complaint, who filed the complaint under Section 51 of the Wild Life (Protection) Act, 1972. The respondent was tried by the learned trial Court leading to his conviction, which conviction was set aside by the learned Sessions Judge on appeal. I have heard the learned counsel for the parties and have gone through the record. - 3 - It is clear from a perusal of the evidence that S.I. Jagdish Chand was on patrolling alongwith other police officials, when he received a secret information, formed a raiding party after associating two independent witnesses. He found the respondent present there who had kept the skins in the sunlight and on seeing the police party, he tried to run away alongwith the skins and was apprehended. It is the case of the S.H.OI./S.I. Jagdish Chand that thereafter he sent a telephonic message to D.F.O. office, from where two forest officials were deputed and they came to the spot. Out of the said two forest officials, one Deputy Ranger PW-1 Chet Ram was examined by the prosecution, who came up with the statement that when he reached the spot, respondent tried to run away alongwith the skins and was apprehended. The learned Sessions Judge had rightly observed that there could not be any replay of the action which had already taken place since the police had apprehended the respondent, who on seeing the police party had tried to run away alongwith the skins and after some time, telephonic information was given to the D.F.O. office, from where PW-1 Chet Ram had come. The time when the secret information was received by the S.H.O. has been mentioned as 3.30 P.M. when he sent a Memo to MHC Police Station, Rampur. It is clear that the raid was conducted after 3.30 P.M. According to PW-1 Chet ram, Deputy Ranger, he had come to the Police Station firstly at 4.30 P.M. and thereafter, he had reached the spot, meaning thereby he may have reached the spot sometime after 4.30 P.M. The distance in between the D.F.O. office and Police Station to the place of occurrence is not on record. Even if the time is taken as some time after 4.30 P.M., the respondent had already been apprehended by the police after 3.30 P.M. and the message had been sent thereafter to the D.F.O. office, it does not appeal to the common - 4 - sense that these witnesses would have witnessed the occurrence when the respondent tried to run away alongwith the skins. Thus, the Court below was left with the solitary statement of PW-4 S.I. Jagdish Chand, who apprehended the respondent, who tried to escape alongwith the skin on seeking the police party. The normal conduct would have been that the respondent would have tried to run away without the skins, but the S.I. Jagdish Chand had given a contradictory version which has not been substantiated by any other witness. Apart from the above, it is also in evidence that The Investigating Officer Jagdish Chand had associated two independent witnesses Ravi Kant and Sohan Lal before proceeding to the place of residence of respondent, from where he was apprehended. However, for the reasons best known to the prosecution, both these independent witnesses, who were material had been given up by the prosecution. The reason given does not appeal since PW Ravi Kant, an independent witness, was given up, though he was present in Court, being unnecessary. The other independent witness Sohan Lal was given up by the prosecution as having been won over by the accused. The statement of the learned A.P.P. is not sufficient to hold that Sohan Lal would not have deposed truthfully and this witness should have been subjected to cross-examination and then an opinion could have been given whether he has deposed falsely. Apart from this, there was another forest official, namely, Dharam Chand, who was given up by the prosecution since he was expected to repeat the statement of PW-1. Learned Sessions Judge had rightly observed that there were three police officials also accompanying S.I. Jagdish Chand, but were not examined by the prosecution for the reasons best known to them. - 5 - It follows from the above discussion that there were independent witnesses as well as official witnesses present, but they have not been examined and, therefore, in such circumstances, the solitary statement of PW-4 S.I. Jagdish Chand cannot be said to be sufficient to prove the guilt of the respondent that he was in conscious and exclusive possession of panther skins. Moreover, it has been rightly observed by the learned Sessions judge that the place of recoveries as shown in site plan Ext. PW4/B suggests that the cottage of the respondent is on the one side and the recoveries were effected on some distance across the common path. There are other houses also near the place of recovery and the possibility that some occupants themselves may have kept the skin cannot be ruled out. The skin was recovered from an open place, accessible to all and it cannot be said that the skin was recovered from the exclusive and conscious possession of the respondent. Apart from the above, the learned Sessions Judge has taken another grounds in disbelieving the prosecution story since he had observed that the trial was not conducted in accordance with the procedure. The observations were made in detail in Para-12 of the judgment and it is clear that a complaint was filed not on the police report but otherwise. Therefore, the procedure prescribed qua warrant case under Sections 244 and 245 Cr.P.C., was required to be followed. The learned trial Court followed the procedure prescribed for trial of summons case and, therefore, the trial was not conducted in accordance with law. I do not find any reason to interfere with both these findings recorded by the learned Sessions Judge in acquitting the respondent and as such, there is no merit in the appeal filed by State of H.P. - 6 - In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. (V.K. Ahuja), November 25, 2008 Judge (BSS) - 7 -