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2019 Supreme(Gau) 342
IN THE HIGH COURT OF GAUHATI
Rumi Kumari Phukan, J.
Manik Das @ Bimal Das – Appellant
Versus
State of Assam and Sri Dharani Bora – Respondent
Criminal Appeal No. 255 of 2018
Decided On : 14-06-2019
Advocate Appeared:
For the Appellants : Mr. P.K. Munir, Mr. J. Bhuyan.
For the Respondent: Mr. B.K. Mahajan.
Headnote:
Wild Life Act, 1972 - Sections 50, 2 and 51 - Evidence Act - Sections 30 and 3 - N -D -P -S - Act - Section 67 - Railway Property Act, 1966 - Section 8 - Criminal Procedure Code, 1973 - Section 162 - Criminal Case - Prosecution case in brief is that one bullet ridden carcass of rhino without its horn was recovered on northern side of under addition of National Park - Accordingly investigation into said incident was carried out by both Police as well as by Forest Department - Regarding incident one was lodged at Police Station under District vide letter - As per confession of accused accused killed rhino by firing and thereafter both accused took away rifles brought by them - As per confession of accused weight of horn of killed rhino and same was sold for a sum out of which accused received an amount from accused - It is alleged that accused was an informer of Forest Department but instead he illegally joined hands with rhino poachers - Held, In present case although appellant has taken plea that such statement was not voluntary and recorded on threat but same was taken only in course of trial but same was not challenged immediately after recording same - Only because of presence of officer of battalion outside Office of PW-4 that cannot be construed as a threat - Such a Forest Officer has no occasion to falsely record statement of accused persons and finding of corroboration in such case while incident took place in deep forest area at dead hours of night cannot at all be feasible and such a forest offence is made in a very clandestine manner in an organized way and it is not possible to have eye witness to corroborate same - In a given facts and circumstances statement recorded by PW-4 cannot be excluded from consideration as has been contended in present case - In given circumstances no prejudice was caused to accused person as he was aware all about allegation and he faced trial without any challenge - That being position at end of trial such a plea of accused/appellant is not sustainable - Appeal is partly allowed.
JUDGMENT :
Rumi Kumari Phukan, J.
1. Heard Mr. P.K. Munir, learned counsel appearing for the appellant/accused as well as Mr. B.K. Mahajan, learned Special Public Prosecutor, Forest Department, Assam appearing for the State respondents.
2. This appeal is preferred against the judgment and order dated 27.06.2018, passed by the learned Addl. Sessions Judge, Golaghat in Sessions Case No. 66/2015, whereby the appellant/accused has been convicted u/s. 51 of the Wild Life (Protection) Act, 1972 read with (Assam Amendment) Act, 2009 and sentenced him to undergo rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 10,000/- in default simple imprisonment for three months.
3. The prosecution case in brief is that on 10.01.2005, one bullet ridden carcass of rhino without its horn was recovered on the northern side of Khainala of Chibe Chapori under 6th addition of Kaziranga National Park (KNP). Accordingly, investigation into the said incident was carried out by both the Police as well as by the Forest Department. Regarding the incident, one ejahar was lodged at Ghahigaon Police Station under Sonitpur District, vide letter No. ER/40/2015/9697, dated 11.01.2015.
4. In connection with the above incident, on 27.03.2015, at about 11 A.M. the police of Helem P.S. on suspicion apprehended one Sukhdev Das (since deceased) and after preliminary inquiry, handed him over to Biswanath Range Office, who was then handed over to Eastern Range, Agaratoli for thorough enquiry on 29.03.2015. On interrogation, the apprehended accused Sukhdev Das confessed that on 04.01.2015, during night hours, he along with (1) Golok Das (2) Kiran Das @ Moina Das, (3) Gobindra Das, (4) Chandan Das, (5) Mili Palu, (6) Manik Das (present appellant), (7) Kalia Das, (8) Sibeswar Das and (9) Monu Ali killed the rhino by firing bullets and then took away its horn by chopping off the same. There were other two unidentified persons with them at the time of killing the rhino. One .303 riffle was brought by accused Kiran Das along with bullets and another was taken by accused Monu Ali.
5. As per the confession of accused Sukhdev Das (since deceased), accused Kiran Das @ Moina Das killed the rhino by firing and thereafter both the accused Kiran Das and Monu Ali took away the rifles brought by them. As per the confession of accused Sukhdev Das (since deceased), the weight of the horn of the killed rhino was 915 gms. and the same was sold in Arunachal Pradesh for a sum of Rs. 7,00,000/- out of which accused Sukhdev Das received an amount of Rs. 20,000/- from accused Golok Das. It is alleged that accused Sukhdev Das was an informer of the Forest Department but instead he illegally joined hands with the rhino poachers.
6. As per Section 50 of the Wild Life (Protection) Act, accused Sukhdev Das was arrested and forwarded to the Court and on completion of the Departmental enquiry, offence report was submitted against the accused Sukhdev Das under Sections 2(16)/2(35)/6/27/39 of the Wild Life (Protection) Act, punishable u/s. 51 of the said Act.
7. On appearance of the accused, relevant copies were furnished to the accused persons and the learned Court vide order dated 26.05.2015, committed the case against accused Sukhdev Das to the Court of learned Sessions Judge, Golaghat for favour of trial.
8. Subsequently, the accused Manik Das was arrested on 26.05.2015 and produced before the court with a prayer that he may be treated as an accused with the same offence report that has been filed against the accused Sukhdev Das. On the basis of said prayer, the case of Manik Das was also committed to the learned Court of Sessions and thereafter joint trial was held as against both the accused persons. However, the accused Sukhdev Das expired during the course of the trial and hence, case against him was abated. Only the accused Manik Das faced the trial and denied the charge framed under Section 51 of the Wild Life (Protection) Act, 1972.
9. During the trial, the prosecution examined altogethe
