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Case Comment on Wildlife v Ashok Kumar

Factual Matrix of the case:
Information was received by Inspector Vivek Tyagi of Special Cell of Delhi police accused persons namely Ashok Kumar S/o Sh. Hakumat Rai, Nand Kumar @ Nandu S/o Sh. Bhaiya Ram and Naresh Kumar S/o Sh. Rai Singh were allegedly apprehended with one baby leopard skin having brown colour and black spots (uncured skin). A raiding team headed by Inspector Vivek Tyagi including SI Vinay Tyagi, SI Abhinash, ASI Dinesh, HC Anil, HC Pradeep Kumar, Ct. Sat Prakash and informer was constituted which reached near Birla Mandir Red Light, Kali Bari Marg, New Delhi and on identification by informer the accused persons were found in an Indica Car bearing Registration No. HR-55 DT-6580 driven by accused Naresh Kumar while the other two were sitting in the car, were apprehended after signal by decoy customer HC Pradeep Kumar. It is further mentioned that as accused persons failed to produce any legal document or any authority to possess or keep or to deal with the skin, same was seized and rukka was prepared and FIR No. 35/2010 was registered at PS Special Cell, Lodhi Colony, New Delhi. All the three accused persons were arrested vide their arrest memos.

Wildlife (Apppellant) Versus Ashok Kumar & Ors.(Respondant) - Criminal Case Number 301845/2016
Delhi District Court - Central: Tis Hazari Courts, Delhi - 11.04.2018
In The Court Of Sh.Pawan Singh Rajawat

The Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 2 of 20 vehicle was also seized vide seizure memo. Disclosure statement of accused persons were recorded. It is alleged that the seized leopard skin is a scheduled animal specified in Schedule-I of Wildlife (Protection) Act, 1972 and that accused persons have contravened Section 2(2),9,39,49,49(B)(1) and 52 r/w Section 51of the Wildlife (Protection) Act, 1972.

Relevant sections: section 39, section 49, 49B(1), section 52 reference with Section 51 of the Wild Life (Protection) Act; statement of accused recorded under the ambit of section 313 in reference to 281 of Code of Criminal Procedure (hereinafter called Cr.P.C.), Section 134 of Indian Evidence Act, section 50(4)

Legal recourse: Section 2(2), section 9, section 39, section 49 as well as 49(B)(1) and section 52 r/w Section 51of the Wildlife (Protection) Act, 1972 were framed against accused Naresh Kumar and section 49/49B(1)/52 against Ashok Kumar and Nand Kumar on the allegation that they were found in possession and dealing of one baby leopard skin (uncured) and they failed to show any valid licence or document for keeping the said leopard skin which is specified in schedule-1 of the Act.

Witnesses: The complainant examined five witnesses i.e. HC Pradeep Kumar (herein PW-1), Investigating officer Inspector Vivek Tyagi (herein PW-2), Senior Inspector Yudhbeer Singh (herein called PW-3), Senior Investigator Vinay Tyagi (herein called PW-4) and WLI V.B. Dasan as PW-5, in pre-charge evidence

Course of events:
  1. Inspector Vivek Tyagi made him a decoy customer and alongwith the informer, he was informed by accused Ashok Kumar that they have three leopard skins, they have brought only one and remaining two leopard skins are with alleged compliances Rajesh and Sameer.
  2. He further deposed that accused Ashok told the price of the said leopard skin to be Rs. 8 lacs. He further deposed that accused Nand Kumar took out one polythene from the said vehicle and handed over the same to accused Ashok Kumar.
  3. Accused Ashok Kumar and Naresh opened the said polythene and took out one brown colour skin bearing black colour spots.
  4. Witness further deposed that after seeing the said skin, he gave signal by lifting right hand in the air, to the raiding team at about 2.00 pm and after receiving the signal, all the police officials surrounded all the accused and apprehended them.
  5. He further deposed that SI Vinay Tyagi seized the said leopard skin and all the accused along with the leopard skin were taken to their office where WLI Sh. V.B. Dasan was called from the office of Wildlife department who came and inspected the said leopard skin and identified the same to be of baby leopard.

Statements of witnesses: as of recorded on 06.07.2010.
  1. After completion of the post charge evidence, statement of accused recorded u/s 313 r/w 281 of Code of Criminal Procedure (hereinafter called Cr.P.C.). Accused denied all the allegations and stated that they were falsely implicated in this case and further submitted that they do not want to lead any defence evidence.

    Accused Nand Kumar also led defense evidence. In his defense evidence, in terms of section 315 Cr.P.C i.e. accused stated that he has been falsely implicated in case in the year 2010 date of which he do not remember. He further stated that while he was doing business of selling socks as roadside vendor in Karol Bagh, one car stopped him and asked him to sit in the car.

    He further stated that initially he refused but lateron, he entered the car in which five persons were already sitting and one of them deboarded the car at some distance having one small bag. He further stated that he was taken to Lodhi Colony police station where his belonging were taken away and he was produced before the Court but he was not told for what offence he has been arrested.
     
  2. Dr. S.P. Goel, expert of examination of wildlife items, deposed that it is not possible to create fake skin having similar pattern/characteristics of natural skin of an wild animal with artificial methods and this is due to the natural characteristics which are found in an animal. During cross examination, he stated that there is no instance where the initial opinion based on visual examination has been changed after conducting further microscopic and other tests.
     
  3. Sh.Chandra Prakash Sharma, a Senior Technical Officer, He further stated that he can distinguish between the skin of leopard cub and adult leopard. He further stated that they do not have any manual/instructions in the Wildlife Institute which says that only by mere visual examination, the skin type can be ascertained. But stated that with experience of more than 20 years, he can identify the skin type by mere visual examination also. He further stated that he has not given any report only on the basis of visual examination and has conducted all the examination as per the SOPs.
During cross examination he stated that he has never changed his opinion formed after visual examination of the skin on further conducting microscopic examination.

Legal proceeding:
  1. In compliance of orders of Ld. Sessions Court further statement of accused Ashok Kumar was recorded and all incriminating evidence with respect to their possession of leopard skin were put to them directly after his statement.
     
  2. Accused Nand Kumar admitted the following:
    1. persons who were sitting in the car were in the civil clothes and have not shown any weapon to make him sit in the car.
    2. he had not made any complaint regarding his false implication to any authority.
    3. he has never told the Court that he has been falsely implicated when he was produced before the Court.
    4. He denied the suggestion that he was apprehended at red light Birla Mandir on 06.07.2010 alongwith Naresh Kumar and Ashok Kumar with leopard skins.
    5. He denied that he was dealing with Pradeep for sale of leopard skin.
    6. He admitted his signatures on Ex.PW-1/A and PW-1/B but claimed that he do not know when these signatures were obtained. He also admitted his signatures.
       
  3. Respondent argued that all the complainant witnesses have fully supported the case of the prosecution and complainant proved its case beyond reasonable doubts.
    She pointed out Wild Life v Ashok Kumar & Ors. in view of Section 134 of Indian Evidence Act, the number of witnesses who were examined should not decide the fate of the case and it is the quality of the witness which should be considered. She also pointed out that the measurement of the skin recovered has been proved by the witnesses and in view of the judgment in the matter of State of U.P. Vs. Pyare Lal:Criminal Appeal No.622 of 1988, AIR 1995 SC 1159, case of the complainant has been proved beyond reasonable doubt.
     
  4. Counsel for the accused persons vehemently argued that all the witnesses of recovery examined by the complainant are police officials and in the absence of any public witnesses, their testimony alone should not be held sufficient for convicting the accused person for the offences for which they have been charged with. Ld. Counsel further submitted that there were various contradictions in the deposition of prosecution witnesses regarding the identity of the vehicles of the raiding team, who brought out the skin from the car, colour of the skin etc.
     
  5. Defence counsels further argued that even the relevant DD entries are not on record and site plan does not bear the signatures of any witness and no vehicle number was stated by any of the witnesses.
     
  6. Defence counsels argued that in view of these contradictions coupled with the fact of non joining of independent witnesses, the entire complainant's story becomes doubtful and thus benefit of doubt should be given to the accused persons.
  7. It is also argued that no photographs or seal impression were produced. Further, Ld. Defence counsel for accused Naresh submits that accused Naresh was merely a taxi driver and was not aware about anything transpired between the remaining Wild Life Vs. Ashok Kumar & Ors
  8. Defence put forward that accused and the police and having no conscious possession of the alleged recovered skin. It is also argued that no identification was put on the case property and V B Dasan admitted that he is not an expert who has given only opinion without any reasons.
  9. Whether non joining of independent public witnesses have proved fatal for the case of the complainant: As far as non joining of independent witnesses are concerned, the law is crystal clear that police witnesses are as trustworthy and credible as any independent witness can be. The testimony of police witnesses should be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration their testimony cannot be relied upon.

    It is not a proper approach to distrust and suspect the testimonies of police witnesses without good grounds
    Relevant case: Karamjeet Singh Vs. State : AIR 2003 Supreme Court 1311.

    The bench holds that: The argument of counsel that even the police officials of PS Mandir Marg were also not joined proves fatal for the case of prosecution is rejected as it is not obligatory upon the raiding team to call the police officials from PS Mandir Marg as special cell, Delhi Police itself is a designated Wild Life Vs. Ashok Kumar & Ors. CC No.301845/16 14 of 20 police stations and such none joining cannot be seen with suspicion.
     
  10. Whether the identification of skin by Wildlife inspector is sufficient or not: It is further argued that the genuineness of the case property is doubtful as same were not sent to any Wildlife Institute for expert opinion. Only visual identification was carried out by the wildlife inspector and therefore, it can not be assumed to be conclusive proof of the identification.
     
  11. Appellant hold that accused Nand Kumar has admitted that he is not made any complaint before any authority about his alleged false implication. He also admitted that at no point he has informed the Court during his production about the false implication. He also admitted that he is not aware from whom he was procuring the socks for selling. He even admitted that he has not raised alarm despite Wild Life Vs. Ashok Kumar & Ors of 20 presence of passersby. He even identified his signatures on the seizure memo as well as arrest memo.
     
  12. The non marking of the case property is not fatal as the complainant has complied with the statutory requirement of Section 50(4) of the Act since case property was produced before the Court on 07.07.2010 i.e. the very next day of recovery.
     
  13. The order dated 07.07.2010 also includes As such, this court does not find any thing on record which shows that there has been any manipulation of the case property.

Relevance of section 57:
Presumption to be made in certain cases.
Where, in any prosecution for an offence against this Act, it is established that a person is in possession, custody or control of any captive animal, animal article, meat, (trophy, uncured trophy, specified plant, or part of derivative thereof} it shall be presumed, until the contrary is proved, the burden of proving which shall lie on the accused, that such person is in unlawful possession, custody or control of such captive animal, animal article, meat (trophy, uncured trophy, specified plant, or part of derivative thereof}.

Specifically noting the presumption here, prosecution now has to prove that accused was found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be proved by the accused, custody of such person will be treated to be unlawful custody.

Issue 1: Whether defective investigation leads to acquittal?

Issue 2: Whether the accused Nand Kumar should have been acquitted?

Issue 3: Whether the testimonies of witnesses (majority of the same being policemen) could be considered malignant?

Issue 4: Whether there is relevance of application of section 57 in the aforementioned case?

RATIO OF THE COURT:
Issue 1:
Relevant case law: Jugendra Singh vs State of U.P
The following was held:
The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded.

The bench held that:
The Wild Life Vs. Ashok Kumar & Ors
. CC No.301845/16 18 of 20 discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court

The bench in Wild life vs Ashok Kumar held that:
The argument of Ld. counsel that there are material deviations with respect to complinances of Punjab Police Rules is humbly rejected as it is held in Yogesh Singh Vs. Mahabeer Singh & Anr. : AIR 2016 SC 5160 by Hon'ble Supreme Court with respect to lapses in investigation that if the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. Further, it needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence.
The Law on this Issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal.

Issue 2:
Nand Kumar insisted that he was not the part of the entire event of the case and he was merely a sock seller, however, Nand Kumar has admitted that he is not made any complaint before any authority about his alleged false implication. He also admitted that at no point he has informed the Court during his production about the false implication. He also admitted that he is not aware from whom he was procuring the socks for selling. He even admitted that he has not raised alarm despite Wild Life Vs. Ashok Kumar & Ors of 20 presence of passersby. He even identified his signatures on the seizure memo as well as arrest memo.

Passerby even saw Nand Kumar getting into the car with zero to no struggle, leading to doubtful credibility, further Nand Kumar never objected to the insinuation that he signed the paper, just said he didn't recall when the particular event happened

Issue 3:
The law is crystal clear that police witnesses are as trustworthy and credible as any independent witness can be. The testimony of police witnesses should be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration their testimony cannot be relied upon.
It is not a proper approach to distrust and suspect the testimonies of police witnesses without good grounds

Relevant case: Karamjeet Singh Vs. State: AIR 2003 Supreme Court 1311.

Issue 4:
As per section 57 of the Act, prosecution has to prove that accused was found in possession/custody or control of any part or deliberately of any animal and until the contrary is proved, which is to be proved by the accused, custody of such person will be treated to be unlawful custody. The accused has not lead any evidence to rebut the presumption of Section 57 of the Act. From the cross examination of prosecution witnesses, accused has failed to bring anything on record to rebut the said presumption.

Complainant has also complied with the Section 50(4) of the Act wherein any person detained or things seized shall forthwith be taken before a Magistrate. Accused Ashok Kumar and Naresh have not led any defence evidence to rebut the said presumption. Accused Nand Kumar had led defence evidence but in respect to the scientific analysis of the case property. Even he has not led any evidence to rebut the said presumption.

Therefore, the usage of section 57 in the afore mentioned case is apt and adequate

Decision held:
Ashok Kumar, Nand Kumar and Naresh were found in possession and were dealing of baby leopard skin for the purpose of trade. The leopard skin is specified in schedule I of the Act and thus the accused persons have contravened the provisions of Section 49 and 49(B) of the Act. Accordingly, all three accused persons are held guilty and are convicted for the offence U/s 49 and 49(B) punishable U/s 51 of the Wild Life (Protection) Act, 1972. Case property if any, be confiscated to the State U/s 39 of Wildlife (Protection) Act. Written By Rishita Tiwari - 3rd Year Law Student At Vivekananda Institute Of Professional Studies, Guru Gobind Singh Indraprastha University

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