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
Wildlife (Apppellant) Versus Ashok Kumar & Ors.(Respondant)
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:
Statements of witnesses: as of recorded on 06.07.2010.
- 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.
- 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.
- Accused Ashok Kumar and Naresh opened the said polythene and took out one
brown colour skin bearing black colour spots.
- 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.
- 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.
- 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
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.
- 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.
- 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
Relevance of section 57:
- 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.
- Accused Nand Kumar admitted the following:
- 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.
- he had not made any complaint regarding his false implication to any
- he has never told the Court that he has been falsely implicated when he
was produced before the Court.
- 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.
- He denied that he was dealing with Pradeep for sale of leopard skin.
- 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
- Respondent argued that all the complainant witnesses have fully
supported the case of the prosecution and complainant proved its case beyond
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.
- 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
- 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.
- 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
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
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
RATIO OF THE COURT:
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
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.
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
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
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.
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
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