A.Muthu v. The State (U.T. Of Andaman And Nicobar Islands

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE JAY SENGUPTA CRR No. 10 of 2021 A. Muthu and another ... Appellants

Versus

The State (U.T of Andaman and Nicobar Islands) ... Respondent For the appellants : Mr. Deep Chaim Kabir, Advocate Mr. Ajith Prasad, Advocate For the State : Mr. Sumit Karmakar, Advocate Heard on : December 8, 2021 Judgment on : December 15, 2021 JAY SENGUPTA, J.

1. The revisional application is directed against an appellate judgment and order dated 14.10.2019 passed by the learned Additional Sessions Judge, Port Blair, Andaman and Nicobar Islands in Criminal Appeal No. 20 of 2010, thereby partially affirming the judgment and order dated 31.12.2008 passed by the learned Chief Judicial Magistrate, Port Blair, Andaman & Nicobar Islands in CR Case No. 14 of 2002 under Section 51 (1) of the Wild Life (Protection) Act 1972. While the learned Trial Court had convicted all three accused and sentenced them to suffer the simple imprisonment for

one year each and to direct that the seized engine dinghy shall be confiscated by the Forest Department and the jerrycan be destroyed after the period of appeal, the learned Appellate Court acquitted the co-convict Kartick, but maintained the conviction and sentence for the present appellants A. Muthu and S.Kumar.

2. On 18.02.2002 the Assistant Wildlife Warden, MGMNP, Wandoor filed a complaint before the learned Chief Judicial Magistrate, Port Blair against three accused including the present appellants under Section 51 (1) of the Wildlife (Protection) Act, 1972. The crux of the allegation was that on 31.01.2002 the complainant (PW1) alongwith Terence Massack, Forester (PW2) and Vincent Kispotta, Forester (PW3) and one Dayal Das, TSM went on a routine patrol duty in the notified MGMNP, Wandoor in a departmental boat. On reaching Tarmugli Islands towards the west coast, the complainant's speed boat entered a creek and when the boat took a right turn the patrol party noticed two persons loading a spotted deer on an engine dinghy anchored at the shore. The patrol party immediately reached the place of occurrence and found two spotted deer already loaded in the dinghy, one dead and one live, and the accused present there were identified as A. Muthu, Panchayat Member and one S.Kumar, both residents of Indira Nagar. On interrogation, the

apprehended accused admitted that they had caught the spotted deer by laying trap and one Kartick was also with them. The hunting and capturing of spotted deer which is an animal under Schedule 3 was totally prohibited except as under Sections 11 and 12 of the Wild Life (Protection) Act (the said act, for short). The accused possessed no permit either to hunt a spotted deer or to destroy or remove such wild animal from the national park area. As such they violated the provisions Section 9 read with Section 35 (6), 35

(8) and 27 of the said Act and were thus liable to be punished under Section 51 (1) of the said Act. An extract of the official map of MGMNP indicating the place of offence was filed alongwith the complaint. The complainant seized the two spotted deer, one jerrycan containing 5 liters of diesel and one engine dinghy from the spot. The two accused present were arrested, but the third accused absconded. On 31.12002 the complainant produced the dead as well as live spotted deer before a Veterinary Surgeon (PW4). The Surgeon examined the two and issued a death cause certificate and an injury report. After treatment the live spotted deer was released to its natural habitat at Alexandria Island in the presence of the witnesses.

3. During trial the prosecution examined four witnesses. PW1 was the complainant and the one who had led the patrol.

PW2 and PW3 were the Foresters who accompanied PW1. PW4 was the Veterinary Surgeon who examined the live and the dead deer on 31.01.2002. While PW1 fully corroborated the allegations made in his complaint, PW2 and PW3 the other patrol party members, supported the prosecution case by corroborating the version given by PW1. PW4, the Veterinary Surgeon who had examined two deer, one live and one dead, and issued the certificate/injury report was of the firm view that the live animal was caught with a trap. He found deep cut trap marks on the left hind leg of the live deer. The dead deer was found beheaded for which he submitted a report on physical examination. However, he did not find it necessary to conduct the Port Mortem examination.

4. Mr. Deep Chain Kabir, learned counsel appearing on behalf of the appellants, submitted as follows. The co-convict Kartick was acquitted by the learned Appellate Court as his conviction based primarily on extra judicial confession of the co-accused and since nothing was recovered from him. First, the place of occurrence is in dispute and was never established. Secondly no weapon or rope was recovered. Even place of seizure was not properly defined. If one saw the map relied on by the prosecution, it was not clearly pointed out as to from where the accused were apprehended and the deer were seized. The alleged offence was not about hunting,

but was about being in possession of scheduled animal. Surprisingly, even the seizure memo (Exhibit 8) did not mention the place of seizure. Atleast in Wandoor, a nearby place, the prosecution could have laid hands on independent witnesses. Yet, it decided to foist its case on interested official witnesses. It was quite absurd that even after the accused saw the patrol party coming, they would remain there and not flee away. Although the Veterinary Surgeon referred to trap marks on the deer, no such trap was recovered. Therefore, it could be contended that the accused might have been taking the live deer for treatment. Even no weapon was recovered for the alleged beheading of the dead deer. No further whereabouts of the deer were on record.

The first accused being a panchayat member was falsely implicated in this case because of rivalry between groups. There were other infirmities in the prosecution case as well. In cross examination, PW1 admitted that the place of occurrence was demarcated by guessing. No log book was produced for the patrolling. While PW1 said that the party left for the patrol at 12:30 A.M., PW2 gave the time as 11:00 A.M. PW3 practically forgot the details at the time of cross. PW4, on the other hand, improved upon his version given in the report and decided to vouch positively in court that the live animal was caught with a trap. There was no evidence of hunting whatsoever.

deer were fraught with inconsistencies. The appellants were poor people and had been suffering the agony of the criminal proceeding for nearly twenty years. The appellants were arrested on 31.01.2002, but were granted bail only on 21.07.2002.

5. Mr. Sumit Karmakar, learned counsel appearing on behalf of the Administration, submitted as follows. PWs 1, 2 and 3 were on regular patrol duty. As such they did not bring with them any independent person to witness an arrest or a seizure. The specific place where the accused were apprehended was clearly mentioned in the complaint. The map appended to the complaint showed that the entire portion was inside a national park. There were eye witnesses to the incident of removal of the deer. Evidence of the prosecution witnesses could not be shaken in the cross. The issue of enmity is a vague plea taken by the defence. For committing such offences a formal trap need not have been used. The live deer was tied with rope. In any event, it was the prosecution case that the third accused had fled away. Since no seizure could be effected from the third accused, he was acquitted by the learned Appellate Court. However, he might have very well taken away or any of the accused could have thrown away the weapon used. The opinion of the Veterinary Surgeon is a clinching piece of evidence that

supported the ocular evidence in full measure. The unlawful possession of schedule animal, live or dead, inside a national park was sufficient to warrant the conviction.

6. I heard the submissions of the learned counsels appearing on behalf of the accused and the Administration and perused the revision petition, the orders passed by the learned Trial Court and the learned Appellate Court as also the evidence adduced in this case.

7. It appears from the map appended to the complaint that Tarmugli Island or any portion at the west of it falls within the national park in question. As such, there is no need to pinpoint the exact place where the dead deer would have been beheaded and the other deer caught. It is sufficient for the present charge that a person without permit is caught with a scheduled animal, dead or live, inside the national park.

8. PW1 gave a detailed account of the events that were witnessed by the patrol party, both in the complaint as well as during trial. PWs 2 and 3, the foresters, fully corroborated the prosecution case. Time difference of an hour or so as to when the patrol started its journey does not matter much, especially in the face clinching evidence about what followed.

9. The two appellants were caught red handed with a dead deer and an injured live deer in their dinghy inside the national park. Seizure list was prepared. Since no independent witness was available at that remote place, quite naturally the foresters had to act as seizure list witnesses. Law in this regard is well settled that merely because police or raiding party members becomes seizure list witnesses, the seizure does not get vitiated. Had any independent witness available at the nearby Wandoor been asked to sign on the seizure list, the same Defence would have argued that persons who actually did not witness the seizure were wrongly made seizure list witnesses.

10. Since all the contemporaneous evidence showed that the seizure took place at the west side of Tarmugli Island within the national park, mere non-mentioning of the place of occurrence in the seizure list would not render it bad.

11. The contention of the appellant that they might have been taking the live deer for treatment is quite counterproductive inasmuch as it is absolutely incredulous that they would be so charitable as to take the dead deer for a burial.

12. The plea of false implication due to political rivalry as raised on behalf of the appellant No.1 since he was a panchayat

member is absolutely vague and bereft of any material particular. In any event, there is nothing on record to even remotely suggest that the public servants like the PWs 1, 2 and 3 would have any axe to grind against the appellant No.1.

13. The reports prepared by the Veterinary Surgeon (PW4) and his evidence adduced during trial fully corroborated the prosecution case.

14. Thus, the prosecution had proved its case beyond all reasonable doubt, as against present appellants. The learned Appellate Court was absolutely right in acquitting the other co-accused. After all, he was not apprehended at the spot and no incriminating article was seized from him even thereafter and the very basis of his implication in the present case was the extra judicial confession of the coaccused.

15. Therefore, I do not find any infirmity in the judgement and order passed by the learned Appellate Court.

16. However, since the offence dates back to the year 2002 and out of total imprisonment of one year as awarded to the appellants, they have already undergone about six months of imprisonment, it would be in the interest of justice if the

sentence of imprisonment awarded to the appellants is scaled down to the period already undergone.

17. Therefore, I affirm the appellate judgement and order of conviction and sentence imposed on the appellants, but reduce the sentence imposed upon the appellants to the period already undergone.

18. Accordingly, the appeal is disposed of.

19. Let a copy of this judgement and order alongwith Lower Court Records be sent down to the learned Trial Court.

20. Urgent photostat certified copy of this judgement, if applied for, be supplied to the parties upon compliance of usual necessary formalities.

(JAY SENGUPTA, J.)