Bharat Singh Kotari vs State Of Uttarakhand

Ravindra Maithani, J

The instant revision is preferred against conviction of the revisionist under Section 51 of the Wildlife (Protection) Act, 1972 (for short “the Act”) recorded on 26.09.2012, in Criminal Case No. 215 of 2012, Divisional Forest Officer Vs. Bharat Singh Kotari by the Court of learned Chief Judicial Magistrate Pithoragarh (for short “the case”). By it the revisionist has been convicted under Section 51 of the Act and sentenced to five years rigorous imprisonment and a fine of Rs.10,000/- with a default clause. It was challenged in Criminal Appeal No. 8 of 2013, Bharat Singh Kotari

Vs. State of Uttarakhand, in the court of learned Sessions Judge Pithoragarh (“the appeal”), but the appeal was dismissed on 27.06.2013. Both the judgment and orders are impugned.

Today, it has been informed by learned counsel for the State that the revisionist has been released from jail on 19.02.2016. Learned amicus curiae would still argue the matter on the sustainability of conviction.

This is a criminal revision and the basic rule is, once admitted, it has to be heard and determined.

In the case of Praban Kumar Mitra Vs. State of West Bengal and Another, AIR 1959 SC 144, the Hon’ble Supreme Court observed that “whether it was an accused or a complainant, if in revision, Rule is issued by the High Court that Rule has to be heard and determined in accordance with law, whether or not the petitioner in High Court is dead or alive, or whether he is represented in Court by a legal practitioner.” Not only this, in the case of Retti Deenabandhu and others Vs. State of Andhra Pradesh, (1977) 1 SCC 742, the Hon’ble Supreme Court observed “a convicted person challenging his conviction in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be wiped out. The fact that he is set at liberty and would not have to undergo any further sentence of imprisonment would not debar him from questioning the validity of his conviction. The object of such a challenge to conviction is to avoid the other consequences flowing from conviction and also to erase the stigma resulting from the conviction.”

The Court now proceeds to appreciate the arguments.

Learned amicus curiae would raise a legal argument that the learned courts below did not consider the evidence at all and has convicted the revisionist, merely on the basis of his admission, which he made under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Code”). It is also argued that, in fact, it is not the confession, what the revisionist has said, was that he was given a bag by someone. He has not said that he was carrying the leopard skins.

On behalf of the State, learned counsel would argue that it is a case proved and, in fact, according to learned State counsel the presumption would have been drawn in the case that it is the revisionist, who shot the leopard dead and the sentence should be on the higher side.

The facts are short and brief. According to the prosecution, on 20.02.2012 upon information having been received, when intercepted, four leopard skins were recovered from the revisionist. At the time of recovery, Forest Officers had also joined the Police Special Operation Group Team.

In this matter, complaint was filed under Section 55 of the Act. After recording evidence under Section 244 of the Code, charge was framed and witnesses were cross examined. In fact, prosecution in all examined seven witnesses out of it two witnesses were only cross examined. Therefore, learned trial court did not consider their statements.

Perusal of the impugned judgment reveals that, in fact, the revisionist has not been convicted, merely on his confessional statement. Learned trial court in detail, considered the statement of each witness and thereafter, observed about its reliability. In para no.14, also the statement given under Section 313 of the Code, by the revisionist was considered by the learned trial court. It is not that merely, on the basis of those statements the conviction was recorded. At one stage, learned court below observed that the statements of PW1 Balam Singh, PW2 S.I. Ashok Rathore, PW5 Constable Anil Martolia and PW6 Hem Chand Joshi are corroborative and reliable and there are no contradictions in their statements. Thereby, the recovery of leopard skins is proved beyond reasonable doubt.

It is true that the court considered the statement given by the revisionist under Section 313 of the Code, when the revisionist said that he was given a bag by someone and the leopard skins kept in the bag were not his. But, that has not been taken into consideration by the learned court below for convicting the revisionist. In fact, after analysing the statements of the witnesses, learned court below found the case proved beyond reasonable

doubt. The statement given by the revisionist under Section 313 of the Code was, in fact, supporting the conviction and to that extent only, his

statement was considered.

Learned appellate court has also considered all the relevant legal and factual aspects.

Having considered the submissions, this Court is of the view that there is no illegality or impropriety or any error in the impugned judgment and orders and the instant revision deserves to be dismissed.

The revision is dismissed accordingly.