in the court of sessions judge, sonitpur at tezpur ...sonitpurjudiciary.gov.in/judgement/sessions...

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Sessions Case No 183 OF 2015 Page 1

IN THE COURT OF SESSIONS JUDGE, SONITPUR AT TEZPUR

SESSIONS CASE NO. :- 183 OF 2015

(Under Section 27, 29 punishable u/s 51 of the Wild Life (Protection) Act, 1972. Offence Report submitted by submitted

by Range Forest Officer, Sonai Rupai Wildlife Sanctuary, Kalamati Range, Kalamati.

Present :- Mridul Kumar Kalita, AJS Sessions Judge, Sonitpur Tezpur

Prosecutor :- State of Assam.

-vs-

Accused Person

:- 1. 1. Sri Nirmal Basumatary, Son of Sri Dharani Basumatary, Village – Jagapur, Mejengjuli, Police Station - Missamari, Dist:- Sonitpur, Assam.

Date of framing Charge :- 07/07/2015

Date of Recording Evidence :- 04/08/2015, 08/09/2015 & 08/01/2016.

Date of examination of accused u/s 313 Cr.P.C.

:- 28/01/2016.

Date of Argument :- 06/02/2016.

Date of Judgment :- 25/02/2016.

Counsel for the State :- Mr. Hari Prasad Sedai Public prosecutor Sonitpur.

Counsel for Accused :- Mr. B. Basumatary, Advocate

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JUDGMENT

1. On 29-04-2015, the Range Forest Officer of Kalamati Range,

Sonai Rupai Wildlife Sanctuary, Kalamati lodged a complaint u/s 55 of

the Wild Life (Protection) Act, 1972, before the learned Chief Judicial

Magistrate, Sonitpur, Tezpur, inter-alia, alleging that on 28-04-2015

when the Patrolling Party of Forest officials of Kalamati Range were

doing their routine patrolling duty in the Golai area near Gadhajuli

camp, inside the Sonai Rupai Wild Life Sanctuary, the bicycle tyre marks

were seen so an ambush was conducted in Golai area at about 11 p.m.

on 28-04-2015 and at about 2.20 a.m. of 29-04-2015, they came across

the accused Nirmal Basumtary, who was carrying two pieces of timber

(both rectangular sized „fanta‟) loaded in a bicycle inside the Sonai Rupai

Wild Life Sanctuary and the accused tried to flee from the site, but he

was apprehended. Thereafter, the accused was brought to the Range

Office, Kalamati Range where he informed that there were nine others

who were with him and were involved in the act of tree felling inside the

sanctuary, shaping the felled trees into „fanta‟ (rectangular logs) and

bringing those „fantas‟ in bicycles. Immediately, they rushed to the spot,

but the miscreants managed to escape from the spot and left behind

nine bicycles loaded with fantas. Accused Nirmal Basumatary has been

arrested and seized nine bicycles and nine fantas along with the bicycle

of Nirmal Basumtary and two fantas that he was carrying has been

seized. The seizure memo was prepared on the spot and thereafter, the

accused was brought to Kalamati range office . Thereafter, on 29-04-

2015 at 8.30 a.m. the accused was produced before the Divisional

Forest Officer, Western Assam Wildlife Division, Tezpur and statement

of accused was recorded by Assistant Conservator of Forests, Western

Assam Wildlife Division. The accused was produced before the Court of

learned Chief Judicial Magistrate, Sonitpur, Tezpur, with a request to

send them to judicial custody and some time was prayed for filing final

offence report after completion of investigation, which was allowed.

Ultimately, after completion of investigation, the final offence report No.

SR / 3 of 2015-16 was filed in the Court of learned Chief Judicial

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Magistrate, Sonitpur, Tezpur, on 29-04-2015, alleging, inter-alia, the

above mentioned facts as well as alleging that the accused Nirmal

Basumatary has contravened the provisions of Section 27, 29 and 31

r/w Section 2 (15,22,26,33,35) and punishable u/s 51 of the Wild Life

(Protection) Act, 1972.

2. On receipt of the said offence report, the learned Chief Judicial

Magistrate, Sonitpur, Tezpur transferred the case to the Court of Addl.

Chief Judicial Magistrate, Sonitpur Tezpur for disposal. On 20-06-2015,

the CR Case No. 328/15 was duly committed to this Court after

observing all formalities.

3. On 07/07/2015 charges u/s 51 of the Wild Life (Protection) Act,

1972, was framed, in writing, against the accused Sri Nirmal

Basumatary. The charge was read over and explained to the accused

person and on being asked he refused to plead guilty and claimed to be

tried.

4. During Trial, the prosecution side examined five Prosecution

Witnesses and exhibited three documents, marked as Ext. 1 to Ext. 3.

and Material Exhibits. 1 to 6. The accused was examined u/s 313

Cr.P.C. where he took the stand of total denial of the prosecution case

and pleaded his innocence.

5. The points to be determined in this case is are follows:-

(i) “Whether the accused on 29-04-2015 at about 2.20 a.m.

near Golai area illegally entered inside Sonai Rupai Wild Life

Sanctuary in violation of provision of Section 27 of Wild Life

(Protection) act and thereby committed an offence punishable

under section 51 the Wild Life (Protection) Act, 1972? And

(ii) “Whether the accused on the same date, time and place

illegally caused damage to the forest produce by cutting trees

without permit in violation of provision of Section 29 of Wild Life

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(Protection) act and thereby committed an offence punishable

under section 51 the Wild Life (Protection) Act, 1972? And

6. I have gone through the entire materials on record, including the

oral testimonies of the witnesses, exhibited documents and the

statement of the accused recorded under section 313 Cr.P.C very

carefully as well as heard the argument advanced by Ld. Public

Prosecutor and Ld. Defence counsel, at length.

7. Let me, at the very beginning, discuss the evidence adduced by

the prosecution side, for proving the charges framed against the

accused person.

8. P.W-1 Sri Manjit Dutta, has stated that on 28-04-2004 he was

working as Forest Guard at Kalamati Range under Sonai Rupai Wild Life

Sanctuary. On that day, as per oral instruction of Range Officer Sri

Sudarshan Johori, he along with 10 others under Amrit Doley, Forester -

1, went to Gadhajuli and Golai from Kalamati Range on regular

patrolling duty. One of them saw the mark of bicycle‟s tyres on the

path. They informed this to Range Officer over telephone and they were

directed to conduct ambush. At that time it was 11.30 p.m. After that

they waited there till 2.20 a.m. At that time, one person was bringing

log (fanta) of tree on his bicycle. They apprehended that person and on

interrogation, he informed that there were other nine persons. The

name of the person was Nirmal Basumatary of Jagapur, Missamari.

Forester -1 Amrit Doley seized the said bicycle along with the log

(fanta), one mobile hand set, one saw, one dao and one Section saw

and prepared seizure list. Thereafter, he was brought to Kalamati Range

Office and thereafter they took additional staff from Ghadhajuli Camp

and went towards Golai Centre. When they reached there they found

nine numbers of bicycle and nine logs (fanta). The said articles were

again seized. Amrit Doley prepared the seizure list. Ext. 1 is the seizure

list and Ext. 1(1) is his signature. He has also stated that the Material

Ext. 1 is the bicycle of Make KW, Material Ext. 2 is an axe, Material Ext.

3 is a Section saw, Material Ext. 4 is a dao and Material Ext. 5 is one

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mobile handset make hi-tech Model X101. These articles were seized

from accused Nirmal Basumatary. Material Ext. 6 is the nine numbers of

bi-cycle belongs to absconder accused. He also stated that in their

patrolling party, apart from him, Mitradev Mahanta, Amrit Doley,

Gargaraj Nath, Dilip Regon, Sidhartha Saikia, Kishore Bora, Bhupen

Doimari and Prabitra Mech. They were 12 persons in total. In the

additional force which accompanied them, Sukanta Kemprai, Ankur

Kutum, Ratul Swargiary, Gobin Chutia, Sahbuddin, Miyajuddin

Borbhuyan were there.

During cross-examination, this PW stated that they maintained

duty Register. On that day also they maintain the duty register. They

have not submitted any copy of our duty register in this case. The place

where they conducted ambush is about 1 km from the road. He denied

the suggestion that the accused Nirmal Basumtary was not arrested at

2.20 a.m. in the night, from inside the jungle but he was arrested from

the road and falsely implicated him in this case. He signed all Material

Exhibits at 2.20 a.m. It is not written on the material exhibits that the

material exhibits were seized from the accused person. This PW has also

stated that the seized articles are kept in the Malkhana of Kalamati

Range where accused persons were found, however, in other cases the

seized articles are sent to Divisional Office. At the time of arrest of

accused, the seized articles are produced before the Chief Judicial

Magistrate, Sonitpur, Tezpur through Divisional office. The Chief Judicial

Magistrate, Sonitpur, Tezpur has not signed on the seized articles. The

Divisional Officer has also not signed on the seized articles. Some

suggestive questions were put to this witness, which where all answered

in negative by him.

9. PW 2 Sri Mitradev Mahanta, has stated that on 28-04-2004 he

was working as Forest Guard at Kalamati Range under Sunai Rupai Wild

Life Sanctuary. On that day, as per oral instruction of Range Officer Sri

Sudarshan Johori, he along with 12 others under Amrit Doley, Forester -

1, went to Golai from Kalamati Range on regular patrolling duty. We

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saw the mark of bicycle‟s tyres on the road and they informed this to

Range Officer over telephone and they were directed to conduct

ambush. At that time it was 11 p.m. After that they waited there till

2.20 a.m. At that time, one person was bringing a log (fanta) of tree on

his bicycle. They apprehended that person and on interrogation, he

informed that there were other nine persons. The name of the person

was Nirmal Basumatary of Jagapur, Missamari. Forester -1 Amrit Doley

seized the said bicycle along with the log (fanta), one mobile hand set,

one saw, one dao and one Section saw and prepared seizurelist.

Thereafter, he was brought to Kalamati Range Office and thereafter

they took additional staff from Ghadhajuli Camp and went towards Golai

Centre. When they reached there they found nine numbers of bicycle

and nine logs (fanta). The said articles were again seized. Amrit Doley

prepared the seizure list. Ext. 1 is the seizure list prepared at the place

of occurrence and Ext. 1(2) is his signature. Material Ext. 1 is the bicycle

of Make KW, Material Ext. 2 is an axe, Material Ext. 3 is a Section saw,

Material Ext. 4 is a dao and Material Ext. 5 is one mobile handset make

hi-tech Model X101. These articles were seized from accused Nirmal

Basumatary. Material Ext. 6 is the nine numbers of bi-cycle belongs to

absconder accused. The seized 10 numbers of „fanta‟ are now lying in

the Campus of Range Office of Kalamati Forest Range. On 29-04-2015

at about 11 a.m. seized the stump of the logs at the place of occurrence

by Range Officer, Kalamati Range, Sri Sudarshan Johori vide Ext. 3 and

Ext. 3(1) is his signature.

During cross-examination, this PW has stated that they

maintained duty Register. On that day also they maintain the duty

register. The place where they conducted ambush is about 4/5 km from

Kalamati Range. They conducted ambush near the road. The road is not

accessible to the common public. They apprehended the accused Nirmal

Basumatary between 2.00 to 2.30 a.m. at night. Apprehended accused

was brought to Kalamati Range Office after his arrest. After half an

hour they again came back to the place where the accused was

apprehended. On the next day, the accused was brought to Divisional

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Forest Office, Western Assam Wild Life Division at Tezpur. He also

accompanied the accused along with Manjit Dutta, Amrit Doley etc.

Seizure list was prepared at the place of occurrence where the accused

was apprehended. He does not know whether it is written in the seizure

list that his signature was taken on the spot or not. He has also stated

that they have not called any respectable person from that area after

the seizure to show that the seized articles were seized from the

accused. He denied the suggestion that the accused was not

apprehended from the place of occurrence and the accused was

apprehended when he was going to cultivate his land. He has also

stated that his statement was recorded by Saikia Sir in his own hand

writing and he has also put his signature on the statement recorded by

Saikia Sir. Ext. A is his statement recorded by Saikia Sir and Ext. A (1)

is his signature. Some suggestive questions were put to this witness,

which where all answered in negative by him.

10. PW 3 Sri Amrit Doley, who is the Forester-1 of Sonai Rupai

Sanctuary, Kalamati Range, has deposed that on 28-04-2004 he was

working as Forester-1 at Kalamati Range under Sunai Rupai Wild Life

Sanctuary. On that day, as per oral instruction of Range Officer Sri

Sudarshan Johori, he along with 12 other staffs went to Golai from

Kalamati Range at about 10.30 a.m. on regular patrolling duty. They

saw the mark of bicycle‟s tyres on the road. They informed this to

Range Officer over telephone and they were directed to conduct

ambush. At that time it was 11 p.m. After that they waited there till

2.20 a.m. At that time, one person was bringing a log (fanta) of tree on

his bicycle. They apprehended that person after chasing him and on

interrogation, he informed that there were other nine persons. The

name of the person was Nirmal Basumatary. He seized the said bicycle

along with the log (fanta), one mobile hand set, one saw, one dao and

one Section saw and prepared seizure list. Thereafter, he was brought

to Kalamati Range Office and thereafter they took additional staff from

Ghadhajuli Camp and went towards Golai Centre. When they reached

there they found nine numbers of bicycle and nine logs (fanta). The said

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articles were again seized. He prepared the seizure list. Ext. 1 is the

seizure list prepared at the place of occurrence and took the signatures

of witness Mitradev Mahanta and Manjit Dutta and also took the

signature of accused Nirmal Basumtary and Ext. 1(3) is his signature.

Ext. 1(4) is the signature of accused Nirmal Basumtary. Material Ext.

1 is the bicycle of Make KW, Material Ext. 2 is an axe, Material Ext. 3 is

a Section saw, Material Ext. 4 is a dao and Material Ext. 5 is one mobile

handset make hi-tech Model X101. These articles were seized from

accused Nirmal Basumatary. Material Ext. 6 is the nine numbers of bi-

cycle belongs to absconder accused. The seized 10 numbers of fanta are

now lying in the Campus of Range Office of Kalamati Forest Range. He

also prepared a rough sketch map. Ext. 2 is the sketch map, Ext. 2(2) is

his signature. Ext. 2(3) is the signature of accused Nirmal Basumtary.

During cross-examination, this PW has stated that the Range

Officer went to the felling site (where the trees were cut) on 05-05-

2015. He himself did not go to the felling site. The sketch map i.e. Ext.

2 prepared by him on 29-04-2015 on the site. Sketch map is prepared of

the place of arrest of the accused. There are villages near Kalamati

Range. They have not called any respectable person from that area

after the seizure to show that the seized articles were seized from the

accused. Some suggestive questions were put to this witness, which

where all answered in negative by him.

11. PW 4 Sri Rohini Ballav Saikia, Assistant Conservator of Forest,

Western Assam WL Division, Dolabari, has deposed that on 29-04-2015

while he was in Office, Range Officer Sudarshan Juhori, along with the

staff of Kalamati Range Office brought the accused Nirmal Basumatary

to his office and the accused entered Sunai Rupai Wild Life Sanctuary

without authority as well as cutting timber in the sanctuary. He

interrogated the accused and he(accused) confessed his guilt and he

recorded the confessional statement of the accused. Ext. 4 is the

confessional statement of the accused Nirmal Basumatary and Ext. 4(1)

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is his signature. PW 4 has also stated that he has given a certificate in

Ext. 4(1). Ext. 4(2) to 4(7) are the signatures of the accused. Ext. 4 is

recorded under his supervision by staff of his office. Ext. 5 is the

statement of Manjit Dutta recorded by his staff under his supervision.

Ext. 5(1) is the signature of Manjit Dutta and Ext. 4(8) is his signature.

12. During the cross-examination, he has stated that at the time of

recording of Ext. 4, confessional statement, one of his assistant was also

working on computer. He has stated that he does not remember the

name of staff who wrote the Ext. 4, but it was recorded under my

supervision. The statements of Manjit Dutta and Mitradev Mahanta were

also recorded by his state under his supervision at about 10 a.m. He has

not informed the accused about the punishment which may be inflicted

upon him. The person who recorded the statement of the accused has

not been made witness in this case. I have not mentioned the name of

the staff who had recorded the statement of Manjit Dutta and Mitradev

Mahanta. Seizurelist was prepared in the field. The incident occurred 28-

04-2015 and the accused was produced before him on 29-04-2015 and

on the same day the seizurelist was also produced before him. He

denied the suggestion that the evidence of other two witnesses were

not recorded in his presence and under his supervision and he certified

in it in his own hand writing. Some suggestive questions were put to this

witness, which where all answered in negative by him.

13. PW – 5, Sri Sudarshan Johori, Range Officer, Kalamati Range of

Sonai Rupai Wild Life Sanctuary, has deposed that on 02-06-2015 he

was posted at Kalamati Forest Range as Range Officer of Sunai Rupai

Wild Life Santuary, Kalamati Range. On 28-04-2015 patrolling party

from their Range went to Golai area of Sunai Rupai Wild Life Santuary

as per his direction. There were 12 members in the said patrolling party.

The patrolling party was leaded by Sri Amrit Doley, Forester-I of Sunai

Rupai Wild Life Santuary. When he was reported about finding of

imprints of cycle tyre inside the wild life sanctuary, thereafter, he also

went to that place along with a party. They conducted ambush there.

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There they found one person named Nirmal Basumatary. He was

carrying fanta (wooden log) on his cycle. They also found dao, axe in

your possession. There were nine other cycles along with fanta

however, they found no persons as they fled away from the place. They

lateron brought the accused to their Range Office. The accused was

found inside the forest at about 2.30 a.m. on 29-04-2015. Thereafter,

the statement of the accused was recorded at Division Office at

Dolabari, Tezpur. Lateron, after collecting the statements and other

materials, he laid the offence report against the accused Ext. 6 is the

Offence report and Ext. 6(1) to 6(5) are his signatures. Ext. 7 is the list

of patrolling party and Ext. 7(1) is his signature.

14. During cross-examination, PW 5 has stated that at the first

instance, he did not accompany the patrolling party. His signatures were

not obtained in the seizure-list. Offence report is not in his own hand

writing. He has given any certificate in the offence report (Ext. 6) that

same was written as per his direction. The offence report was not

written as per his dictation. He has seen that the seized articles were

labelled specifically by the seizing Officer. His statement was not

recorded as a witness. He was also put many suggestive questions by

learned Counsel for the defence, however, all were answered in

negative by this witness.

15. Now, let me look at the penal provision under Wild Life

(Protection) Act, 1972 Act which is attracted in the present case. Section

51(1) of the Wild Life (Protection) Act, 1972 Act, which is applicable in the

instant case provides as follows:-

“51 (1) Any person who1[contravenes any

provision of this Act [(except Chapter VA and section

38J)] or any rule or order made thereunder or who

commits a breach of any of the conditions of any

licence or permit granted under this Act, shall be

guilty of an offence against this Act, and shall, on

conviction, be punishable with imprisonment for a

term which may extend to [three years] or with fine

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which may extend to [twenty-five thousand rupees] or

with both:

[Provided that where the offence committed is in

relation to any animal specified in Schedule I or Part

II of Schedule II or meat of any such animal or animal

article, trophy or uncured trophy derived from such

animal or where the offence relates to hunting in a

sanctuary or a National Park or altering the

boundaries of a sanctuary or a National Park, such

offence shall be punishable with imprisonment for a

term which shall not be less than three years but may

extend to seven years and also with fine which shall

not be less than ten thousand rupees:

Provided further that in the case of a second or

subsequent offence of the nature mentioned in this

sub-section, the term of the imprisonment shall not be

less than three years but may extend to seven years

and also with fine which shall not be less than twenty-

five thousand rupees.]……………………….”

16. Thus, if the accused has contravened any provision of the Wild

Life (Protection) Act, 1972 Act he is liable to be punished under section 51

of the said Act. The first charge against the accused person is that he

has violated the provision of section 27 of the Wild Life (Protection) Act,

1972 Act. Let us look at the relevant provision which is quoted herein

below:-

“Section 27 - Restriction on entry in sanctuary

(1) No person other than,-

(a) a public servant on duty,

(b) a person who has been permitted by the Chief Wild

Life Warden or the authorised officer to reside within

the limits of the sanctuary,

(c) a person who has any right over immovable

property within the limits of the sanctuary,

(d) a person passing through the sanctuary along a

public highway, and

(e) the dependants of the person referred to in clause

(a), clause (b) or clause (c), shall enter or reside in the

sanctuary, except under and in accordance with the

conditions of a permit granted under section 28.

(2) Every person shall, so long as he resides in the

sanctuary, be bound-

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(a) to prevent the commission, in the sanctuary, of an

offence against this Act;

(b) where there is reason to believe that any such

offence against this Act has been committed in such

sanctuary, to help in discovering and arresting the

offender;

(c) to report the death of any wild animal and to

safeguard its remains until the Chief Wild Life Warden

or the authorised officer takes charge thereof;

(d) to extinguish any fire in such sanctuary of which he

has knowledge or information and to prevent from

spreading, by any lawful means in his power, any fire

within the vicinity of such sanctuary of which he has

knowledge or information; and

(e) to assist any Forest Officer, Chief Wild Life Warden,

Wild Life Warden or Police Officer demanding his aid for

preventing the commission of any offence against this

Act or in the investigation of any such offence. 1[(3) No person shall, with intent to cause damage to

any boundary-mark of a sanctuary or to cause wrongful

gain as defined in the Indian Penal Code, 1860 (45 of

1860), alter, destroy, move or deface such boundary-

mark.

(4) No person shall tease or molest any wild animal or

litter the grounds of sanctuary.]”

Thus, any unauthorised entry into a wild life sanctuary is prohibited

under section 27 of Wild Life (Protection) Act, 1972 Act. In the instant case

also the evidence of prosecution witnesses, as discussed above, clearly

shows that on 29-04-2015, at 2.30 AM the accused Sri Nirmal

Basumatary was found inside the Sonai Rupai Wildlife Sanctuary. The

prosecution side has produced a Notification dated 4th September 1998

of the Government of Assam, published in the Assam Gazette on 12th of

October 1998 whereby Sonai Rupai Wildlife Sanctuary in the district of

Sonitpur was declared a Wildlife Sanctuary in exercise of powers

conferred under Section 26A(I)(b) of the Wild Life (Protection) Act, 1972

Act. Thus the fact that Sonai Rupai Wildlife Sanctuary is a Sanctuary

within the meaning of said Act is not in dispute. Learned counsel for the

accused has submitted that the prosecution side has only adduced

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evidence of the officials of forest department only and no independent

witnesses were examined. He has also stated that the accused is a

forest dweller and he has a right of depending upon minor forest

produce under Forest Dwellers Act, 2006. However, as is apparent from

the evidence on record, the accused was apprehended inside the Sonai

Rupai Wildlife Sanctuary at about 2.30 A.M. i.e., much after the

midnight and it is very unlikely that at that time any independent

witnesses would be found inside a Wild Life Sanctuary. Merely because

the witnesses are the officials of forest department, their testimony

cannot be discarded unless there is major contradiction in their

testimony or some other cogent reason for not believing their

statement. The accused persons have failed to show any permit u/s 28

of Wild Life (Protection) Act, 1972 Act and therefore, their presence inside

the Sonai Rupai Wildlife Sanctuary was unauthorised and in

contravention of section 27 Wild Life (Protection) Act, 1972 Act.

17. The second charge against the accused persons is that they have

contravened the provision of section 29 of the Wild Life (Protection) Act,

1972 Act. Let us look at the relevant provision which is quoted herein

below:-

“29. Destruction, etc., in a sanctuary prohibited

without a permit :-

No person shall destroy, exploit or remove any wild

life including forest produce from a sanctuary or

destroy or damage or divert the habitat of any wild

animal by any act whatsoever or divert, stop or

enhance the flow of water into or outside the

sanctuary, except under and in accordance with a

permit granted by the Chief Wild Life Warden, and no

such permit shall be granted unless the State

Government being satisfied in consultation with the

Board that such removal of wild life from the

sanctuary or the change in the flow of water into or

outside the sanctuary is necessary for the

improvement and better management of wild life

therein, authorises the issue of such permit:

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Provided that where the forest produce is removed

from a sanctuary the same may be used for meeting

the personal bona fide needs of the people living in

and around the sanctuary and shall not be used for

any commercial purpose.

Explanation.-For the purposes of this section, grazing

or movement of livestock permitted under clause (d)

of section 33 shall not be deemed to be an act

prohibited under this section”.

Thus, any person trying to destroy or remove any forest produce from a

sanctuary would be liable for contravention of the provisions contained

in Section 29 of the Wild Life (Protection) Act, 1972 Act. Section 2 (12 A) of

the Wild Life (Protection) Act, defines “forest produce” as having same

meaning as in the Sub Clause (b) of Clause (4) of Section 2 of the

Indian Forest Act, 1927. The definition of Forest produce u/s 2 (4) of

the Indian Forest Act, 1927 is as follows:-

“(4)" forest-produce" includes- ……………. (b) The following when found in, or brought from a forest, that is to say-

(i) Trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees, (ii) Plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants, (iii) Wild animals and skins, tusks, horns, bones, silk, cocoons, honey and wax, and all other parts or produce of animals, and (iv) Peat, surface soil, rock and minerals (including lime-stone, laterite, mineral oils, and all products of mines or quarries);”

In the instant case, as is evident from the testimony of the

prosecution witnesses as well as from the material on record, including

the exhibited documents, that the accused Nirmal Basumatary was

found carrying “fanta” (logs of a tree), on a bicycle, inside the Sonai

Rupai Wildlife Sanctuary. Even if we consider Ext. 4, which is the

confessional statement of accused Sri Nirmal Basumatary before the

Assistant Conservator of Forest, Sri Rohini Ballav Saikia, who has

deposed as PW 4, it appears that the accused has confessed that on

29.04.2015 he along with 9 other persons entered into Sonai Rupai

Wildlife Sanctuary and he cut one “Mohuwa” tree and made log (fanta)

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out of it and carried the same on his bicycle and later on apprehended

by official of the Forest Department. Ld. Counsel for the accused has

submitted that the confessional statement was not properly recorded by

PW 4 as the said confessional statement was in fact written by someone

else and not PW 4 himself. It appears from the testimony of PW 4 the

said confessional statement was recorded by the staff of PW 4

(Assistant Conservator of Forest) under his supervision. It also appears

that a certificate is also given at the end of the confessional statement,

by PW 4 certifying that the confession was voluntarily made by the

accused and he explained to the accused that he was not bound to

make such a confession. The confessional statement i.e Ext. 4 bears the

signatures of accused Sri Nirmal Basumatary, which is not disputed.

Further it is not only the confessional statement of the accused on

which the prosecution case is based. Apart from the confessional

statement the testimony of prosecution witnesses namely, PW 1 to PW

5 also shows that the accused was carrying “fanta” in his bicycle inside

the Sonai Rupai Wildlife Sanctuary. The argument of Ld. Counsel for the

accused that the accused was a forest dweller and was only picking

firewood is also not believable as he was found in possession of “fanta”

which means a log made out after cutting the tree and same is not the

firewood as claimed by Ld. Counsel for the accused. It also appears

from Ext. 3 that 3 nos. of stumps of “Mohuwa” tree and 2 nos. of

stumps of “Kory” tree were also seized from the place where the

accused was apprehended.

18. Learned counsel for the defence has cited a ruling of Hon‟ble

Gauhati High Court in “Md. Mainul Haque Vs. State of Assam”,

reported in 2012 CRI.L.J. 3996, wherein Hon‟ble Gauhati High Court

has observed that independent witnesses must be there at the time of

seizure of materials from the custody of the accused person. Learned

counsel for the defence has argued that in the instant case all the

witnesses were officials of the Forest Department and no independent

witness or any respectable person from the nearby locality was called at

the time of seizure of the forest produce. However, learned Public

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Prosecutor has argued that it is evident from the testimony of the

prosecution witnesses that the accused was apprehended inside the

Wildlife Sanctuary much after the midnight and at that time in night, i.e.

2.30 a.m., the availability of independence witnesses inside the Wildlife

Sanctuary cannot even be thought of. Therefore, the Forest Department

had no other option but to record the evidence of forest officials who

were present at the time of seizure. This court is of considered opinion

that the submission made by learned public prosecutor appears to be

logical and it can be agreed upon. I do not see any logic or reason to

disbelieve the testimony of prosecution witnesses who have

categorically stated that they have seen the accused carrying log inside

the Sonai Rupai Wildlife Sanctuary and trying to flee away on seeing the

Forest Officials. It also appears that the accused was not alone at that

the time of committing the alleged offence and he was accompanied by

nine other people who fled away from the crime scene on seeing the

Forest Officials. Finding the accused carrying logs of “Mohuwa” tree

from the place where later on stumps of “Mohuwa” trees were found

leads to no other conclusion that the accused removed said trees from

its natural habitat by cutting it without any permit to do so and

therefore, this Court is of considered opinion that the accused Nirmal

Basumatary has contravened the provisions of section 29 Wild Life

(Protection) Act, 1972 Act.

19. It also appears that the accused Sri Nirmal Basumatary has

contravened the provision of Section 31 of the Wild Life (Protection) Act,

1972 Act. The relevant provision Section 31 is quoted herein below:-

“Section 31 - Prohibition of entry into sanctuary with

weapon

No person shall enter a sanctuary with any weapon except

with the previous permission in writing of the Chief Wild

Life Warden or the authorised officer.”

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As regards unauthorised entry into the Sanctuary, it has already been

discussed in paragraph 19 hereinbefore that the accused Nirmal

Basumatary made entry into Sonai Rupai wildlife Sanctuary without

permit. Now the question is whether such entry was with any weapons

or not. It is seen from Exhibit “1” which is the seizure list as well as

from the testimony of P.W-3 Sri Amrit Doley, who is the Seizing Officer

that one section saw, one dao and one axe was seized from the accused

person. The term „Weapon‟ has been defined in Section 2(35) of the

Wild Life (Protection) Act, 1972 Act as hereunder:-

“Section 2(35)- "weapon" includes ammunition, bows

and arrows, explosives, firearms, hooks, knives, nets,

poison, snares and traps and any instrument or

apparatus capable of anaesthetizing, decoying,

destroying, injuring or killing an animal;”

Thus, from above it is apparent that any instrument capable of being

used for injuring or killing an animal is regarded as a weapon within the

meaning of section 2(35) of the Wild Life (Protection) Act, 1972 Act. An

axe, dao or section saw can be easily used for injuring/killing an animal,

and therefore, the accused person, who was found in possession of said

weapons inside the “Sonai Rupai Wildlife Sanctuary”, can be said to

have contravened the provision of section 31 of the Wild Life (Protection)

Act, 1972 Act.

20. Thus, in view of discussion made hereinbefore, it is clear that the

accused Nirmal Basumatary has contravened the provisions of section

27, 29 & 31 of the Wild Life (Protection) Act, 1972 Act and therefore, he is

liable to be punished under section 51 of the Wild Life (Protection) Act,

1972 Act. Prosecution side has proved the case against the accused

Nirmal Basumatary under section 51 read with Section 27, 29, 31 of the

Wild Life (Protection) Act, 1972. Hence, I convict him under the said

section of law.

21. Though, this appears to be first offence of the accused Nirmal

Basumatary, however, learned public prosecutor has submitted that

there is a rise in commission of forest offences, which has resulted in

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fast dwindling forests and therefore some sort of punishment is

necessary so that people do not take forest offences lightly. The

submission made by learned public prosecutor has force in it and it is

reasonable too. This Court is also is of considered opinion that some

sort of punishment would certainly act as a deterrent to all the

prospective offenders, therefore, this Court is of considered opinion that

the benefits of the provisions of Probation of Offenders Act may not be

given to the accused person, so that it act as deterrent for the

prospective offenders and nobody takes forest offences casually. I have

heard the accused Nirmal Basumatary in person, on the question of

sentence. I have also heard learned Public Prosecutor and the learned

defence counsel on the question of sentence. The accused has stated

that this is a first offence and they have entered the forest only for their

livelihood, therefore, this Court should take a lenient view. Learned

Public Prosecutor has also fairly submitted that as this is the first

offence of the accused Nirmal Basumatary and therefore, a lenient view

may be taken at the time of imposing punishment. Accused Nirmal

Basumatary is aged about 37 years. The accused has stated that he has

three minor children who are dependent on him. Considering entire

aspects of this case, the Court is of considered opinion that a lenient

view of the matter may serve the purpose of justice and accordingly, I

sentence the convict Nirmal Basumatary to undergo Rigorous

Imprisonment for a period of 6 (six) months and to pay a fine of Rs.

1000/- (Rupees one thousand only) in default to undergo further Simple

Imprisonment for 1 (one) month under section 51 read with Section 27,

29, 31 of the Wild Life (Protection) Act, 1972.

22. The period of detention already under gone, by the accused

person shall be set off from the sentence imposed.

23. The accused/convicts have been informed about their right to

appeal against this judgment before the Hon‟ble Gauhati High Court.

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24. Learned counsel for the convicted person has filed a petition

vide No. 234/16 u/s 389 (3) Cr.P.C. praying for allowing the convicted

person namely, Sri Nirmal Basumatary to remain on previous bail as he

intend to prefer an appeal against the order and Judgment of conviction

passed today. As the sentence imposed on the convicts is for six months

only and considering the facts and circumstances of this case, I allow

the prayer so as to enable the accused person to prefer an appeal

against this Judgment. The convict Nirmal Basumatary is allowed to

remain on bail till 28-03-2016 so as to enable him to prefer an appeal

against this judgment.

25. Seized articles in connection with this case may be disposed of

after the prescribed period of appeal, in due course.

26. Let a copy of this Judgment be given free of cost to convicted

accused person immediately. Let a copy of this order be forwarded to

the District Magistrate, Sonitpur, Tezpur u/s 365 Cr.P.C.

27. Also, send a copy of this order to the Jail Authority for doing the

needful.

Given under my Hand and Seal of this Court on this the 25th day

of February 2016.

(M. K. Kalita )

SESSIONS JUDGE SONITPUR : TEZPUR

Dictated and corrected by me

(M. K. Kalita) SESSIONS JUDGE, SONITPUR :: TEZPUR

Dictation taken and transcribed by me :

R. Hazarika, Steno

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APPENDIX

Prosecution Witness

1. Prosecution Witness No.1 :- Sri Manjit Dutta, 2. Prosecution Witness No.2 :- Sri Mitradev Mahanta, 3. Prosecution Witness No.3 :- Sri Amrit Doley, Forester-1. 4. Prosecution Witness No.4 :- Sri Rohini Ballav Saikia, ACF, Western

Assam Wildlife Division, Dolabari. 5. Prosecution Witness No.5 :- Sri Sudarshan Jahori, Range Officer,

Kalamati Range under Sunai Rupai Wild Life Sanctuary.

EXHIBITS

1. Exhibit No.1 :- Seizurelist

2. ExhibitNo. 1(1),1(2) & 1(3),

:- Signature of Manjit Dutta, Mitradev Mahanta and Amrit Doley respectively.

3. Exhibit 1(4) :- Signature of the accused Nirmal Basumatary.

4. Exhibit 2 :- Sketch map.

5. Exhibit No.2(2) :- Signature of Amrit Doley

6. Exhibit No.2(3) :- Signature of accused Nirmal Basumatary.

7. Exhibit No.3 :- Seizurelist.

8. Exhibit No.3(1) :- Signature of Mitradev Mahanta

9. Exhibit No.4 :- Confessional statement of the accused Nirmal Basumatary.

10. Exhibit No.4(1) & 4(8) :- Signature of Rohini Ballav Saikia.

11. Exhibit No.4(2) to 4(7) :- Signatures of the accused Nirmal Basumatary.

12. Exhibit No. 5 :- Statement of Manjit Dutta

13. Exhibit No. 5(1) :- Signature of Manjit Dutta

14. Exhibit No. 6 :- Offence report.

15. Exhibit No. 6(1) to 6(5) :- Signature of Sudarshan Jahari, Range Officer, Kalamati Range under Sunai Rupai Wild Life Sanctuary.

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16. Exhibit No. 7 :- List of patrolling party.

17. Exhibit No. 7(1) :- Signature of Sudarshan Jahari, Range Officer, Kalamati Range under Sunai Rupai Wild Life Sanctuary.

Material Exhibit

Material Ext. 1 to 6 : One bicycle, an axe, one saw, a dao, one mobile

hand set and nine Numbers of bicycle

respectively.

EXHIBIT OF DEFENCE SIDE

Exhibit A

Exhibit A(1)

:-

:-

Statement of Mitradev Mahanta.

Signature of Mitradev Mahanta.

(M. K. Kalita)

SESSIONS JUDGE SONITPUR : TZPUR

in the court of sessions judge, sonitpur at tezpur ...sonitpurjudiciary.gov.in/judgement/sessions...

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