Wild Life Protection Act – Section 51 – Incident of hunting a deer – Held, place of incident was never got identified – no carcass of deer was found to establish that any deer at all was killed on 26.09.1998 – there is nothing to show that tiny spots of blood from Ashirwad Hotel and gypsy allegedly recovered -two bloods samples allegedly recovered from the hotel and gypsy were not compared – owner of the gypsy did not smell blood on 29.09.1998 when the gypsy was collected by him but he surprisingly smelled blood on 02.10.1998 – when the gypsy was searched on 07.10.1998, no pellets were found but they were suddenly found on 12.10.1998 – room of Salman Khan was searched on 10.10.1998 but no weapons were found but they were suddenly found on 12.10.1998 lying openly – Investigating Officer and the prosecution admitted that they were not able to conclude as to which weapon was used for hunting – There is no medical and postmortem report to establish as to which weapon or any weapon at all or whether the knife was used as suggested – Salman Khan was acquitted of the offence under Section 27 of the Arms Act – It is next to impossible to kill a deer with an air gun, which is not a firearm – the .177 pellets recovered from gypsy cannot be used in any of the recovered weapon – the . 22 pellet recovered from gypsy do not match with ones recovered from Salman Khan or Saif Ali Khan; and the recovered pellets are used for hunting small animal like rabbit or birds but not a big animal – in these circumstances, the Court is left with no alternate except to set aside the judgment.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
HON’BLE MS. JUSTICE NIRMALJIT KAUR
Date of Judgment : : 25th July, 2016
Salman Khan Vs. State of Rajasthan
S.B. CRIMINAL APPEAL NO.53/2012 (Criminal Appeal 31/2006 as transferred to the High Court from the Court of Sessions Judge, Jodhpur) against the judgment dated 17.02.2006 passed by learned Chief Judicial Magistrate, Jodhpur in Criminal Case No.207/1999 to the extent vide which, the appellant was convicted for the offence under Section 51 of the Wild Life (Protection) Act.
(2) State of Rajasthan Vs. Salman Khan & Ors. S.B.CRIMINAL APPEAL NO.685/2006 against the judgment dated 17.02.2006 passed by Chief Judicial Magistrate, Jodhpur in Criminal Case No.207/1999 to the extent vide which, the respondents were acquitted under Sections 143, 144, 148, 149, 201 read with Section 149 IPC, 39(b)(B) read with Section 51 of the Wild Life (Protection) Act except respondent No.1 who has been convicted and sentenced under Section 51 of the Wild Life Protection Act.
(3) State of Rajasthan Vs. Salman Khan S.B.CRIMINAL APPEAL NO.267/2007 against the judgment dated 17.02.2006 passed by Chief Judicial Magistrate, Jodhpur in Criminal Case No.207/1999 – For enhancement of sentence.
J U D G M E N T
Mr.Mahesh Bora, Sr.Advocate assisted by Mr.Nishant Bora, Mr.Hastimal Saraswat, Mr.Atul Dobhal and Mr.Aripit Mehta, counsel for Salman Khan.
Mr.Hastimal Saraswat, counsel for Satish Shah. Mr.K.L.Thakur, Additional Advocate General assisted by Mr.Mahipal Bishnoi & Mr.K.L.Vishnoi, Asstt. Counsel for the State. Mr.P.C.Solanki, Mr.B.S.Chouhan, Mr.Vikas Gaur, counsel for Mr.Kuldeep, Yashpal Singh, Mahendra Pal Singh & Mahendra Singh.
Before starting to write the judgment, it is important to note that three separate cases were registered for three different alleged incidents supposed to have occurred between a period of six days:
(i) FIR No.162/1998 was registered at Police Station Mathania, Jodhpur on 11.10.1998 for incident of hunting a deer, which allegedly took place on 26.09.1998 (Criminal Case No.207/1999);
(ii) FIR No.163/1998 was also registered on 11.10.1998 at Police Station Mathania for the offence of allegedly killing another deer on 28.09.1998 (Criminal Case No.206/1999); and
(iii) FIR No.93(26) of 1998 was registered with the Forest Department on 02.10.1998 for the incident of hunting, which allegedly took place on the intervening night of 01.10.1998 and 02.10.1998, for which, the trial is still going on (Criminal Case No.66/2011).
For the incident of hunting, which is alleged to have taken place on 26.09.1998 and pertains to FIR No.162/1998, accused- Salman Khan has been convicted for the offence under Section 51 of the Wild Life Protection Act and sentenced to undergo one year’s simple imprisonment along with fine of Rs.5000/- vide judgment and order dated 17.02.2006 passed by Chief Judicial Magistrate, Jodhpur. He preferred an appeal against the said conviction before the Sessions Judge, Jodhpur, which was subsequently transferred to the High Court and presently heard by this Court now as S.B.Criminal Appeal No.53/2012 titled as “Salman Khan Vs. State of Rajasthan”. The State of Rajasthan, too, has preferred an appeal for enhancement of the sentence of one year awarded to the accused-Salman Khan by the Chief Judicial Magistrate, Jodhpur which is now registered as S.B.Criminal Appeal No.267/2006. Another appeal has been filed by the State of Rajasthan against the acquittal of the co- accused as well as acquittal of accused-Salman Khan under Sections 143, 144, 148, 201, 149 of the IPC, which is registered as S.B.Criminal Appeal No.685/2006.
In the second case, i.e. Criminal Case No.206/1999, Accused-Salman Khan has further been convicted for five years for the alleged hunting of deer on 28.09.1998. The appeal preferred before the Sessions Court, too, was dismissed and now, the revision against the conviction S.B.Criminal Revision Petition No.905/2007 is also being heard and shall be decided by a separate order. Along with the same, an appeal against the acquittal of co-accused Gordhan Singh S/o Madho Singh is also pending, which too is being decided along with S.B.Criminal Revision Petition No.905/2007.
The trial in Criminal Case No.68/2011 under the Arms Act pertaining to FIR No.180/1998 dated 15.10.1998 registered at Police Station Luni, is still pending.
As stated above, FIR No.93(26) of 1998 was registered for the alleged hunting, which took place on the intervening night of 01.10.1998 and 02.10.1998, by the Forest Department on 02.10.1998. During the investigation of this FIR, one Harish Dulani informed the Forest Department that a few days ago on 26.09.1998 as well as on 28.09.1998, deers were hunted by some persons. However, inspite of the alleged information having come to their knowledge on 02.10.1998 itself, the FIR No.162/1998 for offence under Sections 147, 148, 149 of the IPC, Sections 9, 39, 51, 52 of the Wild Life Protection Act and Section 27 of the Arms Act was registered at Police Station Mathania against all the accused mentioned therein as late as on 11.10.1998 on the basis of the complaint (Exh.P/3) filed by Lalit Kumar Bora, the then Wild Life Conservator, Jodhpur (PW-2) before the Additional Superintendent of Police, Jodhpur. As per the said complaint, information about the hunting on 26.09.1998 was disclosed to them by Harish Dulani on 02.10.1998 during the investigation of FIR No.93(26) of 1998 that on 26.09.1998, Salman Khan, Satish Shah, Yashpal Singh, Mahendra Bhati, Kuldeep Choudhary and Mahendra Pal Singh @ Raju Banna indulged in the illegal hunting of the deer. The complaint was accompanied by a copy of the statement of Harish Dulani (Exh.P/4A). Mohammad Hussain and Dushyant although not named in the FIR were arrested during the investigation. After investigation in the said case, challan was filed and charges were framed against the accused (1) Salman Khan, (2) Yashpal Singh, (3) Mohammad Hussain, (4) Dushyant Singh, (5) Satish Shah, (6) Mahendra Singh S/o Ugam Singh, (7) Kuldeep and (8) Mahendra Pal Singh @ Raju Banna S/o Nathu Singh as under:-
“i) Charge against Salman Khan under Section 143, 144, 148, 201 read with Section 149 of the IPC and Section 27 of the Arms Act and 51 of the Wild Life (Protection) Act.
ii) Charge against accused Yashpal Singh under Sections 143, 148, 201 read with Section 149 of the IPC and Section 51, 39(B)(B) read with Section 51 of the Wild Life (Protection) Act.
iii) Charge against accused Mohammad Hussain under Section 201 of the IPC and Section 51 of the Wild Life (Protection) Act.
iv) Charge against accused Dushyant Singh under Section 201 and Section 51, 39(B)(B) read withSection 51 of the Wild Life (Protection) Act.
v) Charge against accused Satish Shah, Mahendra Singh S/o Ugam Singh, Kuldeep, Mahendra Pal Singh @ Raju Banna S/o Nathu Singh under Section 143, 201 read with Section 149, 148 of the IPC and Section 51 Wild Life (Protection) Act.
The trial court acquitted accused-Salman Khan for the offence under Sections 143, 144, 148, 201read with Section 149 of the IPC and Section 27 of the Arms Act as not proved beyond reasonable doubt; however, convicted him under Section 51 of the Wild Life (Protection) Act to undergo sentence of one year’s simple imprisonment and fine of Rs.5000/-, in default of payment of fine, to further undergo one month simple imprisonment, whereas, all the other accused were acquitted from charges having not been proved against them beyond reasonable doubt.
In order to prove their case, the prosecution produced as many as 31 witnesses, 58 documents and 12 articles. The defence produced 6 documents, which were got exhibited as Exh.D/1 to Exh.D/6. Gypsy No. RJ-19 1C 2201 was recovered vide recovery memo Exh.P/5A dated 07.10.1998.
Mr.Mahesh Bora, learned Senior Advocate assisted by Mr.Nishant Bora and Mr.Hastimal Saraswat, learned counsel for accused-Salman Khan while dealing with each of the evidence very minutely, which shall be dealt with in the later part of the judgment, submitted that accused-Salman Khan has been falsely enroped. No deer was hunted on the said date. He is only a victim of the circumstances and hype created by a false rumour having been spread and thereafter, in their desperate attempt to pacify the public, created multiple criminal cases of alleged hunting of 26.09.1998, 28.09.1998 and again intervening night of 01.10.1998 & 02.10.1998. All the evidence was collected during the investigation of FIR No.93(26)/1998 but it has been used against accused in three separate cases. There was no need for the Forest Department to lodge three separate cases, which was done only to corner Salman Khan and break him down to either save someone else or to save their own skin from the outcry which resulted from a rumour spread on account of a carcass of a killed deer found from a pit on 02.10.1998, which was badly mauled, probably torn by dogs.
Mr.K.L.Thakur, learned Additional Advocate General assisted by Mr.K.L.Vishnoi while arguing for the State submitted that the prosecution had fully proved its case against all the accused beyond any reasonable doubt. The delay in lodging the FIR has been explained by the Investigating Officer, PW-2 Lalit Kumar Bora and it does not raise the inference that the complaint was false. It is further argued that mere faulty investigation cannot be a ground for acquittal of the accused. The recoveries are duly proved by the official witnesses. The gypsy was in the same condition and remained intact in their possession till it reached the FSL. The statement of Harish Dulani inspires confidence and cannot be doubted as he has specifically mentioned that Salman Khan had stayed at Ummed Bhawan Palace in room No.508, which is not denied. Hence, the entire statement of Harish Dulani should not be discarded. Similarly, from the statement of Rajendra Singh (PW-15), it is evident that he has verified the fact that Salman Khan was staying in room No.508, which is admitted. Hence, his evidence too should not be discarded. Reliance was also placed on the statement of Aurn Kumar Yadav (PW-7), the driver of the gypsy. It was contended that he has corroborated the statement of Harish Dulani. Whatever was stated by Harish Dulani in his statement under Section 50 of the Forest Animal (Protection) Act, has also been stated by Arun Kumar Yadav. No doubt, the statement of PW-1 Narendra Panwar is on the basis of the hearsay evidence but as per his statement, he was informed by Khinvraj about killed deer having been brought to the Hotel Ashirwad by Dushyant and Yashpal. Further, the witnesses having turned hostile should not be taken against the prosecution. They have been won over. The Additional Chief Judicial Magistrate (PW-30) and similarly, the Chief Judicial Magistrate (PW-31), who recorded the statements of Bhanwar Singh and Narendra Panwar respectively, have stated that the statements of both the witnesses were made voluntarily and the Magistrate had specifically asked both of them whether they are making the statements voluntarily and without any pressure, to which they replied in the affirmative and if a prosecution witness turns hostile, the part of the statement of a hostile witness, which support the case of the prosecution should be taken into consideration. While meeting the argument of the learned counsel for the accused that Khinvraj was not examined on account of his death, Mr.Thakur submitted that as per Exh.P57, which is the statement of Khinvraj under Section 164 of the Cr.P.C., he has corroborated the statement of PW-1 Narendra Panwar that Dushyant, Yashpal and Pappsa @ Kuldeep had brought the shikar to the Hotel. Similarly, Exh.P/26 is the statement of Bhanwar Singh under Section 164of the Cr.P.C. to the same effect. Even though Bhanwar Singh had turned hostile, he was cross-examined and he admitted in his cross-examination that he had duly made the statement before the Magistrate under Section 164 of the Cr.P.C. While proceeding with his argument, Mr.Thakur argued that all these statements were recorded in FIR No.93(26) of 1998 registered by the Forest Department, which is third case with respect to the incident that occurred on the intervening night of 01.10.1998 and 02.10.1998. The original record in the complaint case was called by the court and thereafter, the memo was prepared in the present case. Finally, while meeting with the argument of Mr.Bora that the gypsy was not recovered in the present case and therefore, it cannot be taken into consideration, Mr.Thakur argued that the gypsy was recovered vide Exh.P/5A on 07.10.1998. It could have only been recovered in one case and could not have be recovered thrice over. As per the FSL, the blood spot in the gypsy was of deer. The same is of the deer hunted on 26 th September, 1998 and it cannot be held to be of the 1st October, 1998 because two deers killed on 1st were not loaded in the gypsy but were left at the spot.
Reliance was placed on the judgment rendered by the Apex Court in the case of