ORDER
Rakesh Saksena, J.
1. Applicant has filed this revision against the order dated 20.1.1998, passed by Second Additional Sessions Judge, Chhindwara in Criminal Appeal No. 33/97, affirming the judgment dated 25.2.1997, passed by Judicial Magistrate First Class, Amarwada in Criminal Case No. 457/1995, convicting the applicant under Section 9 and 49A read with Section 51 of the Wild Life (Protection) Act, 1972 and sentencing him to rigorous imprisonment for one year with fine of Rs. 5000/-.
2. According to prosecution, on 29.1.1995, K.P. Dhurve, Sub Inspector, on receiving information from an informer that applicant possessed leather of leopard, searched his house in presence of witnesses Ramdas, Punaram and Ramdeen and seized a leather of leopard vide seizure memo Ex. P/2. After obtaining the opinion from Dr. S.R. Suryawanshi, he registered a case under Section 9, 49A read with Section 51 of the Wild Life (Protection) Act, 1972 (for brevity 'the Act') against him and after investigation, filed charge sheet in the court. 2
3. Learned trial Court, relying on the evidence of Dr.S.R. Suryawanshi (PW-1), Ramdeen (PW-2) and K.P. Dhurve (PW-4), held the applicant guilty of the aforesaid offence and convicted and sentenced him accordingly.
4. The appeal preferred by the applicant was dismissed by Second Additional Sessions Judge, Chhindwara.
5. Learned Counsel for the applicant submits that from the evidence and material on record, no offence under Sections 9 and 49 read with Section 51 of the Act is made out. As such, the conviction of applicant is illegal and deserves to be set aside. He submits that there is absolutely no evidence on record to show that applicant hunted or killed the leopard.
6. Sections 9 of the Act provides:
9. Prohibition of hunting.- No person shall hunt any wild animal specified in Schedules I, II, III and IV except as provided under Section 11 and Section 12.
Section 49A of the Act defines 'scheduled animal', 'scheduled animal article' and 'specified date'. It reads:
49A. Definitions.- In this Chapter,-
(a) Scheduled animal' means an animal specified for the time being in Schedule I or Part II of Schedule II;
(b) 'Scheduled animal article' means an article made from any scheduled animal and includes an article or object in which the whole or any part of such animal [has been used but does not include tail feather of peacock, an article or trophy made therefrom and snake venom or its derivative];
(c) specified date' means-
(i) in relation to a scheduled animal on the commencement of the Wild Life (Protection) (Amendment) Act, 1986, the date of expiry of two months from such commencement;
(ii) in relation to any animal added or transferred to Schedule I or Part II of Schedule II at any time after such commencement, the date of expiry of two months from such addition or transfer;
(iii) in relation to ivory imported into India or an article made from such ivory, the date of expiry of six months from the commencement of the Wild Life (Protection) (Amendment Act, 1991.
7. On perusal of the evidence on record, it is apparent that none of 3 the witness including the Investigating Officer K.P. Dhurve (PW-4) stated that the applicant killed or hunted the leopard. The only allegation made against him is that the leather of a leopard was found in his possession. In order to establish the commission of offence under Section 9 of the Act, it is necessary to prove that accused hunted any wild animal specified in Schedules I, II, III and IV except as provided under Sections 11 and 12 of the Act. Merely by finding a person in possession of a leather of wild animal, it cannot be presumed that he hunted or killed the animal, especially in the absence of the evidence that the leather was of a recently killed animal. Dr. S.R. Suryawanshi (PW-1) could not say about the duration as to when and how the leopard, skin of which he examined, died. There is no evidence on record to show that there was any wound or mark of violence on the skin.
8. In the absence of evidence establishing the fact of hunting or killing the wild animal by the accused, he cannot be held guilty under Section 9 read with Section 49A of the Act.
9. It is true that the possession of any animal article, without license or making declaration to Chief Wild Life Warden, is punishable under Section 39 of the Act, but, unfortunately, no charge for that offence was framed by the trial Court, therefore, in my opinion, it would not be just and proper to remand the case for fresh trial after about 12-13 years of the commission of the offence.
10. Taking into consideration the above circumstances, I am of the view that the conviction of the applicant under Section 9, 49A read with Section 51 of the Act is illegal and deserves to be set aside. Accordingly the impugned judgment of conviction and sentence, passed by the court below, is set aside. Applicant is acquitted.
11. Applicant is on bail. His bail bond and surety bond stand discharged.
12. Revision allowed.
13. Law laid down by the judgment:
In order to establish the commission of offence under Section 9 of the Act, it is necessary to prove that accused hunted any wild animal specified in Schedules I, II, III and IV except as provided under Sections 11 and 12 of the Act. Merely by finding a person in possession of a leather of wild animal, it cannot be presumed that he hunted or killed the animal, especially in the absence of the evidence that the leather was of a recently killed animal.
14. Significant paragraph numbers:-Para Nos. 7 and 8.