- (1.) P. K. Jain, J. Heard learned counsel for the revisionist and the learned A. G. A.
(2.) REVISIONIST Gulam Rashul was convicted for offence under Section 51 of the Wild Life Protection, Act 1972 (hereinafter referred to as the Act) for violation of provisions of Sections 9 (2) and 17 (1) of the said Act and was sen tenced to undergo 6 months' RI and pay a fine of Rs. 500/- vide judgment and order dated 26-5-82. Appeal preferred by him was dismissed by the appellate Court and the judgment and order of the trial Court was maintained. Learned counsel for the revisionist contends that according to the prosecu tion case co-accused Umar and Iqbal were found to be in possession of dead cock said to have been hunted in the sanctuary and they had told the Sanctuary Officer that the cock was actually killed by Gulam Rashul who was coming behind. The con tention of the learned counsel for the revisionist is that cock is not wild animal as defined in Section 2 (36) of the Act. Therefore, no conviction under Sections 9 (2) and 17 (1) of the Act could he recorded. It is further contended that there is no direct evidence of the bird being killed by the revisionist and on the basis of the statement given by co-accused at the time of his arrest no conviction can be recorded. Learned A. G. A. concedes that violation of Sections 9 (2) and 17 (1) of the Act is not established but he points out that the revisionist was apprehended in the sanctuary and the entry in the sanctuary is banned by the Section 27 of the Act. Therefore, the trial Court ought to have convicted him under Section 27 of the Act. According to sub-clause (36) of Section 2 of the said Act "wild animal" means any animal found wild in nature and includes any animal specified in Schedule I, Schedule II, Schedule III, Schedule IV or Schedule V, wherever found. A perusal of the above definition would show that the list of animals given in Schedule I, Schedule II, Schedule III, Schedule IV and Schedule V is not ex haustive. According to the definition any animal which is found to be wild in nature is wild animal and the animals specified in the aforesaid schedules are some of the instances of the wild animals. There is no dispute that the cock alleged to have been hunted was wild cock. Therefore, it will be treated to be wild animal in view of its being wild in nature. However, on account of the second contention of the learned counsel for the revisionist I am of the view that the revisionist could not have been convicted for violation of provisions of Sections 9 (2) and 17 (1) of the said Act. There is no direct or circumstantial evidence showing that the revisionist had actually hunted the animal found in pos session of co-accused. Merely on the basis of the statement of the co-accused given at the time of arrest exonerating himself can not be read against the co-accused.
(3.) THERE is concurrent finding of the Courts below that the revisionist was ap prehended in the sanctuary and one of his associates travelling with him on the motor cycle was armed with a gun and escaped from the scene of occurrence. Section 27 of the said Act prohibits the entry in the sanctuary except in accord ance with the conditions of permit provided under Section 28 of the said Act. It is not the case of the revisionist that he was holding the permit for entry in the sanctuary. Section 51 of said Act provides punishment for contravention of any of the provisions of the Act or rules or order made thereunder. In my view, therefore, the trial Court ought to have convicted the revisionist under Section 51 read with Sec tion 27 of the said Act. Conviction of the revisionist under Section 51 for violation of provisions of Sections 9 (2) and 17 (1) of the Act deserves to be set aside and instead the revisionist deserves to be convicted for violation of the provisions of Section 27 (1) of the Act. The learned counsel further con tends that the punishment provided is ex cessive. The incident had occurred some time in the year 1980. In view of the fact that more than 17 years have elapsed since after the commission of the crime and also considering the nature of the offence committed by the revisionist I am of the view that sentence of fine of Rs. 500/- and imprisonment already undergone shall meet the ends of the justice. The appeal was dismissed on May 3, 1984. The revisionist was taken into custody. He was granted bail by this Court on 15- 5-84.;