NIRMALJIT KAUR,J. - (1.) 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 and 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. Reportable Date of Judgment : : 25th July, 2016 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 with Section 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, 201 read 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 and 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 164 of 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 Sathya Narayanan Vs. State of Represented By Inspector of Police, reported in 2013(1) Criminal Court Cases 079(SC) to say that merely because the witness was declared as hostile, there is no need to reject his evidence in toto. In other words, the evidence of hostile witness can be relied upon at least to the extent, it supported the case of the prosecution. While relying on the judgment rendered by Apex Court in the case of Surender Singh Vs. State of Haryana, reported in 2006(1) Criminal Court Cases 989 (SC), it is contended that in case, the witness is turned hostile but admits the signatures on recovery memo, it is to be held that recovery is made in the presence of said witness. Further, the credibility of testimony of an Investigating Officer cannot be suspected when the same is wholly reliable, consistent and trustworthy as held in the case of Sukhavasi Sivaiah Vs. State represented by its Public Prosecutor of A.P., Hyderabad, reported in 2010(1) Criminal Court Cases 933 (A.P.). Further, reliance was placed on the judgment of the Supreme Court in the case of State of U.P. Vs. Jagdeo and Ors., reported in 2003 Supreme Court Cases (Cri) 351 to suggest that mere faulty investigation cannot be a ground for acquittal of the accused and for the fault of the prosecution, the perpetrators of a ghastly crime cannot be allowed to go scot-free; and that delay in lodging FIR is not fatal in every case and for the same, reliance was placed on the judgment rendered in the case of Amar Singh Vs. Balwinder Singh and Ors., reported in 2003 Supreme Court Cases (Cri) 641. The learned counsel for the parties were heard at length and oral as well as documentary evidence was thoroughly considered. The written submissions were also submitted by the learned counsel for both the parties. The FIR No.162/1998, P.S. Mathania was accompanied by the statement of Harish Dulani giving a detail description of how the deer was hunted. In his statement under Section 164 of the Cr.P.C., Harish Dulani stated that he was the driver of the gypsy but the gypsy was being driven by Salman Khan accompanied by Satish Shah who was sitting next to Salman Khan and Yashpal who was sitting at the back showing the way. Mahendra Bhati, Kuldeep Choudhary and Raju Banna were also sitting at the back. Salman Khan had fired three rounds. He missed the aim twice and managed to hit the deer only when he fired for the third time. Thereafter, Salman Khan got down and cut the throat of deer with his knife. It was further stated by him that he could identify the place of occurrence. It was also stated by him that all this while the gypsy was being driven by Salman Khan and on the same night, another deer was killed by Salman Khan, which he killed in the first round itself and in the same manner, once again cut the throat of the deer with his knife. Both the killed deers were put into the gypsy. Thereafter, Satish and Salman Khan were dropped at Ummed Bhawan Palace while the other went to to Ashirwad Hotel. This time, the gypsy was being driven by Yashpal. Since everybody was sleeping at the Hotel Ashirwad, Yashpal said that they should go to the place of one Bhanwar Ji. When they reached the house of Bhanwar Ji, Yashpal called him out. However, Bhanwar refused to chop the deer. Thereafter, they came back to Ashirwad Hotel where the killed deers were unloaded and the gypsy was washed and cleaned by him the next morning. Harish Dulani further went on to give the detail of the 28 th incident for which a separate case was registered. However, the present case concerns the hunting of 26th night. The entire case is built around the statement of Harish Dulani. The statement of Harish Dulani was recorded under Section 164 of the Cr.P.C. However, he never appeared in the witness box and nor was examined. It is well settled proposition of law that statement under Section 164 cannot be taken into consideration, in case, a witness is not examined and nor cross- examined. As per Section 33 of the Evidence Act, evidence given by a witness in judicial proceeding is relevant at a later stage in the same judicial proceeding only if the witness is dead or cannot be found, or is incapable of giving evidence or is not allowed to appear by the opposite party or his presence cannot be obtained without a reasonable delay or expense which is considered unreasonable by the court. Section 33 of the Evidence Act read as under:- "33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.--Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided-- that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.--A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. " Thus, one of the prime requisites for the statement to be admissible is that accused should have been granted an opportunity to cross-examine a witness whose statement is sought to be admitted into evidence. When a statement is recorded under Section 164 Cr.P.C., the accused does not have a right to cross-examine and nor he is given an opportunity to cross- examine such a witness. Hence, it is necessary that the said witness should not only be examined in court as witness but opportunity to cross-examine should also be granted and in case, the said condition is not fulfilled, the statement recorded under Section 164 of the Cr.P.C. cannot be read in evidence as per Section 33 of the Evidence Act. The Apex Court in the case of Baij Nath Shah Vs. State of Bihar, 2010(3) Supreme Court p. 667 held in no uncertain terms that if the witness is not produced in court for evidence, the statement under Section 164 of the Cr.P.C. is not substantive evidence. In the said case, the allegation against the accused were of kidnapping and rape. He was convicted by the trial court on the basis of the statement under Section 164 of the Cr.P.C. The victim never came to record her evidence as she had been married in Nepal and her husband refused to let her return to India for the evidence. While acquitting the accused, the Apex Court observed:- "We see from the judgments of the Courts below that the only material that has been used against the appellant is the statement under Sec.164 of the Cr.P.C. This Court in Ram Kishan Singh vs. Harmit Kaur and Another ((1972) 3 SCC 280) has held that a statement of 164 Cr.P.C. is not substantive evidence and can be utilized only to corroborate or contradict the witness vis-a-vis. statement made in Court. In other words, it can be only utilized only as a previous statement and nothing more. We see from the record that Suman Kumari was not produced as a witness as she had since been married in Nepal and her husband had refused to let her return to India for the evidence. In this light her statement under Section 164 cannot be used against the appellant." Similar view has been held consistently by the Apex Court in various judgments and it is a settled proposition of law that accused has the right and should be given an opportunity to cross-examine such a witness. For non-fulfillment of this condition precedent alone, it is sufficient to hold that a statement of a witness recorded under Section 164, Cr.P.C. is not a statement, which can be admitted into evidence at the trial under Section 33 of the Evidence Act. In the present case, it is pointed out that Harish Dulani has appeared in Criminal Case No.206/1999. Thus, it is not the case of the prosecution that he could not be found or was incapable of giving evidence or his presence could not be procured for whatever reason. Hence, his statement in the present case is hit by Section 33 of the Evidence Act and, therefore, cannot be read in evidence. Besides the above reason, the statement of Harish Dulani under Section 164 of the Cr.P.C. is highly unreliable. The said statement of Harish Dulani under Section 164 of the Cr.P.C. was recorded while he was in custody of the Forest Department. In order to prove this fact, the learned counsel for the appellant Salman Khan read out the statement of the gypsy owner, Arun Kumar Yadav (PW-7). As per PW-7, father of Harish Dulani had told him that Harish was in the custody of Forest Department after the alleged incident and that whenever he (PW-7) went to the Forest Department along with the father of Harish, he too saw that Harish was always present. He had also gone to the Forest Department to plead for Harish. The father of Harish used to come to Arun Kumar Yadav to ask about whereabouts of Harish Dulani, upon which he would inform that Harish Dulani was with the Forest Department. Thus, it is apparent from the statement of their own prosecution witness PW-7 that Harish Dulani remained in the illegal custody of the Forest Department after the alleged hunting incident was reported and he continued to remain in the confinement till his statement was recorded both by the Forest Department and by the learned Magistrate under Section 164 of the Cr.P.C. The sanctity of a statement which is recorded while in custody is always doubtful and one wonders if that was the reason why Harish Dulani did not come back to record his statement in this case. In fact, a doubt is created as to whether Harish Dulani was actually an eyewitness In his statement under Section 164 of Cr.P.C., Harish Dulani went overboard and attributed Salman Khan with multi tasks of not only driving the gypsy but simultaneously shooting the deer, getting down to cut the neck of the deer and then taking over the wheels again. The prosecution has heavily relied on the statement of Arun Kumar Yadav (PW-7) to say that Gypsy No. RJ-19 1C 2201 was used by the film unit but then Aurn Kumar Yadav, the owner of the gypsy appeared as PW-7 submitted that Harish Dulani had told him that film unit crew did not take him along with them and he was left behind by them at Ummed Bhawan Palace thereby negating the prosecution version that Harish Dulani was present in the gypsy at the time of hunting and was thus an eyewitness. Thus, the statement of prosecution witness Arun Kumar Yadav certifying that Harish Dulani was left behind at Ummed Bhawan Palace at the time of hunting and he remained in the custody of the Forest Department till the recording of the statement coupled with the fact that Harish Dulani subsequently never appeared as witness renders the prosecution story totally weak and uncorroborated. Faced with this situation, the State filed an application under Section 391 of the Cr.P.C. read with Section 33 of the Evidence Act on 15.03.2016 after the arguments had concluded, praying that the certified copy of the document i.e. the statement of Harish Dulani recorded as PW-1 in Criminal Case No.206/1999, his statement recorded in presence of accused-Salman Khan on 13.10.1998 (Ex.P/89 in Criminal Case No.66/2011) as also the statement of Lalit Kumar Bora recorded as PW-1 in Criminal Case No.66/2011 and the statement of witness (Ex.P/89) recorded by the forest department may be taken on record on the ground that the said statement under Section 164 of the Cr.P.C. was recorded in FIR No.162/1998 (in the present case) as well as FIR No.163/1998 both, meaning thereby that the said statement Ex.P/3 is common in both the trial and also because the witness Harish Dulani though did not turn up in the present case but his statement has been recorded before the trial court in second case and he has also been cross-examined. They are the public documents in terms of Section 74 of the Evidence Act and there is presumption under Section 80 of the Evidence Act that they are genuine. Whereas, the present appeal was filed in the year 2006 but no application for taking additional evidence on record was filed by the State since then. The same has been filed not only after the arguments have been concluded but the State is also seeking to place on record a statement of Harish Dulani, which was recorded by the Chief Judicial Magistrate in Criminal Case No.206/1999 way back on 24.01.2002. Even otherwise, Section 391 of the Cr.P.C. deals with calling of a witness for deposition before the court, which includes an opportunity to cross-examine. There is no prayer of the State to call the witness Harish Dulani. In these circumstances, the statement of Harish Dulnani recorded in Criminal Case No.206/1999, if taken on record, without an opportunity to the accused to cross-examine would not only be illegal but result in prejudice to the accused. Section 391 of the Cr.P.C. allows the evidence to be recorded by the appellate court, which means oral evidence and does not mean a statement of a witness recorded in another proceeding to be taken on record without any opportunity of cross-examination. No doubt, as per Section 33 of the Evidence Act, a prior evidence given by the witness in a judicial proceedings can be taken into consideration in the subsequent judicial proceedings. However, once again, the same is subject to cross-examination of the said witness in the earlier proceedings. Salman Khan was not granted any opportunity to cross-examine the witness Harish Dulani in Criminal Case No.206/1999 and as already discussed above, in the absence of cross-examination, the statement under Section 164 of the Cr.P.C. cannot be taken into consideration. With respect to the prayer of placing the statement of Lalit Kumar Bora, suffice it to say that Lalit Kumar Bora has duly appeared in the present case. He was cross-examined at length and a prayer to produce his statement recorded in another case is only to fill the lacuna in the present case. When he has appeared as witness and cross-examined at length in the present case, there is no necessity to place on record his statement recorded in another case. The application Once the statement under Section 164 of Cr.P.C. is held to be inadmissible in evidence for more reasons then one as mentioned above, the prosecution is left with only circumstantial evidence to prove its case. This Court, accordingly, proceeds to deal with each of the same. ;