STATE OF RAJASTHAN Vs. POORAN SINGH

JUDGEMENT

(1.) THE facts of this appeal are that there is a Bakli Dam in District Jalore. The contract of fishing in the said Dam was auctioned in the name of Kalyan Singh complainant on 13-9-1968, According to the Rajasthan Fisheries Act, 1953, and the rules made thereunder, fishing is prohibited from 1st July, to 15th September of each year. Kalyan Singh had deposited one-fourth of the amount but the licence was issued in his name on 24-10-1968. According to the licence, Kalyan Singh was authorised to catch fish in the said tank from 24-10-1968 to 30-6-1969. It is alleged that accused Pooran Singh caught fish in the said tank on 20-9-1968. He along with other co-accused was caught by Kalyan Singh with the help of the Chowkidars. , A truck containing 15 maunds of fish was also caught. Jalim Singh Patwari P. W. 6 lodged a report of the occurrence. The police recovered the fish and produced them before the Magistrate who directed them to be destroyed. The police forwarded 9 accused persons for trial under Section 379, I, P. C. and Sections 6 and 8 of the Rajasthan Fisheries Act, 1953. The plea of the accused was that he had paid Rs. 400/-to Kalyan Singh and it is with his permission that the fish were caught.

(2.) NENIYA P. W. 2 deposed that he told Kalyan Singh that some people have been carrying away fish in the night. On the night of occurrence Neniya, Mangilal, and Kalyan Singh kept a watch. At about 11 p. m. a motor vehicle came and parked near the waters and the accused continued to fish upto 5. 00 O'clock in the morning. When the motor was Started for leaving the tank, all the three of them reached there and asked them why they were taking fish. When Neniya asked them not to proceed, then Pooran Singh sat there while Kalyan Singh went in the village. Mangilal P. W. 8 is the government chowkidar on the said tank. When Pooran Singh's party had finished their fishing, he asked them if they had any permit. Pooran Singh replied that he had no permit. Thereupon, Mangi Lal asked them not to carry the fish and detained them. Kalyan Singh P. W. 4 has stated more or less the same facts.

(3.) THE accused also produced six witnesses. Bootia D. W. 1 deposed that Kalyan Singh had come in the hotel of Sardar Pooran Singh and offered a truck load of fish for Rupees 400/ -. Pooran Singh gave him Rupees 400/- and then his party went to the tank for catching the fish. Jalim Singh did not allow them to fish after 3. 00 a. m. and demanded some bribe. The accused party was beaten and their fish were also carried away by Kalyan Singh's party. The same theory is supported by Gulab Singh D. W. 2 and Roopa D. W. 3 and Anop Singh D. W. 5. Pooran Singh also examined himself as D. W. 4 to support the same facts. The learned Magistrate held that the conduct of the accused is quite the opposite of the conduct of thieves. If they were really stealing fish, then they would not have stopped and remained there when checked by the witnesses. The learned Magistrate relied upon Chand Kumar Das Karamarkar v. Abanidhar Roy. The accused had come to know that the matter had been reported to the police and only two chowkidars were there on the tank. If the accused had any intention of committing theft, they could have escaped in the truck very easily. Moreover, the chowkidars would not have waited for fishing operations for 7 hours before they came to stop the accused. Though the defence has not been able to prove the payment of Rs. 400/- to Kalyan Singh, yet there was probability of such a contract which is corroborated by the subsequent events and conduct of the parties. It was also proved that the accused had received injuries but the S. H. O. did not get them medically examined. He also did not have the fish weighed. The accused could not therefore be convicted for theft simply because they were seen catching the fish. The learned Magistrate therefore held them not guilty under Section 379 I. P. C.