IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION No.1114 of 2011 BETWEEN:
BANYA NAIKA S/O SAMLA NAIKA, AGED ABOUT 40 YEARS, R/O GONDI, BHADRAVATHI TALUK.
(BY SRI UMESH P.B., ADVOCATE FOR SRI R.B. DESHPANDE, ADVOCATE) AND:
THE STATE BY R.F.O., BHADRAVATHI RANGE, BHADRAVATHI.
(BY SRI CHANDRASHEKARAIAH S., H.C.G.P.) ... PETITIONER ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 30.09.2011 PASSED BY THE PRESIDING OFFICER, FTC, BHADRAVATHI IN CRL.A.No.70/2011 AND ORDER DATED 22.02.2011 PASSED BY THE CIVIL JUDGE AND ADDITIONAL JMFC, BHADRAVATHI IN C.C.No.3604/2006.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 14.12.2018 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER This revision petition is filed by accused No.1/petitioner to set aside the judgment of conviction and sentence dated 30.09.2011 passed by the Presiding Officer, Fast Track Court, Bhadravathi, in Criminal Appeal No.70/2011, modifying the judgment dated 22.02.2011 passed by the Civil Judge and Additional JMFC, Bhadravathi in C.C.No.3604/2006 for having convicted the accused for the offences punishable under Sections 86 and 87 of the Karnataka Forest Act, 1963 (‘Act’ for short), and to acquit the petitioner of the charges levelled against him.
2. The petitioner herein is accused No.1 and respondent is State before the Trial Court. The ranks of the parties before the Courts below are retained for the sake of convenience.
3. The factual matrix of the case of the prosecution is that on 07.08.2001, the Forest Guard and staff of RFO, Bhadravathi, upon receiving a credible information, had been to a place near Amalamatha Hospital in Official Jeep and while they were proceeding on the pathway towards the forest, they heard the noise of some persons talking to each other. Thereafter, they found three persons coming out of the forest and they were visible in the moon light. Immediately they apprehended one person i.e. accused No.1/petitioner herein and other two persons ran away. The accused No.1/petitioner was found in possession of a bag containing roots and chips of Sandal wood. Upon enquiry, accused No.1/petitioner disclosed the names of other two persons as Muneer and Shekhar Naika. The properties were weighed and seized under a panchanama and the FIR came to be registered against accused No.1/petitioner and two others. After investigation, charge sheet came to be filed against three persons and the case of accused No.3 has been spilt up.
Accused Nos.1 and 2 appeared before the Trial Court. Charges were framed against them. They pleaded not guilty. Therefore, the prosecution was called upon to adduce evidence on its behalf. The prosecution in all examined three witnesses has PWs.1 to 3 and got marked five documents as Exs.P.1 to P.5. After completion of trial, statements of the accused under Section 313 of Cr.P.C. have been recorded. The case of the accused was one of total denial, but not entered into any defence evidence. After hearing both sides, the learned Magistrate found guilt of accused Nos.1 and 2 for the offences punishable under Sections 86 and 87 of the Act and sentenced the accused Nos.1 and 2 to undergo simple imprisonment for a period of 25 days and to pay a fine of Rs.1,000/- each.
4. Being aggrieved by the same, accused No.2-Muneer challenged the conviction and sentence by filing Criminal Appeal No.50/2011; whereas the State filed Criminal Appeal No.70/2011 challenging the inadequate punishment. After hearing both sides, the First Appellate Court allowed the Criminal Appeal filed by accused No.2 Muneer in Criminal Appeal No.50/2011 and acquitted him of the charges leveled against him. On the other hand, the appeal filed by the State was allowed. The sentence passed by the Trial Court to undergo simple imprisonment for 25 days against accused No.1/petitioner was enhanced to three years with a fine of Rs.10,000/-, in default, to further undergo simple imprisonment for a period of three months for contravening Sections 86 and 87 of the Act. Both the sentences were ordered to run concurrently. Being aggrieved, the present revision petition is filed by accused No.1/petitioner.
5. The petitioner contended that the Courts below ought to have discarded the prosecution evidence on the ground that there is no independent witness or local witness examined. There is no investigation regarding the place where the Sandal wood was cut and removed. There are discrepancies in the evidence of the official witnesses. They have not followed the mandatory provision of giving a certificate to show that it is a forest produce or Sandal wood. The First Appellate Court acquitted accused No.2 disbelieving the evidence of the prosecution, but wrongly convicted the present petitioner alone. The Courts below have not appreciated the evidence of the prosecution in the light of human probabilities and therefore, pleaded for setting aside the order of conviction and sentence passed by the Courts below.
6. During the course of arguments, learned counsel for the petitioner contended that the learned Magistrate has not considered the evidence on record. Non-examination of independent witness available near the spot is fatal to the case of the prosecution. There is no evidence in respect of the place where the alleged Sandal wood is said to have been cut and removed. The Investigating Officer has not obtained a certificate to certify that the alleged material objects were Sandal wood as required under Section 62-C of the Act. Non-compliance of the mandatory provision has vitiated the finding of the Courts below. The co-accused was acquitted by the First Appellate Court, but accused No.1/petitioner has been wrongly convicted. There is no proper reason assigned by the First Appellate Court for accepting the prosecution witnesses without examining the independent witnesses and therefore, prayed for interference by this Court to set aside the judgment and order conviction and sentence passed by the Courts below.
7. Per contra, learned High Court Government Pleader contended that the Trial Court has rightly convicted the accused No.1/petitioner, who was caught red-handed and has not at all filed any appeal against his conviction and therefore, prayed for dismissal of the revision petition.
8. Heard learned counsel for the petitioner and learned High Court Government Pleader and perused the records.
9. The record reveals that PW.1, Forest Guard, along with PWs.2 and 3 were on patrolling duty on 07.08.2001, at about 10.15 p.m., While they were walking on a footpath near Amalamatha Hospital, they heard some conversation between some unknown persons and immediately they went there. At that time, this petitioner and other two persons were present. The other two persons ran away and the petitioner was caught red-hand and he was holding a bag which contained Sandal wood chips. The same was seized under the panchanama. The same was weighing 5 Kgs. of Sandal wood. Then they took the accused to the office and registered the case. Thereafter, the petitioner was produced before the Court and was taken into custody and later released on bail. In the voluntary statement of accused No.1, he revealed the names of other persons. They also arrested accused No.2 and then both of them faced the trial before the Magistrate. After conclusion of the trial, the Trial Court passed the judgment of conviction and sentence.
10. The contention of learned counsel for the petitioner is that the Sandal wood chips alleged to have been seized by the respondent forest official were not certified by the Range Forest Officer as per Section 62-C of the Act and the Investigating Officer has also not examined any independent witnesses though available near Amalamatha Hospital.
11. On a perusal of the evidence on record, PW.1, Forest Guard, along with PWs.2 and 3, who are also Forest Guards, were on patrolling duty. They said to have heard some noise near Amalamatha Hospital and immediately they went to the spot and then caught accused No.1 and also seized some Sandal wood chips from his possession under the panchanama-Ex.P.1. The panchanama, though signed by PWs.2 and 3, they have not stated any reason for not securing any independent witnesses near by the spot. When it is clearly stated that the offence was committed or apprehended the accused No.1 near Amalamatha Hospital, definitely there would have been some doctor or attender or nurse available in the said hospital or atleast some watchman would have been present in front of the hospital, but PWs. 1 to 3 have not at all tried to secure any independent witness to the seizure panchanama under Ex.P.1 for having seized the alleged Sandal wood chips. Ex.P.3 is the photograph showing the Sandal wood chips. Ex.P.4 is the FIR prepared by PW.1 and later the entire materials were submitted to the higher officer and the higher officer investigated the case and filed the charge sheet. Though PWs.1 to 3 have spoken about the seizure of Sandal wood chips, but in order to prove that the seized articles were Sandal wood chips, the same was not verified and certified by any Range Forest Officer by sending it to any trained officer authorized by the State Government as required under Section 62C of the Act. Even there is no certificate produced before the Court to show that the seized articles were Sandal wood pieces.
12. Learned counsel for the petitioner relied on the following judgments of this Court ;
a) Crl.A.No.2852/2012 (Sri Laxman vs. The State of Karnataka) decided on 17.01.2013;
b) Crl.A.No.76/2009 (Nayaz and another vs. The State of Karnataka) decided on 22.08.2014; and c) Crl.A.No.438/2007 (Prakash and others vs. The State of Karnataka) decided on 17.11.2009.
13. This Court in Crl.A.No.2852/12, at paragraph 12, has held as follows;
“12. On a careful consideration of the entire material on record, it is seen that at the very outset, the prosecution has not complied with the mandatory provisions of Sec.62(c) of the K.F.Act. Sec.62(c) of the K.F.Act reads as under:
CERTIFICATE OF FOREST OFFICER TO BE AN EVIDENCE:- Any document purporting to be a certificate under the hand of a Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce and who is so authorized by the State Government in this behalf in respect of forest produce, submitted to him for examination and report, may be used as evidence of the facts stated in such certificate in any proceedings under this Act, but the Court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Forest Officer as to the subject matter of his certificate.”
Further, this Court by relying upon the judgment reported in (2010) 3 AIR Kar 110, acquitted the accused on the ground of non-compliance of the mandatory provisions of Section 62C of the Act. In Crl.A.No.76/2009, this Court has relied upon the same judgment and on consideration of Section 62C of the Act, acquitted the accused. Similarly, in Crl.A.No.438/2007, this Court has taken an identical view by taking into consideration the provisions of Section 62C of the Act and acquitted the accused. Therefore, the trial Court holding that the seized articles are sandalwood pieces and the accused is guilty of the offence on this ground is erroneous.
14. Apart from that, the Investigating Officer was also not examined before the trial Court. Though it is well settled that the evidence of official witness or forest official cannot be discarded as not trustworthy, otherwise which is reliable and believable, which can be the base for conviction and non examination of the Investigating Officer is not fatal in all cases, but here in this case, PWs.1 to 3 are Forest Guards who are said to have arrested accused No.1 and seized the alleged Sandal wood chips. But once, the investigation was handed over to the higher officer, it is the duty of the higher officer to inspect the spot, prepare the spot mahazar and to confirm from which place/tree the wood has been cut and removed and examine the nearby witnesses. There is no explanation from the prosecution as to why the Investigating officer has not examined any witnesses and not prepared any panchanama and even the Investigating Officer has not referred the seized articles to the higher authorities or Range Forest Officer to certify that the seized articles were Sandal wood pieces or not. These questions are required to be answered by the Investigating Officer. Therefore, the evidence of PWs.1 to 3 is not sufficient to prove the guilt of the accused under Sections 86 and 87 of the Act. Apart from that, though, PWs.1 to 3 stated that there are no persons available for taking them as witnesses to the seizure, but nothing has been mentioned in Ex.P.1- mahazar to show that PWs. 1 to 3 were trying to get the independent witness, but they were unable to secure. Therefore, the contention of the prosecution witness for non-joining independent witness due to non-availability is unacceptable. The same should be elicited through the Investigating Officer, but the Investigating Officer was not examined. Therefore, non-examination of Investigating Officer is fatal to the case of the prosecution.
15. This Court has also taken a similar view in Crl.A.No.599/2011 following the judgment in the case of Gyan Singh and others vs. State of U.P. reported in 1995 Supp (4) SCC 658.
16. In view of the decision of the Hon’ble Supreme Court and this Court, I hold that the prosecution has failed to prove the case beyond all reasonable doubt for the offences punishable under Sections 86 and 87 of the Act. Therefore, both the Courts below have erred in holding the accused No.1 guilty of the alleged offence and convicting the accused.
17. For the reasons stated, non-joining of the independent witnesses for the mahazar even though available near the spot, non-examination of the authorized officer, not certifying the forest material as Sandal wood chips under Section 62C of the Act and non-examination of the Investigating Officer are fatal to the prosecution case. Therefore, the judgment of conviction and sentence passed by the Trial Court in C.C.No.3604/2006 and confirmed by the Appellate Court in Crl.A.No.70/011 enhancing the sentence are liable to be set aside for the reasons that the Appellate Court has not properly re-appreciated the evidence and ignored the mandatory provision of Section 62C of the Act. Even if accused No.1 has not filed any appeal, but for the reasons stated, judgment of conviction calls for interference by this Court under Section 397 of Cr.P.C.
18. In the result, the Criminal Revision Petition is allowed. The judgment of conviction and sentence dated 30.09.2011 passed by the Presiding Officer, Fast Track Court, Bhadravathi, in Criminal Appeal No.70/2011 and the judgment of conviction and sentence dated 22.02.2011 passed by the Civil Judge and Additional JMFC, Bhadravathi in C.C.No.3604/2006 convicting the accused No.1 for the offences punishable under Sections 86 and 87 of the Karnataka Forest Act, are set aside. The petitioner/accused is acquitted of the charges leveled against him.
The bail bond stands cancelled. Fine amount, if any, deposited is ordered to be returned back to the accused.
A copy of this order be sent to the Courts below forthwith.
SD/- JUDGE mv