IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4th DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION No.599 OF 2011 BETWEEN:
1. MAHESHA S/O LINGU, AGED ABOUT 38 YEARS, 2. GOPI S/O NAGANNI AGED ABOUT 33 YEARS, BOTH ARE WORKING AS FISHERMEN, RESIDENT OF RAVOORU VILLAGE, N.R. PURA TALUK, CHIKKAMAGALUR DISTRICT.
(BY SRI GIRISH B. BALADARE, ADVOCATE) AND:
STATE BY R.F.O., B.W.L. LAKKAVALLI, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE.
(BY SRI CHANDRASHEKARAIAH S., HCGP) ... PETITIONERS ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 21.04.2011 PASSED BY THE COURT OF ADDITIONAL SESSIONS JUDGE, CHIKMAGALUR IN CRL.A.NO.35/2009 AND ORDER DATED 29.01.2009/31.01.2009 PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC, N.R. PURA IN C.C.NO.520/2006.
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 the accused- petitioner Nos.1 and 2 under Section 397 of Cr.P.C., challenging the judgment of conviction and sentence dated 29.01.2009/31.01.2009 passed by the Civil Judge (Jr.Dn.,) and JMFC, N.R. Pura, in C.C.No.520/2006, which was confirmed by the Additional Sessions Judge, Chikkamagaluru in Crl.A.No.35/2009 vide judgment dated 21.04.2011.
2. The petitioners herein are the accused and the respondent is the State before the Courts below. The ranks of the parties before the Courts below are retained for the sake of brevity.
3. The case of the prosecution is that on 24.10.2005, when Naveen Kumar, Forester of Kundur Section, along with his staff were on patrolling duty, they found four persons illegally carrying Teak wood logs on their shoulders and upon seeing the forest officials, they threw down the logs and fled away in two ferry boats, which were already kept ready by the side of Bhadra backwaters. The forest officials tried to catch them, but could not succeed. The forest officials identified four accused persons and other two remained unidentified. On verification, they found that six Teak wood logs were cut and shifted. The forest officials seized Teak wood logs under a panchanama. After investigation, they filed charge sheet against four accused persons for the offences punishable under Sections 24, 50 and 62 of the Karnataka Forest Act, Rules 143 and 144 of the Karnataka Forest Rules and Sections 27, 28, 29, 31 and 32 read with Section 51 of the Wife Life Protection Act, 1972. The accused appeared before the Court and pleaded not guilty and claimed to be tried. Hence, the prosecution was called upon to lead evidence. The prosecution examined in all four witnesses and got marked four documents as Exs.P.1 to P.4 apart from the material objects as MOs.1 to 6. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused was one of a total denial. After hearing the arguments, the Trial Court found the accused persons guilty of the offences alleged and convicted them to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 24 of the Karnataka Forest Act; to undergo simple imprisonment for a period of three months and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 50 of the Karnataka Forest Act; to undergo simple imprisonment for a period of six months and to pay a fine of Rs.1,000/-each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 379 of IPC; to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 27 of the Wild Life Protection Act; to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 29 of the Wife Life Protection Act; to undergo simple imprisonment for a period of three months and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 31 of the Wild Life Protection Act and sentence were ordered to run concurrently.
Being aggrieved by the same, accused Nos.1 and 2 preferred Crl.A.No.35/2009 before the Additional Sessions Judge at Chikkamagaluru. After hearing both sides, learned Additional Sessions Judge by judgment dated 21.04.2011 dismissed the said appeal confirming the judgment of conviction and sentence passed by the Trial Court.
Being aggrieved by the same, accused Nos.1 and 2, who are the petitioners herein have preferred this revision petition challenging the said judgment of conviction and sentence on various grounds contending that the judgment passed by the learned Magistrate and learned Sessions Judge are perverse and devoid of merits and the same are liable to be set aside. The learned Magistrate has not applied its mind to the evidence on record while passing the judgment of conviction and sentence. As per the evidence of PW.1, as the accused persons were 80 meters away from the forest officials, they could not identify the accused properly and there were no roots of the trees disclosed in that area and the materials used for cutting of the trees. A false case has been foisted against the accused. The Trial Court also failed to consider that the material objects marked before it do not have the marking made during the alleged seizure and the marking made on the material objects are quite different from the marking made at the time of seizure. There is non-compliance of the mandatory provisions of Section 62(3)(a) of the Karnataka Forest Act. The prosecution has failed to prove the very existence of cutting of the trees in the forest. Both the Courts below have not appreciated the evidence on record. Hence, the accused/petitioners plead for setting aside of the judgments passed by the Courts below.
4. Heard learned counsel for the accused/petitioners and learned HCGP appearing for the State. Perused the material available on the record and the LCR.
5. Learned counsel for the petitioners, during the course of arguments, contended that the Crl.A.No.35/2009 filed by accused Nos.1 and 2 was dismissed by the learned Additional Sessions Judge confirming the judgment of the Trial Court, whereas Crl.A.No.46/2009 filed by accused No.3, who was also convicted by the Trial Court for the similar offences, was allowed acquitting accused No.3 of the charges leveled against him. Therefore, the accused Nos.1 and 2 are also entitled for an order of acquittal since the evidence against these accused are identical and similar to those against accused No.3. It is also contended that the Teak wood logs said to be seized by the forest officials were given some identification mark in the panchanama, whereas in the certificate issued by PW.2, the identification mark was altogether different. This aspect has not been considered by the Court below. Apart from that, the mandatory provisions of law were not complied with while certifying the Teak wood logs. Hence, he prayed for setting aside of the judgments of conviction and sentence passed by the Courts below.
6. Per contra, learned HCGP contended that the Courts below have rightly appreciated the evidence and supported the judgments of the Courts below. Hence, prays for dismissal of the revision petition.
7. Perusal of the record goes to show that when the forest official PW.1-Naveen Kumar and his staff were on patrolling duty on 24.10.2005, they heard a sound at some distance and some persons were trying to lift the Teak wood logs. They went there and tried to catch them, but the accused absconded in the ferry boats which were already kept ready near Bhadra backwaters. He had stated the names of four persons, but not identified the other two persons. Thereafter, the Teak wood logs in six pieces were seized under Ex.P.2-mahazar after measuring. Later, he came to the office and registered the case. The same was deposed by PW.1 in his evidence. During the cross-examination, he has stated that he saw six persons at a distance of 80 meters away and tried to chase, but could not catch them as they fled away in the boats which were near Bhadra backwaters. PW.2-Manohara Naik, Forest Guard, also stated in the same line that he has accompanied PW.1 on the said date and he also speaks about flying away of four persons from the spot. Thereafter, they seized the articles under the panchanama. PW.3, another Forest Guard also corroborated the evidence of PWs.1 and 2, who is stated to have accompanied them on the date of the incident. After registering the case, the seized properties were sent to PW.4 for verification of the woods and PW.4, after identifying the wooden pieces as Teak wood, issued Ex.P.3-Certificate and he himself filed the charge-sheet. The case of the accused is one of total denial and they also dispute the identity of the accused, as the forest guards could not have seen the accused in the evening light. They denied the connection between the crime and the accused persons.
8. With regard to identification of accused Nos.1 to 4 by PWs.1 to 3, they have not explained as to how they came to know the names of these accused persons to mention in the FIR or in the panchanama. During the end of October, which is a rainy season, and in the forest area, there could be darkness and unless the accused persons are very well known to them prior to the incident, they cannot identify the accused persons as to who is who. Perusal of the FIR and Ex.P.2-panchanama shows that six persons came and after seeing them, they ran away. Though they stated the names of four persons, they were not able to say the names of the other two persons. When the accused persons were running away, the witnesses could have seen only the backside of the accused persons and it is not possible to accept that they can easily identify accused Nos.1 to 4. Apart from identifying the accused persons by the witnesses, the identification of MOs.1 to 6 were brought to the notice of the Courts below by the learned counsel for the petitioners-accused that while seizing them under Ex.P.2, they were given identification marks as KNFD-F-24BB. The same was stated by the witnesses in their evidence. Whereas, in Ex.P.3-Certificate issued by PW.4, it is stated that the logs were certified by him and he has mentioned the identification mark as KNFD-G- 24BB. On perusal of the property seized by the respondent, it was shown as KNFD-F-24BB, whereas the certificate issued by PW.4 identifying the materials mentions as KNFD-G-24BB. The letters ‘F’ and ‘G’ are altogether different from the material placed before him for certification and the material seized by the raiding party. Therefore, accepting the evidence of PWs.1 to 4 and Ex.P.3 is not sustainable in law since there were differences in the identification of the material objects. Apart from that, PW.4, who filed the charge-sheet and also certified the material objects, has not given his authorization for certifying the same, his education etc., in his evidence, as per Section 62-C of the Forest Act. Section 62-C of the Forest Act reads as follows;
“62-C. 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 of the accused person summon and examine any such Forest Officer as to the subject matter of his certificate.”
9. In view of the above said provision of law, PW.4 should have proper training and he should be authorized by the government to issue such certificate, but no such certificate has been produced before the Court in order to issue Ex.P.3. Reliance is placed by the learned counsel for the accused in this regard on a judgment of this Court in the case of Raghavendrachari vs. State of Karnataka reported in 2010 (2) KCCR 1411 wherein, this Court has held issuance of certificate by an official who has undergone training in the examination of forest produce and who is also authorized by the State Government in this behalf in respect of forest produce. Therefore, when PW.4 has not produced any certificate for having undergone training or any authorization issued by the State Government and has simply given evidence, which is not acceptable. The entire proceedings is vitiated. That apart, the very identification of the property is not proved beyond all reasonable doubt. Therefore, the judgment of conviction and sentence passed by the Courts below calls for interference and deserves to be set aside. Apart from that, the learned Sessions Judge though accepted the said contention in respect of Section 62-C of the Act and identification of the accused was disbelieved and by relying upon the judgment in the case of Gyan Singh and others vs. State of U.P reported in 1995 Supp (4) SCC 658, which is based on the decision in the case Raghavendrachari and acquitted the accused No.3 by allowing the appeal, but erred in dismissing the appeal filed by accused Nos.1 and 2 by the same Judge, which is not correct. The discussion made by learned Sessions Judge in Crl.A.No.46/2014 filed by accused No.3 based on Section 62-C of the Act and judgment of the Supreme Court as well as decision of this Court in Raghavendrachari’s case. But the same yardstick is not applied to these petitioners who are also co-accused in the same case, which is erroneous.
10. Though the counsel for the petitioners relied upon Section 62(3) of the Act, which pertains to reporting of seizure of the forest wood to the Magistrate, the same was set aside by this Court in the case of Bhanuprakash A and another vs. State by the ACF, Chikmagalore reported in ILR 2006 Kar. 3216 and the Division Bench of this Court in the case of P. Nagaraj vs. State by Shiralkoppa Police reported in ILR 2008 KAR 4824 held that reporting seizure of the forest wood to the Magistrate is no more required. Therefore, based upon the said contention under Section 62(3) of the Act, the learned Sessions Judge dismissed the appeal, but not considered the provisions of Section 62-C of the Act. Whereas this Court in the case of Raghavendrachari held that the prosecution has placed on record the relevant material that the person who issued the certificate not undergone training or he has been authorized by the government to issue such certificate. Not placing on record such material, the prosecution suffers and the accused would be entitled to an order of acquittal. PW.4 not produced any such document in this regard. Therefore, the judgment of conviction and sentence passed by the Trial Court vitiates on this point. Apart from that, on perusal of Ex.P.2, though PWs.1 to 3 themselves acted as panchas for the panchanama, there is no reason assigned as to why they have not chosen to take any independent witness for the seizure of the same. In this regard, reliance was placed on the judgment of the Supreme Court in the case of Gyan Singh supra, wherein it has been held as follows;
“ Criminal Trial-Witnessess-Official witness- Corroboration-Necessity-Seizure of stolen wood by forest authorities –Failure to join independent witness though available at a distance of about 100yeards-Even at the time of recording of confession of accused persons no independent witness was joined- Held, in the circumstances of the case, conviction cannot be based on uncorroborated testimony of forest officials though as a matter of law some corroboration was not a legal imperative…”
11. In view of the aforesaid decision by the Supreme Court, the respondent-Forest Officer has not whispered anything in Ex.P.2-panchanama or in the FIR why they have not secured any independent witness while seizing MOs.1 to 6. Even they have not stated as to whether they tried to secure any independent witness, but have directly seized the same under the panchanama. Therefore, the evidence of PWs.1 to 4 is not sufficient to prove the guilt of accused Nos.1 and 2.
12. For the reasons stated, first of all the accused were not caught hold by PW.1 and his staff red-hand and they have seen the accused 50 to 80 meters away in the forest area throwing away the Teak wood logs and running away from the spot. They tried to catch them, but could not succeed. Identifying the accused and naming them in the FIR is not believable. Apart from that, there is difference in the identification marks on the seized material given by the respondent in the certificate issued by PW.4 under Ex.P.2. There is material contradiction in Exs.P.2 and P.3. Apart from that non-compliance of mandatory provisions of Section 62-C of the Act and non-joinder of independent witnesses also creates doubt in the mind of the Court. Therefore, the benefit of doubt ought to have been extended to the accused by the Courts below. The Courts below accepting the evidence as it is and passing the judgment of conviction and sentence is erroneous. Therefore, the same warrants interference by this Court.
13. Accordingly, the Criminal Revision Petition is allowed.
The judgment of conviction and sentence dated 29.01.2009/31.01.2009 passed by the Civil Judge (Jr.Dn.,) and JMFC, N.R. Pura, in C.C.No.520/2006 and confirmed by the Additional Sessions Judge, Chikkamagaluru in Crl.A.No.35/2009 vide judgment dated 21.04.2011 are set aside. The accused/petitioner Nos.1 and 2 are acquitted of the charges leveled against them. Their bail bonds stand cancelled. Fine amount, if any, deposited by the accused/petitioner Nos.1 and 2 is ordered to be refunded to them.
A copy of this order be sent to the Courts below along with the LCR.
SD/- JUDGE mv