IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRL.A.NO.67/2015 C/W CRL.A.NO.583/2015 In CRL.A.No.67/2015:
BETWEEN:
Nagaraja @ Chirumuri Naga, S/o late Ramachandra Bovi, Aged about 36 years, Police Quarters Road, Lingadahalli, Tarikere Taluk, Chikamagaluru – 577 549. … Appellant (By Sri. S.J. Krishnaji Rao, Advocate) AND:
State of Karnataka, Through Reserve Forest Officer, Tarikere, Chikmagalur.
Represented by State Public Prosecutor, High Court Building, Bangalore – 560 001. ... Respondent (By Sri. Chethan Desai, HCGP) This Criminal Appeal is filed u/s 374(2) Cr.P.C praying to set-aside the judgment and order of conviction and sentence dated 27.06.2014 passed in S.C.No.93/2013 by the Prl. Sessions Judge, Chikkamagalur - convicting the appellant/accused for the offence p/u/s 86 of the Karnataka Forest Act r/w Sec.34 of IPC.
In CRL.A.No.583/2015:
BETWEEN:
Sri. Ananda, S/o late Thimmanna, (Lingadahalli Gundamma’s son) Aged about 42 years, R/at Jambadahalli, Tarikere Taluk – 577 228. … Appellant (By Miss. Gauthmi S., Advocate for Sri. Aruna Shyam M., Advocate) AND:
The State of Karnataka, Represented by its Public Prosecutor, High Court of Karnataka, Bangalore – 560 001. ... Respondent (By Sri. Chethan Desai, HCGP) This Criminal Appeal is filed u/s 374(2) Cr.P.C praying to set-aside the judgment and order dated 27.06.2014 passed by the Prl. Sessions Judge, Chickmagaluru in S.C.No.93/2013 - convicting the appellant/accused for the offence p/u/s 86 of the Karnataka Forest Act r/w Sec.34 of IPC.
These Criminal Appeals coming on for final hearing this day, the Court delivered the following:
J U D G M E N T These two appeals are preferred against the judgment dated 27.6.2014 passed by the Principal Sessions Judge at Chikkamagaluru in Sessions Case No.93/13, wherein both the appellants (hereinafter referred to as accused 1 and 2, respectively) are convicted for the offence under Section 86 of the Karnataka Forest Act, 1963 (hereinafter referred to as ‘the Act’) read with Section 34 of IPC and are sentenced to rigorous imprisonment for 5 years and a fine of Rs.50,000/-.
2. The case of the prosecution is that, on credible information received on 24.6.2013 at 5.30 a.m., the Deputy Range Forest Officer-PW.2 along with his team found the accused herein involved in cutting sandal wood tree belonging to the State Government in Gangoor Reserved Forest area near Eachalukatte Village Lingadahalli Hobli, Tarikere Taluk. The accused did not possess any valid pass or permit to cut and remove the forest produce. Hence, both the accused were arrested and after completing the investigation, the charge sheet was laid against both the accused alleging commission of offences under Sections 86 and 87 of the Act read with Section 34 of IPC.
3. Accused having denied the charges, the prosecution examined four witnesses namely PW.1- Santhosh Talavare - Forest Guard, PW.2-V.Jagadish - Deputy Range Forest Officer, PW.3-B.J.Vaagish, Range Forest Officer, PW.4-G.Srirangaswamy, Range Forest Officer i.e., Investigating Officer and produced in evidence the Seizure Mahazar-Ex.P.1, FIR-Ex.P.2, Seizure Report-Ex.P.3, Certificate issued by Range Forest Officer under Section 62 of the Act - Ex.P.4, Relieving letter – Ex.P.5, Enquiry Report-Ex.P.6, Form No.24-Ex.P.7. FIR in FOC No.30/12-13 dated 11.9.2012 registered against accused-Ex.P.8 and Government Order dated 28.3.1928-Ex.P.9. The seized sandal wood billets were marked as M.Os.1 to 3 and the axe used for the commission of the offence came to be marked as M.O.4.
4. On considering the above material, the Trial Court by the impugned judgment, found the accused guilty of the offence under Section 86 of the Act. However, they were acquitted for the offence under Section 87 of the Act. Feeling aggrieved by the impugned judgment, both the accused have preferred the above appeals.
5. I have heard Sri.Krishnoji Rao, learned counsel appearing for accused 1 and Sri.Arun Shyam Gauthi, learned counsel appearing for accused 2 and also Sri.Chethan Desai, learned High Court Government Pleader on behalf of the State.
6. The learned counsel for the appellant Sri.S.J.Krishnaji, would contend that the conviction of the appellants is wholly illegal and contrary to the evidence on record. The certificate – Ex.P.4 relied on by the prosecution is not in accordance with Section 62C of the Act. Even though PW.3 has been examined in support of this document, the prosecution has failed to establish that PW.2 was either competent or had any expertise in examining any forest produce. Further, Section 62C of the Act mandates that such certificate could be issued only by a person authorized by the Government. The prosecution has not produced any such authorization nor PW.3 has spoken about the authorization given by the Government in his favour empowering him to issue the certificate. Therefore, the trial court has committed grave error in placing reliance on Ex.P.4. In support of his arguments, the learned counsel for the appellant has referred to the judgments of this Court in the following cases:
1. Hasanabba and others Vs. The State of Karnataka reported in ILR 1984 KAR 530;
2. Raghavendrac Hari vs. State Of Karnataka reported in 2010 (3) AIR KAR R 110;
3. Ningaraju Vs. State of Karnataka dated 24.6.2014 in CRL.A.No.293/2009;
4. Fakkirappa Vs. The State of Karnataka dated 23.9.2015 in CRL.A.No.2776/2010 and 5. Nayaz and another Vs. The State of Karnataka dated 22.8.2014 in CRL.A.No.76/2009.
7. Secondly, the learned counsel would contend that the seizure is also not proved by the prosecution. There is no clear and definite evidence that the required formalities have not been followed in effecting the seizure. The mark which is required to be affixed on the seized properties has not been affixed. In the Enquiry report - Ex.P.6 submitted by PW.4, it is specifically mentioned that such mark was not seen in the seized properties, which itself is sufficient to hold that the report is not in compliance with the procedure prescribed under the Rules. In this regard, the learned counsel for the appellants has referred to the case of Hasanabba and another Vs. State of Karnataka referred to supra. Hence, the learned counsel pleads for acquittal of the appellants.
8. The learned High Court Government Pleader however would submit that the seizure is duly proved by examining PWs.1 and 2. The procedure followed during the seizure has been spoken to by these two witnesses wherein it is mentioned that the standing tree cut by accused 1 and 2 was further cut into 3 pieces and marking was made on the billets. Hence, the submission of the counsel that the said markings were not reflected in Ex.P.6 is not proper. Requirement of Section 62C of the Act are also complied and hence he seeks for dismissal of the appeals.
9. I have considered the submissions made at the Bar and have carefully examined the evidence on record.
10. In so far as seizure of the properties and the arrest of the accused are concerned, evidence of PWs.1 and 2 goes to show that on credible information received by PW.2, PWs.1 and 2 along with their team apprehended accused 1 and 2 in Gangoor Reserved Forest area. Both these witnesses have consistently stated that at about 5.30 a.m. on 24.6.2014 when they reached the spot, they saw both the accused involved in cutting a standing tree. On ascertaining that it was a sandal wood tree, they sought for the permits to cut the tree, from the accused. Both of them did not possess any such permits. Thereafter the sandalwood tree was seized and panchanama was drawn as per Ex.P.1.
11. Though it is contended that there is no clear and definite evidence as to who cut the tree into three billets, yet from evidence of PWs.1 and 2, it stands established that the standing tree was cut by accused 1 and 2 using axe - M.O.4 and since the length of the tree did not permit the forest officials to transport it in their jeep, they got it cut into three billets at the spot. This evidence does not introduce any discrepancy in the testimony of PW-1 and PW-2 as contended. On the other hand, the factum of cutting the tree into three billets after the apprehension of the accused as mentioned in Ex.P.1 lends full corroboration to the evidence of PW-1 and PW-2. Therefore, the contentions urged by the learned counsel for the appellants in this regard is rejected.
12. The other contention urged by the learned counsel for the appellants pertains to compliance of Section 62C of the Forest Act. The Section reads as under:
“62C. 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 authorised 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 things 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.
13. PW.3 has clearly stated in his evidence that in the year 2005 he was given training in examining the forest produce and in ascertaining their classification and age. According to him, he examined the seized billets i.e., M.Os.1 to 3 and gave his opinion to the effect that they were sandalwood billets. Except eliciting that the certificate produced by him at Ex.P.5 does not mention the fact that he has undergone training in examining the forest produce, the evidence of PW.3 that he is competent to examine forest produce and that he has undergone training in this regard, has not been challenged in the cross-examination. On the other hand, it is elicited that during the training as Forest Guard, PW-3 was also given the training of examining of the forest produce. This, in my view, is sufficient to satisfy the first requirement of Section 62C of the Act. No doubt, to render the opinion of an expert admissible in evidence, it is imperative that he should possess the skill and knowledge in the field of his studies and that he should support his opinion with reasons and justifications. In the instant case, PW.3 has specifically stated that on examination of MOs.1 to 3, on the basis of their colour and smell, he ascertained them as forest produce. As against this evidence, there is nothing in the cross-examination of PW.3 to suggest that the method adopted by PW-3 was insufficient to determine the nature of the seized properties. Thus even this requirement is satisfied rendering his opinion Ex.P.5 admissible and reliable in evidence.
14. Section 62C of the Act consists of two parts.
The first part of Section 62C requires that the certificate should be issued under the hand of a Forest Officer not below the rank of Range Forest Officer who has undergone training in examination of the forest produce and is authorized by the State Government in that behalf and such a certificate could be used in evidence without formal proof thereof. The second part of the Section provides that if the Court thinks it fit, it shall, on the application of the prosecution or the accused persons, summon any Forest Officer as to the subject matter of his certificate. In the instant case, PW.3 who issued the expert opinion has been examined. He has spoken about his expertise as well as the reasons and grounds in justification thereof. With regard to authorization, though in so many words he has not stated that he has been authorized by the State Government in this behalf to issue the certificate, yet the records reveal that no objection was raised before the trial Court either at the time of tendering Ex.P.5 in evidence or at the time admitting it in evidence on the ground that it was not admissible in evidence for want of authorization.
15. In this regard, an useful reference could be made to the observation in the case of Sonu @ Amar Vs. State of Haryana (2017 SCC Online SC 765), wherein considering an earlier decision rendered in the case of Gopal Das Vs. Sri Thakurji (AIR 1943 PC 83) as well as the proposition laid down in the case of PC Purshothama Reddiar v. S Perumal [ (1972) 1 SCC 9], the Hon’ble Supreme Court has held as under:
“32. It is nobody’s case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 of the Cr. P.C. 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.”
(underlining supplied) 16. It is not the case of the appellants that Ex.P.5 is per se inadmissible. As already discussed above, the first part of Section 62C of the Act renders the document admissible even without formal proof. Only if the Courts find it necessary, it may either on the application of the public prosecutor or the accused, examine the author thereof. Undisputedly, no objection was raised at the time of exhibiting this document in evidence. If such an objection was raised the defect would have been rectified by the prosecution by producing either the authorization or making a submission in that regard if such authorization was not available. It is not the case of either of the parties that there is no such authorization. Learned HCGP submits that the Range Forest Officers are generally authorized to issue certificate under Section 62 of the Act. In any case, the admissibility of Ex.P.5 having not been objected for want of authorization, in my opinion, the contention urged in this regard is also liable to be rejected. For the said reason, the decisions relied on by the learned counsel are not applicable to the facts of this case.
17. Thus on scrutiny of the entire evidence, I find that the prosecution has convincingly established that both the accused were caught red handed while cutting the standing sandal wood tree. It is proved in evidence that the sandal wood tree seized from them is a forest produce. The requirement of Section 62C of the Act with regard to the seizure has been duly complied. Though it is contended that independent witness has not been examined in proof of the seizure, there is no requirement under Law that in every case seizure must be effected in the presence of independent witnesses. If independent witness is not available or it is not feasible for the Investigating Officer to secure the presence of independent witnesses, the testimony of the authorized officials or the police officials could also be accepted in law. In this regard, the Hon’ble Supreme Court in the case of State Government of NCT of Delhi Vs. Sunil & another [2001(1) Crimes 176], at para 19, has held as under:
“19. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.”
(underlining supplied) 18. It is seen from the records that the prosecution has offered valid explanation for not conducting the seizure in the presence of independent witnesses. PWs.1, 2 and 4 have unequivocally stated that credible information was received in the early hours i.e., at 5.30 a.m., and it was not possible for them to secure any independent witnesses. In the said circumstances, merely on the ground that the seizure was conducted in the absence of independent witness, cannot be a ground to reject the prosecution case. On going through the evidence of P.Ws.1 and 3, I am of the view that the evidence of these witnesses is reliable in proof of the seizure. No circumstances are brought out in the testimony of these witnesses to suggest that the accused has been either falsely implicated or that M.Os.1 to 3 have been planted in this case to secure the conviction against the accused. Though a suggestion has been made to P.W.4 that on account of a complaint lodged by the accused No.1 against the forest officials, he has been falsely implicated, yet, if the face of the positive evidence produced by the prosecution, in proof of the seizure and arrest of the accused, the said suggestion cannot militate against the case of the prosecution. The trial Court has considered all these aspects of the case and on proper appreciation of the evidence, has recorded a finding of guilt against the accused, which in my opinion, does not call for interference by this Court. On re-appreciation of the materials, I do not find any justifiable ground to differ with the view taken by the trial Court. The sentence imposed on the accused is also just and proper. I do not find any merit in the appeals. Hence, both the appeals are dismissed.
Sd/- JUDGE RS/* CT:SN