IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.200 OF 2018 BETWEEN:
Sanjeevaiah, S/o. Chikkarangaiah, Aged about 43 years, R/at Aregujjanahalli Village, Oordigere Hobli, Tumkur Taluk, Tumkur District – 572 101. …Appellant (By Sri. Mohan Kumara D., Advocate) AND:
State of Karnataka, By Kyathsandra Police, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001. ...Respondent (By Sri. K. Nageshwarappa, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and order of conviction dated 18.01.2018 passed by the Principal District & Sessions Judge / Special Judge, Tumakuru, in Spl.C.No.302/2016 convicting the appellant/accused No.2 for the offence punishable under Section 379 of IPC and Section 4(1A) r/w 21 of Mines and Minerals (Development and Regulation) Act.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:-
J U D G M E N T This appeal is filed challenging the judgment of conviction and sentence passed in Spl.C.No.302/2016 dated 18.01.2018 by the Principal District & Sessions Judge/Special Judge, Tumakuru, for the offence punishable under Section 379 of IPC and also under Section 4(1A) r/w 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ‘MMDR Act’, for short).
2. Brief facts of the case is that:
On 27.01.2016 at 9 A.M. complainant Ramachandraiah, who is the Head Constable of Kythsandra Police Station has received a credible information that, in Aregujjanahalli Government tank, sand is being loaded and immediately he rushed to the spot along with his staff and found that the accused persons have loaded the sand in the tractor bearing registration number KA-05-AA-7569 attached with trailer bearing registration number KA-05-C-6049 and the accused persons noticing the complainant and his staff, ran away from the spot and hence, the complainant took the tractor and trailer to the police station and gave complaint to the Station House officer in terms of Ex.P5-Complaint. Based on the complaint, police have registered the case and thereafter, conducted the seizure mahazar and also spot mahazar as pointed out by the complainant and after completing investigation they have filed the charge sheet for the above offences.
3. The accused persons were secured before the Court below and charges were framed against the accused persons. They have denied the charges and claimed to be tried. In the meanwhile, accused No.1 also passed away and case against him was abated. The prosecution in order to substantiate the case examined four witnesses PW1 to PW4 and also got marked seven documents Ex.P1 to Ex.P7. Accused did not choose to lead any evidence. 313 Statement of accused No.2 was recorded. After recording 313 Statement, Court below heard the arguments of the defence counsel and also the learned Public Prosecutor. Having considered the material on record, convicted accused No.2 for the offence punishable under Section 379 of IPC and also Section 4(1A) r/w Section 21 of the MMDR Act.
4. Being aggrieved by the judgment of conviction and sentence, present appeal is filed. The main contention urged in the memorandum of appeal is that complainant by name Ramachandraiah P.-PW2 in his complaint as well as in his evidence states that the accused were loading the sand into the tractor at Government tank. But, PW1-Srikanth, in his evidence states that sand was loaded from his father’s property bearing Sy.No.56/3 and hence, there are contrary evidence by the prosecution witnesses. PW2- Ramachandraiah P., in his evidence has stated that tractor was brought to the police station with the help of different driver. But, the prosecution has not examined the driver as witness before the Court below and hence, prosecution totally failed to prove the charges laid against the accused and hence, requires interference by this Court.
5. Learned counsel for the appellant in his argument has also brought to my notice that the prosecution witnesses in its oral and documentary evidence has stated that accused No.2 along with the deceased/accused No.1 were loading the sand to the tractor in the Government tank. But, evidence of PW1 is contrary to the prosecution case. The very loading of the sand itself is disputed and there is discrepancy in the evidence of prosecution witnesses and hence, evidence of the prosecution witnesses cannot be believed. The Court below also failed to take note of the fact that PW2 in his evidence has stated that tractor was brought to the police station through alternative driver and driver has not been examined. The prosecution mainly relies on the evidence of PW2 and PW3 and hence, it is the case for acquittal.
6. Per contra, learned HCGP appearing for the respondent/State would contend that even though only four witnesses i.e., PW1 to PW4 are examined, in the cross examination except making the suggestion nothing is elicited from them to disbelieve the case of prosecution. There is no dispute with regard to seizure of the tractor and trailer and also identity of the accused persons. Instead, PW3 specifically identified the accused persons before the Court stating that accused No.2 and deceased/accused No.1 ran away from the spot and in the cross examination also the same is not disputed. Hence, there is no error with the order of the trial Court.
7. Having heard the learned counsel for the appellant-accused No.2 and the learned HCGP for the respondent-State and on perusal of the oral and documentary evidence, the points that arises for consideration are:
i) Whether the Court below has committed an error in taking cognizance for the offence punishable under Section 4(1A) r/w Section 21 of the MMDR Act and whether it requires interference by this Court?
ii) Whether the Court below has committed an error in convicting accused No.2 for the offence punishable under Section 379 of IPC and whether it requires interference by this Court?
iii) What order?
Point Nos.1 and 2:
(i) With regard to trial Court proceeding with the offence under Section 4(1A) r/w Section 21 of the MMDR Act is concerned, there is a bar under Section 22 of the MMDR Act that Court cannot take cognizance for the said offence and Court can only take cognizance based on the complaint filed by the authorized persons. On perusal of records, it is seen that no such complaint is filed before the Court below. Court below has committed an error in taking cognizance for the offence punishable under Section 4(1A) r/w Section 21 of the MMDR Act based on the police report and the very approach of the trial Court is erroneous. When there is specific bar under the special enactment for taking cognizance, the trial Court ought not to have proceeded in taking cognizance for the offence punishable under Section 4(1A) r/w Section 21 of the MMDR Act, without a separate complaint by the authorized person. Hence, the very proceedings against the accused is illegal and opposed to law and on that ground itself the impugned judgment of conviction is liable to be set aside insofar as to the offence under Section 4(1A) r/w Section 21 of MMDR Act.
(ii) The main contention of the appellant’s counsel is that there is a discrepancy in the evidence of witnesses with regard to loading of the sand as to whether it is from Government tank or land belonging to father of PW1. When there is discrepancy with regard to the loading of the sand, the accused is entitled for the benefit of doubt. The contention of the respondent-State is that accused were loading sand to the tractor and trailer from the Government tank and there is no discrepancy. Merely PW1 claims that in the land belonging to his father the sand was loaded and it is not the case of the prosecution also, there is no ground to interfere with the judgment of conviction of the trial Court.
8. On perusal of the evidence of PW1 it is seen that he claims that spot mahazar was conducted in terms of Ex.P2 based on PW2 pointing out the spot where the sand was loaded. PW1 claims in his evidence that sand was loaded from the land bearing Sy.No.56/3 belonging to his father and also states that he has signed Ex.P1 seizure mahazar of tractor and trailer in the police station. In the cross-examination of PW1, he states that the complainant called him over phone and informed him to come to the police station and accordingly, he went to the police station and he admits that accused persons are also having land adjacent to his land. It is also his evidence that while conducting the spot mahazar, other witnesses Srinivas and Ramachandraiah were present and no other persons were present. It was suggested that in his presence no mahazar was conducted and the same was denied. In the cross examination of PW1 also the defence did not dispute the very conducting of the mahazar and nothing was suggested as to whether the sand was loaded from his land or from the Government tank.
9. PW2 is the complainant who received the information regarding the accused persons loading the sand to the tractor and according to him, based on the information received he went to the spot and found the tractor and trailer and accused persons at the spot. By seeing him, both the accused ran away from the spot. It is his specific evidence that the persons who were loading sand to the tractor and trailer are the persons present before the Court and he also identified those two persons in the police station. He also relied upon Ex.P3 and P4 photographs. In the cross examination of PW2 also except the suggestion, nothing is elicited regarding loading of sand to the tractors and also nothing is disputed with regard to the taking of the tractor loaded with sand by alternate driver to the police station. PW2 filed complaint in terms of Ex.P5 and also brought the tractor and trailer before police station through alternate driver and thereafter registered the FIR based on complaint and sent it to the Court and thereafter, in the presence of Panch witnesses, PW1-Srikanth and other witness B.Srinivas, mahazar was conducted in terms of Ex.P1 in the police station and spot mahazar was conducted in terms of Ex.P2. Subsequently, statement of witnesses were recorded.
10. The other witnesses are PW3 and PW4. In the cross-examination of PW3 also except the suggestion that PW2 has not given any complaint and no mahazar is conducted nothing is elicited from the mouth of PW3.
11. PW4-PSI in his evidence states that accused persons appeared before him after obtaining anticipatory bail and thereafter, he enquired them and released them and he also recorded the statement of Srikanth and Srinivas.
12. Though prosecution relies mainly upon on the evidence of PW1 to PW4, the main witnesses are PW1 and PW2. PW2 is the complainant who gave the complaint in terms of Ex.P5. Based on his compliant, case was registered and thereafter, mahazar was conducted in the police station and spot mahazar was conducted. No doubt PW1 claims that mahazar was conducted in the land belonging to his father. It is the exclusive evidence of PW1 with regard to the place of incidence. On perusal of Ex.P2-Spot Mahazar, it is specifically mentioned that the incident has taken place in the Government tank and hence, the very contention of the learned counsel for the appellant that the incident has taken place in the land belonging to the father of PW1 cannot be accepted. It is not the case of the prosecution that the accused persons have loaded the sand from the land belonging to the father of PW1 and merely PW1 claims that mahazar was conducted in the land belonging to the father, it cannot take away the case of the prosecution. Throughout the cross-examination of PW1 to PW4, nothing is elicited from them with regard to the accused persons running away from the spot, regarding their identification and also regarding seizure of tractor. Further, nothing is suggested regarding tractor and trailer being used for loading of the sand. Hence, I do not find that the Court below has committed an error in appreciating the evidence with regard to invoking of Section 379 of IPC. Having considered the evidence, except suggestions, no effective cross examination of prosecution witnesses has been conducted.
13. As per Ex.P2, tractor and trailer was loaded with sand and when the said fact has not been disputed, I do not find any reason to reverse the findings of the trial Court with regard to convicting accused No.2 for the offence punishable under Section 379 of IPC.
14. However, it is noticed that the trial Court taking note of the avocation of accused No.2 that he was a driver has taken a lenient view while convicting him under Section 379 of IPC by imposing only fine of Rs.15,000/- and no imprisonment order has been passed against him. The State has also not filed any appeal with regard to the sentence is concerned. Such being the case, interference with the judgment passed by the trial Court order does not arise.
15. In view of the discussions made above, I pass the following :
ORDER (i) Appeal is allowed-in-part.
(ii) Impugned judgment of conviction and sentence for the offence punishable under Section 4(1A) r/w Section 21 of the MMDR Act, is hereby set aside.
(iii) Judgment of conviction and sentence under Section 379 of IPC is hereby confirmed.
In view of acquittal of accused No.2 for the offence punishable under Section 4(1A) r/w Section 21 of the MMDR Act, the Court below is directed to refund the fine amount, if it is deposited, in favour of accused No.2, on proper identification.
Sd/- JUDGE SV/-