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 CRIMINAL APPEAL NO.415/2017 BETWEEN:
1. Rajappa, S/o.Marudappa, Aged 50 years, R/o.Kalinganahalli village, Barandur Post, Bhadravathi Taluk, Shivamogga District, Now lodged at Central Prison, Dharwad-580 001.
2. Raju @ Podi Raju, S/o.Gullappa, Aged 32 years, R/o.Kalinganahalli village, Barandur Post, Bhadravathi Taluk, Shivamogga District, Now lodged at Central Prison, Dharwad-580 001.
…APPELLANTS (By Sri.Krishnappa.N.R, Advocate) AND:
The State by RFO, Lallavalli, Tarikere Taluk, Chikkamagalur District, Rep. by its SPP, High Court Building, High Court, Bengaluru-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 & Conviction order dt.11.07.2016 & sentence dt.14.07.2016 passed by the Principal Sessions Judge at Chikkamagaluru in S.C.No.102/2015 – convicting the appellants/accused for the offence p/u/s.86 & 87 of Karnataka Forest Act.
This Criminal Appeal coming on for hearing, this day, the Court delivered the following:
ORDER Heard the learned counsel for the appellants and the learned High Court Govt. Pleader.
2. The appellants are convicted for the offences under Sections 86 and 87 of the Karnataka Forest Act and are sentenced to simple imprisonment for five years and a fine of Rs.50,000/- each for each of the above offences.
3. Learned counsel for the appellants submits that the conviction of the appellants under Sections 86 and 87 of the Karnataka Forest Act is wholly illegal. None of the ingredients of the said sections are established by the prosecution. The very case of the prosecution is that on seeing the forest officials, the appellants ran away from the spot which implies that there are no witnesses for having witnessed the accused/appellants cutting the standing trees. The prosecution has also failed to comply with the requirements of Section 62 of the Forest Act. The Range Forest Officer who issued the certificate at Ex.P.4 is not examined. The procedure contemplated under Section 62(1) are also not complied. The prosecution witnesses have admitted that the report submitted to D.F.O does not bear the endorsement of the D.F.O which indicates that the seizure of the property was not immediately reported to the concerned forest officer, thereby, vitiating the entire trial. Further, the authorization issued to lay the charge-sheet, Ex.P.9 is also in accordance with Rule 72 of the Karnataka Forest Manual and for all these reasons, the impugned Judgment is liable to be set aside.
4. Learned High Court Govt. Pleader, however, disputes the submissions. He contends that on credible information, the forest officials visited the spot and found both the accused at the spot cutting the sandal- wood trees. They were apprehended at the spot. The properties were seized, panchanama was drawn as per Ex.P.1. The seizure was intimated as required under Section 62 of the Forest Act as evidenced in Ex.P.8- report. The seized properties were examined and certified as the forest produce by the competent officer. The same is produced at Ex.P.4. The requisite permission was also obtained to lay the charge-sheet as required under the Manual. Even otherwise, the said requirement is not a mandatory requirement. Therefore, there is absolutely no ground to interfere with the impugned Judgment.
5. Perused the records.
6. The case of the prosecution is that on receipt of the credible information, on 14.07.2015 at about 12.00 noon, P.Ws.1, 2 and 3 visited the spot and found both the accused cutting the sandal-wood trees. They were apprehended at the spot and the properties were seized and a panchanama was drawn.
7. The contention of the learned counsel for the appellants that there are no witnesses in proof of the fact that the accused were seen cutting the sandal-wood trees, cannot be accepted. P.Ws.2 and 3, the members of the search party have specifically deposed that on getting the credible information, all of them went to reserve forest at Sidlipura village. They heard the sound of sawing the tress. When they proceeded towards the spot, both the appellants tried to run away. The search party, surrounded the accused and they were caught at the spot itself. This testimony of P.Ws.2 and 3 has not been discredited or falsified in the cross- examination. On the other hand, the statement of the Forest Guard Mallappa Dinnimani and the prompt reporting of the seizure to the forest officer as evidenced in Ex.P.8 and the arrest and production of the accused before the Magistrate corroborate the testimony of P.Ws.1 and 2 regarding the apprehension of the accused at the spot while they were involved in cutting the trees.
8. In so far as the compliance of Section 62 is concerned, the material produced on record indicates that soon after the arrest, the report of seizure was forwarded to the D.F.O and the same is produced in evidence Ex.P.8. P.W.5 who conducted the part of the investigation, has specifically deposed regarding the Panchnama. Likewise, the certificate issued by the Range Forest Officer under Section 62 of the Act is also proved by production of the said certificate Ex.P.4. The said certificate appears to have been marked without any objection with regard to the proof or the competency of the officers who issued the said certificate. I do not find any error or infirmity whatsoever in the findings recorded by the trial Court holding the appellants/accused guilty of the above offences.
9. In so far as the sentence is concerned, learned counsel for the appellants pleads that there being no antecedents against the appellants, the benefit of the Probation of offenders may be extended to the appellants. The above submission also cannot be accepted for the simple reason that Sections 86 and 87 prescribe minimum sentence of five years. Therefore, Probation of Offenders Act cannot be made applicable to the facts of the present case. For all these reasons, I do not find any merit in the appeal. The trial Court has considered the entire material in proper perspective. The conclusion arrived at by the trial Court are based on legal evidence. The safeguards and the requirement laid down under the provisions of the Act are duly complied.
10. Therefore, I do not find any reasons to interfere with the impugned Judgment. Appeal is devoid of merits. Hence, the same is hereby dismissed.
Sd/- JUDGE bnv*