Karnataka High Court
State By Parashurampura Police vs Kondareddy on 2 March, 2010
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
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SRR ed EE tse age Algal Mag A" PU PH, BE Sol Ho wl
she EO ERE Re
IN THE HIGH COURT OF KARNATAKA A
DATED THIS THE o2"° pAY oF MARCH ga10_
BEFORE
THE HON' BLE MR. JUSTICE L.NARAYANA SWAMY
CRIMINAL APPEAL N@, 2098/2007
STATE BY _
PARASHVRAMPURA POLICE .
9 "BAnataAH'a/0 BRAPPA
AGED ABOUT SO- :
h/o. THLPPALAHNADURGA
perry
TEELAGE, BAY JAGADA TALIUE.
ear eek SOR aTT
p~er BEGPONDENTS
. oa s wy tr TTR ERE oer
Cay. sii 2 2 H VIRUPAKS EAs, ADV)
Ln seep ye ~ _ ee
CHo.wa. FILED U/S.378(1)8 3) CBRLPLC
GHITRADURGA, IN §.C.NO.51/2006 ACQUITTING
WHE SATE P,P, FOR THE STATE PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO GRANT LE
\ FILE AN APPEAL AGAINST THE JUDGEMENT AND oR
DT.14.09.2006 PASSED BY THE ADDL.S.7. FLT
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ampura Police
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geen regi referred to supra.
\. offences ae OT MT SHY DRI HIGH COURT OF KARNATAKe HIGH COLIRT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO 4, The prosecution has examined in ali 8 witnesses as P.W.1 to P.W.8 anc got iarked ag' many 38 7 decumants as 5x.E.1 te BRET) ang M.O3.1 to 12 and clesed the case." Thareafter the"
accused persons wars examined and theif statemant was recorded under Section 319 of Cr.P.c. The defence of the accused is total. denial.
S$. The - lesrned. Government Pleader submitted that the judgment oF the Sessicns Court %, is liable to be. quashed and the secused 1 and 2 are ta be convieted for the offancas referred above fab the rassons stated herein.
8, ~ It 28 the case of the prosecution that
- when P.W.l and P.W.2 went to the spot after hearing the. wood eutting sound, they caught accused Nev red handed and logs were found in his possession. And on seeing them, accused No.2 ban siay from tha spat and a complaint was lodged against tham. Accused No.l has given a voluntary . $tatement that he has committed thea affanca slana with accused No.2 Palaiah. It is the case of the appellant-State that when such a voluntary TERRE Senet he" PARNER oP COURT OF KARNATAKA SIGH COURT CF KARNATAKA HIGH CO HRA ERE, gS Ey Theat sen tea oar ch statement has been made as per Ex.?.4, the court below should have convicted the accused: for the Said offences. After the accused baing arrested and the sandalwood logs were seized oh, 195-2606; Sample of one iog has. bean "forvarded to the Karnateka Forest Officer, "Challakere. to examine the same and te report 25 to whether the seized logs are gandalwood logs or not for 'the purpose ot prosecution. | pha: Range Forest Officer, Challakere wha has baon exanined ag P.W.@ has forwarded a.ietter dated 15-7-200€ to the Police i.
fut.
ey oh at wi o bow ee tong eR fe o ot oF Sad re 26 stating that the. seized.
sandalwood. logs. .In- view of the certificate " @8he, the. court belew did nat coavict the
7. Poe.) who has been examined on behalf af progacution has supported the casa of the prosecution. 2.4.2 is the brother of P.W.i and né Sas alsé Supported the cage of the prosecution 7 mn MEO MARNALARA HHGh COURT OF KARNATAKS GKGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO! or fa tating that accused Nog.1 and 2 have committed the said offence, §. P.W.3 is the neighbour' of ew... and : P.W.2 and he also supported the, prosecution 'cave. P.W.4 is @ pancha for spot nahazar gx.P.2. P.W.5 ig the Police Constable anti. he "has deposed that on an informatian furnished ay Pew. and P.W.2 he went to the "hospital where. accused No.l was admitted and he. found that the accused No.1 was not in a@ positien to walk ainca he wae injured.
S$. 8.W.G 28 also .a Police Constable who made an effort to apprehend accused No.2. P.a.7 _is ihe investigating officer. He hag deposad "that on the basis of the complaint mada by P.w.i 3 and P.Wee) ne arrested accuged No.l and aise ! recorded voluntary statement of the First accused." P.8.7 also stated that the first accused teok him to the spot and he drew "penchanama and accused No.l nélpad ihe "prosecution in respect ef idantifving the theft gandalwood logs anc he has seized the sandalwood LOGS, 2 blades and also seized M.Os.i to 12. He } bud o ey rot ea eh bg | ae Be We oe. Ba a 2 oO €& 2 ee a ne 4d 'tt = 3 4 ee oo | 2 haa g ty, wl 7 ay .
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a) tes r@appreciati anette TMM ME MARINAGARA HIGH COURT OF KARNATAKS HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO! @ & unseazonable delay produce the seiced material of acquitted the accused. Hence, he sought to "liow. this appeal.
11. Learned Counsel for the \respendents- - accused submitted that. the. prosecution' nas utterly failed to prove theiz. casa beyond reasonable doubt. He subnitted that in Jiow at the Judgement reported in ILR 206° KAR 3216 in the case of BHANUPRAKASH A AND. ANOTHER v/a STATE BY ASSISTANT. CONGERVATOR OF FORESTS, CHIKKAMAGALORB whergin this court has held that when the. charges: are framed for the offancas punishable under. ceétians 6 ahd 87 of the Karnataka Forest Act, if the mandatory provisions 'under Section 62(3) and VLA} has not been "gemplied.. by. the progecution, it entails the accused to "be acquitted. Tn has also been "submitted that "in respect of any forest offence omitted invelving Sandalwood, tne Off Leer eiging the property shall without any together with tools, ropes, chains beats, etc before the Officer authorise fhe ey we rt oa © eh rr é rt Government net being below the rank of an Tee EE ME SO MINCA LEME MG COUR OF KARMATAKA HIGH COURT OF KARPNATAMA HIGH CC Assistant Conservator of Forests. earned Counsel for the respondents further "submitted that compliance of Section 62/3) and mandatory for the prosacut ion in ordeb to Lodge i Cas@ against the accused. pod Bo irs Me pe ty ef Ga i in the instant case, inmadi ate? the report of the offence. j.a. 'on. is-5-2006, the nt tf ta eck iff ey oh na ¢ Bame has not been | forward decd. to: the Conservator of Forests. tov. 'ene compliance of requirement of section 62/2) and TLUA) which igs hela as mandat Lary "bys this court ain the cease refarred .to ciara, Wehce, the learned Counsel submitted that there ie Fundamentei Flaw in the peosecution. case. The learned counsel has 'submitted, that She appeal has to be resected.
"ld. bearned Counsel for the respondents STATE REPRESENTED EY THE PUBLIC PROSECUTOR AND
-NAOTHER to contend that when an appeal is Filed against the order of acquittal, the Appellate Court ghould be very slow in eetting aside a i ig, a MEUNSEINETAIVE WIOR COURT OF KARNATAKS eiGh COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO judgment of acquittal simply because two views:
aré possible. The Trial Court judgment. "cannot be S@t aside because Appellate Court's view ls more probable. Hanca, the Appellate Csurt would act ba justified in setting, aside trial. court judgment unless it is "perverse | oz wholly unsustainable in Law : It ds "fundamental in criminal jurisprudence thet unless the guilt is proved, the accused: is -presiimad to be innocent that too after tha aécused is acquitted by the Trial court, that presumption gets strengthened in favour of 'the accused. Hence, he submitted that in view of the case referred to supra, the _ fase of the pberegecution cannot be considered, * consequently" the appesl preferred by tha State has to be dismissed.
if. Learned Counsel fer the respondents further submitted that in faspect of the avidence adduced on behalf of the prosecution, theugh
-P.W.2 in his crogs-emamination hag deposed that M.Os.1 to 8 have been marked for the purpose of 4 investigation, the other particulars of the TRESS F Menthet tof SP SoA PRS CA eT LORE Or RARALATAILG clGM COURT OF KARNATAKA MGM CC Se ae es seized M.Os. as toe their length, width and' .3 its ring number, ete., ALS0 has fot been his chief-aexamination that after aporéhanding the first accused, he was taker, to the hous of Powe anc P.W.2 and from there. he was shifted to Parashurampura hospital. This statement is made for tha first time. But in che complaint it is stated that after the accused No.1 'was caught, he was taken to thé hospita2 and complaint has been lodged, BEE in the crogs-examination, contradictory "evidence has been given stating that he did not eo te police staticn and one _ Maliikarjuna has written the complaint and he is " RGL.aware as-to what is written in the complaint.
Tm paragrapnh9, he has deposed that he hag not seen accused No.2 at any point cf time and he saw "fim in the court for the first time. Hence, the learned Counsel for the raspondents submitted that tha complaint made by P.wW.i and P.w.2? that thay Sa beth accused Nos.1 and 2 in the spot, accused No.2 ran away from the spot on seeing them 28 also totally a false case of the Hie COURT OF KARNATAKA HIGH COURT OF RARNATARA MiGM OG RE MES E Mortal SORE el MRS MIGH COURT OF KARNATAKS £2 presecution, Hence, he prayed to dismiss this appeal.
15. In respect of the evidence of P.¥.7 at Enel paragraph 8 he has filed the charge sheet on 14-
-2006 aven bafora obtaining..the certificates from the Range Forest Officer in order to find out as to whether tha weed is sandalwood or net. In paragraph 18 it ig stated that he has not obtained giynature of the witnesses for the seizure of M.Os. 2 to @. Referring to tha eavidanta of B.W.8-KFO) the learned Counsel for the respondent also Submitted that to certify as to whether the wood is sandalwood or not, the 'appropriate. authority is Assistant Conservater of "Forest in view of Section 62(3) and 71(A}) of the Act. Accordingly submitted that the evidence of .P.W.8 -has to be fajected. Henca, Ae prays fer dismissal of this appeal.
16. In tha light of the submise#ions mada by the learned counsel for the respondents and the appellant and also based on the Judgments "ee Men i i ee a ee ee re Ek i Le ra ae oe soe resolved is whether the requirements of section G2(3) and section ?1(A} are complied by. sending'. the seized articles MO-1 to MO-9 a per Ex-PY. ar rt Os © bey dated 15.5.2004& ta the Assistant cons serval forest at the earliest and "incidentally that is the purpose and cbiect in 'veparting. dhe same te Assistant Conservator of Forest. This Court ina case rafarrad to supra vat pa ca-7 and 9 held immediately af er. seizure of ferast property, if has to be reported, toacr thick is mandatory and in consequence of non-repe, sting the same, the conviction nap been held iitegai anc vielation of Sections of. one 'Karnataka Forest Act.
"27S. In the instant case, the seized 'articles ara. not the forast produce. Ags per the complaint, the FIR and also Mahazar, it reveals "that the. Accused Nos.,1 and 2 have committed the "theft, from the land belongs to PWi and zg which is situated in Survey No.16 of Thiparalli . village. The said Survey No stands in the name of father oF fwl and @, which is 4 ravenue land.
Hance what has bean séized by tha prosecution is *% not the forest produce. The Land belongs to the é & cry aE EINATOSAL ARE GH COURT OF KARNATAKG Hit COUR) OF KARMATAKA HIGH COURT OF KARNATAKA HIGH CO La complainant. Under Section Z{7) of Karnataka Forest Act, 1963 forest produce includes. &-
#) by ea iy ti CG Say ue rt by bs ie Sg the ity o> Ry a £8 rt Eek c i ga Mr ia) er or co "ae) ok Section 2 dafines Sandalwood means "Sany portion oF sandal tree and includes park, leaves and roots" etc., In view! of the above said definition, it is clear that if any ptaduce found in, of brought. from 2 forest are called forast produce", If it is read &long with section 623), the Forces: offence if Lt ie committed by the accused. and séluure is taken place either of forest produce or any machineries and tocls that _hag to ba raperted to the ACF at the earliest, ~ which ie. made claar Under sactian 71{A} of the og Forest Act.
of
18... In the instant case, the sandalwood "iS a property belongs to the State, which is "an: offence, if it is taken without prior "permission of the Government in accordance with law. In the instant case it is net a ta PURSE AIP LP PE ASE 2 PRR Ne Bn ee a eee Tee a ee ee a ee ee ee 16
19. Accordingly, the findings of this that it is net applicable "in the insvant case, because the complainant nimsel£ stated that the sandalwood growth in the*lend belongs ta the complainant, has been" cub. and removed by the Al ard 2. Hence itis an offence alse to he sandalwood. and also it is an offence under. Section ..379 of IFC, offence alleged 2G, In view of Sub Section (7) of Section 2 - forest procuce means any produce
- the forest of not. Meaning of said definition, would be, if any produce brought frerm fhe forest and thie 18 sonverted gither a 4 4 3 * 3 4, inte different form like o1l stc., then alse HIGH COURT OF KARNATAKA HIGH COUR! UF RAKNALIABA Miter wi sere Sener to Ww" AAAS HIGH COURT OF KARNATAKS it is 4@ forest produce for the purpose of this section.
Zi. The eandalwood foind frem the land -- not classified as a forest, but the svandsalwood growth in the private land if a reduce, in view of the Section 62 (3) {A}, the seized official hes to repert to the ACF at the eanlisst in case it is a forest produce er in respect of the sandalwood. The gandalwued i8 ineluded° under Section 42 for the reason that it has been classified by 'the Goverriment wherever sandalwood grows it is '@ Government', property. Accordingly, the said provisions: of the Forest Act is made " applicehie in the inetant case. When it is . @e¢clared as a forest produce though it is grown in the private land, immediately after £ the seizure, the concerned officer/pclice have to report this matter to the ACF. But in the imetant case, no such report is made. In view ee ae ee oe Se PES RRA Swe PO EO PP ODOR EE ke RP he PRR WR Pe RP He ee? th BA SRE STE ER RF RE el tnat Saal Gn A eg "ORE Agee Bm ee ee es eu sce Se Ur 4 i it is found that the Court below has. acquitted
22. The sccused is aise. charged under Section 379 af EPC fer theft of sandalwoad from the latd belongs to the complainant. It saye that whoever commits such offence shall be punished, with imprisonment of either
23.. Now the question required to be answered by this Court 18:
and mwiaterials produced py the HIGH COURT OF KARNATAKA HGH COURT OF RARNALARA rmikart Waa PEST EN ESERES CEERI LoL WP ARM ATA HIGH COURT OF KARINATAKS effence against the respondents". punishable Under Section 379 If.
24. in ordar to axamina the gama, >have gone through the evidence of. BWI. Pwi is "the complainant and FW and eW3 are the | eve witnesses. In his complaint ~ Pw1 nas stated that while he was staying in tha iand. belongs to hin, on 14.05.2006 dn the mid night, he chaard the wood cutting sound and oh hearing. the same he want to the spot along with Bw? and found that Al and Az were cutting the sandalwood tree. On se@iging them A? escaped and while in the same effert, Al fall and - he was caught, and admitted to Parashuramapura Hospital since ha sustained injuries. The said complaint dated 15.05.2006 made, at €,.00am has been registered in Crime No.3 of 2006 for an offence punishable U/s of 379 read "with Section 86 and 97 of Karnataka Forest Act.
25. In the complaint it has been stated that Al and @ were having the instruments with them in order to cut thea tras. On the basis of the complaint mahazar has been drawn as per EX- \ ' SALES WERT EE te Oe Ro UOT GPL! LE PAA ARE ALO, PORE LE 4 RMA UTA Oke oat a Ca "Spot. . Al and A2 wera cutting the trees. They a iS PZ. On the arrest made, Al nas voluntarily wade af statement that if he is escorted to the place, he. Len W6re cut ey. him anc would #how the trees, which wz us py. hair on the basis of the statement selice anc other & unch witne s followed Al to land Suever Ne.i unch witnesses followed Al to Lar ay No.1é6 pelongs to the complainant =nd they saw the fallen sandalwood. The same has been seized under the Mahazar and the sama hag baeen signed by Punch Pw4. Malazar F2. ie "datad 15.05.2 voluntary statement "of "Al. pas bean marked as
26. Pl the. colplsinant has supported the cage oF the pregecution by reiterating in the 'deposition; contents of the complaint. He has "gtuted thet. land belongs to his mother. on hearing the weed cutting seund thay went te the Gaught hold of Al and AZ was escaped. Since Al wag bleeding with injuries, he was taken to . Parashuramapura Hospital by vehicle and again CO eOnnne. RET LURE OP KARNATAKA HIGH COURT OF KARNATAX® HIGH COURT OF KARNATAKA HIGH COUR! OF KARNAIARA Mion uu examination nothing has been elicited from. the complainant.
corroborates PW1. In the crogs examination he hus stated that he has sean the A2 first time.it the Court.
26. PWS and 4 are iAdependent witnesses have supported.the prosecution.of which Fw4 is the punch for Ex Pe.
3. [It ie the case of the prosecution that both Al. and AS have committed an offence punighable under Section 379 of Ipc c/w Section 86 and 87. of the Karnataka Forest Act. Ag 'already stated mandatory provisions of section 6203) and -71(A}) has not baen complied by the prosecution, which ais fatal 86 far a8 Forast _gtfences are concerned. But it cannet gubomatically exonerate the accused from offence under Section 379 IPec.
20. The respondents counsel relied on the judgment reported in (£2005); 10 SCC 406 and a SA ae SS ETP oR deh ay ee ee eee ee ee ey eB sual fF Se Heal al FS 8 Bal A ER RR RP WE eth Shae Maal IB St RD i OE te A PB OE Soh Pak PE ee Fa a4 submitted that on the bagie of the prosecuti¢n witnesses there are two views posgible. Firet.. view that the accused is an innocatt. and. the. other view, he is held liable in the iight of "the prosecution cags. When euch would be the position of law, the appellate Court. would ordinarily be #low in setting aside the judgnent, of acquittal, Since two views are posible... the rial Court already acquitted the. ace eused which strangthen the presumption of innocence of the accused and * the progecution Failing to prove the cate. This B is an appeal ayainst the Judgement passed by the Court bel oe. Where this Court haz get power te | Paappes sate 'the antire Materials and definitely
- justified th interfering with tha judgamant if judgement is perverse and unreasonable ete. In "$his cegard it is worthwhile te extract Para 48 gnd.§4 of Judgement raperted in (2010)1 sec 529 which reads as follows:
av VY. State of Pare 48, In the Court following i hel bd ie jt S of ta ais 4 a rat) et #3 ht yet Fo ee 3 dot ng id a ca mo Aes 44 ee a , rs | . i a8 Ady ng cy te a "3 u or or be ra 4 a3 "ry al ty Be a a Esa nd ae Pay ; 2a i i "es ns O& 4 B * oo el : ; cs 7 a Dy en be bang nh - 5 4 Yi x os ng 7 a ar @ as ep oe Pr a fe a a Ao ibd rl deed Fy} a oh a nS " ty A 8 softy ~~ 8 ES ; = sy wf weed a , Pay chat a" ae G the it eal as e fo # a nt ~ Ss | me . -
2 ot $5 aes Oe 7 og -
4 rH a . vt a . | * . aa , ie] ha . peas : es he te By wn vel a ound 8 i. % Pa 7 wh oad ge "i Hed a G Ss 2 a Bg ee ee ee @ _ = ae ne a on na Aa ef = * ey nef re: os #f yy By -- me i i oy A OS a f& BS bud fei tee ty ea an e and ca ey 3 "9G os eae ° qi re ood uy a oS ee ~ "ind & £ ey ec a 7. a ti + eg & " a im "ale o a ard a = ° ns) oe Ot 4 slo en ee? "eh: ard a eB 2» SS gw 4d a wd Mat ct ae So oa ar re ce i gS ea of 4q fy it on at] a ore rt Es es in uy OH shed c oa Ree od cue # ed i mi a + o te . ro Saf ; a al rd « a nhs <j tod Sd <a is dud ral a oy ned a ay co a ca ee st bes a. : dea ey oi a ms HY ord wed a , he aa ) hat a m 2 og ¢ ee ee cr ee m ky on iD ad r g Be as. ope ~ Bae i4 = bo !lUmS UR we at a or a ee ee mm © on 2 a a 2 au *"s . Wo te gs a 0 iy = & & fe avon pa a ee) my 8g ah ay ee ee a a a ha "3 "y & O = ao Hf @ "aed det ae oa ted i> a ot i. Por ga He ee A ka 7 et is 2 ae a OS HOH PNWWIYANNY AO LHNOD HOI WOW DYNES dO LeNOD HORM YX LN 2 GND MOI OW eWADE Gr DuRAA aeesnce Gee cee KARINA ARS iio? Coty Ut SEEN SEN EE ETN AE ool ER Ser Rall tho BN BS ESR A Re Re Cie BORE RI EDGE OS FE Dae 8 23 "{1) An appellate court has full power te review, cCeappreciate and reconsider the .evidence>. (2) The Code of Criminal "Procedure, : 1973 puts no Limitation, restriction or condition on exercise of such power and-an. appellate. court on the avidence befera it "may" reach its own conclusion, both on questionge of fact and of law. (3) | Various ~sxpressions, such ag, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', : eed ey ceag f teed as i cbalae?
"distorted ..conclusions', 'glaring mistakes', etc. _@aF@ not intended to curtail extensive poware of "88. appellate court in an appeal against acquittal... Sach phraseologies are more in the nature of 'flourishes of language' to emphasise "with acquittal than te curtail the powar of the Court te review the evidence and to come te its : AN SPoGllate court, however, must bear ~TME M AARIMATARA NIGH COURT OF KARNATAKA ciGh COURT OF KARNATAKA HIGH COURT OF KARNATAKA NEGF CG! Wn double presumption in favour cf the accused. Firstly, the presumptien of innecince 43".
avallable to him undar tha fundamental principle. ~ of criminal jurisprudence that evary Rarson #hali be presumed to be innocant unless ha is proved guilty by 48 competent court. of law. Secondly, the accused having secured nis acquittal, the presumption of his innccetea is further reinforcad, reaffirmed and strengthened sy the trial court.
oo de : - om ml pesg) Lap SL. PW whe is complainant categorically ". gupnerted the progecution. Though he is an interested witness but in view of the .Circumstantial evidence and in the light of the
-hahagar made a8 per EX-P2 it is a definite case of the prosecution, Al who is caught in the spot itself and he has been shifted te hospital in the ae ee TREN RS Meee ERS Sot TMI PE La ob PARA eH COURT Gir KARNATAKA HIGH CQ # & early morning on 15.6.06 and doctor has examined and a police complaint has been lodged "at 6 AM. Pheteafter on the bagia of _ his voluntary etatement he has taken te the spot un tha" gama day and Mahazar has heen draw seizing the articles. In the light ofthese ei : cumstances, the benefit of the citation : celied upon by the reSponcents cannot be. 'extancad "in. their favour. Therefore thers ara. cane @-materials against Al for the offence punishable u/S 379 Fe. The evidence oF. Pel to & and Ex-P2, P3 and voluntary statement 'are enough te prove the guLle of Al u/s 379 IPC. The Trial Court has not appreciated the _ 88@ properly... Toa that extent the jucdgmant of . the. Trial court neade to be interferad to held that. Al is-gud it ty of offence U/S 275 TPC, $2. PWl and 2 have stated that AZ escaped "On seeing them. PW2 in hie Croee-examination hae stated that he has seen the AZ before the Court F
-. For the First time. There are nO materials te show that AZ wae 2 known sereon Es FPWt and Pw?, i Tees ee WE RARINALARA HIGH COURT OF KARNATAKS HiGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO! OB e.g £2.
to prove the guilt of the accused No.2 even U/S 373 IPC, appeal is partly allowed. Respondent No.1 vis guilty af offence u/s 379 "rec. He. is 'sentenced to pay a fine of RS-8,000/- within three months from today. If default td pay. the fine, hé has to undergo sizple imprisonment tf or three months. The order of acquittal pasved against accused No.2? stands confirmed.
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