Karnataka High Court
Bella Vasanthi @ Vasanthi vs The State Of Karnataka on 31 March, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CRIMINAL REVISION PETITION NO.125 OF 2013
BETWEEN:
BELLA VASANTHI @ VASANTHI,
W/O LATE SUNDARNATH @ SUNADAR,
AGED ABOUT 52 YEARS,
RESIDING AT NO.66, 5TH MAIN,
5TH STAGE, YELAHANKA,
BANGALORE-560064.
...PETITIONER
(BY SRI. P.M.MATHEW, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY SAMPANGIRAMANAGAR POLICE,
BANGALORE-560027.
...RESPONDENT
(BY SRI. K.K. KRISHNA KUMAR, HIGH COURT GOVERNMENT
PLEADER)
THIS CRL.RP IS FILED UNDER SECTION 397 THE CODE
OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE
ORDER DATED 16.04.2012 PASSED BY THE IX ACMM,
BANGALORE IN C.C.NO.27182/2010 AND JUDGMENT DATED
25.09.2012 PASSED BY THE P.O., F.T.C. (SESSIONS)-IX,
BANGALORE IN CRL.A.NO.289/2012.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER ON 03.01.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
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ORDER
The accused in C.C.No.27182/2010 on the file of the IX Additional Chief Metropolitan Magistrate, Bengaluru (henceforth referred to as 'Trial Court' for short), has filed this revision petition challenging the judgment of conviction dated 16.04.2012, by which, she was convicted for the offences punishable under Sections 39, 40, 49C, 50 and 51 of the Wild Life (Protection) Act, 1972. She has also challenged the judgment dated 25.09.2012 passed by the Presiding Officer, Fast Track Court (Sessions) - XI Bengaluru, in Crl.A.No.289/2012 by which, the judgment of conviction passed by the Trial Court was upheld.
2. The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioner herein was the accused.
3. The case of the prosecution was that based on credible information, a Police Inspector along with CW.1, staff and women police constables, reached Rajaram Mohan Roy road in Sampangiramanagar on 20.04.2010. At 3 about 12.30 p.m., they took two panchas and were waiting in the parking area in front of Gayatri Hall restaurant. At about 1.30 p.m., a white colour Tata Indica car bearing registration No.KA-03-B-8053 reached the parking area, and a woman was found seated in the rear seat. CW.1 and his staff surrounded the vehicle and checked it. The lady in the rear seat had a gunny bag on her lap. When the bag was searched, a leopard skin was recovered and when she was asked to furnish any supporting records, she claimed that there were no records. She disclosed that she had come to Woodlands Hotel to sell the leopard skin to a customer from Bombay. CW.1 claimed that possessing a leopard skin or selling it was illegal. CW.1 claimed that he seized the leopard skin and also arrested the accused. After such seizure, the leopard skin and the accused were produced before the Police Sub-Inspector, who registered a case in Crime No.65/2010 for the offences punishable under Sections 39, 40, 43, 49C, 50 and 51 of the Wild Life (Protection) Act. The mobile phone, a hand bag and the leopard skin seized from accused were reported to the 4 Court in P.F.No.41/2010. The accused was released on bail in Crime No.65/2010. The investigating officer concluded the investigation and filed a charge-sheet for the offences punishable under Sections 39, 40, 49C, 50 and 51 of the Wild Life (Protection) Act.
4. The Trial Court took cognizance of the aforesaid offences and issued a warrant to secure the accused. The accused later appeared and received a copy of the charge-sheet. The Trial Court framed charges, which were explained to the accused, but she pleaded not guilty and claimed to be tried.
5. The prosecution examined the complainant as PW.1, a police constable who searched the car used by the accused as PW.2 and a woman police constable as PW.3, a police constable employed with the CID Forest Intelligence as PW.4, a Professor at Veterinary College, Hebbal as PW.5, the driver of the car as PW.6, the police Sub- Inspector of Sampangiramanagar police station as PW.7 5 and marked Exs.P1 to P6 and material objects MO.1 to MO.3 were marked.
6. Based on the oral and documentary evidence, the Trial Court held that the prosecution had proved that the accused was in possession of the leopard skin and that its seizure from the accused was proved. It held that the accused merely denied the incriminating evidence, which was insufficient. It held that there was no ill-will or vengeance nurtured by the prosecution witnesses against the accused. It held that under Sections 39(2) and 39(3)(a) of the Wild Life (Protection) Act, any person coming into possession of any animal articles or trophies by any means shall within 48 hours of coming into possession, such person shall submit a report to the officer in-charge of the police station or such other authorised officer. It held that the accused did not comply with the above provision of law and she did not submit any declaration to the Chief Wild Life Warden or the authorised officer as warranted under Section 40 of the Wild Life 6 (Protection) Act. Hence, it convicted the accused for the offences punishable under Sections 30, 40, 49C, 50 and 51 of the Wild Life (Protection) Act and sentenced her to undergo simple imprisonment for three years and to pay fine of Rs.10,000/- for the offence punishable under Section 51 of the Wild Life (Protection) Act.
7. Being aggrieved by the said judgment of conviction, the accused filed Crl.A.No.289/2012 before the Appellate Court. The Appellate Court secured the records of the Trial Court, heard the counsel for the accused and the Public Prosecutor, framed points for consideration and thereafter, re-appreciated the evidence on record and held that PW.6 was an independent witness, who deposed that he was driving the car bearing registration No.KA-03-B- 8053 in which, the accused was travelling. He deposed that he came to Woodlands Hotel on the directions of the accused. The Appellate Court noticed the evidence of PW.1, the complainant who deposed that based on credible information from his officer, he proceeded to parking area 7 of Woodlands Hotel on 20.04.2010 along with his staff. At about 1.30 p.m. a Tata Indica car reached the parking area, which was stopped by PW.1 and his staff. On searching the car, they found a woman sitting in rear seat with a gunny bag. When they opened gunny bag, they found a leopard skin and the woman did not produce any document or licence justifying the possession of leopard skin. The Appellate Court perused the evidence of PW.2 to PW.4, who all deposed in line with the evidence of PW.1. The Appellate Court held that the spot panchanama and seizure of MO.1 to MO.3 were proved. It perused the evidence of PW.6, the driver of the Indica Car and held though this witness claimed that he was not aware about the case and denied his statement recorded before the police and denied the knowledge of the contents of seizure mahazar as per Ex.P1 but yet he admitted his signature on Ex.P1 and therefore, the statements made therein could be treated as evidence. The Appellate Court held that PW.6 was the driver of the car in which, the accused was travelling and therefore, it is natural that he was aware of 8 the search of the car and seizure of the leopard skin and the mobile phone of the accused. The Appellate Court held that PW.6 was won over by the accused. It held that PW.1 to PW.4 and PW.7 did not nurture any grudge or ill-will against the accused and there was enough material collected by the investigating officer, which corroborated the evidence of PW.1 to PW.4. The Appellate Court held that since the accused failed to produce any licence or permission permitting her to be in possession of the leopard skin, she had committed an offence under Section 39 of the Wild Life (Protection) Act. The Appellate Court further held that it is presumed under Section 57 of the Wild Life (Protection) Act that if a person is found to be in possession of any animal or animal article, meat (trophy, uncured trophy, specified plant or part or derivative thereof), it shall be presumed, until the contrary is proved that such person is in unlawful possession. The Appellate Court therefore, held that the accused did not rebut the presumption in law and therefore, dismissed the appeal 9 and confirmed the judgment of conviction and order of sentence passed by the Trial Court.
8. Being aggrieved by the judgments of both the Courts, the accused has filed this revision petition.
9. The learned counsel for the petitioner/accused submitted that as per the case of the prosecution, the accused went to the parking area in front of Gayatri Hall restaurant, where the car was searched and the leopard skin along with the gunny bag and the mobile phone of the accused were seized. He submitted that neither the car was seized nor the driver was arrested. He submits that in the charge-sheet, it was stated that the car reached the parking area in front of Gayatri Hall restaurant but PW.1 and PW.4 deposed that the car reached the parking area of Woodlands Hotel. He further contended that the Police Inspector, who led the team (Mr. B.S. Mohan Kumar), who enquired the accused, arrested her, seized the objects and conducted a mahazar, was not examined as a witness. He further submitted that the offence was allegedly committed 10 at 1.30 p.m. in a hotel premises and therefore, it is improbable that there is not even a single independent witness. Therefore, he contends that the case of the prosecution is doubtful. He further contended that the seized leopard skin was very old and had seals of licence on it and therefore, it was incumbent upon the prosecution to ascertain those details. He further contended that the investigating officer did not ascertain how old the skin was. He submits that if the leopard skin was the subject matter of any licence, then the accused was not guilty of any offence.
10. Per contra, the learned High Court Government Pleader for the respondent/State, on the other hand, submitted that the search of the car and seizure of the leopard skin is not much in dispute and the same is proved from the evidence of PW.1 to PW.4, PW.6 and PW.7 as PW.6 admitted his signature on Ex.P1. He submitted that Gayatri Hall restaurant was one of the restaurants in Woodlands Hotel and the vehicle in question was searched 11 in front of parking area of Gayatri Hall restaurant. He submitted that possession of any animal article including skin of an animal is an offence and any person in possession is presumed to be guilty, unless he establishes that he was authorized to possess the leopard skin. He therefore, contends that the judgments of conviction passed by both the Courts are just and proper and do not warrant any interference.
11. I have considered the submissions made by the learned counsel for the petitioner/accused as well as the learned High Court Government Pleader for the respondent/State. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court.
12. The records disclose that PW.1 was then employed as P.S.I. at the C.I.D. (Forest Cell). He claimed that his higher officials informed him that there was illegal trade of leopard skin in S.R. Nagar area. He therefore, took CWs.4, 6, 8, 9 and 10 in a departmental vehicle to 12 Woodlands Hotel at Sampangiramanagar and waited till 12.30 p.m. along with panch witnesses - CW.2 and CW.3. He deposed that at about 1.30 p.m., a Tata Indica car reached the parking area. PW.1 stopped it and found a lady sitting in the rear seat along with a gunny bag. When she was interrogated, she claimed to be a resident of Yelahanka New Town and when the gunny bag was searched, they found a leopard skin. The accused failed to furnish any documents/licence authorizing her to possess the leopard skin. Therefore, he seized the leopard skin and a mobile phone belonging to her and later lodged a complaint as per Ex.P2. He deposed that the car used for the crime was bearing registration No.KA-03-B-8053. This witness deposed that his team was led by the inspector Mr. Mohan Kumar. This witness deposed that no other vehicles were searched on that day, as they did not suspect any of them. He deposed that he interrogated the driver of the car and did not feel it necessary to seize the car. He did not record the statement of the driver under Section 161 of Cr.P.C. This witness deposed that he did 13 not seal the bag containing the leopard skin. He further deposed that at the time of seizure, the Police Inspector, Mr. Mohan Kumar was present. This witness deposed "agÀvÉ ZÀªÀÄðzÀ ªÉÄÃ¯É ¯Éʸɣïì £ÀA§gï ¦æAmï DVzÉ JAzÀgÉ £ÀA§gï EgÀĪÀÅzÀÄ ¤d DzÀgÉ CzÀÄ zÀÈqsÀ¥ÀnÖ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÀĪÀiÁgÀÄ 30-40 ªÀµÀðzÀ »AzÉ ªÀÄzÁæ¸ï£À°è jf¸ÉÖçõÀ£ï DUÀzÉà JArJ¸ï JA§ £ÀA§gï PÉÆqÀÄwÛzÀÝgÄÀ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. agÀvÉ ZÀªÀÄð JµÀÄÖ ªÀµÀð ºÀ¼ÉAiÀÄzÀÄÝ JA§ÄzÀ£ÄÀ ß £Á£ÀÄ «ZÁgÀuÉ ªÀiÁqÀ°®è."
13. PW.2 also deposed that Inspector - Mr. Mohan Kumar was the one, who enquired the accused. He deposed that 4-5 persons belonging to the general public had assembled there. He deposed that the accused was carrying a "tiger skin" in a bag and that the accused claimed that she was trying to sell it to somebody.
14. PW.3, a woman police constable deposed that on the basis of information that a lady travelling in a white colour Tata Indica car bearing registration No.KA-03-B- 8053 was trying to sell a leopard skin, she and other staffs 14 followed her from Yelahanka. She deposed that when they checked the car at the parking area of Gayatri restaurant on Rajaram Mohanroy road at Sampangiramanagar, they found that the lady was carrying a leopard skin in a bag. When they enquired with the lady as to whom the leopard skin belonged to, she claimed that it belonged to her. However, she claimed that she is not in possession of any document to show that she had purchased it from the Government. She deposed that the leopard skin along with a bag was seized and the lady was brought to the police station. She deposed that a mobile phone was also seized from her and a mahazar was drawn. This witness deposed that she received a call from CW.1 when she was at home. She deposed that she along with other staff left their office and they reached an apartment in Yelahanka. She claimed that the team was instructed to wait for a car bearing registration No.KA-03-B-8053. After 15-20 minutes, the car passed by them, which they pursued. She deposed that when the vehicle reached the parking area at Gayatri Hall restaurant, they found a lady seated in the back seat. 15 She deposed that about 8-10 people gathered at the spot. She deposed that it was written in the spot mahazar that the leopard skin was earlier purchased at Madras and the same was found on the leopard skin.
15. PW.4 was the police constable, who was then working with Forest Intelligence of C.I.D. He deposed that he and others, based on the information received, pursued a car bearing registration No.KA-03-B-8053, which stopped in front of Woodlands Hotel. He deposed that CW.1 instructed them to check the vehicle. When the driver of the car was enquired, he disclosed that he had brought the accused to the Woodlands Hotel. When the lady in the rear seat was checked, she was carrying a leopard skin in a bag and when enquired whether she had any document, she claimed that she had none and that she had come to sell the leopard skin. This witness claimed that the phone of the accused and the leopard skin with bag were seized and a mahazar was drawn. In his cross-examination, he deposed that they got the information between 11.30 and 16 12.00 noon. He deposed that on the way, his superiors received information that the car was moving towards the city and therefore, the team was directed to take a U-turn towards the city. He deposed that they took a U-turn at about 2-3 kilometers from Hebbal and tailed the car. He deposed that they received information that the vehicle was parked near Woodlands Hotel and by the time they reached the place, it was 12.30 p.m. This witness deposed that there were 25-30 people, who had gathered at the spot. However, they did not request any of them to assist them in drawing the mahazar.
16. PW.5 was the Professor at Veterinary College, Hebbal, who deposed that the skin seized by the police was sourced from a leopard. This witness deposed that he was not able to say how old the leopard skin was. He deposed that he could not tell whether there were any number or marks on the leopard skin. He deposed that he gave his report that the skin was sourced from a leopard 17 based on the features on it. He deposed that there were foreign material attached to the skin.
17. PW.6 was the driver of the Indica Car, who deposed that he was not aware of what happened on 20.04.2010. This witness was treated as hostile. He denied his statement before the police, which was marked as Ex.P4.
18. PW.7 was the Police Sub-Inspector at S.R. Nagar Police Station. He deposed that on 20.04.2010, CW.1 along with the seized articles and the accused lodged a complaint as per Ex.P2 and furnished a mahazar as per Ex.P1. He deposed that based on the complaint, he registered FIR as per Ex.P5 and incorporated the properties in the property Form. He recorded the statements of CW.2 to CW.10 and submitted the leopard skin for examination before the Veterinary College, Hebbal. He thereafter submitted a charge-sheet. This witness deposed in his cross-examination that he had not cited the Principal of the Veterinary College as a witness. 18
19. Ex.P1 is the mahazar drawn on 20.04.2010. This mahazar disclosed that on the rear of the leopard skin, L No.4998237 and on the right side, No.CH86492 was found and on both sides of the skin behind the paws, it was mentioned as MDS-40 and behind the head, it was marked as SO-121. The skin was stitched to a khaki cloth and was hemmed on the edges by a design cloth.
20. Ex.P2 is a complaint lodged before the Police Station at Sampangiramanagar by CW.1. Ex.P3 is the report of the Professor and Head of Department of Anatomy and Histology, Veterinary College, Hebbal, which indicated that the skin specimen sent to it for examination belonged to leopard. Ex.P4 is the statement of driver of the Indica Car. Ex.P5 is the First Information Report. Ex.P6 is the confession letter of the accused.
21. PW.1 deposed that he along with CW.2 and CW.3 were waiting at the parking area of Woodlands Hotel, while PW.3 claimed that they went to an apartment in Yelahanka, but she could not recollect the name of the 19 apartment. She deposed that after waiting for 15-20 minutes there, a vehicle bearing registration No.KA-03-B- 8053, passed by them and they tailed the car from Yelahanka. However, PW.4 deposed that when they were proceeding from their office towards Yelahanka, on the way, they received information that the car was moving towards the city and therefore, they took a U-turn towards the city after about 2-3 kilometers from Hebbal. PW.1 on the contrary claimed that he along with panch witness and other staff were waiting at the parking area of Woodlands Hotel at Sampangiramanagar and that he was accompanied by panch witness - CW.2 and CW.3 at 12.30 p.m. Therefore, there is a doubt as to who, when and how the investigating agency was informed about the accused travelling in the car. It also generates a doubt as to how PW.1 knew before hand that accused could be reaching the parking area at Woodlands Hotel. It is clear from the evidence extracted above that the investigation was trying to hide something from the Court.
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22. In addition, though the investigating officer found on the leopard skin, some marks purportedly of a licence, PW.1 made no effort to identify whether those marks related to any licence issued by any authority. The skin is undoubtedly not recently extracted from any animal as the rear of the skin was covered by cloth and the edges were hemmed by design cloth. PW.5 failed to report the age of the skin, but merely indicated that the skin was sourced from a leopard from physical examination.
23. Though it is claimed that the leopard skin was seized from the custody of the accused at the parking area in front of Gayatri Hall restaurant and more than 25-30 people had gathered, no effort is made to draw up the spot and seizure mahazar in the presence of independent witnesses. The vehicle used for the crime was not seized and the driver, who was driving the car, turned hostile. Therefore, except the official witnesses, there was no evidence of any independent witness to prove the complicity of the accused in the offence.
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24. The Trial Court while considering the evidence of PW.6 - driver of the car held, "We cannot expect that he will give evidence against the accused person about the alleged incident. It is very clear from the evidence of this witness that this witness has been won over by the accused person. Hence, just because this witness has given hostile evidence, this Court cannot reject evidence given by PW.1 to 4 in the absence of any material to show that with personal interest or vengeance, PW.1 to 4 have given evidence against the accused person. Accordingly, I hold that the prosecution has proved that the accused person was possessing the Leopard skin in a gunny bag on 20/4/10 in a Tata Indica car bearing registration No.KA-03-B- 8053 belonging to PW.6-Mahadeshwaran."
It also held that, "There is no evidence before this court to prove that out of personal interest, vengeance or ill-will, the accused person has been falsely implicated by the Forest cell, S.R. Nagar police. Mere denial of incriminating evidence is not 22 sufficient to hold that the accused person is innocent."
25. Likewise, the Appellate Court relied heavily on Section 57 of the Wild Life (Protection) Act to hold that the accused did not rebut the presumption by producing the documents to establish the lawful possession of the leopard skin and based upon that, dismissed the appeal. It also held that the accused did not establish that PW.1 to PW.4 had any vengeance and grudge against her and in the absence of any prohibition against convicting the accused based on the testimony of official witnesses, the judgment of conviction passed by the Trial Court was just and proper.
26. The Trial Court and the Appellate Court have lost sight of the fact that the prosecution is bound to establish the charges beyond doubt. The Trial Court could not have glossed over critical evidence, which marred the case of the prosecution. The presumption under Section 57 of the Wild Life (Protection) Act would arise only when 23 the accused was found to be in possession of the leopard skin in question. The manner in which the investigating agency received information about the accused carrying the leopard skin, the different versions of the prosecution witnesses regarding the manner in which the accused was tailed from Yelahanka to Sampangiramanagar, generates suspicion about the sanity of the investigation. The accused claimed that she had some affiliation to a political party and that in order to ruin her political career, she was unnecessarily implicated in the case. When there were nearly 25-30 people who had gathered at the parking area in Woodlands Hotel, when PW.1 searched the vehicle and seized the leopard skin, it was incumbent upon the investigating agency to secure the statement of independent witnesses. In addition, the failure on the part of the investigating agency to identify whether the leopard skin was the subject matter of a licence issued by any authority, the case of the prosecution was extremely doubtful. Under the circumstances, the judgment of conviction and the order of sentence passed by the Trial 24 Court as well as the judgment of the Appellate Court warrant interference.
27. In that view of the matter, this revision petition is allowed. The judgment of conviction and order of sentence dated 16.04.2012 passed by the IX Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.27182/2010 for the offences punishable under Sections 39, 40, 49C, 50 and 51 of the Wild Life (Protection) Act, 1972, as well as the judgment dated 25.09.2012 passed by the Presiding Officer, Fast Track Court (Sessions) - XI, Bengaluru, in Crl.A.No.289/2012, are set aside. The petitioner/accused is acquitted of the aforesaid offences and she is set free.
The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.
Sd/-
JUDGE PMR