Karnataka High Court
Kumara vs State By Hunsur Town on 6 December, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.83 OF 2018
BETWEEN
1 . KUMARA,
S/O LATE GOVINDA,
AGED ABOUT 36 YEARS,
R/AT MAKALAMMA TEMPLE BACK,
RATHNAPURI ROAD, HUNSUR TOWN,
MYSORE DISTRICT-571 105.
2 . DEVARAJU M,
S/O LATE MUNIRATHNAM,
AGED ABOUT 70 YEARS,
R/AT VINOBA COLONY,
HUNSUR TOWN,
MYSORE DISTRICT-571 105.
...APPELLANTS
(BY SRI. ROOPESHA B, ADVOCATE)
AND
STATE BY HUNSUR TOWN
POLICE STATION,
REP BY STATE PUBLIC PROSECUTOR
BENGALURU-560 001.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
26.10.2017 AND ORDER OF SENTENCE DATED 22.12.2017
PASSED BY THE II ADDITIONAL SESSIONS AND SPECIAL
JUDGE, MYSURU IN SPL.C.NO.270/2016 - CONVICTING THE
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APPELLANT/ACCUSED NO.1 AND 2 ARE SENTENCED TO
UNDERGO 379 OF IPC AND SEC. 21(1) R/W 4(1) AND 21(1)
R/W 4(1A) OF MINOR MINERAL (DEVELOPMENT AND
REGULATION) ACT AND RULE 44 OF KARNATAKA MINOR
MINERAL CONCESSION RULE AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.11.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the convicted accused directed against the judgment passed in Spl.C.No.270/2016 dated 26.10.2017 by the II Addl. Sessions and Special Judge Mysuru, wherein the learned Special Judge convicted the appellants/accused Nos.1 and 2 for the offences punishable under Sections 21(1) r/w 4(1) and 21(1) r/w Section 4 (1-A) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'MMDR Act'), Rule 44 of the Karnataka Minor Mineral Concession Rules (KMMC Rules) and Section 379 of IPC and directed to undergo simple imprisonment for a period of 3 months and to pay a fine of Rs.5,000/- for each of the offences stated supra in respect of appellant No.1 is concerned and as far as accused No.2 is concerned, directed to undergo simple imprisonment for a period of one week and 3 to pay a fine of Rs.10,000/- for each of the offences stated supra.
2. Brief facts, which are necessary for disposal of this appeal, are that:-
Appellant No.2/accused No.2 is the owner of tractor and trailer bearing Nos.KA-45-T-991 and KA-45-T-992, of which appellant No.1/accused No.1 was the driver. According to the prosecution, on 13.11.2015 at about 3.00 p.m., accused No.1, having raised sand from Lakshmana Thirtha River near Kirijaji village, transported the same to Vinobha colony village via Chikka Hunsur. During that time, the said tractor & trailer was intercepted by PW.2 i.e., first informant in the place called Althaf Choultry at about 6.45 p.m. Accused No.1, having stopped the vehicle, fled from the said spot. Thereafter, PW.2 assessed the quantity of sand in the trailer to be 1.50 cubic meters and drove the vehicle to Hunsur Town Police Station and submitted the report as per Ex.P2 by way of complaint before the PSI of the said Police Station. Based on the said report, the PSI registered the case in Crime No.221/2015 dated 13.11.2015 for the offences punishable under Sections 4(1) (10), 21(1), 21(5) of MMDR Act and 4 Section 379 of IPC against unknown persons as per Ex.P7. Subsequently, the respondent-Police investigated the matter and PW.1-the Assistant Executive Engineer of PWD Department measured the sand in tractor and trailer bearing Nos.KA-45-T-991 and KA-45-T-992 and as per his estimation, the quantity of sand was 1.50 cubic meters worth Rs.1,275/-. Accordingly, the Investigation Officer handed over the possession of the sand to the custody of PW.1. Thereafter, PW.7 by conducting the mahazar in the scene of occurrence and also completing the investigation by obtaining necessary documents and also recording the statement of the witnesses laid the charge sheet before the Special Court.
3. In order to prove the guilt of the accused, the prosecution in total examined 7 witnesses before the trial Court as PW.1 to PW.7 so also got marked 8 documents as Exs.P1 to P8. After completion of the prosecution witnesses, the trial Judge recorded the statement as contemplated under Section 313 of Cr.P.C. However, the accused did not choose to examine any witness or to produce any document on their behalf.
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4. After assessment of oral and documentary evidence, the learned Special Judge convicted the accused persons for the aforestated offences. The said judgment is challenged under in this appeal.
5. Heard the learned counsel for the appellants as well as learned HCGP for the respondent.
6. Learned counsel for the appellants, vehemently, contends that the learned Special Judge failed to follow the guidelines issued in the judgment rendered by this Court in case of Vivek and another vs. State of Karnataka, by Kunigal Police Station and another reported in ILR 2018 KAR 1497, wherein the co-ordinate bench of this Court, by referring the judgment rendered by the Hon'ble Apex Court in the case of State of NCT of Delhi vs. Sanjay reported in AIR 2015 SC 75, laid down the guidelines in respect of the jurisdiction of the Special Court and Magistrate Court for offence punishable under the provisions of the MMRD Act including IPC offences wherein, held that a private complaint has to be filed before the Magistrate Court under the provisions of the MMRD Act and KMMC Rules even though the 6 provision of IPC involved. But in this case, learned Special Judge took cognizance of the offences based on the police report and FIR was registered by the police. As such, on that ground alone the impugned judgment is liable to be set-aside.
7. Alternatively, learned counsel would contend that the prosecution utterly failed to prove the guilt of the accused by leading cogent evidence. PW.3 and PW.4 i.e., the witnesses for spot mahazar as per Ex.P6 drawn near Kirijaji village in the presence of the accused were turned hostile to the prosecution case. Nevertheless, PW.5 and PW.6, who are the panch witnesses for the seizure of tractor and trailer as per Ex.P3, also turned hostile to the prosecution case. Admittedly, PW.2-the first informant, though seized the trailer and tractor, had never seen the accused in the spot. Even PW.1 also did not whisper anything about the presence of accused Nos.1 or 2 in the spot. In such circumstances, the learned Special Judge convicted the accused only surmises and conjectures. Hence, the impugned judgment is liable to be set-aside.
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8. Per contra, learned HCGP, by supporting the impugned judgment, would contend that learned Special Judge, after considering the entire materials available on record, passed the well reasoned judgment which does not fall for any interference by this Court. PW.2-the first information and PW.7-the Investigation Officer clearly deposed about the involvement of the accused in the offence so also accused No.1 in his 313 statement categorically admitted that he was driving the trailer and tractor on the date of incident. As such, inference can be drawn against the accused. Accordingly, he prays to dismiss the appeal.
9. Having heard the learned counsel for the parties, the only point that would arise for my consideration is that:
"1. Whether the learned Sessions and Special Judge is justified in convicting the accused for the offences punishable under Sections 21(1) r/w 4(1) and 21(1) r/w Section 4 (1-A) MMDR Act, Rule 44 of the KMMC Rules and Section 379 of IPC?
10. On careful perusal of the evidence available on record, PW.1-the Assistant Engineer of PWD Department measured the sand in tractor and trailer bearing Nos.KA-45-T- 8 991 and KA-45-T-992 in the Police Station on 14.01.2016. Accordingly, he gave an estimation in respect of the quantity of the sand as measuring 1.50 cubic meters worth Rs.1,275/-.
11. PW.2 is the first informant, who seized the tractor and trailer by drawing the mahazar as per Ex.P3. However, he categorically admitted that the driver fled from the spot and as such, he did not see him and cannot identify him. However, he identified the vehicle through photographs which were marked as Exs.P4 and P5.
12. PW.3 and PW.4 are the witnesses for the spot mahazar as per Ex.P6 where the mahazar was drawn on the bank of Lakshmana Thirtha River near Kirijaji village based on the voluntary statement of accused No.1. Though these witnesses were deposed in respect of drawing of the mahazar in the said place, they denied the presence of the accused during the course of mahazar.
13. PW.5 and PW.6 are the witnesses to Ex.P3 i.e. mahazar under which the sand in the tractor and trailer was seized in the police station on 13.11.2015. Both these 9 witnesses have not supported the case of the prosecution and turned hostile.
14. PW.7-the Investigation Officer deposed about the registration of FIR based on the complaint of PW.2 so also the drawing of mahazars and submitting the charge sheet before the Special Court.
15. On careful perusal of the above evidence, PW.2- the first informant deposed that on the relevant date i.e., on 13.11.2015 at about 3.00 p.m., he intercepted the tractor and trailer which was transporting the sand from Lakshmana Thirtha River near Kirijaji village to Vinobha colony via Chikka Hunsur, he categorically deposed in his evidence before the Court that accused No.1 having stopped the vehicle fled from the scene of occurrence and as such, he did not see him and thus, cannot identify him. Though he identified the tractor and trailer through the photographs, which were marked as Exs.P4 and P5, the same were not objected by the defense. Admittedly, PW.3 and PW.4 are the witnesses to the spot mahazar marked at Ex.P6 allegedly drawn on the bank of Lakshmana Thirtha River near Kirijaji village based on the 10 voluntary statement of accused No.1 from where the sand allegedly loaded to the tractor and trailer, but both these witnesses turned hostile in respect of the presence of the accused in the said place during the course of drawing the mahazar as per Ex.P6.
16. On perusal of the evidence of PW.5 and PW.6, the witnesses to Ex.P3 i.e., mahazar under which the sand in the tractor and trailer was seized before the police station on 13.11.2015, and they have turned hostile to the prosecution case. Though PW.3 and PW.4 identified the photographs of tractor and trailer, absolutely there is no evidence placed by the Investigation Officer to prove the aspect that the tractor and trailer belongs to accused No.2.
17. On perusal of Ex.P3, the Investigation Officer mentioned the engine and chassis numbers of the trailer, but he failed to secure the records pertaining to the said tractor and trailer. There is no explanation by the Investigation Officer as to why he has failed to obtain documents pertaining to the tractor and trailer from accused No.2, he being the owner of the tractor and trailer. In such circumstances, 11 interference cannot be drawn that the tractor and trailer belongs to accused No.2.
18. As far as allegation that accused No.1, being the driver of the tractor and trailer, loaded sand and shifted the same to some other place illegally is concerned, the prosecution failed to prove the same for the reason that PW.2 in his evidence categorically admitted that he was unable to identify accused No.1 at the time of interception of the vehicle on the relevant date and time. Even the mahazar witnesses also declined the presence of accused No.1 during the course of drawing the mahazar at the river bed from where sand was illegally loaded to the tractor and trailer. Nevertheless, PW.5 and PW.6 also denied the presence of accused No.1 in the police station during the course of seizure of tractor and trailer as per Ex.P3. In such circumstances, except voluntary statement of accused No.1, absolutely no other materials are forthcoming to prove the charges leveled against accused No.1. Learned Special judge, while passing the impugned judgment, relied the stray admission of accused No.1 made during the course of recording 313 statement that he was the driver of the tractor and trailer on the relevant date and time. 12 However, it is well settled position of law that without there being any corroborative evidence by the witnesses, in my considered view, the learned Special Judge wrongly come to the conclusion that the guilt against accused Nos.1 and 2 are proved.
19. Nevertheless, as rightly contended by learned counsel for the appellants, learned Special Judge also erred in not following proper procedure before taking cognizance of the offence punishable under the provisions of MMRD Act and KMCS Rules as laid down by this Court in the case of Vivek stated supra. On that count also, the judgment passed by the learned special Judge is liable to be set aside.
20. In that view of the matter, in my considered view, the impugned judgment and order of sentence does not holds good. Accordingly, I answer the point raised above and proceed to pass the following:
ORDER i. The appeal preferred by the appellants/accused Nos.1 and 2 under Section 374(2) of Cr.P.C. is hereby allowed. 13 ii. Consequently, the impugned judgment of conviction and order of sentence rendered by the II Additional Sessions and Special Judge, Mysuru in Spl.C.No.270/2016 is hereby set aside.
iii. The appellants/accused Nos.1 and 2 are hereby acquitted for the charges levelled against them.
iv. The bail bonds executed by the appellants stand cancelled and the fine amount, if any deposited, shall be refunded to them on proper identification.
Sd/-
JUDGE VM