Bangalore District Court
S D Shashidar Pi vs P Shankar on 12 February, 2025
1 C.C.No.15406/2016
KABC030412482016
Presented on : 04-07-2016
Registered on : 04-07-2016
Decided on : 12-02-2025
Duration : 8 years, 7 months, 8 days
IN THE COURT OF THE II ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Dated this 12th day of February 2025
PRESENT : SRI.SAHEEL AHMED S. KUNNIBHAVI, B.Com.,
LL.B. (Spl.)
II Additional Chief Judicial Magistrate, Bengaluru City
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
1.Sl. No. of the case C.C.No.15406/2016 Date of commission of the
2. 05.06.2015 offences (As per F.I.R.) Basavanagudi Police
3. Name of the complainant Station, Bengaluru City
4. Name of the accused 1. P.Shankar. (Split-Up)
2. Manjunath @ Manja.
(Split-Up)
3. Kumar Murthy @ K.Murthy, R/at Pakal Gold City, Dharampuri District, Tamilnadu.
2 C.C.No.15406/2016
4. Saravana, (Split-Up) Sections 9, 39, 40, 44, 49(C) and 51 of Wild Life Protection Act 1972, Section 41D and The offences complained
5. 102 of the Code of Criminal of Procedure and Sections 379 and 429 of the Indian Penal Code
6. Plea of the accused Pleaded not guilty
7. Final order Accused No.3 is acquitted
8. Date of order 12.02.2025 The Sub-Inspector of Police of Basavanagudi Police Station, Bengaluru has filed Police Report against accused No.1 to 4 alleging that they have committed the offences punishable under Sections 9, 39, 40, 44, 49(C) and 51 of Wild Life Protection Act 1972, Section 41D and 102 of the Code of Criminal Procedure and Sections 379 and 429 of the Indian Penal Code.
2. It is the case of the Prosecution that on 05.06.2015 at about 4.30 p.m. when CW1 Police Inspector on his official duty credible information that near Kanakapura Road, Krishna Rao tank the accused were illegally selling the 3 C.C.No.15406/2016 Elephant Tusks for their illegal gains. CW1 has secured CW9 PSI Kiran, CW7 and Head Constable CW5 to CW8. CW1 had been to the place of incident along with the panchas. The accused were on their bike and trying to sell the Elephant Tusks to the customers. They were caught hold and on search they have found these two Tusks. CW1 has conducted panchanama and seized the tusks and lodged the information against the accused.
3. Based on the First Information of CW1, the crime was registered in Crime No.152/2015 at Basavanagudi Police Station. Accused No.1 to 3 were arrested and produced before this Court and enlarged on bail. Accused No.4 was absconded. Since the presence of accused No.1 and 2 could not be secured, hence as per order dated 26.03.2022 the case against them was ordered for Split Up and separate criminal case was registered against him. On completion of the investigation, the Police Inspector of Basavanagudi Police Station, Bengaluru City filed Police Report. After taking cognizance of the said offences, the process was issued to 4 C.C.No.15406/2016 accused No.3. The copies of the Police Report and other prosecution papers are furnished to accused No.3 under Section 207 of Cr.P.C. After hearing, since there were grounds for presuming that accused No.3 has committed the offences triable by this Court, charges for the offence has been framed and read over to him in Kannada language. He has pleaded not guilty and claims to be tried.
4. To prove the charges framed against accused No.3, the Prosecution has produced PW1 to PW4 oral evidences, documentary evidences as per Ex.P1 to Ex.P8 and Material Objects as per MO1 and MO2. After completion of the prosecution evidences, for the purpose of enabling accused No.3 personally to explain any circumstances appearing in the evidences of the Prosecution against him, examined accused No.3 under Section 313 of Cr.P.C. He has submitted that he has no defense evidence.
5. Heard the arguments of learned Senior Assistant Public Prosecutor and the learned counsel for accused No.3. Perused the materials available on record. 5 C.C.No.15406/2016
6. The points for determination are;
1. Whether prosecution has proved beyond all reasonable doubts that accused No.3 has committed the offences punishable under Sections 9, 39, 40, 44, 49(C) and 51 of Wild Life Protection Act 1972, Section 41D and 102 of the Code of Criminal Procedure and Sections 379 and 429 of the Indian Penal Code?
2. What order or sentence?
7. My answers to the above points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final order for the following:-
REASONS
8. POINT No.1 :- It is the case of the Prosecution that these accused were caught hold when they were trying to sell the Elephant Tusks for their illegal gains.
9. To prove the guilt of the accused, the Prosecution has examined CW1/PW4 S.D.Shashidhara who has lodged the information against these accused. This witness in his evidence has deposed that on 05.06.2015 at about 4.30 p.m. 6 C.C.No.15406/2016 when he was on his official duty got credible information that near Kanakapura Road, Krishna Rao tank the accused were illegally selling the Elephant Tusks for their illegal gains. He has secured CW9 PSI Kiran, CW7 and Head Constable CW5 to CW8. He had been to the place of incident along with the panchas. The accused were on their bike and trying to sell the Elephant Tusks to the customers. They were caught hold and on search he has found these two Tusks. He has conducted panchanama and seized the tusks and lodged the information against the accused.
10. To prove the guilt of the accused, the Prosecution has examined CW5/PW2 Muddaraju, PSI and CW9/PW3 Kiran B., who have deposed in line with CW1 that on 05.06.2015 at about 4.30 p.m. when CW1 was on his official duty got credible information that near Kanakapura Road, Krishna Rao tank the accused were illegally selling the Elephant Tusks for their illegal gains. They had been to the place along with CW1 to the place of incident along with the panchas. The accused were on their bike and trying to sell the 7 C.C.No.15406/2016 Elephant Tusks to the customers. They were caught hold and on search CW1 has found these two Tusks. CW1 has conducted panchanama and seized the tusks and lodged the information against the accused. The Police have recorded their statements.
11. To prove the guilt of the accused, the Prosecution has examined CW4/PW1 Dr.Surendra, Scientist, Indian Institute of Science, wherein this witness has deposed that he has examined two elephant tusks and issued Certificate as per Ex.P1.
12. It is the case of the Prosecution that these accused were caught hold with the elephant tusks when they were trying to sell for their illegal gains.
13. The Prosecution to prove the guilt of the accused has relied the evidence of CW1/PW4 who has registered the case against these accused. The Prosecution has also relied the evidence of CW5 to CW9 are the official witnesses had been to the place of incident along with CW1 and with the panchas. 8 C.C.No.15406/2016 Based on these witnesses the learned Senior APP has argued that these witnesses have deposed in corroboration that these accused were caught hold with elephant tusks produced before this Court.
14. On the other hand the learned Counsel for the accused has argued that the Prosecution have not produced any document to show that these elephant tusks were seized from the accused. Nor there are evidence available before this Court to show that how these elephant tusks were taken by these accused. There is no investigation in respect of these elephant tusks. Whether these accused had been to the forest and taken these tusks or they have purchased from somewhere. He has argued that the accused are innocent and there is no antecedence history of any crime committed by these accused. These officials have filed false case against these accused for their statics. CW2 and CW3 are the independent witnesses and even have not been examined by the Prosecution. He argued that the only evidence available before this Court are the evidences of official witnesses and 9 C.C.No.15406/2016 they are interested witnesses. These accused are innocent and for the sake of statics false case was registered against these accused.
15. On perusal, the information was lodged during the year 2016. Since then, the accused were regular to the Court. The matter is pending since 9 years. The evidence available before this Court is the evidence of official witnesses. But, to corroborate the evidence of these official witnesses, the Prosecution even has not examined the independent witness CW2 and CW3. Further, there is a base to the submission of the learned Counsel for the accused that the Prosecution has not produced any document to shaw that where these elephant tusks were taken by these accused. There is no investigation how these accused were able to get such a huge elephant tusks for sale.
16. It is on record that all the witnesses examined by the Prosecution are Official Witnesses. Though there are no reasons to deny the contention of the Official Witnesses, but, however the learned counsel for the accused has argued that 10 C.C.No.15406/2016 false case was registered against the accused. The investigation officer has not at all recovered the said elephant tusks from the accused.
17. The independent witnesses would mean that they do not have any interest in the result of the case and is not even closely related to the party in trial and he is not concerned with the failure or success of the case. When there is allegation of regular panchas and snake was not seized from the possession of the accused. What is it not the duty of the prosecution to examine the independent witness?. Further the Honorable Supreme Court of India in case of Yakub Abdul Razak Memon Vs State of Maharashtra, the Hon'ble Supreme Court of India has pleased to held that-
"Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is 11 C.C.No.15406/2016 likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called 'Panchas' as also by the concerned party. The witnesses are required to be not only impartial but also 'respectable'. 'Respectable' here would mean a person who is not dis-reputed. One should also check if the witnesses are in their senses at the time of panchanama proceedings. Only majors are to be taken as witnesses as minors witness my not withstand the legal scrutiny."
The Honorable Supreme Court has pleased even held that the panchas are must be from repudiated family and he shall not be any dis-reputed person. The prosecution has contended that the Investigation Officer has tried to get the independent witness but at least the Investigation Officer has to produce copy of the Notice to show that they have tried to get the independent witnesses. Further, the Prosecution has examined only the official witnesses and though they have 12 C.C.No.15406/2016 deposed consistently, but, the Investigation Officer even has not seized the said alleged bike which was used by the accused to transport the said elephant tusks nor the Investigation Officer has taken any pain to get the details how the accused have secured these elephant tusks. The Prosecution has to collect the events or sequences and circumstances to prove the guilt of the accused beyond all reasonable doubts. The chain of evidence that points strongly towards the guilt of the accused without giving a little room of explanation of innocence is relevant when the case was totally based on official witnesses. There is no evidence to show that these tusks were seized from the accused by examining the independent witnesses when there is serious allegation of a false case has been registered against the accused. Further, the matter is pending since 2017 and the prosecution is able to examined only five witnesses out of eleven to prove the guilt of the accused. My Predecessor has dropped all these witnesses after issuing NBW and proclamation. Under these circumstances, I am holding that the Prosecution has not proved the guilt of the accused for 13 C.C.No.15406/2016 the offences punishable under Sections 9, 39, 40, 44, 49(C) and 51 of Wild Life Protection Act 1972, Section 41D and 102 of the Code of Criminal Procedure and Sections 379 and 429 of the Indian Penal Code beyond all reasonable doubt. Hence, I answer Point No.1 in the Negative.
18. POINT No.2 :- For the reasons stated in Point No.1, the prosecution has not proved the guilt of accused No.3 for the said offences beyond all reasonable doubts. Therefore, accused No.3 is not found guilty for the offences punishable under Sections 9, 39, 40, 44, 49(C) and 51 of Wild Life Protection Act 1972, Section 41D and 102 of the Code of Criminal Procedure and Sections 379 and 429 of the Indian Penal Code. In the result, I proceed to pass the following:-
ORDERS Under Section 248(1) of Cr.P.C, accused No.3 is hereby acquitted for the offences punishable under Sections 9, 39, 40, 44, 49(C) and 51 of Wild Life Protection Act 1972, Section 41D and 102 of the Code of Criminal Procedure and Sections 379 and 429 of the Indian Penal Code.14 C.C.No.15406/2016
His bail bond and surety bond will be canceled after appeal period.
Office is hereby directed to keep the entire file with Split up Criminal Case of accused No.1, 2 and 4.
(Typed by the Stenographer in the Court Computer on my direct dictation, printout taken, corrected and then pronounced by me in the open court on 12.02.2025) (SAHEEL AHMED.S.KUNNIBHAVI) II Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses Examined on behalf of Prosecution :-
PW1 : Surendra Varma,
PW2 : Mudduraju,
PW3 : Kiran V.,
PW4 : S.D.Shashidhar.
Documents marked on behalf of Prosecution :-
Ex.P1 : First Information,
Ex.P1(a) : Signature,
Ex.P2 : Photographs,
Ex.P3 : Panchanama,
15 C.C.No.15406/2016
Ex.P3(a) : Signatures,
Ex.P4 : Police Report,
Ex.P4(a) & (b) : Signatures,
Ex.P5 : First Information Report,
Ex.P5(a) : Signature,
Ex.P6 & 7 : Notices,
Ex.P6(a) & 7(a) : Signatures,
Ex.P8 : Photographs.
Material objects marked on behalf of Prosecution :-
MO1 & 2 : Elephant Tusks.
Witnesses Examined on behalf of the accused :-
NIL Documents marked on behalf of the accused :-
NIL II ACJM, Bengaluru City.Digitally signed by
SUHEELAHMED SUHEELAHMED S KUNNIBHAVI S KUNNIBHAVI Date: 2025.02.12 17:37:42 +0530