Karnataka High Court
Rajesh @ Asarappa vs The State Of Karnataka on 13 September, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARN ATAKA
CIRCUIT BENCH AT DHARWAD
ATED THIS THE 13"! DAY OF SEPTEMBER 2011 a
BEFORE
+e HON'BLE MR. JUSTICE ANAND BYRKARFDDY..
CRIMINAL APPEAB No.436/2006- >
BE LWEEN:
l. Raj yesh @ Asat rappa
Age: 30 years - 3
Oce: b ramaliC oot
R/o. Kamatipur, _
M arnbait Maha Fastlh yo
2. Khadirabasha, . .
S/o. Allabaksh tnameéar; :
Age: 20 years,
. Oce: Agr 'jculture,
"Rye. Furakanagii,
_ Tqus indagi,
'Dist: Bijapur.
Aubd
Krishna @ Chitta
S/o, Shivappa Kadagal,
Age: 20 years,
". Occ: Coolie,
ve. Talikoti,
'q:Muddebihal,
{wt
Dist: Bijapur.
4, Davalsab
S/o. Rasool Sab Inamdar,
Age: 20 years,
Occ: Agriculture,
R/o. Turakanagiri, _
'Vq:sindagi, me
Dist:Bijapur. Ss APPELLANTS™
(By Shri. S.S.Yadrami. Advocates, for Appellants 2 to 4} .
The State of Karnaiaka yk
By flungund Police Station. oo os Respondent
(By Shri. Anand K Naval iniath, H : igh Court Government Pl foade Ky 1 his € Criminal Appeal is file ed under Section 374(2) of the Code of Criminal' Proceduie, by the Advocate for the appellants against the jud Igement dated 03.01.2006 passed by the P.OF TC- 1, Lavalkot, in S¢ No. 1€6/05-convicting the appellants/accused Nos. to3 ane 5 fer the offence punishable under Section 86 Joan 87 of kk. F.Act and sentencing them to undergo ) S.f. for a oS peed of. 3 years and to pay a fine of Rs.5 .000/- each for the Ofte ishable under section 86 of K.F.Act [.D. of payment y shall undergo S.1. for a period of five months and . This appeal coming on for hearing this day, the Court anide the following:
Les IVDGNENT Heard the learned counsel for the appellants anc: the i learned Public Prosecutor.
>. The brief facts of the case are as follows: © pers it was alleged by the prosecution that on, 6.7.2008 % about |.J5a.m, when the complainant who was examined as PW.10, a Police Constable. cade P W.7 1, "anther P olice C constable, were on night Pavel, they ved the cries ot sf f PW.3 - one Mehaboob. oP Ws : cand 10 shad 4 sed their motor cycle tow ards 1 htt mand 4 they. foun d that. thei | "e were five persons, of whom. one was holding a saw anid another was holding an iron rod. wvo others were holding sickles in their hands and one of them was Carrying a-vag, which contained pieces of sandal "wood: According to the said witnesses, on seeing them, the five, persons; who had gathered, started to flee. They were "chased by the said witnesses and they could catch hold of two foftiem, while the other three ran away from there. Of the two s4 ~ was-lo that-e caught by the witnesses, one is said to have again escaped while snatching a wrist watch of PW.10 as also his name tag and a whistle, while the other was taken into custody. who was) te arraigned as Accused no.}. On information given by. the said witnesses, the Police Sub-Inspector had visited the scene "ef crime and had formally taken Accused no. into "custody, PW.10, who was assaulted by oné of the fleeing aecused, had been given medical tree atment by the Medical Practitioner, who was examined as PW.8 and on the basis of a complaint lodged as per Exhibit P. 10 au 7 on, eSinpleton of the investigation, the Circle pct oe Police. PWR, had filed a charge-sheet. It was on the # hasis of the é all leuwed Statemen it of Accused no.! that the other accused | rad been apprehended and the charge-sheet
3. Ths 'matter having been committed by the Magistrate "to the -Se essions Court, the trial was conducted against the 1 appellants for offences punishable under Sections 332, 307, "398, 395 of the Indian Penal Code and Sections &6 and &7 of 2 RODD 'epE gSE the Karnataka Forest Act, 1963 (Hereinafter re! ferred to as the
-\er' for brevity). The trial court acquitted Accused no. tof the offences punishable under the aforesaid Sections. "While:
acquitting the appellants of the offences punishable 'under Sections 332, 307, 398, 395 of the Indian 'penal Code, hed however, held that the off ences punishable under Seetions 86 and 8&7 of the Act were. proved and therefore, they were semienced to undergo simple imprisonment for a period of three years with.a fine of R as x, 0G0/= ach Re It is that which is in 40, The lea sned © : ou ns el for the appellants would submit that the present appellants are accused nos.2,3 and 5 whereas ~ accused No.4 has-been acquitted and the learned counsel does AL aceused No.1, who is not known to have filed any appeal against the order of conviction. Insofar as the present appellants. are concerned, he would point out that from the
- Feasoning of the trial court, as is found at Paragraph-18 of the easOTune Fay judgment, the learned Trial Judge has found that there are Ss 6 material contradictions insofar as the evidence of PWs.7 and 10, with regard to the assault on PW.10 and also re egarding> ihe accused who had snatched a wrist watch, a torch anda whistle © apart from his name plate. The Doctor, who had examined the complainant, had indicated that there: was an abrasion | measuring 0.2 em x O.lcm on the reht upper eve-lid of the & _ T&D ao eS complainant and multiple Hinear abrasions on both the upper and lower limbd. It was evident from the cros s-examination of the said Medical rgatitione wai husy AB could not be caused by human assatli and hence, the court has formed an opinion vith at the ec om plainan | nt had not sustained any injury due to the alleged assault caus by t he accused and the court has : also fund.that the evidence of PWs.7 and 10 would show that 4
- ee were patrol! ing the area on a motor cycle at the alleged scene of ¢ crime 'and though it is stated that they rushed towards the person, who had raised an alarm at the Inspection Bungalow and itis also admitted that the motor cy cle had skidded and thes. fell to the ground and therefore had suffered injuries, wo CA Rae which would explain the abrasions on the upper and lower limbs of the complainant. -- Further, the allegation as to ihe @ attempt to commit murder as alleged against the sot ig az peinted out by the Trial Court that neither PW. 10 nor PW. 7 have made a categorical statement of any aileged assanlt wicthe® accused with a saw, which one of the accused was said to 'be carrying and therefore, has: concluded that. there was. Ho clear and cogent evidence by the "osbeltion We>pibye beyond all reasonable doubt that the accused had assaulted the complainant while he was, dischari ing ~ "his: public' duty and_ therefore, avempted to commit murder, nor was there any material -- to demonstrate. that the -ac -Gaseit had committed dacoity by . snatching a wrist watch, a whistle a torch and the name plate . _ fee rom ul he complait ainant. In v iew of the contradictory statements of made by the- sa sd witnesses, the court has disbelieved their evidence "and has held that the offences punishable under the | Sections of the Indian Penal Code were not established.
-- Itwas however, observed by the trial court that the evidence of & 8 the witnesses, PW.7 and PW.10, would indicate that the accused were present at the spot where the incident is'said Lo have taken place and on seeing the said witnesses the eeened: had dumped the sandal wood pieces; which one ef them: was, carrying and tried to flee. ence; the Possession of Sandal, wood by one of the accused at 'the time of the e iinei cident was | established. It is also held by 'the. tri iad court 'th at PW 3, the Circle Inspector of Police. wha had snveuigated the case, has further stated: that, he hed visited: the-seene olf crime and in the presence of PWa.t and 3 oe 'he panch witnesses, he had seized the heme plate.the garagasa pattis, the sandal wood pieces and the iron rod lying at the scene. However, even inspite of the conrad Hictions: S, na already pointed out in the evidence of PWs.7 "Trial Court has held that their entire evidence Yee 5 cannot be-discarded notwithstanding any discrepancies and "since the witnesses are police witnesses, the testimony ol such witnesses did not require independent corroboration, if otherwise, their evidence was found to be truthful and reliable 9 It is in that vein that the Trial Court has concluded that the evidence of those witnesses could be accepted in establishi ing the offences punishable under Sections 86 and 87 oft the Act The jearned Counsel would, therefore" eniphesize the circumstance that when the Trial Court was of the firna opi nion that the evidence of PW.7 and PW.10 was totally contradictory and could not be accepte ed as being el ible in hoiding that the offences punishable under t the several: provisions of the Indian Penal Code, were not established: It is indeed amazing that the 'Trial Court hay otherwise chosen to f hold that the offences under aw the Ast stood proved on rh > very sai otherwise, found: 10 obe | unreii iiable. This, the learned counsel we otc id submit: wot uld 'an counter to the settled principles of Criminal "nto in holding that the offences have been :
bye 'yond all reasonable doubt. The learned counsel also point out the glaring discrepancies insofar as the noon a same having been proved as against the accused --appellants is not the case of the prosecution that accused nos.2, 3 and $5 & [0 were apprehended at the scene of crime. They were arrested and taken into custody only on the basis of an alleged staternent made by Accused no.l. The learned Counsel would point out that there is no seizure panchanama-ner any spot panchnansa | drawn up in the presence of the accused-nor at their instance, of having revealed their participation in the said incident. The learned counsel would submit that it would be dangerous to proceed only on the basis of the -statement of the Circle Inspector of Police, who has-stated that the wrist watch, which Was snatched from PW.10,, the complainant was recovered from Accused 0.2 and.the whistle, which was snatched trom the said witness" was recovered from Accused no.3, whereas ihe Statement of PW-7, whose consistent stand was that it was | Accused: no. who had snatched the wrist watch, the torch, the mame plate-and the whistle from PW.10 and hence the attempt on lhe part of the Circle Inspector of Police to attribute the ree y of the said items from accused nos.2 and 3, was only with an intention to implant them in the case as accused, in 4 view of the allegations which were made by the complainant. The fact that Accused no.4, who was similarly named by accused no.t, has been held not to have been ivivolved in ibe - incident, would have to be applied to~Accuseéd nos.2;3 and S as well. [f it was on the very basis of the slatement of Accused, ne.! that they were also implicated, 'in the absence of their actual involvement and eny wittiéss.to the incidern wo name the said accused, there was no basis to proceed that they were indeed participants in the incident. 'This would not also bring home the charge against' Accuised no.5. against whom there 1s wt absolutely no évidence to Rold that he was involved.
5... Fhe learned 'eounsel would further contend that insclaras the etfences punishable under the Act are concerned, there was a duty cast on the police, who has seized any such "a possible forest offence, to inform the Authorised cer,, which is a mandatory requirement under Section 62 of the-Act and that not having been complied with, would also vithile the entire proceedings. He would also point out that it would be wholly unjust and would set a dangerous precedent to rely on the alleged statement of one accused against the. other accused and to hold that they were indeed participants in ihe.
incident and therefore, guilty of the offences alle sed 'vhe SO- called confessional statement attributed : '0 othe 'appellants Goutd not be relied upon. In the absence of the said. | state tel meni hav ing beer recorded in the manner known io fay / vand in the presence of panch witnesses, i . cant 'de-.characterised asa contessional statement and would Joose all credence capable of being relied upon, to hold thai the serious charges against the | proved ithe several witnesses, namely, the staff members 6! ot "the. Inspection Bungalow, who are also Goyeriiment servants and who are named as witnesses in the | cas se. have « all'b een turned hostile, as none of them corroborated allegations made by PWs 7 and 10 and they had never identifie d the accused nor had named the actual witnesses. The. had also not spoken about the alleged cutting of the trees within the campus of the Inspection Bungalow or that the 5a Lu accused were seen trying to carry away the same. In the absence of which, the evidence, which at best, cout be a shoddy effort to implicate the accused by any meidns, Caninot be suig to be tenable, in order thatthe _appellaits. could be semicneed to imprisonment for a period of three years, which would seriously impair their freedom and would be wholly ubjust and without any basis.
6. The learned Public Pr | Gse reuters on the other hand, would point cut thal it is cos dete i to. Accused no.| having been taken into custo Ty "and that | ul th ie 'sandal wood in question WES recov ered ; fron + the » seid accused, which have been marked as wns Objects in the' case. It is on the basis of the information provided by Accu sed no.|, that the other accused | hes been apprehended and recovery of a wrist watch and a avhistle from "Accused nos.2 and 3 belonging to PW.10 - the CO nip F ainant, was made, nnot be said to have been created forshe sake of the case by the Circle Inspector of Police. Such an allegation Is unfair against a responsible g 14 Police Department. Tle has nothing against the accused except 'ishing the true facts and circurnstances, on the basis.o/ the nuderial evidence that is availaole. It is ibis cunehine » clevmstance which has warranted the. punishmett.- insofar "as the Giences punishable under Sections 86 and. 87. of the Act thouan the Trial Court has chosen to acquit the-accused in- ~ provisions of the Indian Penal Code.
7. The-Stéte nas not chosén to.ive any appeal avainst the sare as the charges "unsolar asthe, provisions cf the Act are conloemned, there is aburdant evidence on record and the exercise of the Trial © Ourtin having sifted that part of the evicencte of PWs.7 and 10, to hold that those offences stuod cannot be discarded. He would point out that the ished, coovery-of sandal wood from the spet and the panchanama ~ P.2, would clearly disclose that PW.13, the ver, had inspected the scene of crime and had se.vcd these articles from the spot and the same has been i & Lat recorded in the presence of panch witnesses, who had also been examined as PWs.1 and 2. Therefore, it cannot be said 'that, in the absence of a spot mahavar or a seizure mahazar. there isno cose made out. On the other hand,.these documents which ave marked as exhibits have been suppored by the evidenee of PWoi3 and PWs.1 and 2. "The recovery of articles from"
accused nos.2 and 3, has-therefore, clinched the isstie in holding that they were acting together and 1h. conspiracy, in committing dacotty' and the theft of forest produce. Though the charge of dacotiy has noi-been established, the accused wich cannot be-diseardéd as being untenable. Insofar as the 'omention thai.the preceedings are vitiated for want of the mancatory.reauirement of the police in not having informed the. lorést-officer of the seizure of the forest produce is concerned, the same would not vitiate the proceedings. The learned counsel would draw attention to a judgment reported in "rl) 7158 in this regard. Further, as rightly Ze Low?
4a.
pointed out by the trial court, though the several witnesses had turned hostile, the evidence of the investigating officer "not having been shaken in cross-cxamination, has beer. relred * upon by the trial court in holding that-the offences under the lorest Act, have been established. Fence, there is no invirmity, in the order which is just and-reasonable. as. the punishment imposed is only imprisonment for tires years. oS
8. In the light of the above' facts and circumstances, as Bo mehtly pointed out by the iearned counsel for the appellants, wacn the trial Court was oftne firm opinion that the evidence of PVs J and 16, svho-were the prime witnesses in the case, was inconsistent and could not, be relied upon and that the other withiess for the prosecution had turned hostile and it was only _ lial eviderrce™ which could have been relied upon by the trial When the trial court has discarded the said evidence for the purpose of finding a case under the provisions of the Indian enal Code, it is indeed surprising that the court has been able to hold that the offences punishable under the provisions of the & Act have been proved beyond all reasonable doubt, The presence of the accused at the spot of the incident Cannot be saig to have been established beyond all reasonable doubt. Though Accused no.!} has been -appre she rded. "ihe further proceedings -- would indicate that it is on the basis of the stitement made by accused no, the- othe r aceused were | implicated in the case, 'The other evidence which provides a Hpk. ora possible link, of ul ne pr present appe eliat | nts being involved in the incident is" the statement ort the Circle Inspector of Police to the effeet that he had seized "a wrist watch of PW.10-- from Accused no.toand'.a -whistie "from Accused no.3. These statements, by itself) woutd not be sufficient to hold that they indeed participants in the incident and were > guilty of the offences that=were committed. If this could be sufficient evidence to-held that the offences under the Act would stand establis shed, it would also necessary then to have held that the _ offences alleged against the accused were also proved. cae ca Fhis is the incongruity which is sought to be pointed out by the & learned counsel for the accused, in the trial court concluding that for purposes of certain offences, the me : not sufficient and for purposes of other offences, the evidence boing sufficient. This is not permissible aid v. 'Qui d be Sead to all established tenets of law. Hence, the contention of the lame counsel for the accused ~ appeé cllan ts here: n Ww ould: han rave to be accepted. And as lurther pointed out by the learned counsel, the manner in whi ch the ti al court he 's sought to reconcile the ue ntradictory ; 'evrleace Ce sof P Ws. 7 and ye 0, also does not evoke confidence in hotding that the « rience es have been established boy ond all reasonable doitbt as against the present appellants. Therefore, as poinied out by the learned counsel for the a ppsilants, that wo of the accused are young men, who are hacmiers and. ar e from a village in Sindgi Taluk and they have no Ce owous antecedents of being involved in any such crimes and therefore, the very involvement of the said accused is indeed "without any basis. Therefore, it cannot be said that the is prosecution had established its case insofar as the offences pontshable under Sections 86 and 87 of the Act. In that view of the matter, the appeal is allowed». ~The' the tral court is set aside. The appellants are acquitted. "The. fine amount deposited by the appellants by the accused - appellants herein shall be-refunded to the appellants.