Karnataka High Court
State Of Karnataka vs Dondu Bagu Patagare on 28 February, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28th DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION No.101548/2018
Between
STATE OF KARNATAKA
BY THE RANGE FOREST OFFICER,
KIRAVATTI RANGE FOREST,
UTTARA KANNADA DISTRICT,
REPRESENTED BY
ADDITIONAL STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...PETITIONER
(BY SRI. RAMESH CHIGARI, HCGP)
AND
1. DONDU BAGU PATAGARE
AGE 57 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
2. MAMBU GANDU @ DONDU SHINDHE
AGE 35 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
2
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
3. RAMU BAIRU KALE
AGE: 30 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
4. MAMBU BAGU SHINDHE
AGE: 33 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
5. RONGU SAVU PATAGARE
AGE: 52 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
6. BHAGU KOYA SHINDHE
AGE: 57 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
7. LAKKU GOYA KOKARE
AGE: 22 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR,DIST: KARWAR.
3
8. SHAMU BABU PATAGARE
AGE: 60 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR, DIST: KARWAR.
9. INJU SHAMU SHINDHE
AGE: 50 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR, DIST: KARWAR.
10. INJU VITTU SHINDHE
AGE: 55 YEARS,
OCC: AGRICLTURE,
R/AT: KARADOLLI,
POST: HUNASHETTIKOPPA,
TQ: YALLAPUR, DIST: KARWAR.
...RESPONDENTS
(BY SRI. K.S. KORISHETTAR, ADVOCATE FOR R1-R8 )
(PETITION AGAINST R9 STANDS ABATED)
THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS AND TO SET ASIDE THE
JUDGMENT AND ORDERS PASSED BY BOTH THE COURTS BELOW
IN CRL.RP.NO.5005/2017 DATED 05.05.2017 ON THE FILE OF I-
ADDL. DIST. & SESSIONS JUDGE, U.K., KARWAR, SITTING AT
SIRSI, (SITTING AT YALLAPUR) AND ALSO IN C.C.NO.280/2014
DATED 16.08.2016 ON THE FILE OF JMFC COURT, YALLAPUR;
AND TO DIRECT THE TRIAL COURT TO FRAME CHARGE AGAINST
THE RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/S 51 OF
WILD LIFE PROTECTION ACT, 1972, SEC. 24, 104 OF FOREST ACT
AND U/S 429, 201, 109 R/W SEC. 149 OAF IPC AND TO PROCEED
WITH THE MATTER.
4
THIS PETITION COMING ON FOR ADMISION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
First information was lodged against the accused persons alleging that they had illegally erected an electric fence to the land of the accused No.1 due to which an elephant died of electrocution, and with an intent to destroy the evidence buried the carcass of the elephant in the land of accused No.1. Thereafter, the police recovered the carcass of the elephant in the presence of panchas and a case was registered in C.C. No.280/2014 with the Civil Judge & JMFC, Yellapur, (for short, 'the Trial Court') against the accused for the offences punishable under Section 51 of the Wild Life Protection Act, 1972, Sections 24 and 104 of the Karnataka Forest Act, 1976, and Sections 429 and 109 of the Indian Penal Code, 1860.
2. The prosecution to establish the charges leveled against the accused-petitions examined P.Ws.1 to 16 and marked the documents as Ex.P.1 to P.37 & 37(a). When the case was set out for framing of charges, the learned Magistrate under Section 5 245 of the Code of Criminal Procedure, 1973, discharged accused Nos.2 to 11 of the offences alleged against them stating that the prosecution has not produced any document to show encroachment of the forest land by accused No.1 and also illegal electrical connection taken by accused No.1. It was further stated that the prosecution had not proved the recovery of the elephant carcass and also not proved that the elephant died due to electrocution. Being aggrieved, the petitioner filed a revision petition in C.R.P. NO.5005/2017 before the I Additional District & Sessions Judge, U.K., Karwar (for short, 'the Revisional Court'). The Revisional Court, by its order dated 05.05.2018, confirmed the order passed by the Trial Court discharging the accused Nos.2 to 11 for the offences alleged against them. Taking exception to the same, the State is before this Court.
3. The learned High Court Government Pleader for the petitioner-State submits that there is a prima facie case against the accused for having committed the offences alleged against them and whether the prosecution has proved the charges leveled against the petitioner or not has to be considered only after 6 concluding the trial. He submits that both the Trial Court and the Revisional Court have committed an error in discharging the accused Nos.2 to 11 for the offences alleged against them by conducting a mini trial at the time of framing of charge.
4. On the other hand, the learned counsel for the respondents would justify the order passed by the Trial Court and the Revisional Court discharging accused Nos.2 to 11 for the offences alleged against them, and prayed for dismissal of the petition.
5. I have heard the learned counsel for the parties and perused the records.
6. Respondent No.9-accused is stated to have died during the pendency of this petition. Hence, the petition as against respondent No.9 stands abated.
7. It is undisputed that P.W.1 and P.W.2 are drivers, P.Ws.5, 6 & 8 are the Deputy Range Forest Officers of the different forest range; P.W.3 is the Deputy Range Forest Officer, P.Ws.10 & 11 are Forest Watchers, P.W.13 is the Assistant 7 Conservator of Forest, P.W.15 is the Conservator of Forest and P.W.16 is also Assistant Conservator of Forest, and these official witnesses, in their evidence, have deposed corroborating the case of he prosecution that, on receipt of credible information they went to Karadolli Village and found buried carcass of the Elephant with ivory tusk missing. But, P.Ws.3 and 4, who are alleged to be panch witnesses to the recovery of Elephant carcasses, have turned hostile and have not supported the case of the prosecution by denying that in their presence the forest officials dug up or exhumed the grave and found the carcass of Elephant. Hence, the prosecution failed to prove recovery of elephant carcass by examining the independent witnesses to the panchanama.
8. P.W.13 is the Assistant Conservator of Forests. P.W.14 is the Veterinary Surgeon, who conducted a post-mortem over the carcass of the elephant. P.W.14, in his examination-in-chief, has deposed that the elephant died of electrocution. However, P.W.14, in his cross-examination has admitted that the he did not find burn of skin and muscles of the elephant; and has also stated that 8 there is a possibility of death of elephant due to ill-health and he is unable to state the exact cause of the death of the elephant.
9. The Trial Court taking into account the evidence of P.W.3 and P.W.4, who are the alleged witnesses to the panchanama and evidence of P.W.14, the Veterinary Surgeon who conducted post-mortem over the carcass of the elephant, has held that the prosecution has failed to prove the charges leveled against the accused. The learned Magistrate acting under Section 245 of Cr.P.C. has discharged accused Nos.2 to 11 for the offences alleged against them. The reasons assigned by the Trial Court in discharging accused Nos.2 to 11 based on the evidence of P.Ws.3, 4 and 14 and order of the Revisional Court confirming the order of the Trial Court cannot be said perverse or suffers from any illegality.
Accordingly, the petition stands dismissed.
Sd/-
JUDGE Kms