Bangalore District Court
State By Kamakashipalya vs K.B.Murthy on 11 March, 2020
IN THE COURT OF V ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE AT: BANGALORE
Dated this the 11th day of March, 2020
:PRESENT:
Smt. Shirin J Ansari, B.A.LLB(Hons)., LL.M.
V ACMM Bangalore .
CRIMINAL CASE No.4365 /2014
Complainant : State by Kamakashipalya
Police station
Bangalore
(Rep by Sr.A.P.P)
-VS-
Accused : K.B.Murthy
S/of. Basavaiah,
aged 53 years,
R/of No.107, 1st cross, 1st main road
Vinayaka nagar, Wilson Garden,
Bangalore. By Sri KJS Advocate )
1. Date of commencement of 20.12.2013
offence
2. Date of report of offence 20.12.2013
3 Arrest of the accused Accused is on bail.
4. Name of the complainant Lakshminarasimhaiah
5. Date of recording of 11.02.2016
evidence
6. Date of closing of evidence 19.06.2019
7. Offences complained of Secs. 9, 11, 39, 40 & 51 of Wild Life
Protection Act and Sec.429 of IPC.
8. Opinion of the Judge The accused is found not guilty
9. Complainant by The Learned Sr.APP
10. Accused defence by Sri KJS - Advocate,
2 C.C.No.4365/2014
JUDGMENT
The IO Kamakshipalya Police Station, Bangalore has charge sheeted the accused for the offences punishable Under Section
2.The gist of the prosecution case is as under:-
That on 20.12.2013 at about 3.30p.m., at the bus stand in front of Unani College, Kottigepalya, Magadi main road, within in the jurisdiction of Kamakshipalya PS , the accused was in possession of Monitor lizard and was found attempting to sell the same which is a wild animal and thereby committed the offence punishable under Sec.9, 11, 39, 40 & 51 of Wild Life Protection Act and Sec.429 of IPC.
Criminal law was set in motion by complainant as per Ex.P-2 and on the basis of the same, criminal case was registered against the accused in Cr.No-859/2013 and FIR was registered for the above said offences. Further , the IO visited the spot and conducted the mahazar . The accused was produced before the court and after completion of investigation laid charge sheet against the accused for the above said offences.
3. Accused is on bail. Pursuant to summons, the accused appeared before the court through his counsel and the prosecution papers were supplied to the accused as contemplated 3 C.C.No.4365/2014 U/s 207 of Cr.P.C. Charge were framed, read over and explained to the accused in the language known to him . The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined the witnesses PWs 1 to 4 and got marked the documents at ExP.1 to P3. The incriminating evidence available against the accused is brought to the notice of the accused by recording the 313 Cr.p.c statement . The accused denied the same but did not choose to lead defence evidence.
Heard Sr. APP and the counsel for accused, perused the evidence and documents on record.
5. Now, the points that would arise for the consideration of this court are as follows:-
1. Whether the prosecution proves beyond all reasonable doubt that That on 20.12.2013 at about 3.30p.m., at the bus stand in front of Unani College, Kottigepalya, Magadi main road, within in the jurisdiction of Kamakshipalya PS , the accused was in possession of Monitor lizard and was found attempting to sell the same which is a wild animal and thereby committed the offence punishable under Sec.9, 11, 39, 40 & 51 of Wild Life Protection Act and Sec.429 of IPC?
2. What order ?
6. My findings to the above points are as under:
Point No-1 : In the "Negative"
4 C.C.No.4365/2014
Point No-2 : As per final order
for the following:
REASONS
7. Points No-1 : According to the allegation of the
prosecution that on 20.12.2003 at about 3.30p.m. on Magadi main road, in front of Unani College bus stop situated within the limits of Kamakshipalya police station, the accused person was possessing Monitor lizard and on enquiry it was found that he was possessing the same for the purpose of sale and CW1 and his team conducted raid and seized the Monitor lizard from the possession of the accused. Subject to the seizure the said animal was handed to the concerned department and Cw 1 and obtained the acknowledgement to that effect.
8. In order to prove the case, the prosecution cited 9 witnesses , but examined only 4 witnesses before the court.
9. Cw 1 complainant. PI, CID, Forest Department is examined as PW 2. CW 2 Sri M.K Murthy is examined as PW 1 . CW 5 Ramamurthy is examined as PW3 & CW 9 Shivanand Bevoor is examined as PW 4. Despite of issuance of proclamation against Cw 3, 4 , 6 to 9 the same is not published. 5 C.C.No.4365/2014 Hence, CW 3, 4, 6 to 9 are dropped. The prosecution got marked Ex.P.1 to 4.
10. PW 1 who is the none other than the mahazar witness has not turned up before the court for the purpose of cross- examination. Though warrant is issued against PW 1 he has not turned up to the court and subjected himself for cross- examination .
11. The prosecution has further examined Cw1 the ASI as PW2 and CW 5 PSI as PW 3. These witness have been subjected to cross-examination by the defense counsel. During the course of cross-examination these witnesses have clearly admitted that they have not examined any independent witness at the spot as pancha witnesses. Though these witnesses have admitted that the alleged place of incident is a place where many people visit but no independent persons have been cited as pancha witnesses.
12. Further though the prosecution marked MOs 1 and 2 ,but the same has not been seized and sealed in accordance with law. Pw 2 has clearly admitted that MOs 1 and 2 does not bear the signature of the pancha witnesses. More importantly Pw 2 has also not maintained or produced any photographs of the 6 C.C.No.4365/2014 Monitor lizard before this court. On perusal of the panchanama it is found that they have not mentioned the weight and the length of the said Monitor Lizard in the panchanama . If at all PW2 and his team had seized any such Monitor Lizard what was the impediment to maintain photographs of the same and to mention the weight and length and colour of the same. Non mentioning of all these aspects in the panchanama has created absolute doubt of the very case of the prosecution . Therefore the prosecution has failed to prove the seizure panchanama in this case.
13. Further, CW9 is examined as PW 4. During the course of cross-examination this witness has admitted that he has never visited the place of alleged incident and enquired. Absolutely , no details have been mentioned either in the panchanama or in the complaint as to how the Monitor lizard was carried to the police station because as per the allegations made by he prosecution, the said Monitor lizard was alive when they seized the same from possession of the accused . If at all it was alive an expert is required to handle and maintain the said Monitor lizard. But absolutely no such explanation is forthcoming from the mouth of the prosecution official witnesses in this regard.
7 C.C.No.4365/2014
14. The IO CW9/PW4 has also not obtained any certificate from the concerned department to show that the said animal was Monitor Lizard. He has also not bothered to obtain the certificate with regard to the weight , length and colour of the animal. He has also not obtained the photographs of the Monitor lizard to file it along with the charge sheet. Absolutely, no documents are furnished by the prosecution to show that the said animal I.e Monitor lizard was handed over to the concerned department. This aspect of the matter , creates doubt with regard to the case of the prosecution . Hence the court is of the opinion that the prosecution has utterly failed to prove the allegations made against the accused. Especially ,the prosecution has failed to prove the possession of the said animal ie Monitor lizard with the accused. No documents or details have been produced by the prosecution to prove that the animal which was alleged to have been seized in the possession of the accused was a Monitor lizard and the same was subsequently handed over the concerned department. Therefore this aspect of the matter weakens the case of the prosecution. Under these circumstances, the court is of the opinion that mere examination of the official witnesses is not sufficient. It is the burden of the prosecution to 8 C.C.No.4365/2014 prove the guilt of the accused beyond reasonable doubt , in which the prosecution has utterly failed. Hence, in view of this the court is of the opinion that the testimony of the prosecution witnesses creates fatal doubt in the mind of the court, the benefit of which, should be made entitled to the accused. Therefore, by extending the benefit of doubt to the accused, I answer point No.1 in the "Negative".
15. Point No-2: In view of the findings on above points, the accused is liable to be acquitted from the charges leveled against him . Hence I proceed to pass the following:
ORDER Acting under section 248(1) of Cr.P.C. the Accused is hereby acquitted for the offences punishable under Sections 9, 11, 39, 40 & 51 of Wild Life Protection Act and Sec.429 of IPC. The bail bond and surety bond shall stand cancelled.
Accused shall execute personal bond of Rs.10,000/- towards compliance of section 437(A) of Cr.P.C.
(Dictated to the stenographer directly on the computer ,typed by her and corrected by me, then pronounced in the open court, on this the 11 th day of March 2020).
(SHIRIN J ANSARI ) V ACMM, Bangalore 9 C.C.No.4365/2014 ANNEXURE
1. Witnesses examined by the prosecution.
P.W.1 Murthy P.W.2 Lakshminarasimhaiah P.W.3 Ramamurthy P.W.4 Shivananda Kallappa Bevoor
2. List of the documents exhibited for the prosecution.
Ex.P.1 Mahazar Ex.P.2 Complaint Ex.P.3 FIR Ex.P.4 Acknowledgement
3. List of the witnesses examined for defence:
-Nil-
4. List of the Documents exhibited for defence:
-Nil-
5. List of the MOs marked in the evidence:
M.O.1 White plastic bag
M.O.2 Box
M.O.3 Nokia Mobile phone
(SHIRIN J ANSARI )
V ACMM, Bangalore.
10 C.C.No.4365/2014
12 C.C.No.6052/2013 12
13 C.C.No.6052/2013 13