Karnataka High Court
Syed vs State By on 5 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:44461
CRL.RP No. 480 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 480 OF 2017
Between:
1. Syed, S/o Abubakkar
Aged about 34 years,
R/at Kundur, Halasoor Post,
Lallavalli Post, Tarikere Tq.
2. Srinivasa, S/o Kannappa
Aged about 37 years,
R/at Kundur, Lakkavalli Hobli,
Tarikere Taluk.
3. Ravi @ Raviraj,
S/o Nagappa Naika,
Digitally signed
Aged about 32 years,
by VEERENDRA R/at Kadkare, Kesave Post,
KUMAR K M Koppa Taluk.
Location: HIGH
COURT OF
KARNATAKA 4. Umesh, S/o Seshaiah
Aged about 37 years,
R/at Keregadde, Seethur Village,
N.R.Pura Taluk,
Chikkamagaluru District.
...Petitioners
(By Sri Balaraj K.N., Advocate)
And:
State by Koppa Police
Chikkamagaluru,
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NC: 2024:KHC:44461
CRL.RP No. 480 of 2017
Represented by Public Prosecutor
...Respondent
(By Smt. Waheeda M.M., HCGP)
This Crl.RP is filed u/s.397 r/w 401 Cr.P.C praying to set
aside the judgment of conviction and sentence passed by the
learned Hon'ble Civil Judge and J.M.F.C., Koppa in
C.C.No.161/2011 dated 27.03.2014 and the judgment and
conviction and sentence against the accused in confirmed dated
25.02.2017 passed by the learned Principal District and
Sessions Judge, Chikkamagaluru in Crl.A.No.57/2014 and set
the petitioner into liberty by acquitting the accused by allowing
this Crl.RP.
This Crl.RP, coming on for hearing, this day, order was
made therein as under:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard the arguments of both sides.
2. Revision petition is filed by the accused challenging the order of conviction passed in C.C.No.161/2011 confirmed in Crl.A.No.57/2014 for the offences punishable under the provisions of Sections 51 and 39(d) of the Wildlife Protection Act.
3. The facts in a nutshell for disposal of the revision petition are as under:
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NC: 2024:KHC:44461 CRL.RP No. 480 of 2017 A report came to be lodged with the Koppa Police contending that on 5.12.2010 at about 5.00 a.m. in room No.102 at JMJ Lodge at Koppa Town, revision petitioners were in possession of elephant tusk without any licence and the same was kept for the purpose of illegal sale. On enquiry, accused no.2 to 5 revealed that they brought the elephant tusk from the custody of accused no.1 in an auto rickshaw bearing No.KA 18 4914 and forest squad seized the elephant tusk and arrested accused no.2 to 5 in the spot. Based on the same, Koppa Police registered the case and investigated the matter and charge sheet came to be filed for the offences punishable under Sections 9, 39, 40, 44, 49(B)(C), 50, 51 of the Wildlife Protection Act r/w Section 379 IPC.
4. Learned Trial Magistrate took cognizance of the aforesaid offences and secured the presence of the accused persons and framed charge. Accused persons pleaded not guilty and therefore trial was held. -4-
NC: 2024:KHC:44461 CRL.RP No. 480 of 2017
5. In order to substantiate the case of the prosecution, eight witnesses were examined on behalf of the prosecution as PW 1 to 8 and seven documentary evidence were placed on record by the prosecution, marked and exhibited as Ex.P.1 to 7 comprising of the complaint, spot mahazar, phographs, FIR, the report, seized elephant tusk, gunny bag and four mobile telephones were also marked as material objects on behalf of the prosecution as M.Os.1 to 6.
6. Detailed cross examination of prosecution witnesses did not yield any positive material so as to disbelieve the case of the prosecution. Admittedly there was no explanation offered by the accused no. 2 to 5 for possessing the elephant tusk in their custody when the raid took place in Room No.102 at JMJ Lodge at Koppa Town.
7. Thereafter the learned Trial Magistrate recorded the accused statement as is contemplated under section 313 Cr.P.C. Accused persons have denied all the -5- NC: 2024:KHC:44461 CRL.RP No. 480 of 2017 incriminating materials and did not offer any explanation whatsoever with regard to the incident by filing written statement as is contemplated under Section 313 (4) Cr.P.C. nor placed any defence evidence.
8. Thereafter the learned Trial Magistrate heard the parties in detail and convicted the accused for the offences punishable under Section 39(d) and Section 51 of the Wildlife Protection Act and sentenced as under:
"ORDER The accused No.2 to 5 shall undergo S.I. for a period of one year and shall pay a fine of Rs.2,000/- each for the offence punishable under Section 51 of W.L.P.Act. In default of payment of fine, the accused persons shall undergo S.I. for a period of one month.
The accused persons can entitle the benefit of set off sentence if they are in J.C. during the crime stage or trial.
The property seized under the Act is the property of Government as per section 39(D) of the Wild Life Protection Act. Therefore, the -6- NC: 2024:KHC:44461 CRL.RP No. 480 of 2017 property seized in this case is confiscated to the State.
The elephant tusk seized in this case is already handed over to the R.F.O., Koppa.
Auto rickshaw and 4 mobiles seized in this case are not claimed by any persons, therefore, they are confiscated to the State after completion of appeal period.
Gunny bag seized in this case is worthless, hence office is directed to destroy the same after completion of appeal period.
Copy of the judgment furnish to the accused persons by free of cost."
9. Being aggrieved by the same, accused no. 2 to 5 preferred an appeal before the District Court in Crl.A.No.57/2014.
10. Learned Judge in the First Appellate Court after securing the records from the Trial Magistrate heard the parties in detail, re-appreciated the material evidence placed on record in the light of grounds urged on behalf of -7- NC: 2024:KHC:44461 CRL.RP No. 480 of 2017 the appellants/accused and dismissed the appeal filed by the accused and upheld the order of conviction and sentence passed by the Trial Magistrate.
11. Being further aggrieved by the same, the accused persons are before this Court in this revision petition.
12. Sri. Balaraj, learned counsel for the revision petitioners reiterating the grounds that in the revision petition vehemently contended that both the courts have grossly erred in acquitting the accused no.2 to 5 resulting in miscarriage of justice and sought for allowing the revision petition.
13. Alternatively Sri. Balaraj also contended that in the event of this court upholding the conviction, since the accused persons are not possessing any criminal antecedents, the custody period already undergone by them may be treated as period of imprisonment and by enhancing the fine amount reasonably. -8-
NC: 2024:KHC:44461 CRL.RP No. 480 of 2017
14. Per Contra, Smt. Waheeda, learned High Court Government Pleader, supports the impugned orders. She also submits that if the revision petitioners are allowed to go scot-free, then it would encourage the similarly placed miscreants in committing such offence in the fond hope of getting lenient view from this court and sought for dismissal of the revision petition in toto.
15. Having heard the parties in detail this court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that none of the prosecution witnesses nurtured any previous enmity so as to falsely implicate the accused persons in the case on hand.
16. Admittedly no explanation whatsoever is forthcoming for possession of elephant tusk by the accused no.2 to 5 when the raid took place in Room No.102 of JMJ Lodge, Koppa Town. Very possession of the elephant tusk by the accused itself would be sufficient enough to conclude the offence under Section 39(d) of the -9- NC: 2024:KHC:44461 CRL.RP No. 480 of 2017 Wildlife Protection Act which is punishable under Section 51 of the Wildlife Protection Act.
17. Therefore, conviction order recorded by the Trial Magistrate and confirmed by the First Appellate Court needs no interference by this court, that too in the revisional jurisdiction.
18. However taking note of the fact that there are no criminal antecedents as against the revision petitioners and there is no further complaint against the present petitioners after the alleged incident which is the subject matter of the present case, this court is of the considered that exercising the power vested in this court in the revisional jurisdiction, taking note of the fact that under Section 51 of the Wildlife Protection Act, there is a discretion available to the court to impose fine or imprisonment and fine of Rs.25,000/- and three years respectively. This court deems fit that this is a fit case where such discretion can be used in favour of the revision petitioners. Accordingly the following:
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NC: 2024:KHC:44461 CRL.RP No. 480 of 2017 ORDER Criminal revision petition is allowed in part while maintaining the conviction of the accused for the offence punishable under Sections 39(d) and 51 of the Wildlife Protection Act, sentence is modified as under:
Custody period already undergone by accused no.2 to 5 is treated as period of imprisonment by enhancing the fine amount of Rs.20,000/- each to be paid on or before 31.12.2024, failing which the order of the Trial Magistrate, confirmed by the First appellate Court stands restored automatically.
Office is directed to return the Trial Court records with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE SD List No.: 1 Sl No.: 64