Karnataka High Court
Sri M J Sundar S/Olate Javaranaika vs The State Of Karnataka By Public ... on 19 June, 2014
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Crl.A.309/2009 C/w. Crl.A.375/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19th DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.309 OF 2009
C/W.
CRIMINAL APPEAL No.375 OF 2009
In Crl.A.No.309/2009
BETWEEN:
Sri. M.J.Sundar
Aged about 41 years
Son of late Javaranaika
Residing at Manchadevanahalli Village
Periyapatna Taluk
Mysore District.
... Appellant
(BY Sri.Giridhar H, Adv.,)
AND:
The State of Karnataka,
By Public Prosecutor
... Respondent
(BY Sri.K.Nageshwarappa, HCGP)
This Criminal Appeal is filed under Section
374(2) of Cr.P.C. praying that this Hon'ble Court
may be pleased to set aside the judgment and order
dated 28.02.2009 passed by the III Addl. District
and Sessions Judge, Mysore in S.C.No.187/2006
convicting the appellant/accused for the offence
P/U/S 87 of Karnataka Forest Act r/w Rule 71-A of
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Crl.A.309/2009 C/w. Crl.A.375/2009
Karnataka Forest Rules and the appellant/accused
sentenced to undergo simple imprisonment for three
years and shall also pay fine of Rs.5000/-, in
default to pay fine amount, to undergo S.I. for a
period of six months for the offence P/U/S 87 of
Karnataka Forest Act r/w Rule 71-A of Karnataka
Forest Rules.
In Crl.A.No.375/2009
BETWEEN:
State by Periyapatna Police.
... Appellant
(BY Sri.K.Nageshwarappa, HCGP)
AND:
Sri. M.J.Sundar
Son of late Javaranaika
Aged about 42years
Agriculturist
R/at Manchadevanahalli Village
Periyapatna Taluk
Mysore District.
... Respondent
(BY Sri.Giridhar H, Adv.,)
This Criminal Appeal is filed under Section
377 of Cr.P.C. praying that this Hon'ble Court may
be pleased to modify order dated 28-02-2009 passed
by the III Addl. District and Sessions Judge,
Mysore in S.C.No.187 of 2006 convicting the
respondent / accused for the offence P/U/S 87 of
the Karnataka Forest Act R/w. Rule 71(A) of the
Karnataka Forest Rules and sentence him to undergo
simple imprisonment for 3 years and also to pay
fine of Rs.5,000/- in default to pay fine amount to
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Crl.A.309/2009 C/w. Crl.A.375/2009
undergo simple imprisonment for a period of six
months.
These appeals are coming on for final hearing
this day, the Court delivered the following:
JUDGMENT
The appellant has challenged his conviction and sentence for the offence punishable under Section 87 of the Karnataka Forest Act (hereinafter referred to as 'the Act' for short), whereas in other appeal the State has sought for enhancement of the sentence for the said offence.
2. The facts reveal that on 09-03-2006 at 4.00 a.m. PWs-2 to 4 were waiting in front of the Mangala Agro Centre in Periyapatna Town and at that time appellant - M.J.Sundar was found proceeding on the motor cycle bearing Reg.No.KA-09 U 8316 with a plastic bag and they stopped him and on checking the plastic bag, they found six sandal wood billets worth Rs.6,325/-. He had no satisfactory explanation for the possession of the sandal wood billets. He had no licence or permit. Therefore, -4- Crl.A.309/2009 C/w. Crl.A.375/2009 the said billets were seized under the mahazar Ex.P2 and the complaint of this incident as per Ex.P1 was registered. During the investigation, the seized sandal wood billets were sent for opinion and the certificate Ex.P8 was secured, photographs were taken and the statement of the witnesses were recorded and on completion of the investigation, charge sheet came to be filed against the accused for the offences under Sections 86 and 87 of the Act r/w. rule 71(A) of the Karnataka Forest Rules.
3. During the trial, the prosecution examined PWs.1 to 9 and in their evidence Exs.P1 to P16 and MOs.1 to 7 were marked. The statement of witnesses were recorded under Section 313 Cr.P.C. No defence evidence was led. The trial Court after hearing the counsel and on appreciation of the evidence on record, convicted the appellant for the offences under Sections 86 and 87 of the Act and ordered him to undergo simple imprisonment for three years and to pay fine of Rs.5,000/- and to undergo simple -5- Crl.A.309/2009 C/w. Crl.A.375/2009 imprisonment for a period of six months. Aggrieved by the conviction and sentence, the appellant has preferred Crl.A.No.309/2009, whereas, the State has filed the appeal in Crl.A.No.375/2009 seeking enhancement of sentence.
4. Heard the learned counsel for the appellant and also learned High Court Government Pleader.
5. The point that arises for my consideration is;
"Whether the conviction and sentence ordered by the learned Sessions Judge for the offence under Section 87 of the Act warrants any interference?"
6. Learned counsel for the appellant submits that the seizure is not proved and prosecution has failed to establish that they have seized the sandal wood billets. He submits that except the evidence of the interested witnesses, no material -6- Crl.A.309/2009 C/w. Crl.A.375/2009 is placed on record to sustain conviction. On the other hand, learned Government Pleader supporting the judgment and order of conviction submits that the minimum sentence has to be five years and the sentence requires modification.
7. As seen from the materials placed on record PWs-3 and 4 are the attesting witnesses to the mahazar - Ex.P2 and they have not supported the case of the prosecution. PW-1 is the Head constable incharge of the Periyapatanna Police Station and said to have registered the case in Crime No.31/2006. On the basis of the said complaint - Ex.P1, he produced the seized six sandal wood billets alongwith Hero Honda splendor bearing registration No.KA-09 U 8316. PW-2 is the head constable who was on duty, so also, PW-7, is another official of the Forest Department who was with PW-2 at the time of the alleged incident. Sofar as the proof of seizure of the billets is concerned, MOs-1 to 6 are available on record. -7-
Crl.A.309/2009 C/w. Crl.A.375/2009 PW-6 is the attesting witness for the mahazar. PW-3 has not supported the case of the prosecution. PW-5 is the Sub Inspector of Police, who has held part of the investigation.
8. It is relevant to mention here that the seized of the billets were sent for the opinion of PW-8, who is the Range Forest Officer and on 17-03-2006, he has examined the said billets which were weighing 11 kgs worth Rs.6,325/-. He has issued a certificate Ex.P8. Under the provisions of Section 62-C of the Act any Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce, has to issue a certificate. It is not in dispute that the State Government had not issued any such notification authorizing PW-8 to issue the certificate Ex.P8. In the absence of such notification, he is not a competent witness to certify that the seized billets were of the sandal wood billets. Though, he states that he had the -8- Crl.A.309/2009 C/w. Crl.A.375/2009 training in the examination of forest produce, that itself is not sufficient to fulfill the requirement of Section 62-C of the Act. Learned counsel for the appellant - accused has placed reliance on the decision of this Court reported in 2010(6) Kar.L.J.676(B), wherein it is held that in the absence of any Authority by the State, the certificate issued by the forest official cannot be accepted as proof of its contents. Therefore, certificate - Ex.P8 itself is insufficient to consider it as evidence of the facts stated in the certificate.
9. That apart, except the interested evidence of PWs-2 and 7, there are no other materials placed on record relating to the seizure and also facts relating to the seizure on the date of the incident. It is not proper to exclusively rely on the evidence of interested witnesses in the absence of other corroborative evidence. Consequently, the conviction and sentence ordered by the learned -9- Crl.A.309/2009 C/w. Crl.A.375/2009 Sessions Judge deserves to be set aside. Hence, the point is answered in affirmative.
Accordingly, Crl.A.No.309/2009 is allowed and Crl.A.No.375/2009 is dismissed. The conviction and sentence ordered by the learned Sessions Judge in S.C.No.187/2006 is set aside. The appellant - accused is acquitted of the said charge. Fine if any deposit, shall be refunded.
Sd/-
JUDGE VMB