Smt. Pungi Husum Adivasi vs The State Of Karnataka
2021 Latest Caselaw 3103 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH
          DATED THIS THE 04TH DAY OF AUGUST, 2021

                           BEFORE

     THE HON'BLE MR.JUSTICE SHIVASHANKAR AMARANNAVAR
              CRIMINAL APPEAL NO.100162/2021


1.     SMT. PUNGI HUSUM ADVIVASI,
       AGED ABOUT 23 YEARS,
       OCC: HOUSEHOLD,
       R/O. VIRUHALLI,
       POST : PARADI MOHALA,
       NITIRA, TALUK: KATANI,
       DIST. JABALPUR,
       STATE MADHYAPRADESH.

2.     SMT. PAYA MARKET ADIVASI,
       AGED ABOUT 42 YEARS,
       OCC: HOUSEHOLD,
       R/O. BILORI, TALUK: KATANI,
       DIST. JABALPUR,
       STATE: MADHYAPRADESH.
                                            ...APPELLANTS

       (BY SRI. T. M.NADAF, ADVOCATE)

AND

       THE STATE OF KARNATAKA
       BY RFO, DHARWAD RANGE,
       DHARWAD,
       REPT. BY ADDL. STATE PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       DHARWAD BENCH.
                                          ..........RESPONDENT
       (BY SRI V.M.BANAKAR, ADDL. SPP)
                               2




     THIS APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C.
AND PRAYED TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 23.08.2019 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, DHARWAD IN
S.C.NO.40/2018   CONVICTING       THE   APPELLANTS   FOR   THE
ALLEGED OFFENCES PUNISHABLE UNDER SECTION 379 OF IPC
AND UNDER SECTIONS 86, 87, 73(d) AND 24(e) OF KARNATAKA
FOREST ACT AND SENTENCED THEM TO UNDERGO SIMPLE
IMPRISONMENT FOR 5 YEARS AND TO PAY FINE OF RS.50,000/-
EACH WITH DEFAULT SENTENCE OF S.I. FOR ONE YEAR FOR THE
OFFENCE PUNISHABLE UNDER SECTION 86 OF KF ACT. FURTHER
SENTENCED THEM TO UNDERGO SIMPLE IMPRISONMENT FOR 5
YEARS AND TO PAY FINE OF `50,000/- EACH WITH DEFAULT
SENTENCE OF S.I. FOR ONE YEAR FOR THE OFFENCE PUNISHABLE
UNDER SECTION 87, FURTHER SENTENCED THEM TO UNDERGO
SIMPLE IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 73(d) OF K.F. ACT, FURTHER
SENTENCED THEM TO UNDERGO SIMPLE IMPRISONMENT FOR 6
MONTHS FOR THE OFFENCE PUNISHABLE UNDER SECTION 24(e)
OF KARNATAKA FOREST ACT, 1963 AND FURTHER SENTENCED
THEM TO UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 379 OF IPC IN
SOFAR AS APPELLANTS/ACCUSED NOS.1, 3, 4 AND 7 AND ETC.,

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                3


                         JUDGMENT

This appeal is filed by the appellants/accused Nos.2 & 8

against the judgment of conviction and order of sentence

passed by the Principal District and Sessions Judge, Dharwad in

Sessions Case No.40/2018 dated 23.08.2019, wherein accused

Nos.1 to 4, 7 and 8 found guilty and convicted for the offences

punishable under Sections 86, 87, 73(d) and 24(e) of the

Karnataka Forest Act, 1963 (for short 'the KF Act') sentencing

imprisonment for 5 years and to pay fine of `50,000/- each for

the offence punishable under Section 86 of the KF Act and 5

years and fine of `50,000/- each for the offence punishable

under Section 87 of the KF Act, 6 months for the offence

punishable under Section 73(d) of the KF Act and further 6

months for Section 24(e) of KF Act and 6 months for the

offence punishable under Section 379 of IPC.

2. I have heard the learned counsel for the

appellants/accused Nos.2 & 8 and learned Addl. SPP for

respondent-State.

3. The ranks of the parties before the trial Court is

retained for the purpose of convenience.

4. The facts of the case of prosecution is that the Range

Forest Officer, Dharwad Range filed charge sheet against 13

accused persons for the above said offences alleging that on

22.10.2017 the P.W.1 received a credible information that in

the limits of Kotur beet at Gungargatti (Neeralkatti) forest some

persons cutting and removing the sandalwood trees. Then the

forest officials and P.Ws.2 and 3 panchas went to the spot,

where they found there were 9 peoples were cutting the

sandalwood trees and transporting the same. Immediately,

they apprehended 4 accused persons from them, however 5

persons were managed to escape from the clutches of the

team. On enquiry, they revealed the names of accused Nos.1 to

4 i.e., Aduri Mulami Adivasi, Pungi Husum Adivasi, Gramabai

and Jamundu Adivasi and on further enquiry they also informed

about the names of other accused against whom a split up case

was registered.

5. During the investigation, they were also said to have

arrested some other accused persons and seized 15 Kgs of

sandalwood under the panchanama. Then all the accused

persons were produced before the Court, out of them 2 accused

persons i.e., accused Nos.5 and 6 said to be juvenile offenders.

Thereafter, charge sheet came to be against accused Nos.1 to

13. After filing of charge sheet, trial Court framed charges

against accused Nos.1 to 4, 7 and 8 and read over to them,

they pleaded not guilty and claimed to be tried.

6. In order to prove the case of prosecution, in all 10

witnesses were examined as P.Ws.1 to 10, and there were 19

documents were marked as Ex.Ps.1 to 19 and 18 materials

objects as M.Os.1 to 18. After recording the evidence of

prosecution witnesses, statement under Section 313 of Cr.P.C.

has been recorded under the incriminating materials, same was

read over and explained to the accused. The case of the

accused was totally denial, but not chosen to lead any

evidence. After hearing the arguments, trial Court found guilty

of accused Nos.1 to 4, 7 and 8 and convicted them and

sentenced them to undergo as stated supra vide order dated

28.08.2019. Being aggrieved by the same, the accused Nos.1,

3, 4 and 7 have preferred this appeal.

7. The learned counsel for the appellants has contended

that the judgment of trial Court is not sustainable in law. The

trial Court failed to appreciate the evidence on record. The

P.Ws.2 and 3 the independent witnesses not supported the

prosecution case and the trial Court convicted only on the basis

of the official witnesses. As per the evidence of P.Ws.1, 4 to 6

and 10, the Forest Officials visited the spot after receiving the

information and arrested the accused persons and seized the

sandalwood billets and after arresting the accused persons

brought to the Police Station, later a FIR has been registered

which amount to investigation started prior to the registration

of the case it by Section 154 of Cr.P.C. and subsequent to the

investigation the Forest officials also arrested accused Nos.5 to

8 on 06.11.2017, they seized another 15 sandalwood billets

weighing 15 Kgs which is nothing to do with the present Crime

No.8/2017 registered by P.W.1. It is entirely all together

different offence, but they have filed charge sheet in one case.

Even though, it is a different offence and there is no evidence

to show these sandalwood billets were also seized were cut and

removed from the Dharwad Range forest area and he further

contended that the sample sandalwood billets were certified by

the P.W.7, who is not an expert and was not produced any

certificate as per Section 62C of the KF Act in order to show he

is an expert. Further, it is contended that Ex.P.6 is the

certificate issued by P.W.7, which is not the same certificate

which is examined by this witness as in the certificate the crime

number was mentioned as 41/2017-18, whereas this case

pertaining to crime No.8/2017-18 dated 22.10.2017. The

certificate which was produced before the Court is pertaining to

the certificate belongs to some other property. Therefore, the

Ex.P.6 cannot be acceptable for proving the guilt of the

accused. Without considering all these aspects, the trial Court

found the accused guilty and convicted, which is not sustainable

in law.

8. Learned counsel further contended that accused Nos.1

to 4 are all together different cases. Hence, he prayed for

setting aside the Judgment of conviction and order of sentence

passed by the trial Court.

9. Per Contra, the learned HCGP has supported the

judgment of the trial Court and contended that the Forest

Officials who are arrested the accused persons and seized the

sandalwood during the course of their regular duty and merely

the P.Ws.2 and 3 the panchas not supported the case of

prosecution and their evidence cannot be thrown out and he

further contended that there may be some discrepancies in

mentioning the crime number in Ex.P.6 as Crime No.41/2017-

18, that itself is not a ground to reject the certificate Ex.P.6

issued by the P.W.7. Learned HCGP further contended that the

Forest Official got the credible information and has intimated to

his superiors, thereafter they went to the spot regarding

cognizable offences were committed, therefore without delay

they rushed to the spot, apprehended the accused persons and

seized the materials and thereafter registered a case, it cannot

be said investigation of the case was started prior to the

registration of case. It is only a technical defect, which is

curable one. The evidence of the prosecution P.Ws.1, 4 to 10 all

corroborates with each other with the documents and material

objects, thereby the prosecution successful in proving the guilt

of the accused in cutting and removing the sandalwood from

the forest area and committed theft under Section 379 of IPC

and hence, prayed for dismissal of the appeal.

10. Having heard the arguments of learned counsel for

the appellants and learned HCGP, points that arise for

consideration of this Court are,

1. Whether the prosecution is successful in proving the case against these accused persons that on 22.10.2017 the accused were cutting and removing the sandalwood billets at Gungaragatti forest area and they removed and transporting them, thereby they committed offences punishable under Sections 86, 87, 73(d) and 24(e) of KF Act and also for the offence punishable under Section 379 of IPC?

2. Whether the judgment of conviction and order of sentence passed by the trial Court call for interference by this Court?

11. This Court being the first appellate Court requires re-

appreciation of the evidence on record, it is necessary to

cursory look at the prosecution witnesses which is as under :

12. The P.W.1 the Forest Guard-Kallappa Yamanappa

Kengar, has deposed that on 22.10.2017 at about 10.00 a.m.

when he was in the office, he has received a credible

information as some thief committing theft of sandalwood at

Gungaragatti reserved forest area. Immediately, he informed

same to his higher officer C.Ws.4 to 10 and secured 2 panchas

and all of them went to the forest area, where they saw 9

persons were present along with the sandalwood billets, they

having knife, two mobile phones. Immediately, they

apprehended those persons, out of them, 4 persons were

caught hold by them, other persons were ran away from the

spot, they seized 7 Kgs of sandalwood billets and 2 Kgs of

sandalwood chakkies under the panchanama. He has identified

a sample sandalwood billet as M.O.1 and nine saws as M.O.2.

He also identified two axes as M.O.3 and knife as M.O.4, two

swords as M.O.5, stones are M.O.6, two mobiles phones as

M.Os.7 and 8. He also identified 4 accused persons as per

accused Nos.1 to 4 in the Court. He further says, he has

registered a case as per Ex.P.2 FIR. He further deposed that

on 06.11.2017, he himself and his higher officers along with

panchas also went to Daddi village of Hukkeri taluka, where

they found 4 accused persons, they are accused Nos.5, 6, 7

and 8 and arrested them and they seized 15 kgs 250 grams of

sandalwood 5 billets from them and they prepared panchanama

as per Ex.P.3. He also identified the accused Nos.7 and 8 before

the Court. He has supported the case of prosecution.

13. P.W.2 and 3 panchas who are the independent

witnesses, they were not supported the case of prosecution and

they turned hostile.

14. P.W.4-Rashidabai another Forest Guard, P.W.5-

Rajashree, Deputy RFO, P.W.6-Mohammed Khali Tallur, another

Deputy RFO were also supported the case of prosecution, they

have given evidence on par with the P.W.1. P.W.7-

Chandrakant, RFO, Kalaghatagi Range given evidence that on

10.01.2018, he has examined 10 sandalwood billets and after

examination, he has certified as those are 10 sandalwood

billets. He has identified said 10 sandalwood billets samples as

per M.Os.1 to 10. Ex.P.6 is the Certificate issued by P.W.7.

15. P.W.8-Vitthal Joni, Forest Guard, he has deposed that

he has prepared Ex.P.3-panchanama on 06.11.2017 and signed

as scribe, while apprehending the accused Nos.5 to 8 and he

also identified the sample billets seized. P.W.9-Krishna

Dhanave, who is Deputy Range Forest Officer, who also

accompanied with the P.W.1 for raiding and seizing the

sandalwood billets and in arresting the accused Nos.1 to 4 and

Ex.P.1 identified by him. He also deposed that on 06.11.2017

again they apprehended the accused Nos.5 to 8 along with

mobile phones and sandalwood billets and he has identified

Ex.P.3-panchanama and accused Nos.7 and 8 are the persons

apprehended by him.

16. P.W.10 is the Investigating Officer, who also

accompanied the P.W.1 to the forest area for arresting the

accused Nos.1 to 4 and identified Ex.P.1-panchanama and

further on 06.11.2017, he also arrested the accused Nos.5 to 8

and seized 15 kgs 250 grams of sandalwood billets. He

identified M.Os.10 to 18 seized articles i.e., sandalwood billet,

Mobile Phones, Adhaar Cards, cash of `14,120, sim card, Bank

ID Card etc., After completion of the investigation he has filed

the charge sheet.

17. Upon considering the argument of the learned

counsel for the appellants and the learned High Court

Government Pleader and on appreciation of the entire evidence

on record stated supra, admittedly, the prosecution, in order to

prove its case, relied upon the evidence of PWs.1, 4 to 6 and 8

to 10 are the official witnesses who actually participated in the

raid and caught hold accused Nos.1 to 4 on the date of the

incident i.e. 22.10.2017 and 5 accused are said to have ran

away from the spot. Admittedly, the Forest Officials i.e. PW-1

along with PWs.2 and 3-the panch witnesses, PWs.4 to 6 and 8

to 10 all went together in different vehicles and apprehended

accused Nos.1 to 4. Ex.P-1 is the panchanama prepared on the

spot. The evidence of PW-1, PWs.4 to 6 and 8 to 10 have all

stated in categorical terms that on 22.10.2017 at 11.00 am

they received a phone call about the commission of offence by

some persons in the forest area. Then all of them along with

PWs.2 and 3 visited the spot. They found some group of

persons were cutting and removing the sandal wood trees.

Immediately, they apprehended four persons and five persons

fled away. They also seized 9 saws, 2 axe, 2 knives, two

swords, 3 mobiles, 5 pieces of sandal wood billets and 2 kgs of

sandalwaood chekka. Ex.P-1 reveals, same was prepared on

the spot by the Forest Officials between 11.00 am and 5.00 pm

on the said day. A detailed panchanama has been prepared.

PW-1, after coming back to the police station, on his complaint,

FIR-Ex.P-2 was prepared but the police officials have not at all

produced any complaint prepared by PW-1. Ex.P-1 is nothing

but a panchanama. Admittedly, FIR was registered by PW-1

and the Forest Officials only after arresting the accused and

seizing the materials under the seizure panchanama Ex.P-1.

Admittedly, the investigation and arrest of the accused all

started much prior to the registration of the FIR. Therefore,

the FIR is hit by Section 162 of Cr.P.C. In this regard learned

counsel for the appellant relied upon the judgment of the

Hon'ble Supreme Court in the case of Lalitha Kumari v. State of

Uttar Pradesh reported in (2014) 2 SCC 1 wherein the Hon'ble

Apex Court considering the various aspects of registering the

FIR has held that, "the police cannot avoid his duty of

registering offence if cognizable offence is disclosed. Action

must be taken against erring officers who do not register the

FIR if information received by him discloses a cognizable

offence". It has categorically held it is obligatory on the part of

the police officer to register the FIR if they receive credible

information regarding the cognizable offence committed.

The Hon'ble Apex Court in the aforesaid judgment has laid

down guidelines at paragraph 120 which reads as follows:

"120. In view of he aforesaid discussion, we hold:

120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the compliant, a

copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption case

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

120.7. While ensuring the protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to congnizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatory and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

18. However, the Forest Officials are also considered as

Investigating Officials under the Cr.P.C. The action taken by

PW-1 and PWs.4 to 10 without registering the FIR, seizing the

materials and arresting the accused, is violation of the

provisions of law under Section 154 of Cr.P.C.. Thereby, the

seizure is not sustainable in law. That apart, learned counsel

for the appellants also brought to the notice of this Court that

PW-7 is not authorized to certify that the seized billets M.Os.1

to 10 and other materials as sandalwood. In this regard,

certificate as required under Section 62-C of the KF Act, is not

issued by PW-7. Therefore, the conviction is not sustainable. In

support of his contention, he has relied upon the judgment of

this Court in Banya Naika v. State by RFO, Bhadravathi Range,

Bhadravathi, reported in 2019(3) KCCR 2772, wherein this

Court has held that possession of roots and chips of

sandalwood, the Range Forest Officer not certifying the articles

seized, non examination of any independent witnesses, non-

examination of the Investigating Officer and non-preparation of

panchanama, are all discrepancies and conviction cannot be

sustainable.

19. In the case on hand, admittedly, PW-7 has not

issued any certificate as required under Section 62-C of KF Act.

PW-7 has stated that he has undergone training at Forest

Training Center, Barnihart, Gauhathi, Assam, for eighteen

months. He has stated that he has examined ten billets and

out of his experience, he stated that they were the sandalwood

billets. But he has not issued the certificate as required under

Section 62-C of the KF Act.

20. For convenience, Section 62-C of the Karnataka

Forest Act, 1963 is extracted as below:

" 62-C. Certificate of Forest Officer to be an evidence.- Any document purporting to be a certificate under the hand of a Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce and who is so authorized by the State Government in this behalf in respect of forest produce, submitted to him for examination and report, may be used as evidence on the facts stated in such certificate in any proceedings under this Act, but the Court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Forest officer as to the subject matter of his certificate."

21. Admittedly, though PW-7 certified the billets as

sandalwood billets but he has not issued the certificate as

required under Section 62-C of the Forest Act but has only

certified as "sandalwood billets". The prosecution not produced

any document to show that PW-7 is an authorized person to

issue the certificate. Therefore, the judgment of conviction

and sentence passed by the trial court is not sustainable.

22. Apart from that, learned counsel for the appellants

has also brought to the notice of this Court that Ex.P-6 is the

certificate where Sl.No.2 refers to the crime number and date it

is mentioned as R.O.No.41/2017-18 dated 22.10.2017.

Admittedly, the present case is registered by the Forest Official

in FIR No.8/2017-18 dated 22.10.2017. It appears that the

said witness PW-7 has examined some other sandalwood piece

which was seized in Crime No.41/2017 and the same is issued

and produced in this case along with the charge sheet.

Therefore, on this ground, the certificate Ex.P-6 relied upon by

the prosecution is not acceptable and based upon Ex.P-6 the

conviction and sentence passed by the trial Court is also not

sustainable. Further on perusal of Ex.P-6 it goes to show that

the identity mark and number of the article sent for

examination is shown as KNFD G9K but '9' is corrected by

using whitener wiping the earlier number and even at Sl.No.5-

the sandalwood billets shown as '15' is corrected as '10'. Even

at the bottom of the statement/opinion, he has stated that

'Sl.No.1 to 5' were sandal wood billets which is corrected as '1

to 10'. These corrections are not initialed by PW-7 at Ex.P-6

and crime No., seal No. identification number and the number

of billets are all different from the present case, as it is only

ten pieces and Crime No.8/2017. Therefore, on this ground

also, Ex.P-6 cannot be acceptable in order to say that the

seized article are the sandalwood billets which were sized from

the accused.

23. That apart, PWs.2 and 3 are the independent panch

witnesses. Though they have signed Ex.P-1, but turned hostile

not supporting the case of the prosecution. Learned Addl. SPP

argued that the evidence of PWs.1 and 4 to 10 are the official

witnesses and their evidence cannot be thrown out as tainted

witnesses or interested witnesses. Of course they are the

official witnesses and their evidence cannot be thrown out as

tainted or interested witnesses if their evidence is true and

credible to believe the version of the prosecution. However, by

looking to the facts and circumstances of the case, the action

taken by the Forest Officials without registering the FIR, seizing

and arresting the accused is in violation of the principles laid

down by the Hon'ble Supreme Court in Lalitha Kumari's

case(supra) and also Section 154 of Cr.P.C. Manipulation in

Ex.P-6 and non-issuing the certificate as per Section 62-C of

the KP Act, non-supporting of the independent witnesses,

evidence of PWs.1 and 4 to 10 are not sufficient to the case of

the prosecution to prove the guilt of the accused.

24. Therefore, I hold that the prosecution is not

successful in proving the guilt of the accused for having

committed the offence beyond all reasonable doubt.

25. In view of my finding that the prosecution has failed

to prove the case against the appellants/accused Nos.2 & 8

beyond all reasonable doubt, therefore benefit of doubt should

be extended to the accused and the accused are to be

acquitted. The appeal filed by Accused Nos.1, 3, 4 & 7 in

Criminal Appeal No.100123/2020 came to be allowed and they

were acquired by Judgment dated 02.02.2021.

Accordingly, I pass the following:

ORDER

The Criminal Appeal is allowed. The judgment of

conviction and sentence dated 23.08.2019 passed by the

learned Principal District and Sessions Judge, Dharwad, in S.C.

No.40/2018 is hereby set aside. The appellants/accused Nos.2

& 8 are acquitted of the offence under Section 379 of the Indian

Penal Code, 1860 and under Sections 86, 87, 73(d), 24(e) of

the Karnataka Forest Act, 1963.

Fine amount, if any deposited is ordered to be refunded

to the appellants/accused Nos.2 & 8. The accused persons are

in custody. They are set at liberty forthwith if they are not

required in any other case.

The operative portion of this judgment was ordered to be

sent to the concerned jail authorities.

In view of the disposal of the appeal, I.A.No.2/2021, does

not survive for consideration.

Sd/-

JUDGE

*Svh/-