Karnataka High Court

Raju vs State Of Karnataka on 4 December, 2021

Bench: V Srishananda

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 04th DAY OF DECEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO. 1028/2012


BETWEEN:

  RAJU
  AGE ABOUT 52 YEARS
  S/O RAMASWAMY, BILIGERY VILLAGE
  BHADRAVATHI TALUK, SHIMOGA DISTRICT-577301

                                      ... PETITIONER
(BY SRI. P.NATARAJU., ADVOCATE)

AND:

       STATE OF KARNATAKA
       BY R.F.O, BHADRAVATHI RANGE, BHADRAVATHI
       REP. BY STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING,
       BANGALORE-560 001

                                      ...RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 28.06.2012 PASSED BY THE P.O., F.T.C.,
BHADRAVATHI   IN  CRL.A.  NO.64/2010  AND    THE
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JUDGMENT AND ORDER DATED 15.06.2010 PASSED BY
THE C.J. & ADDL. J.M.F.C., BHADRAVATHI IN C.C.
NO.5048/2006 AND ACQUIT THE PETITIONER BY
ALLOWING THIS REVISION PETITION.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:-
                        ORDER

Heard Sri. P. Nataraju along with Sri. Lokesh D. K.,

learned counsel appearing for the revision petitioner and

Sri. V. S. Vinayaka, learned High Court Government

Pleader appearing for the respondent and perused the

records.

2. This revision petition is filed against the order

of conviction and sentence passed by the trial Magistrate in

C.C. No.5048/2006 whereby the accused convicted for the

offences punishable under Sections 15, 17 and 51 of Wild

Life Protection Act and Section 24(J) of the Karnataka

Forest Act and ordered to undergo simple imprisonment

for a period of one year and to pay fine of Rs.1,000/-,

which is confirmed in Crl. A. No.64/2010 dated 28.06.2012

by the Court of Fast Track, Bhadravathi.

3. Brief facts of the case are as under:

On 22.02.2010, the forest officials and their staff of

Bhadravathi range were on patrolling duty in their official

vehicle KA-18-G-426, they heard a sound of shooting

bullet near Bandi Gudda Belligere tank in Antharagange

Manna Jungle. Immediately, the forest officials rushed

towards that spot and found two person packing a dead

deer in a gunny bag. There was bleeding present on deer.

There was also a country made gun besides them. Upon

enquiry, they confessed that the they had killed a female

deer by firing bullet from the country made gun and they

were in process of taking away the said animal.

Immediately, they took that two persons in custody and

also dead deer and they lodged a report and a case came

to be registered against the accused persons for the

aforesaid offences and after thorough investigation, the

charge sheet came to be filed against the accused for the

aforesaid offences.

4. The presence of accused persons were secured

and plea was recorded. Accused pleaded not guilty

therefore, the trial was held. In order to prove the case of

the prosecution, the prosecution in all examined five

witnesses as PWs.1 to 5 and has relied on four

documentary evidences, which were exhibited and marked

at Exs.P1 to P4. On conclusion of the prosecution

evidence, two material objects were seized, which were

exhibited and marked as MOs.1 and 2 comprising of deer

skin and country made gun respectively. Thereafter, the

accused statement was recorded as contemplated under

Section 313 of Cr.P.C., wherein all the incriminatory

circumstances were denied by him. Accused did not

choose to offer his version on record in respect of the

incident nor placed his version about the incident on record

as is contemplated under Section 313(5) of Cr.P.C.

5. Thereafter, the learned Magistrate heard the

parties in detail and after considering the material

evidence on record, convicted the accused as aforesaid

and passed an order of sentence as referred to supra.

6. Being aggrieved by the same, the accused

preferred an appeal in Crl.A. No.64/2010 on the file of the

Court of Fast Track, Bhadravathi.

7. Learned Judge in the First Appellate Court

secured the records and after hearing the parties,

dismissed the appeal by judgment dated 28.06.2012

confirming the order passed by the learned trial

Magistrate. Being aggrieved by the same, the accused

person is preferred this revision petition.

8. In the revision petition following grounds are

raised.

• "The judgment and order passed by the Courts below suffers from infirmities and illegalities.

• The Courts below erred n convicting the petitioner relying upon the interested and inconsistent evidence of the prosecution witnesses.

• The Courts below erred in convicting the petitioner in the absence of legally acceptable clinching evidence.

• The Courts below erred in convicting the petitioner though the prosecution has failed to prove the guilt of petitioner beyond all reasonable doubts.

• The Courts below failed to properly consider the fact that the seizure mahazar is not proved in accordance with law.

• The Courts below failed to notice that the prosecution has not proved that the death of the deer was caused from the alleged country made gun.

• The Courts below failed to notice that the prosecution has not proved that the alleged country made gun belongs to the petitioner.

• The Courts below failed to properly consider the ommissions and contradictions in the evidence of the prosecution witnesses.

• The judgment and order passed by the Courts below are only on assumption and presumptions and not on the basis of proper appreciation evidence on record in it's proper perspective.

• The judgment and order passed by the Courts below are arbitrary, illegal and otherwise opposed to law, facts and probabilities of the case.

• The Courts below erred in convicting the petitioner though there are no ingredients for the alleged offences.

• The petitioner seeks leaver of this Hon'ble Court to urge additional grounds if any at the time of hearing."

9. Reiterating the above grounds, Sri. Lokesha D.

K., for Sri. P. Nataraju, learned counsel appearing for the

revision petitioner contended that both the Courts have

not properly appreciated the materials on record and

therefore, sought for allowing the revision petition.

10. He further contended that during the spot

mahazar, the officials did not seize the fired bullet and

there was no blood stains found in the vicinity and

therefore, the incident as is propounded by the prosecution

did not occur and a false case has been fastened against

the revision petitioner and sought for allowing the revision

petition.

11. Alternatively, he contended that since the

accused is the first time offender, this Court may grant

him a probation by taking lenient view and sought for

allowing the revision petition.

12. Per contra, learned High Court Government

Pleader while supporting the impugned judgments

contended that the seizure of country made gun along with

dead body of female deer on the spot itself completes the

offence against the accused persons.

14. He further contended that the presence of the

accused persons in the place itself is not properly

explained by the accused persons by placing his version on

record about the incident. In the absence of any contra

evidence placed by the accused persons, the trial

Magistrate was right in appreciating the material evidence

on record and has rightly convicted the accused persons,

which was properly re-appreciated by the learned judge in

the First Appellate Court and sought for dismissal of the

revision petition.

15. He further contended that an alternate plea

cannot be countenanced in law in as much as if any

leniency be shown to the revision petitioner, the same

would encourage the perpetrators of the crime and also

send a wrong message to the society and sought for

dismissal of the revision petition in toto.

16. In view of the grounds urged and the materials

on record and having regard to the scope of the revision

petition, the following points would arise for consideration:

1. Whether the findings recorded by the learned Magistrate that the accused person is guilty of the

offences under Sections 15, 17 and 51 of Wild Life Protection Act and Section 24(J) of the Karnataka Forest Act which is confirmed by the First Appellate Court in Crl.A. No.64/2010 is suffering from legal infirmity or perversity and thus calls for interference?

2. Whether the sentence is excessive?

     17.     In     the     case     on    hand,      admittedly,      On

22.02.2010,       the     forest    officials   and    their   staff   of

Bhadravathi range were on patrolling duty in their official

vehicle KA-18-G-426, they heard a sound of shooting

bullet near Bandi Gudda Belligere tank in Antharagange

Manna Jungle. Immediately, they rushed to the spot.

When they went to the spot, the accused persons were

near the dead body of the female deer. No explanation is

forthcoming from the accused persons as to their presence

in the spot nor the possession of the female deer in a

gunny-bag. In the absence of any previous enmity or

animosity possessed by the patrolling/raid parity against

the revision petitioner - accused persons, why would they,

falsely implicate the revision petitioner - accused in the

case that too, by implicating them for the dead female

deer is a question that remains unanswered by the

accused persons. In fact, in this regard, the accused

persons were bound to place their version on record at the

time of recording the accused statement under Section

313 of Cr.P.C. or at-least place their version about the

incident in written statement as is contemplated under

Section 313(5) of Cr.P.C. It is not the case of the accused

persons either of them were picked up from their houses

and falsely implicate them in the case on hand.

18. Accordingly, the material evidence on record

has been rightly appreciated by the trial Magistrate and re-

appreciated by the learned judge in the First Appellate

Court while recording the findings that the accused

persons are guilty of the aforesaid offences. Accordingly,

this Court is of the considered opinion that there is no legal

infirmity or perversity in reaching out of the said findings

by both the Courts and hence, point No.1 is answered in

negative.

19. Out of the two accused persons, the second

accused is a juvenile offender and therefore, this case was

made over to the Juvenile Justice Board.

20. Insofar as point No.2 is concerned, the accused

person- revision petitioner is convicted for the offences

punishable under the above provision and sentenced as

referred to supra. In the case on hand, the accused

person - revision petitioner is not having any previous

criminal records and he is the first time offender.

Admittedly, the revision petitioner - accused is the first

time offender, therefore, leniency can be shown and

therefore, the trial Magistrate was bound to consider the

grant of probation as is held in the following cases:

i. In the case of Chandreshwar Sharma v. State

of Bihar reported in (2000) 9 SCC 245 at paragraph

No.3, it is held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had

considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the CrPC. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

ii. In the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, it has been held as under:

"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from

the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".

21. It is well settled principles of law that the role

to be played by the Court while recording an order of

conviction is altogether different from the role to be played

while passing an order of appropriate sentence in a given

cases.

22. In the case on hand, since the revision

petitioner-accused is the first time offender, this Court is of

the considered opinion that the revision petitioner-accused

is entitled for grant of probation by enhancing the fine

amount. Accordingly, point No.2 is answered and pass the

following:

ORDER