Karnataka High Court

Raju S/O Kundappa vs State Of Karnataka on 4 December, 2021

Bench: V Srishananda

                          1



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. 715/2012


BETWEEN:

  1. RAJU
     S/O KUNDAPPA, AGED 25 YEARS

  2. KUMAR
     S/O KUNDAPPA, AGED 31 YEARS
     BOTH ARE RESIDENTS OF KAMAGERE VILLAGE
     KOLLEGALA TALUK, CHAMARAJA NAGARA DIST.

                                    ... PETITIONERS
(BY SRI. R.V.SHIVANANDA REDDY, ADVOCATE)

AND:

       STATE OF KARNATAKA
       BY CITY MARKET POLICE, BANGALORE
       REPTD. BY GOVT. PLEADER,
       HIGH COURT BUILDING, BANGALORE.

                                      ...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, CONVICTION
                                 2

AND SENTENCE PASSED BY THE IX ADDL. C.M.M.,
BANGALORE IN C.C.NO.8318/2010 DATED 29.08.2011 &
FTC-IV, BANGALORE PASSED IN CRL.A.654/2011 DATED
15.6.12 CONVICTING THE PETITONERS FOR THE
OFFENCES P/U/S 9,39,40,44,49(a)(b) & 51 OF WILD LIFE
PROTECTION ACT R/W 379 OF IPC BY ALLOWING THE
ABOVE REVISION PETITION.

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

Heard Sri. R. V. Shivananda Reddy, learned counsel

appearing for the revision petitioners and Sri. V. S.

Vinayaka, learned High Court Government Pleader

appearing for the respondent and perused the records.

2. The present revision petition is filed by the

accused persons, who have been convicted in C.C.

No.8318/2010 for the offences punishable under Sections

9, 39, 40, 44, 49(a), (b) and 51 of the Wild Life Protection

Act, 1972 read with Section 429 and 379 of the Indian

Penal Code, 1860 and ordered to undergo simple

imprisonment for two years and to pay a fine of Rs.5,000/-

each, in default simple imprisonment for 3 months for the

offences punishable under Sections 9, 39, 40, 44,

49(a),(b) and 51 of the Wild Life Protection Act, 1972 and

the accused persons are sentenced to undergo simple

imprisonment for six months for the offence punishable

under Section 379 of IPC which was confirmed in Crl.A.

No.654/2011 by judgment dated 15.06.2012 on the file of

the Fast Track Court-VI, Bangalore City.

3. Brief facts of the case are as under:

One Sri. Raju, PSI of City Market Police Station on

07.07.2009 at 05-00 p.m., in the evening, while he was on

duty in the Police Station, received the credible information

that in room No.202, Balaji Lodge, Seegebeli Road, three

persons illegally possessing the ivories, are making

attempts to sell the same to the customers. During the

raid, he noticed that the accused - revision petitioners

were there and on search he found six ivory pieces in the

possession of the revision petitioners. On further enquiry,

he came to know that they are the persons who have been

asked to keep the same by Joseph. However, there was

no proper documents to posses the same and accordingly,

the head of the raid party Sri.Raju considered it as illegal

possession of Ivory and thereby took the accused to his

custody and also drafted a mahazar and seized the ivory

pieces found in the possession of the revision petitioners.

A case came to be filed against the revision petitioners and

Joseph, ultimately after the thorough investigation, charge

sheet came to be filed under Sections 9, 39, 40, 44, 49(a),

(b) and 51 of the Wild Life Protection Act, 1972 read with

Sections 429 and 379 of the Indian Penal Code, 1860.

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 eight

witnesses as PWs.1 to 8 comprising of the head of the raid

party and other witnesses and also Doctor R. V. Prasad,

who gave a report about the genuineness of the seized

Ivory pieces vide Ex.P8 and relied on nine documentary

evidences, which were exhibited and marked at Exs.P1 to

P9. 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 place their version about the incident

and also did not explain as to how they were in possession

of the seized Ivory Pieces which were marked before Court

through the photographs.

5. Thereafter, the learned Magistrate heard the

parties in detail and passed an order of conviction against

the accused as aforesaid.

6. Being aggrieved by the same, the accused

preferred an appeal in Crl.A. No.654/2011 on the file of

the Court of the City Fast Track Court - IV, Bangalore City.

7. Learned Judge in the First Appellate Court

secured the records and after hearing the parties,

dismissed the appeal by judgment dated 15.06.2012

confirming the order passed by the learned trial

Magistrate. Being aggrieved by the same, the accused

preferred this revision petition.

8. In the revision petition following grounds are

raised.

• "The petitioners most respectfully submits that, the finding given by the Hon'ble Trial Court is opposed to Law, facts and evidence on record and Iota is opposed to all legal probabilities and hence the appeal is to be allowed and the Judgment of conviction order of sentence passed by the Hon'ble Trial Court against the petitioners/accused in CC. No.8318/2010 are to be set aside.

• The petitioners submits that, the prosecution have failed to prove their case beyond reasonable doubt and the complainant failed to bring the offence against the accused within the four corners of the definition of Sections 9, 39, 40, 44, 49(a)(b), 51 of WLP Act & 379 IPC. Hence the learned Magistrate committed grave error in convicting the accused.

• The petitioners submits that, the prosecution in order to prove their case has examined 8 witnesses as PW1 to PW8 and got marked 10 documents at Exp-1 to Exp-10 and CW7 has given up.

• The petitioners submits that, PW1, PW2, PW4, PW6 & PW8 are Government Officials and they deposed stereotypical manner and they are interested witnesses on behalf of the prosecution, PW3, PW5 & PW7 are the Civil and Mahajar witnesses on behalf of the prosecution, except these witnesses the prosecution have not at all produced any other witnesses on its behalf, even though the raid was taken place in a lodge which is located in City Marker area which is a busiest place in the city, except the above said witnesses there is no other eye witness on behalf of the prosecution to establish the guilt of the accused. The Lodge which was raided by the police consisting of more than 300 Room such being the case, except the Receptionist i.e., PW7 none of the other eye witnesses viz. Room Boys, other dwelling persons who were in the neighboring rooms of the lodge and the persons who were present in

the lodged at the time of raid has been examined on behalf of the prosecution or statement has been recorded by the police, which itself throws a great doubt the raid itself.

• The petitioners submits that, at no point of time the respondent police have produced the seized item before the Court either at the time of filing the Final Report or during the trial which throws a great doubt about the existence of the seized properties, further the PW8 who is the professor who examined the sized Ivories clearly admitted that, he do not who brought the seized properties and the letter which was given to hi does not bears the signature and the address from whom it was sent to him and also admitted that, there is no mention of the dimension of the seized properties, which itself sufficient to believe that, the respondent police have created documents in support of their case and planted the above said witnesses PW8 on their behalf.

• The petitioners submits that, regarding PW5 who is the important mahazar witness he had stated that, he was at his house at Jayanagar and the police have informed him to come to the Balaji Lodge for raid and witness the incident,

accordingly he had been to lodge at about 4.30 p.m. and also admitted that, he was not summoned with any notice by the police to attend at alleged lodge but he was informed by the police prior to 4-30 PM where as the PW1 deposed that, he alleged to have been received the credible information at about 5-00 p.m. if so how the PW5 was informed prior to 5-00 PM & 4-30 PM, hence the version of the PW5 & PW1 is unbelievable, further PW1 has clearly admitted that, he has singed the Mahajar at Police Station.

• The petitioners submits that, at no point of time the respondent have made effort to secure the Accused No.3 Joseph in the above case and also not explained for not securing the Accused No.3, which throws a great doubt about the alleged crime itself.

• The petitioners submits that, mere identifying the seized properties in the Photographs it cannot be conclusion that the accused were in actual physical possession of the alleged seized items. The prosecution has not at all chose to examine the Forest Officials who have received the seized properties from the respondent

police, it is the bounden duty of the prosecution to examine the said Forest Officials to establish the existence of the seized properties, but the learned magistrate have shifted this burden on the defense side stating that the accused have not chosen to examine the Forest Officials while discussing in Judgment which is bad in law.

• The petitioners submits that, right from beginning and till the conclusion of the trial, at no point of time the seized properties were produced before the Court, the case was concluded mere identifying the properties in the Photographs which was produced by the prosecution and none of the Forest Officials has been examined to prove the existence of the seized Ivories, hence the seizure of the Ivories and the existence of the Ivories is doubtful.

• The petitioners submits that, the respondent police have not at all made any efforts to secure the prime accused Joseph at any point of time and on the other hand they have dropped the case against him while submitting the Final Report which throws a great doubt about the credibility of the complaint. It is the true fact that, the respondent police in order to register a

case for their statistical purposes have forcibly brought the petitioners from their village and have implicated in the above false case which was registered by them by making use of the planted witnesses PW-5, PW-7 & PW-8.

• The leaned Magistrate did not appreciate the Judgments of Hon'ble Supreme Court and the Hon'ble High Court which were relied upon by the accrued.

• The Judgment, conviction and sentence passed by the Learned Sessions Judge & FTC - IV, Bangalore, in Crl.Appl.No.654/2011 dated 15/06/2012 is totally perverse, illegal, unlawful and bad in law and therefore the same is liable to be set aside by this Hon'ble Court.

• The impugned judgment and conviction and sentence passed by the trial Court is contrary to facts, materials and evidence placed on records and as such the judgment, conviction and sentence is liable to be set-aside by this Hon'ble Court.

• The petitioners submits that, the learned sessions judge has committed grave error in not exercising his judicial mind in appreciating the

evidence placed on records according to well established judicial pronouncement.

• It is submitted that, the learned Magistrate and the Learned Sessions Judge have failed to appreciate the defense elicited during the trial. Further, the entire judgment is one sided and none of the Court below have appreciated the defense elicited on behalf of the petitioners.

• The petitioners submits that, learned Sessions Judge's judgment in total is contrary and opposed by law, facts and probabilities.

• The petitioner submits that, the petitioners are poor villagers and agriculturist by profession and they were unnecessarily dragged in to the court proceedings by foisting a false case against them by the respondent, the petitioners being absolutely innocent of the alleged crime and offences are filing this criminal revision petition in time with a hope of justice.

• The petitioners submits that, the petitioners are having aged parents and other family members to look after as the petitioners are the only bread earning members in their family.

• The petitioners are hails from respectable poor family and have no bad antecedents or previous convict or any other case pending against them.

• The petitioners have filed this Criminal Revision Petition within time.

• The petitioner have not filed any other petition before any other court for the same relief.

• The petitioner craves the permission of this Hon'ble court to urge additional grounds."

9. Reiterating the above grounds, Sri. R. V.

Shivananda Reddy, learned counsel appearing for the

revision petitioners vehemently contended that the

revision petitioners are coolies, who have been procured

by Joseph and they were not knowing what was available

in the bag carried by Joseph and they were only required

to stay in the room as per the instructions of Joseph and at

that juncture, the police raid the place and recovered the

Ivory pieces and therefore, there is no nexus between the

possession of Ivory pieces and revision petitioners and

sought for allowing the revision petition.

10. Alternatively, he contended that in the event of

this Court maintaining the order of conviction, since the

accused are the first time offenders, leniency may be

shown.

11. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that the seizure of six ivory pieces which is not a freely

available commodity in the open market itself completes

an offence inasmuch as seizure of ivory pieces is the main

ingredients to attract the offence alleged against the

accused persons and in the absence of any proper

explanation offered by the accused persons about the

possession of ivory pieces, the trial Magistrate and the

learned judge in the First Appellate Court have rightly

appreciated the material evidence on record and passed

the impugned orders and therefore, sought for dismissal of

the revision petition.

12. Insofar as alternate plea is concerned, Sri. V.

S. Vinayaka, learned High Court Government Pleader

contended that the possession of illegal ivory pieces by the

accused persons is a grave offence and in fact, the said

offence must be dealt with iron hands and if any leniency

is shown, it would send a wrong message to the society

and perpetrators of such crime would get encouraged and

therefore, sought for dismissal of the revision petition.

13. 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 is guilty of the offences punishable under Sections 9, 39, 40, 44, 49(a), (b) and 51 of the Wild Life Protection Act read with Sections 429 and 379 of the Indian Penal Code, 1860 which is confirmed by the First Appellate Court in Crl.A. No.654/2011 is suffering from legal infirmity or perversity and thus calls for interference?

2. Whether the sentence is excessive?

14. In the case on hand, on the credible

information received by PW.2 - Raju, he formed a team

and raided room No.202, Balaji Lodge, Seegebeli Road and

found the presence of the revision petitioners in the room

along with six ivory pieces. Absolutely there is no

explanation forthcoming on record. Mere fact that the

Joseph is available for the investigation and trial itself

would not efface the criminality of the revision petitioners.

Admittedly, no explanation is forthcoming by the revision

petitioners at the time of recording the accused statement.

Accused persons also did not place on record any written

submissions as is contemplated under Section 313(5) of

Cr.P.C. about the possession of the illegal ivory pieces.

15. Mahazar stands proved by placing necessary

oral and documentary evidence on record. Admittedly,

PW.2 did not possess any previous enmity or animosity

against the revision petitioners so as to falsely implicate

them, moreover, as is rightly contended by the learned

High Court Government Pleader. The ivory pieces which

were seized during the incident are not freely available

commodity and why would PW.2 falsely implicate the

accused persons by implanting six ivory pieces in the case

is a question that remained unanswered by the revision

petitioners. Accordingly, the findings recorded by the

learned trial Magistrate that the prosecution has

successfully established the guilt of the accused for the

aforesaid offences and confirmed by the First Appellate

Court in the considered opinion of this Court and in the

light of the grounds urged in the revision petition does not

suffer from any legal infirmity or perversity and therefore,

point No.1 is answered in the negative.

16. Insofar as point No.2 is concerned, the learned

trial Magistrate has imposed the sentence as referred to

supra. On record it is found that the revision petitioners

were in custody for a period of 16 days. Since the accused

persons are first time offenders, this Court is of the

considered opinion that if the period undergone by them in

the custody for a period of 16 days is treated as period of

imprisonment and ordered to pay fine of Rs.25,000/-

inclusive of the fine already imposed by the trial

Magistrate, it would meet the ends of justice having regard

to the peculiar facts and circumstances of the case.

Accordingly, point No.2 is answered and pass the

following:

ORDER

i. The Criminal Revision Petition is allowed-in-

part.

ii. While maintaining the conviction order passed

by the trial Magistrate confirmed by the First

Appellate Court for the offences punishable

under Sections 9, 39, 40, 44, 49(a), (b) and

51 of the Wild Life Protection Act, 1972 read

with Section 429 and 379 of the Indian Penal

Code, 1860 for a period of 16 days undergone

by the accused persons in custody is treated as

period of imprisonment and ordered to pay fine

of Rs.25,000/- each (inclusive of the fine

amount) by the revision petitioners on or

before 15.01.2022.