P G Putta S/O P. Guruva vs The State Of Karnataka
2021 Latest Caselaw 885 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 15TH DAY OF JANUARY, 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

    CRIMINAL REVISION PETITION No.8 OF 2015

BETWEEN :
P.G.Putta S/o P.Guruva
Aged about 37 years
R/o Cherala Srimangala village
Chettalli post, Somwarpet Taluk
Kodagu District-571236
                                                ...Petitioner
(By Sri Umesh, Advocate for
Sri Ravindra B. Deshpande, Advocate)

AND :
The State of Karnataka
By R.F.O., Kushalanagar Range
571 234
                                              ...Respondent
(By Sri Mahesh Shetty, HCGP)

      This Criminal Revision Petition is filed under Section
397 and 401 of Cr.P.C., praying to set aside the judgment
and order of conviction and sentence dated 12.01.2007
passed by the Civil Judge (Sr.Dn) and CJM, Kodagu
Madikeri in C.C.No.45/1997 and the order dated
27.09.2014 passed by the I Additional District and
Sessions Judge, Kodagu Madikeri in Crl.A.No.23/2007 and
acquit the petitioner of charges leveled against him.

      This Criminal Revision Petition coming on for Final
Hearing, this day, the Court made the following:
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                          ORDER

Heard both sides.

2. This revision petition is filed against the

judgment of conviction and order of sentence passed in

C.C.No.45/1997 on the file of the Civil Judge (Sr.Dn) and

CJM at Kodagu Madikeri and confirmed in

Crl.A.No.23/2007 on the file of the I Additional District and

Sessions Judge, Kodagu Madikeri.

3. The brief facts which are necessary for disposal

of the revision petition are as under:

On 30.10.1996, in the early hours, the forest officials

on credible information were on patrolling duty around

01.30 - 01.45am they spotted a Ambassador car near

Delcora Estate in Chettalli-Madikeri main road within the

limits of Meenukolli section of Kushalnagar Forest Range.

On interception of the said car, the raid party noticed four

inmates and they enquired the inmates of the car who

revealed their names, as C.T.James, P.G.Putta, S.R.Nissar

and A.T.Benny (accused persons). On opening of the boot

of the car, the forest officers found sandal wood billets.

On further enquiry, inmates of the car told them that they

do not possess license to transport the sandal wood billets

and as such prima-facie the forest officers found that the

accused persons have committed an offence punishable

under Section 87(2) of Karnataka Forest Act. Accordingly

they seized the car and sandal wood billets and took the

inmates of the car to their custody and drafted a

panchanama(Ex.P.1) and registered a case in FOC

No.44/1996-97 at Range Forest Office, Kushalnagar

Range. On thorough investigation Range Forest Officer

(RFO for short), Kushalnagar Range charge sheeted the

accused for the offence punishable under Section 87 of

Karnataka Forest Act read with Rule 154 and 165 of

Karnataka Forest Rules.

4. Cognizance of the offences was taken by the

learned Magistrate and secured the presence of the

accused and charge was framed. The accused pleaded not

guilty and therefore trial was held.

5. In order to prove their case, the prosecution

has examined 5 witnesses as PW1 to PW5 and relied on 9

documentary evidence and they were exhibited and

marked as Ex.P.1 to P.9 and material objects as MO-1 to

MO18. The RFO who is examined as PW1 deposed before

the Court in line with the contents of Ex.P.1. He has also

specifically stated that despite his best efforts he could not

get any independent witnesses for mahazar proceedings.

As such he proceeded to take the signatures of members

of the raiding party as panchas. PW2 is the scribe of

Ex.P.1. PW3, PW4 and PW5 who are also forest officials

deposed in line with the examination in chief of PW1 and

supported the case of prosecution. In the cross

examination of these witnesses, suggestions put to them

that no such incident is taken place as is deposed by them

and Ex.P.1 has been concocted in the police station, have

been denied by the prosecution witnesses.

6. On conclusion of the evidence on the side of

the prosecution, the accused statement as contemplated

under Section 313 Cr.P.C., was recorded, wherein the

accused denied all the incriminating materials and did not

adduce any evidence nor filed any written statement as to

their version of the case. Learned Magistrate on

cumulative consideration of the oral and documentary

evidence on record, convicted the accused/revision

petitioner. Later on accused persons preferred an appeal

before the Sessions Court which was allowed and case was

remanded to the trial Court. On the case being remanded

to the trial Court charge was re-casted and accused

persons were charged only for the offence punishable

under Section 87 of Karnataka Forest Act and after hearing

the parties, the learned Magistrate convicted the accused

for the offence punishable under Section 87 of the

Karnataka Forest Act and passed the following order:

Accused Nos.1, 2 and 4 are hereby

sentenced to undergo S.I. for three years and

fine of Rs.5,000/- each for the offence

punishable under Section 87 of Karnataka

Forest Act. In default of payment of fine, they

shall undergo further S.I. for Nine months. If

the Accused Nos.1, 2 and 4 are already

undergone, the same is given set-off under

Section 428 of Cr.P.C.

7. Being aggrieved by the said order of

conviction, this revision petitioner preferred an appeal

before the Sessions Court in Crl.A.No.23/2007.

8. Learned Judge in the first appellate Court

secured the trial Court records and after hearing the

parties in detail and on re-appreciation of the material on

record, confirmed the judgment of the learned Magistrate

by upholding the order of conviction of the accused person

for the offence punishable under Section 87 of Karnataka

Forest Act. It is those judgments which are subject matter

of this revision petition.

9. Sri P.B.Umesh, Advocate appearing on behalf

of Sri Ravindra B Deshpande, learned counsel for the

revision petitioner/accused No.2 vehemently contended

that the learned Magistrate without proper appreaciation of

the material on record convicted the accused which has

been wrongly upheld by the learned Judge in the first

appellate Court. He also contended that both the Courts

have failed to note that there were no independent

witnesses to prove the case of prosecution and the reason

assigned by the raid party in this regard is not acceptable.

He also points out that in the cross examination it has

been elicited that the place of incident is one kilometer

from Chettalli and if at all raid party really wanted to

secure the presence of independent panchas, they would

have been successful in securing the independent

witnesses. Since the whole case is created against the

accused persons no effort has been made by the raid party

for securing the independent witnesses and thus sought for

allowing the revision petition.

10. He also argued that Ex.P.8 is the certificate

issued by PW1 to show that MOs.1 to 18 are the sandal

wood billets. Admittedly PW1 is not an expert to say

MOs.1 to 18 are the sandal wood billets or not. To hold

that MOs.1 to MO18 are the sandal wood billets, there is

no compliance of Section 62(c) of Karnataka Forest Act

and this aspect has been totally ignored by both the Courts

and therefore there is an error apparent on record which

requires interference by this Court under the revisional

jurisdiction.

11. Per contra, learned High Court Government

Pleader representing the State Public Prosecutor contended

that having regard to the time of the incident being 1.45 to

2.00 am, in the forest, securing the panch witnesses is

highly impossible and there is sufficient explanation

offered by the prosecution witnesses in this regard which

has been rightly appreciated by the learned Magistrate in

Para 24 and 25 of the impugned judgment. He further

contends that in the cross examination, it has been elicited

that PW1 is not an expert, but PW1 has answered, by

experience he has certified that MOs.1 to 18 are sandal

wood billets. He also supported the impugned judgment

stating that no effort is made by the accused party to refer

the material objects for expert, if it is the definite case of

the accused persons that MOs.1 to 18 are not the sandal

wood billets. He also pointed out that another accused in

the same case by name C.T. James (accused No.1) had

filed a revision petition before this Court in

Crl.R.P.No.852/2007, challenging the validity of the

judgment of conviction passed by the learned Magistrate

upholded in Criminal Appeal No.8/2007, which came to be

dismissed by this Court by order dated 02.07.2008 and

therefore on the question of parity this revision petition

also to be dismissed.

12. In reply Sri P.B.Umesh, learned counsel for the

revision petitioner/accused No.2, contended that dismissal

of the revision petition of the co-accused should not come

in the way of independently disposing this case by this

Court and question of parity would not apply in a case

where the conviction order is there and sought for allowing

the revision petition.

13. In view of the rival contentions of the parties,

the following point that would arise for consideration is:

"Whether the finding recorded by the

learned Magistrate that accused No.2/revision

petitioner is guilty of the offence punishable

under Section 87 of Karnataka Forest Act,

which is confirmed by the learned first

appellate Court in Crl.A.No.23/2007 is

erroneous?"

14. The answer to the above point is in Negative

for the following:

REASONS

15. Case of the prosecution hinges on Ex.P.1

panchanama wherein MO1 to 18 have been seized by the

raid party on 30.10.1996 at about 2.00am near Delcora

Estate on Chettalli-Madikeri main road within the limits of

Meenukolli section of Kushalnagara Range. The main

thrust of the argument on behalf of the revision

petitioner/accused No.2 is that for proving Ex.P.1 there are

no independent witnesses. Having regard to the time and

place of the incident, the prosecution witnesses especially

PW1 has offered his explanation as to why he did not take

the signatures of independent witnesses to Ex.P.1. The

same has been properly appreciated by the learned

Magistrate in Para 24 and 25 of the impugned judgment as

rightly contended by the learned High Court Government

Pleader.

16. Except for the fact that the independent

witnesses have not signed Ex.P.1, there is no other

discrepancy as is found from Ex.P.1. The defence taken by

the accused persons is that they were intending to visit

Mysuru and on the midway they were intercepted by the

forest officers and foisted a false case by concocting Ex.P.1

Mahazar and MO1 to 18. It is pertinent to note that the

said defence is not probabilized by placing at least any

plausible evidence on record. There is no defence

evidence led by the accused nor any circumstances are

explained while recording accused statement under Section

313 of Cr.PC., but the suggestions made in the cross

examination of prosecution witnesses would nullify the

theory put forth by the accused that they were proceeding

towards Mysuru and raid party intercepted them on mid-

way. In fact in the cross examination of PW1 it has been

clearly elicited that the first accused is a college going

student and he has been forcibly picked from Chettalli bus

stand and accused Nos.2 and 3 were picked up from their

house. In the teeth of such suggestions made to PW1, the

explanation offered by the accused persons during

recording of accused statement, they have been falsely

implicated by the raid party while they were proceeding to

Mysuru is without any basis whatsoever and therefore,

rightly rejected by the learned Magistrate and properly

appreciated by the first appellate Court.

17. Insofar as the defence that MO1 to 18 are not

sandal wood billets and PW1 is not a competent person to

depose that MO1 to 18 are the sandal wood billets, it lost

significance in the absence of any such evidence placed by

the defence in this regard.

18. When the case of defence is that a false case

has been foisted and no nexus whatsoever with MO1 to 18

whether MO1 to 18 are sandal wood billets or not, at least

by summoning an expert. The raid party had discharged

the necessary initial burden cast on them and therefore

the argument putforth on behalf of the defence that there

is no compliance of Section 62(c) of Karnataka Forest Act

cannot be countenanced. The said aspect of the matter

has also dealt with by the learned Magistrate and the first

appellate Court in its right perspective.

19. Suffice to say that the revision petitioner has

failed to point out any parent error on record or improper

exercise of jurisdiction or suffering from any legal infirmity

in the impugned judgments. Accordingly the point is

answered and following order is passed.

ORDER

Revision Petition is dismissed.

            Revision     Petitioner/accused       No.2   is
      directed   to    surrender   before   the    learned

Magistrate forthwith to serve the sentence.

Office is directed to send back the trial Court records as early as possible along with a copy of this Order.

Sd/-

JUDGE

KMV/PL*