State Of Karnataka vs Dondu Bagu Patagare
2022 Latest Caselaw 3373 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 28th DAY OF FEBRUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             CRIMINAL PETITION No.101548/2018

Between

STATE OF KARNATAKA
BY THE RANGE FOREST OFFICER,
KIRAVATTI RANGE FOREST,
UTTARA KANNADA DISTRICT,
REPRESENTED BY
ADDITIONAL STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                                ...PETITIONER
(BY SRI. RAMESH CHIGARI, HCGP)

AND

1.   DONDU BAGU PATAGARE
     AGE 57 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.

2.   MAMBU GANDU @ DONDU SHINDHE
     AGE 35 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
                             2




     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.

3.   RAMU BAIRU KALE
     AGE: 30 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.

4.   MAMBU BAGU SHINDHE
     AGE: 33 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.

5.   RONGU SAVU PATAGARE
     AGE: 52 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.

6.   BHAGU KOYA SHINDHE
     AGE: 57 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.

7.   LAKKU GOYA KOKARE
     AGE: 22 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR,DIST: KARWAR.
                              3




8.   SHAMU BABU PATAGARE
     AGE: 60 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR, DIST: KARWAR.

9.   INJU SHAMU SHINDHE
     AGE: 50 YEARS,
     OCC: AGRICLTURE,
     R/AT: KARADOLLI,
     POST: HUNASHETTIKOPPA,
     TQ: YALLAPUR, DIST: KARWAR.

10. INJU VITTU SHINDHE
    AGE: 55 YEARS,
    OCC: AGRICLTURE,
    R/AT: KARADOLLI,
    POST: HUNASHETTIKOPPA,
    TQ: YALLAPUR, DIST: KARWAR.
                                           ...RESPONDENTS

(BY SRI. K.S. KORISHETTAR, ADVOCATE FOR R1-R8 )
(PETITION AGAINST R9 STANDS ABATED)

     THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS AND TO SET ASIDE THE
JUDGMENT AND ORDERS PASSED BY BOTH THE COURTS BELOW
IN CRL.RP.NO.5005/2017 DATED 05.05.2017 ON THE FILE OF I-
ADDL. DIST. & SESSIONS JUDGE, U.K., KARWAR, SITTING AT
SIRSI, (SITTING AT YALLAPUR) AND ALSO IN C.C.NO.280/2014
DATED 16.08.2016 ON THE FILE OF JMFC COURT, YALLAPUR;
AND TO DIRECT THE TRIAL COURT TO FRAME CHARGE AGAINST
THE RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/S 51 OF
WILD LIFE PROTECTION ACT, 1972, SEC. 24, 104 OF FOREST ACT
AND U/S 429, 201, 109 R/W SEC. 149 OAF IPC AND TO PROCEED
WITH THE MATTER.
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    THIS PETITION COMING ON FOR ADMISION THIS DAY, THE
COURT MADE THE FOLLOWING:


                                  ORDER

First information was lodged against the accused persons

alleging that they had illegally erected an electric fence to the land

of the accused No.1 due to which an elephant died of

electrocution, and with an intent to destroy the evidence buried

the carcass of the elephant in the land of accused No.1.

Thereafter, the police recovered the carcass of the elephant in the

presence of panchas and a case was registered in C.C.

No.280/2014 with the Civil Judge & JMFC, Yellapur, (for short, 'the

Trial Court') against the accused for the offences punishable under

Section 51 of the Wild Life Protection Act, 1972, Sections 24 and

104 of the Karnataka Forest Act, 1976, and Sections 429 and 109

of the Indian Penal Code, 1860.

2. The prosecution to establish the charges leveled

against the accused-petitions examined P.Ws.1 to 16 and marked

the documents as Ex.P.1 to P.37 & 37(a). When the case was set

out for framing of charges, the learned Magistrate under Section

245 of the Code of Criminal Procedure, 1973, discharged accused

Nos.2 to 11 of the offences alleged against them stating that the

prosecution has not produced any document to show

encroachment of the forest land by accused No.1 and also illegal

electrical connection taken by accused No.1. It was further stated

that the prosecution had not proved the recovery of the elephant

carcass and also not proved that the elephant died due to

electrocution. Being aggrieved, the petitioner filed a revision

petition in C.R.P. NO.5005/2017 before the I Additional District &

Sessions Judge, U.K., Karwar (for short, 'the Revisional Court').

The Revisional Court, by its order dated 05.05.2018, confirmed

the order passed by the Trial Court discharging the accused Nos.2

to 11 for the offences alleged against them. Taking exception to

the same, the State is before this Court.

3. The learned High Court Government Pleader for the

petitioner-State submits that there is a prima facie case against

the accused for having committed the offences alleged against

them and whether the prosecution has proved the charges leveled

against the petitioner or not has to be considered only after

concluding the trial. He submits that both the Trial Court and the

Revisional Court have committed an error in discharging the

accused Nos.2 to 11 for the offences alleged against them by

conducting a mini trial at the time of framing of charge.

4. On the other hand, the learned counsel for the

respondents would justify the order passed by the Trial Court and

the Revisional Court discharging accused Nos.2 to 11 for the

offences alleged against them, and prayed for dismissal of the

petition.

5. I have heard the learned counsel for the parties and

perused the records.

6. Respondent No.9-accused is stated to have died

during the pendency of this petition. Hence, the petition as

against respondent No.9 stands abated.

7. It is undisputed that P.W.1 and P.W.2 are drivers,

P.Ws.5, 6 & 8 are the Deputy Range Forest Officers of the

different forest range; P.W.3 is the Deputy Range Forest Officer,

P.Ws.10 & 11 are Forest Watchers, P.W.13 is the Assistant

Conservator of Forest, P.W.15 is the Conservator of Forest and

P.W.16 is also Assistant Conservator of Forest, and these official

witnesses, in their evidence, have deposed corroborating the case

of he prosecution that, on receipt of credible information they

went to Karadolli Village and found buried carcass of the Elephant

with ivory tusk missing. But, P.Ws.3 and 4, who are alleged to be

panch witnesses to the recovery of Elephant carcasses, have

turned hostile and have not supported the case of the prosecution

by denying that in their presence the forest officials dug up or

exhumed the grave and found the carcass of Elephant. Hence, the

prosecution failed to prove recovery of elephant carcass by

examining the independent witnesses to the panchanama.

8. P.W.13 is the Assistant Conservator of Forests. P.W.14

is the Veterinary Surgeon, who conducted a post-mortem over the

carcass of the elephant. P.W.14, in his examination-in-chief, has

deposed that the elephant died of electrocution. However, P.W.14,

in his cross-examination has admitted that the he did not find

burn of skin and muscles of the elephant; and has also stated that

there is a possibility of death of elephant due to ill-health and he

is unable to state the exact cause of the death of the elephant.

9. The Trial Court taking into account the evidence of

P.W.3 and P.W.4, who are the alleged witnesses to the

panchanama and evidence of P.W.14, the Veterinary Surgeon who

conducted post-mortem over the carcass of the elephant, has held

that the prosecution has failed to prove the charges leveled

against the accused. The learned Magistrate acting under Section

245 of Cr.P.C. has discharged accused Nos.2 to 11 for the

offences alleged against them. The reasons assigned by the Trial

Court in discharging accused Nos.2 to 11 based on the evidence of

P.Ws.3, 4 and 14 and order of the Revisional Court confirming the

order of the Trial Court cannot be said perverse or suffers from

any illegality.

Accordingly, the petition stands dismissed.

Sd/-

JUDGE Kms