Karnataka High Court
Kumar @ Giri vs State Of Karnataka on 30 August, 2023
Bench: Rajendra Badamikar
-1-
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 752 OF 2015
C/W
CRIMINAL REVISION PETITION NO. 1076 OF 2015
IN CRL.RP.NO.752/2015:
BETWEEN:
1. KUMAR @ GIRI S/O.PUTTAIAH,
AGED ABOUT 31 YEARS,
2. SANNASWAMY S/O.THIMMAIAH,
AGED ABOUT 33 YEARS,
3. KUMAR S/O.SANNA KEMPA,
AGED ABOUT 33 YEARS,
ALL ARE R/AT. DODAHEJJURU VILLAGE,
HUNSURU TALUK,
MYSORE DISTRICT-570 018.
Digitally ...PETITIONERS
signed by (BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)
RENUKAMBA AND:
KG
Location: STATE OF KARNATAKA,
High Court of BY RANGE FOREST OFFICER,
Karnataka VEERANAHKOSAHALLI FOREST RANGE,
HUNSURU,
NOW REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560001.
...RESPONDENT
(BY SRI. JAIRAM SIDDI, HCGP)
-2-
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE DATED 21.8.2013 PASSED BY THE C.J. AND
J.M.F.C., HUNSUR IN C.C.NO.417/2007 FOR OFFENCES P/U/S
104(A) OF KARNATAKA FOREST ACT AND CONFIRMED DATED
18.6.2015 PASSED BY THE V ADDL. DIST. AND S.J., MYSORE
IN CRL.A.NO.261/2013.
IN CRL.RP.NO.1076/2015:
BETWEEN:
1. MANJU S/O SHAMAIAH,
AGED ABOUT 24 YEARS,
2. SOORA S/O LATE. JAVARAIAH,
AGED ABOUT 24 YEARS,
ALL ARE R/AT. DODDAHEJJURU VILLAGE,
HUNSURU TALUK,
MYSORE DISTRICT.
...PETITIONERS
(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)
AND:
STATE OF KARNATAKA,
BY RANGE FOREST OFFICER,
VEERANAHKOSAHALLI FOREST RANGE,
HUNSURU,
NOW REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. JAIRAM SIDDI, HCGP)
THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE C.J. AND J.M.F.C., HUNSUR IN
C.C.NO.417/2007 DATED 21.8.2013 FOR OFFENCES P/U/S
104(A) OF KARNATAKA FOREST ACT AND CONFIRMED BY THE
-3-
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
V ADDL. DIST. AND S.J., MYSORE IN CRL.A.NO.261/2013
DATED 18.6.2015.
THESE PETITIONS COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
These two revision petitions are filed by the accused
challenging the judgment of conviction and order of
sentence passed in C.C.No.417/2007 by Civil Judge and
JMFC, Hunsur and confirmed by V Additional Sessions
Judge, Mysore in Crl.A.No.261/2013. Crl.R.P.No.752/2015
is filed by accused Nos.1, 2 and 5, while
Crl.R.P.No.1056/2015 is filed by accused Nos. 3 and 4.
2. Since, these revision petitions are arising out of
the same judgment of conviction and order of sentence,
they are heard together and a common order is being
passed.
3. For the sake of convenience, the parties herein
are referred with original ranks occupied by them before
the trial Court.
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
4. The brief factual matrix leading to the case are
that on 29.03.2007 at 8.30 a.m., CW1 to CW4 were on
beat duty in Veeranahosahalli Reserve Forest Area and
while they were discharging their duty, they came across
accused who were found transporting four logs of jungle
wood. It is further assertion of the prosecution that CW1
to CW4 are able to apprehend accused No.1, while
accused No.2 to 5 managed to escape. Thereafter, the
wooden logs were seized under a mahazar and a case in
crime No.4/2006 came to be registered for the offence
under Section 104A of the Karnataka Forest Act, 1963
(hereinafter referred to as 'the Act' for short). Later on,
after completion of the investigation, the charge sheet
came to be laid by the Investigating Officer before the
learned Magistrate which was registered in
C.C.No.417/2007. The accused No.1 was initially
remanded to custody and subsequently, he was enlarged
on bail. Accordingly, accused Nos.5 was also arrested and
subsequently enlarged on bail while, accused Nos.2 to 4
have obtained anticipatory bail. The charge under Section
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
104A of the Act read with Rule 165 of The Karnataka
Forest Rules, 1965 and charge under Section 51 of Wild
Life Protection Act, 1972 (hereinafter referred to as 'the
1972 Act' for short) were framed and the same were read
over and explained to the accused. The accused pleaded
not guilty and they claimed to be tried.
5. To prove the guilt of the accused, prosecution
has examined in all 6 witnesses and also placed reliance
on 11 documents and four material objects. After
completion of the evidence of the prosecution, the
statement of accused under Section 313 of the Criminal
Procedure Code, 1973 (hereinafter referred to as 'the
Code' for short) was recorded to enable the accused to
explain the incriminating evidence appearing against them
in case of the prosecution. The case of accused is of total
denial and they did not choose to lead any oral or
documentary evidence in support of their defence.
6. After having heard the arguments and after
appreciating the oral and documentary evidence, the
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
learned Magistrate has convicted the accused for the
offence under Section 104A of the Act and Section 51 of
the 1972 Act. After hearing on sentence, he has only
imposed sentence of five months with fine of Rs.5,000/-
with a default clause on accused for the offence under
Section 104A of the Act and no sentence was imposed for
the offence under Section 51 of 1972 Act. Being aggrieved
by this judgment of conviction and order of sentence, the
accused have approached V Additional Sessions Judge,
Mysore in Crl.A.No.261/2013 and the learned Sessions
Judge after re-appreciating the oral and documentary
evidence has dismissed the appeal by confirming the
judgment of conviction and order of sentence passed by
both the courts below. Being aggrieved by these
concurrent findings, the accused are before this court by
way of these two revision petitions.
7. Heard the arguments advanced by the learned
counsel for revision petitioner and perused the records.
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
8. The learned counsel for the revision petitioner
would contend that both the courts below have failed to
appreciate the oral and documentary evidence in its
proper perspective and the evidence of the prosecution
witness is not trustworthy and the seizure itself is not
properly proved. Hence, he contends that the conviction
was improper. Alternatively, he would contend that
considering the nature and gravity of the offence, the
benefit of Probation of Offenders Act, 1958 (hereinafter
referred to as 'the 1958 Act' for short) may be extended to
the accused.
9. Per contra, the learned High Court Government
Pleader would support the judgment of conviction and
order of sentence passed by both the courts below. He
would contend that the offence committed is against forest
and wildlife and under such circumstances, it is not proper
to extend the benefit under the provisions of 1958 Act as
it is likely to affect the environment of the State. Hence,
he would further assert that both the courts below have
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
appreciated the oral and documentary evidence in its
proper perspective and have rightly convicted the accused,
which does not call for any interference.
10. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:-
"Whether the judgment of conviction and order
of sentence passed by the trial court and
confirmed by the appellate court suffer from any
perversity, illegality or arbitrariness so as to call
for any interference by this court?"
11. It is the specific case of the prosecution that on
29.03.2007, around 8.00 a.m. in the morning, accused
have trespassed in Rajeev Gandhi National Park, reserve
forest situated in Veeranahosahalli and there they were
found transporting four bete logs, which were seized and
accused Nos.2 to 5 fled from the spot, while accused No.1
was apprehended and property was recovered. PW1 is the
complainant and he is a witness to the seizure mahazar
also. PW2-Harish, PW3-Umesh, and PW4-Ganesh are the
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
four witnesses and they are the persons who have
apprehended the accused and they were in beat duty
when the alleged offence was noticed by them. In their
evidence, they have specifically deposed regarding
accused carrying away four bete logs and they being
apprehended and accused Nos.2 to 4 fleeing from the
spot. Though they were cross examined at length, nothing
was elicited so as to impeach their evidence. No doubt,
PW1 to PW4 are official witnesses but, there is no reason
for discarding their evidence since, the offence was
committed in the reserve forest and there is prohibition
entry of the public at large and hence, question of getting
independent witnesses at the spot does not arise at all.
The evidence of PW1 to PW4 is corroborated with each
other and no contradictions or omissions are forthcoming
and no evidence is placed to discard their evidence. Merely
because, they are government officials, their evidence
cannot be ignored but it can be scrutinized cautiously, but
no suspicious circumstances are forthcoming to ignore
their evidence. Hence, the evidence on record clearly
- 10 -
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
establish that the accused were found carrying four
wooden logs i.e., bete logs and they have thereby
committed an offence under Section 104A of the Act.
12. Though both the courts below have held that
the accused have committed the offences under Section
51 of the 1972 Act, however, no sentence was imposed by
the learned Magistrate for the said offence. The State has
also not challenged this aspect of non-imposing of
sentence. Under these circumstances, now question of
imposing sentence under the 1972 Act, at this juncture
does not arise at all. Now the question is only restricted in
respect of the offence under Section 104A of the Act.
13. The offence under Section 104A of the Act is
punishable with imprisonment, which may extend to five
years and fine upto Rs.10,000/-. The learned Magistrate
has considered the applicability of 1958 Act as argued and
has rejected the said contention considering the fact that
the offences are under Special enactment and they affect
the environment as well as society at large. Hence, he
- 11 -
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
has proceeded to impose imprisonment for a period of five
months with fine of Rs.5,000/-.
14. The learned counsel for the revision petitioner
would contend that considering the age of the petitioners
and they being tribal people, the benefit of 1958 Act may
be extended to the accused. In this context, he placed
reliance on an unreported decision of this court in
Crl.R.P.No.87/2012 dated 29.11.2011. In the said case,
the benefit of 1958 Act was extended no doubt, but
simultaneously fine of Rs.10,000/- was also imposed and
when fine was imposed, question of extending the benefit
of 1958 Act does not arise at all. Further, in the said case,
the timber is being transported, but in the instant case,
the bete was being transported and that too four logs were
transported. Hence, the principles enunciated in the
above cited decision cannot be made applicable to the
facts and circumstances of the case in hand.
15. The learned counsel for the revision petitioner
further placed reliance on a unreported decision of this
- 12 -
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
court in Crl.R.P.No.1145/2012 dated 23.11.2021. In the
said case, only certain teak wood and sesame wood pieces
were being transported without any permit and hence, the
benefit of 1958 Act was extended, but, simultaneously fine
of Rs.25,000/- came to be imposed. Considering the fact
that in the said case, only certain pieces of sesame and
teak wood were recovered, the said principles cannot be
made applicable, as in the instant case, four wooden logs
were recovered from the custody of the accused.
16. The learned counsel for the revision petitioner
would contend that the petitioners are tribals and they are
part of the reserve forest and considering this aspect,
some leniency may be shown against them by imposing
fine only. However, the provisions of Section 104A of the
Act mandates sentence and looking to the nature and
gravity of offence and its effect on ecology, the benefit of
1958 Act cannot be extended.
17. The offence is punishable with imprisonment
which may be extended to five years and fine upto
- 13 -
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
Rs.10,000/-. In the instant case, the imprisonment was for
five months and fine imposed was Rs.5,000/-. Though it is
argued that the petitioners are tribal people, the same is
not substantiated as records disclose that they are
residents of Doddehennur Village. Further it is borne out
from the cross examination of the witnesses that they
possess agricultural lands adjoining the reserve forest and
hence, being the responsible citizen and having granted
forest land for their livelihood, they are equally responsible
to protect the forest but the records disclose that they
have uprooted a bete tree and are transporting the four
logs and hence, they are required to be sentenced to
imprisonment.
18. The statute did not prescribe any minimum
imprisonment, but maximum imprisonment is up to five
years. The age of the petitioners is between 23 to 25
years. Further, they are agriculturists, which is evident
from the records but at the same time, the nature of the
offence cannot be ignored and considering these facts and
- 14 -
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
circumstances, the imprisonment for five months appears
to be on little higher side and in my considered opinion,
considering the nature and gravity of the offence and
petitioners being the adjoining land owners, the
imprisonment for three months would serve the purpose
but at the same time, the fine requires to be enhanced
from Rs.5,000/- to Rs.10,000/-. Considering these facts,
with above modifications, the revision needs to be allowed.
Considering these facts and circumstances, the revision
petitions need to be allowed in part. Accordingly, the point
under consideration is answered partly in the affirmative
so far as sentence portion is concerned. Accordingly, I
proceed to pass the following:
ORDER
(i) The revision petitions are allowed in part.
(ii) The judgment of conviction dated
21.08.2013 passed by Civil Judge and
JMFC, Hunsur in C.C.No.417/2007 and
confirmed by V Additional Sessions Judge,
Mysore in Crl.A.No.261/2013 dated
18.06.2015 stands confirmed.
- 15 -
NC: 2023:KHC:31127
CRL.RP No. 752 of 2015
C/W CRL.RP No. 1076 of 2015
(iii) However, the sentence portion is
modified and accused / revision
petitioners are directed to undergo
Simple Imprisonment for a period of
three months and are required to pay
a fine of Rs.10,000/-. In default, they
are required to undergo further
imprisonment for a period of three
weeks.
(iv) The period of detention of the accused
in custody is set off against the
sentence imposed against them under
Section 428 of Code of Criminal
Procedure, 1973.
Sd/-
JUDGE
SS
