Karnataka High Court

Kumara vs State By Hunsur Town on 6 December, 2023

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 6TH DAY OF DECEMBER, 2023

                       BEFORE

        THE HON'BLE MR JUSTICE RAJESH RAI K

           CRIMINAL APPEAL NO.83 OF 2018

BETWEEN

1 . KUMARA,
    S/O LATE GOVINDA,
    AGED ABOUT 36 YEARS,
    R/AT MAKALAMMA TEMPLE BACK,
    RATHNAPURI ROAD, HUNSUR TOWN,
    MYSORE DISTRICT-571 105.

2 . DEVARAJU M,
    S/O LATE MUNIRATHNAM,
    AGED ABOUT 70 YEARS,
    R/AT VINOBA COLONY,
    HUNSUR TOWN,
    MYSORE DISTRICT-571 105.
                                         ...APPELLANTS
(BY SRI. ROOPESHA B, ADVOCATE)

AND

   STATE BY HUNSUR TOWN
   POLICE STATION,
   REP BY STATE PUBLIC PROSECUTOR
   BENGALURU-560 001.
                                        ...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP)

     THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
26.10.2017 AND ORDER OF SENTENCE DATED 22.12.2017
PASSED BY THE II ADDITIONAL SESSIONS AND SPECIAL
JUDGE, MYSURU IN SPL.C.NO.270/2016 - CONVICTING THE
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APPELLANT/ACCUSED NO.1 AND 2 ARE SENTENCED TO
UNDERGO 379 OF IPC AND SEC. 21(1) R/W 4(1) AND 21(1)
R/W 4(1A) OF MINOR MINERAL (DEVELOPMENT AND
REGULATION) ACT AND RULE 44 OF KARNATAKA MINOR
MINERAL CONCESSION RULE AND ETC.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.11.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                            JUDGMENT

This appeal is by the convicted accused directed against

the judgment passed in Spl.C.No.270/2016 dated 26.10.2017

by the II Addl. Sessions and Special Judge Mysuru, wherein

the learned Special Judge convicted the appellants/accused

Nos.1 and 2 for the offences punishable under Sections 21(1)

r/w 4(1) and 21(1) r/w Section 4 (1-A) of the Mines and

Minerals (Development and Regulation) Act, 1957 (for short

'MMDR Act'), Rule 44 of the Karnataka Minor Mineral

Concession Rules (KMMC Rules) and Section 379 of IPC and

directed to undergo simple imprisonment for a period of 3

months and to pay a fine of Rs.5,000/- for each of the

offences stated supra in respect of appellant No.1 is

concerned and as far as accused No.2 is concerned, directed

to undergo simple imprisonment for a period of one week and

to pay a fine of Rs.10,000/- for each of the offences stated

supra.

2. Brief facts, which are necessary for disposal of

this appeal, are that:-

Appellant No.2/accused No.2 is the owner of tractor and

trailer bearing Nos.KA-45-T-991 and KA-45-T-992, of which

appellant No.1/accused No.1 was the driver. According to the

prosecution, on 13.11.2015 at about 3.00 p.m., accused

No.1, having raised sand from Lakshmana Thirtha River near

Kirijaji village, transported the same to Vinobha colony village

via Chikka Hunsur. During that time, the said tractor & trailer

was intercepted by PW.2 i.e., first informant in the place

called Althaf Choultry at about 6.45 p.m. Accused No.1,

having stopped the vehicle, fled from the said spot.

Thereafter, PW.2 assessed the quantity of sand in the trailer

to be 1.50 cubic meters and drove the vehicle to Hunsur Town

Police Station and submitted the report as per Ex.P2 by way

of complaint before the PSI of the said Police Station. Based

on the said report, the PSI registered the case in Crime

No.221/2015 dated 13.11.2015 for the offences punishable

under Sections 4(1) (10), 21(1), 21(5) of MMDR Act and

Section 379 of IPC against unknown persons as per Ex.P7.

Subsequently, the respondent-Police investigated the matter

and PW.1-the Assistant Executive Engineer of PWD

Department measured the sand in tractor and trailer bearing

Nos.KA-45-T-991 and KA-45-T-992 and as per his estimation,

the quantity of sand was 1.50 cubic meters worth Rs.1,275/-.

Accordingly, the Investigation Officer handed over the

possession of the sand to the custody of PW.1. Thereafter,

PW.7 by conducting the mahazar in the scene of occurrence

and also completing the investigation by obtaining necessary

documents and also recording the statement of the witnesses

laid the charge sheet before the Special Court.

3. In order to prove the guilt of the accused, the

prosecution in total examined 7 witnesses before the trial

Court as PW.1 to PW.7 so also got marked 8 documents as

Exs.P1 to P8. After completion of the prosecution witnesses,

the trial Judge recorded the statement as contemplated under

Section 313 of Cr.P.C. However, the accused did not choose

to examine any witness or to produce any document on their

behalf.

4. After assessment of oral and documentary

evidence, the learned Special Judge convicted the accused

persons for the aforestated offences. The said judgment is

challenged under in this appeal.

5. Heard the learned counsel for the appellants as

well as learned HCGP for the respondent.

6. Learned counsel for the appellants, vehemently,

contends that the learned Special Judge failed to follow the

guidelines issued in the judgment rendered by this Court in

case of Vivek and another vs. State of Karnataka, by

Kunigal Police Station and another reported in ILR 2018

KAR 1497, wherein the co-ordinate bench of this Court, by

referring the judgment rendered by the Hon'ble Apex Court in

the case of State of NCT of Delhi vs. Sanjay reported in

AIR 2015 SC 75, laid down the guidelines in respect of the

jurisdiction of the Special Court and Magistrate Court for

offence punishable under the provisions of the MMRD Act

including IPC offences wherein, held that a private complaint

has to be filed before the Magistrate Court under the

provisions of the MMRD Act and KMMC Rules even though the

provision of IPC involved. But in this case, learned Special

Judge took cognizance of the offences based on the police

report and FIR was registered by the police. As such, on that

ground alone the impugned judgment is liable to be set-aside.

7. Alternatively, learned counsel would contend that

the prosecution utterly failed to prove the guilt of the accused

by leading cogent evidence. PW.3 and PW.4 i.e., the

witnesses for spot mahazar as per Ex.P6 drawn near Kirijaji

village in the presence of the accused were turned hostile to

the prosecution case. Nevertheless, PW.5 and PW.6, who are

the panch witnesses for the seizure of tractor and trailer as

per Ex.P3, also turned hostile to the prosecution case.

Admittedly, PW.2-the first informant, though seized the trailer

and tractor, had never seen the accused in the spot. Even

PW.1 also did not whisper anything about the presence of

accused Nos.1 or 2 in the spot. In such circumstances, the

learned Special Judge convicted the accused only surmises

and conjectures. Hence, the impugned judgment is liable to

be set-aside.

8. Per contra, learned HCGP, by supporting the

impugned judgment, would contend that learned Special

Judge, after considering the entire materials available on

record, passed the well reasoned judgment which does not fall

for any interference by this Court. PW.2-the first information

and PW.7-the Investigation Officer clearly deposed about the

involvement of the accused in the offence so also accused

No.1 in his 313 statement categorically admitted that he was

driving the trailer and tractor on the date of incident. As

such, inference can be drawn against the accused.

Accordingly, he prays to dismiss the appeal.

9. Having heard the learned counsel for the parties,

the only point that would arise for my consideration is that:

"1. Whether the learned Sessions and Special Judge is justified in convicting the accused for the offences punishable under Sections 21(1) r/w 4(1) and 21(1) r/w Section 4 (1-A) MMDR Act, Rule 44 of the KMMC Rules and Section 379 of IPC?

10. On careful perusal of the evidence available on

record, PW.1-the Assistant Engineer of PWD Department

measured the sand in tractor and trailer bearing Nos.KA-45-T-

991 and KA-45-T-992 in the Police Station on 14.01.2016.

Accordingly, he gave an estimation in respect of the quantity

of the sand as measuring 1.50 cubic meters worth Rs.1,275/-.

11. PW.2 is the first informant, who seized the tractor

and trailer by drawing the mahazar as per Ex.P3. However, he

categorically admitted that the driver fled from the spot and

as such, he did not see him and cannot identify him.

However, he identified the vehicle through photographs which

were marked as Exs.P4 and P5.

12. PW.3 and PW.4 are the witnesses for the spot

mahazar as per Ex.P6 where the mahazar was drawn on the

bank of Lakshmana Thirtha River near Kirijaji village based on

the voluntary statement of accused No.1. Though these

witnesses were deposed in respect of drawing of the mahazar

in the said place, they denied the presence of the accused

during the course of mahazar.

13. PW.5 and PW.6 are the witnesses to Ex.P3 i.e.

mahazar under which the sand in the tractor and trailer was

seized in the police station on 13.11.2015. Both these

witnesses have not supported the case of the prosecution and

turned hostile.

14. PW.7-the Investigation Officer deposed about the

registration of FIR based on the complaint of PW.2 so also the

drawing of mahazars and submitting the charge sheet before

the Special Court.

15. On careful perusal of the above evidence, PW.2-

the first informant deposed that on the relevant date i.e., on

13.11.2015 at about 3.00 p.m., he intercepted the tractor and

trailer which was transporting the sand from Lakshmana

Thirtha River near Kirijaji village to Vinobha colony via Chikka

Hunsur, he categorically deposed in his evidence before the

Court that accused No.1 having stopped the vehicle fled from

the scene of occurrence and as such, he did not see him and

thus, cannot identify him. Though he identified the tractor and

trailer through the photographs, which were marked as

Exs.P4 and P5, the same were not objected by the defense.

Admittedly, PW.3 and PW.4 are the witnesses to the spot

mahazar marked at Ex.P6 allegedly drawn on the bank of

Lakshmana Thirtha River near Kirijaji village based on the

voluntary statement of accused No.1 from where the sand

allegedly loaded to the tractor and trailer, but both these

witnesses turned hostile in respect of the presence of the

accused in the said place during the course of drawing the

mahazar as per Ex.P6.

16. On perusal of the evidence of PW.5 and PW.6, the

witnesses to Ex.P3 i.e., mahazar under which the sand in the

tractor and trailer was seized before the police station on

13.11.2015, and they have turned hostile to the prosecution

case. Though PW.3 and PW.4 identified the photographs of

tractor and trailer, absolutely there is no evidence placed by

the Investigation Officer to prove the aspect that the tractor

and trailer belongs to accused No.2.

17. On perusal of Ex.P3, the Investigation Officer

mentioned the engine and chassis numbers of the trailer, but

he failed to secure the records pertaining to the said tractor

and trailer. There is no explanation by the Investigation

Officer as to why he has failed to obtain documents pertaining

to the tractor and trailer from accused No.2, he being the

owner of the tractor and trailer. In such circumstances,

interference cannot be drawn that the tractor and trailer

belongs to accused No.2.

18. As far as allegation that accused No.1, being the

driver of the tractor and trailer, loaded sand and shifted the

same to some other place illegally is concerned, the

prosecution failed to prove the same for the reason that PW.2

in his evidence categorically admitted that he was unable to

identify accused No.1 at the time of interception of the vehicle

on the relevant date and time. Even the mahazar witnesses

also declined the presence of accused No.1 during the course

of drawing the mahazar at the river bed from where sand was

illegally loaded to the tractor and trailer. Nevertheless, PW.5

and PW.6 also denied the presence of accused No.1 in the

police station during the course of seizure of tractor and

trailer as per Ex.P3. In such circumstances, except voluntary

statement of accused No.1, absolutely no other materials are

forthcoming to prove the charges leveled against accused

No.1. Learned Special judge, while passing the impugned

judgment, relied the stray admission of accused No.1 made

during the course of recording 313 statement that he was the

driver of the tractor and trailer on the relevant date and time.

However, it is well settled position of law that without there

being any corroborative evidence by the witnesses, in my

considered view, the learned Special Judge wrongly come to

the conclusion that the guilt against accused Nos.1 and 2 are

proved.

19. Nevertheless, as rightly contended by learned

counsel for the appellants, learned Special Judge also erred in

not following proper procedure before taking cognizance of

the offence punishable under the provisions of MMRD Act and

KMCS Rules as laid down by this Court in the case of Vivek

stated supra. On that count also, the judgment passed by the

learned special Judge is liable to be set aside.

20. In that view of the matter, in my considered view,

the impugned judgment and order of sentence does not holds

good. Accordingly, I answer the point raised above and

proceed to pass the following:

ORDER

i. The appeal preferred by the appellants/accused Nos.1 and 2 under Section 374(2) of Cr.P.C. is hereby allowed.

ii. Consequently, the impugned judgment of conviction and order of sentence rendered by the II Additional Sessions and Special Judge, Mysuru in Spl.C.No.270/2016 is hereby set aside.

iii. The appellants/accused Nos.1 and 2 are hereby acquitted for the charges levelled against them.

iv. The bail bonds executed by the appellants stand cancelled and the fine amount, if any deposited, shall be refunded to them on proper identification.