Shivappa @ Shivakumar vs The State Of Karnataka
2023 Latest Caselaw 1373 Kant

                           1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 17TH DAY OF FEBRUARY, 2023

                       BEFORE

THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

   CRIMINAL REVISION PETITION NO.454 OF 2014

BETWEEN:

1. SHIVAPPA @ SHIVAKUMAR,
   AGED 43 YEARS,
   S/O LATE KAREGOWDA,
   R/O MAMBALLI VILLAGE,
   YELANDUR TALUK,
   CHAMARAJANAGAR DISTRICT-571 441.

2. SREENIVAS
   AGED ABOUT 36 YEARS,
   S/O VENKATARAJU,
   R/O KINAKAHALLI VILLAGE,
   YELANDUR TALUK,
   CHAMARAJANAGAR DISTRICT-571 441.
                                      ...PETITIONERS
  (BY SRI. P. NATARAJU,. ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY KOLLEGAL TOWN POLICE STATION,
KOLLEGAL,
CHAMARAJANAGAR DISTRICT,
REPRESENTED BY

STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE-560 001.
                                      ...RESPONDENT

(BY SRI. K. NAGESHWARAPPA, HCGP)
                                      2


     THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE LEARNED DISTRICT AND SESSIONS JUDGE
AT   CHAMARAJANAGAR             IN       CRL.A.NO.22/2010     DATED
16.06.2014    AND     THE       JUDGMENT        AND    ORDER     OF
CONVICTION        PASSED   BY    THE       LEARNED    CIVIL   JUDGE
(SR.DN.) AND JMFC AT KOLLEGAL IN C.C.NO.141/2009
DATED 25.05.2010, AND ACQUIT THE PETITIONERS BY
ALLOWING THIS REVISION PETITION IN THE INTEREST OF
JUSTICE.


     THIS CRL.RP HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 03.02.2023, POSTED FOR PRONOUNCEMENT OF
ORDER      THIS    DAY,    THE       COURT     PRONOUNCED       THE
FOLLOWING:


                            ORDER

1. This Revision Petition is filed by the petitioners herein

being accused in C.C. No.141/2009 on the file of Senior Civil

Judge and JMFC, Kollegala, being aggrieved by the Judgment

of their conviction and sentence passed in the said criminal

case dated 25.05.2010 and confirmed by the Dist. and

Sessions Judge, Chamarajanagar, in Crl.A. No.22/2010, dated

16.06.2014.

2. Brief and relevant facts leading up to this Revision

petition are as under:

3. The parties to this Revision are referred to as per their

rank before the Trial Court for the purpose of convenience.

4. That the Kollegala Town Police filed the charge-sheet

against the accused for the offences under Sections 9, 39A

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

Section 379 of IPC alleging, that on 01.10.2005 at about 9.00

p.m., on receipt of credible information, the complainant and

his staff went to the APMC Yard at Kollegala, on the

information that there was a securing of a tiger hide (skin) by

some unknown persons and they are attempting to dispose of

the same for higher price. When they went to the said place,

they noticed coming of a Maruti Omni car bearing Registration

no. KA-18M-3924. The said car was parked near Achgal lodge.

When the complainant and his staff inspected the said car, it

is noticed that accused Nos.1 and 2 named in the charge-

sheet had secured the said tiger hide (skin) from accused

Nos.3 and 4 and attempted to sell the same at higher price.

Thus, it is alleged that, these accused persons were found

transporting the said tiger skin, thereby they have committed

the aforesaid offences under Sections 9 39A, 51 of Wild Life

Protection Act read with Section 379 of IPC. The I.O. in this

case prepared the panchanama, seized the said tiger skin,

recorded the statements of the witnesses so also confession

statement by accused, obtained report from the competent

department with regard to the identification as tiger skin and

after completion of the investigation, charge-sheet is filed

against accused persons.

5. The records of this case would reveal that during trial

stage itself, these Revision Petitioners were enlarged on bail.

6. After filing charge-sheet, the learned JMFC took

cognizance of the offences. Copies of the charge-sheet were

furnished to the accused persons as contemplated under

S.207 of Cr.P.C. Thereafter, charges against the accused

persons for the offences framed were read over and explained

to them in the language known to them. They pleaded not

guilty and claimed to be tried.

7. Before the Trial Court, to prove the guilt of the accused,

prosecution has examined 11 witnesses from P.Ws.1 to 11,

and got marked Exs.P1 to P8 and also M.O. 1, the tiger skin,

M.O. 2 plastic bag, and closed the prosecution side evidence.

8. After closure of the prosecution evidence, accused were

questioned under Section 313 of Cr.P.C. so as to enable them

to answer the incriminating circumstances appearing in the

evidence of the prosecution. They denied their complicity in

the crime and did not choose to lead any defence evidence on

their behalf.

9. The learned Trial Court after hearing the arguments of

both the sides, convicted the accused persons and sentenced

them to undergo simple imprisonment for six months and fine

of Rs.2,000/- each for the offence under S.9 of the Wild Life

Protection Act and six months' simple imprisonment and fine

of Rs.2,000/- each for the offence under Section 39A read

with Section 379 IPC, with default sentence.

10. Being aggrieved by the said Judgment of conviction and

sentence passed in C.C. No.141/2009 dated 25.05.2010,

accused Nos.1 and 2 preferred Crl. A. No. 22/2010 and

accused Nos.3 and 4 preferred Crl.A. No. 26/2010 before the

Dist. and Sessions Judge, Chamarajanagara.

11. The learned Appellate Court dismissed both the appeals

by passing common Judgment as per the Judgment dated

16.06.2014 by confirming the Judgment of conviction and

sentence passed against accused Nos.1 to 4.

12. It is accused Nos.1 and 2 independently challenged the

said Judgment by preferring this Revision Petition on the

following:

GROUNDS

13. That Judgment and Order of sentence passed by both

the Courts are contrary to law and facts and against the

evidence placed on record. The said Judgments suffer from

infirmities and illegalities. These accused persons are not

related to M.O.Nos.1 and 2 and they belong to P.W.4. Both

the Courts failed to notice that the car bearing Registration

No. KA-18M-3924 was not seized by the police. The seizure

panchanama is not proved in accordance with law. All the

witnesses who have been examined are the interested police

witnesses. P.W.1 had no authority or jurisdiction to file the

complaint for the offences punishable under the provisions of

the Wild Life (Protection) Act. There are so many

contradictions and omissions and discrepancies in the

evidence of the prosecution which have not been considered

by both the Courts. Thus, it is alleged that the Judgments of

conviction and sentence passed by both the Courts are

arbitrary, illegal, opposed to law, facts and probabilities.

Therefore, amongst other grounds, it is prayed to allow this

Revision Petition.

14. After filing this Revision Petition, notice came to be

issued to the respondent. Learned HCGP appeared before the

Court. Records of the Trial Court and Appellate Court are

secured. Accused Nos.1 and 2 are granted bail.

15. Heard the arguments of both the sides. Meticulously

perused the records.

16. The learned counsel for the Revision Petitioners -

accused submits that these Revision Petitioners are no way

concerned with regard to commission of offence as alleged by

the prosecution. He submits that there are so many

contradictions, omissions and discrepancies. These factors are

not considered by both the Courts. There is no proper

appreciation of evidence by both the Courts. Further, he

submits that, under the provisions of the Wild Life (Protection)

Act, 1972, the police officers are not empowered to lodge a

complaint or conduct an investigation. Therefore the very

filing of the complaint and filing of a charge-sheet by the

respondent - police is illegal. In support of his submission, he

relies upon Section 55 of the Wild Life (Protection) Act, 1972

and also relies upon the Judgments of this Court in Crl. A.

No.359/2011 (DD 31.08.2018) in a case between

Govindaswamy Vs. The State of Karntaka by Divisional Forest

Officer, Bhdravathi Division, Bhadravathi and Crl. A.

No.1175/2010 clubbed with Crl.A. No.1220/2010 (DD

13.07.2018) in a case between R. Shivakumar vs. State of

Karnataka (by Chamarajanagara P.S.) and also an Order

passed in Crl.RP No. 479/2014 dated 16.03.2020 in a case

between Boraiah @ Boregowda @ Papanna, S/o late Mayanna

Vs. The State of Karnataka by the Police of Gundlupet Police

Station, Chamarajanagara. He prays to allow the Revision

Petition and acquit the accused persons Nos. 1 and 2.

17. As against this submission, the learned HCGP submits

that, both the Courts have given the concurrent findings

based upon the factual evidence adduced by the prosecution.

There is proper appreciation of the evidence and application of

law by both the Courts and therefore he supported the

reasons and findings of both the Courts. He submits that the

Revision Petition is liable to be dismissed.

18. I have given my anxious consideration to the arguments

of both sides.

19. In the light of the submissions being made and on

perusal of the records, the following point arises for my

consideration:

      "Whether      the    Judgment      of   conviction    and

sentence   passed     by   the   Trial   Court   is   arbitrary,

capricious and opposed to law and hence, requires

interference by this Court?"

20. On reading the materials placed on record, this Criminal

Case arises out of a complaint filed by one M.S. Shivamurthy,

Dy.S.P., Kollegalal Sub Divison, Kollegala being the police

officer defined under the provisions of the Karnataka Police

Act, 1963. He alleges that, as he has taken charge as

Dy.S.P., he has given importance to protect the wild life and

also has given instructions to his staff to implement the

provisions of the Wild Life (Protection) Act. According to him,

on 01.10.2005, along with his staff, on receipt of credible

information, went to APMC Market at about 8.30 p.m. and

were waiting. At about 9.00 p.m., one Maruti Omni entered

the APMC compound and was parked under a tree.

Immediately, this complainant and his staff surrounded the

said vehicle and with the help of a torch, they inspected the

vehicle. They noticed the presence of a driver on the driver

seat and another person was found on the hind seat. They

tried to run away from the place by opening the door. But

complainant did not allow them. He enquired the driver and

he told his name as Lingaraju s/o Rajeeva another person was

Shivappa. It is further stated that, there was one fertiliser

plastic bag which was being possessed by one person and he

told his name as Srinivas s/o Venakataraju being a coolie. On

inspection of the said bag they noticed the presence of tiger

skin containing bullet holes. Thus, it is alleged that said

accused persons have committed the offences under the

provisions of the Wild Life (Protection) Act and committed

theft of the tiger skin. This complainant lodged the complaint

as per Ex.P1 before the Kollegala Police Station.

21. As per the records, Ex.P2 the panchanama and Ex.P3

seizure panchanama were prepared in the presence of

panchas.

22. P.W.1 being the Dy.S.P. at relevant time has spoken on

par with the contents of the complaint. He identifies M.O.

Nos.1 and 2 the tiger skin and plastic bag. It is brought on

record in the cross-examination that, during his police service

he has seized two tiger skins and one bone of a tiger. He says

that he cannot say the age of the said tiger of which the said

skin is seized. According to him, he went to APMC yard in a

department vehicle. He further states that one Shivakumara

brought out the said bag from the said vehicle. He denies

other suggestions.

23. P.W.2 Lokesh is a police official who corroborates the

evidence of P.W.1 in material particulars. He too has been

thoroughly cross-examined. According to his cross-

examination, he cannot say the boundaries of the place where

these accused were caught hold. According to the said police

where the car was parked was about 150 meters away from

the place where they were standing and watching. He denied

other suggestions.

24. P.W.3 Anil Kumar was a probationery PSI accompanied

P.W.1. According to his evidence, the said bag was below the

seat, and it was not measured. One amongst the police

officials, opened the said bag.

25. P.W.4 Lingaraju states that he put his signature to

Ex.P2 near the RMC Yard where he parked his taxi. He hired

his vehicle and charged Rs.100/-. He cannot say that from

where the said accused persons had got the said tiger skin.

He says that on that day, himself, Shivappa and his servant

were only there. The servant was sitting behind. But the

prosecution case is that there were four persons who were

arraigned as accused had committed the offence. It is the

case of prosecution that accused Nos.1 and 2 secured tiger

skin from accused Nos.3 and 4. He says that for the first

time, he is seeing Shivappa in the Court.

26. P.W.5 Kombaradasi Naika and P.W.6 Raja Naika are

panchas to Ex.P3. But they have been turned hostile. Nothing

worth has been elicited from the mouth of these witnesses so

as to disbelieve their version given in the examination-in-

chief.

27. P.W. 7 Puttalingegowda was a watchman working with

Achgal lodge and he too has deposed ignorance with regard to

seizure of tiger skin from the possession of the accused. He

has been declared hostile by prosecution. But no cross-

examination is directed to him.

28. P.W.8 Dr. Shivanna was the veterinary doctor who has

issued Ex.P5 certifying that the said skin is a tiger skin. The

said certificate is not denied. Except the bald cross-

examination, nothing is elicited. Thus, from the evidence of

P.W.8 it is very much clear that the said skin was a tiger

hide(skin). To that extent, I believe the evidence of P.W.8.

29. P.W.9 M. Narayana is the I.O. who has filed the charge-

sheet. P.W.10 Anand Rao B.N. is the person who has reached

the FIR to the Magistrate Court. The role being played by

P.W.9 in conducting investigation having been spoken to by

this P.W.9. He says in the cross-examination that Maruti

Omni car is now seized by him. He has denied other

suggestions.

30. P.W.10 Puttalingegowda speaks with regard to arrest of

accused persons and producing them before the Court.

31. P.W.11 Sadhik is a signatory to Ex.P7 panchanama but

has been turned hostile. Nothing worth is elicited from this

witness.

32. On perusal of the entire oral and documentary evidence,

we find that there are so many discrepancies, inconsistencies,

omissions in the evidence of these witnesses. Except the

police officials, none have stated any incriminating evidence

against the accused persons. Further, the panchas to the

panchanama stated supra, have turned hostile. In all criminal

cases panchas are the authors of the panchanama. If they

turn hostile, no evidentiary value can be attached to the

evidence of panchas. These factual evidence spoken to by the

witnesses is not properly assessed and evaluated by the Trial

Court as well as the First Appellate Court.

33. The main submission of learned counsel for the accused

is that the very filing of a complaint by PW.1 being the Dy.

S.P. is illegal and hence the whole proceedings against

accused is vitiated. In support of his submissions, he relies

upon S.55 of the Wild Life (Protection) Act, 1972. The said

provision reads as under:

"55. Cognizance of offences.--No court shall take cognizance of any offence against this Act except on the complaint of any person other than--

(a) the Director of Wild Life Preservation or any other officer authorised in this behalf by the Central Government; or (aa) the Member-Secretary, Central Zoo Authority in matters relating to violation of the provisions of Chapter IVA; or (ab) Member-Secretary, Tiger Conservation Authority; or (ac) Director of the concerned tiger reserve; or

(b) the Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government subject to such conditions as may be specified by that Government; or (bb) the officer-in-charge of the zoo in respect of violation of provisions of section 38J; or

(c) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Central Government or the State Government or the officer authorised as aforesaid."

34. He also relies upon the Judgments stated supra,

wherein this Court in the aforesaid Revision Petition in Crl. RP

No.359/2011 has categorically held that in view of Section 55

of the Wild Life (Protection) Act, no court is empowered to

take cognizance of any offence against the accused, except on

the complaint of any person other than described in Section

55 of the Wild Life (Protection) Act.

35. The word "complaint" has been described under S.2(d)

of Cr.P.C.

36. On reading the provisions of Section 2(d) of Cr.P.C. and

Section 55 of the said Wild Life (Protection) Act, it can be

stated that, to initiate action for the purpose of investigation,

complaint has to be submitted to the Magistrate by anyone of

the category of persons referred to in Section 55 and upon

receipt of such a complaint, the Magistrate shall take

cognizance following the procedure prescribed under S.200 of

Cr.P.C. Thus, on this point, it excludes police report or report

of the investigation by the police suo-motu. If this provision is

applied to the present facts of the case, as rightly submitted

by counsel for accused Nos.1 and 2, the very filing of

complaint, conducting of investigation by the police and filing

of charge-sheet is against the spirit of Section 55 of the Wild

Life (Protection) Act. Even the other Judgments relied upon

by the counsel for the accused speaks similar principle.

37. Though the learned HCGP for the State justifies the

Judgment and sentencing Order passed by both the Courts,

but the witnesses examined in this case except Lingaraju are

the official witnesses. The independent witnesses including

the panchas have not supported the case of the prosecution in

material particulars. Thus, seizure mahazars have not been

proved as panchas to the mahazar have not supported the

case of prosecution. If at all MOs. 1 and 2 are seized in the

presence of panchas there was no reason for them to turn

hostile and give a go bye to the contents of the panchanama.

38. In this case, on the complaint filed by the incompetent

person, learned Trial Court conducted the trial and passed the

Judgment of conviction and sentence. The learned Appellate

Court also has lost sight of the provisions of the Section 55 of

the Wild Life(Protection) Act. More so it is settled that, when

two views are possible, the view in favour of the accused has

to be preferred when there are inconsistencies, contradictions

in the evidence of the prosecution witnesses. Therefore, there

arises a doubt in the case of prosecution and that benefit of

doubt has to be given to accused persons. Therefore the

petitioners being accused Nos. 1 and 2 are entitled for

acquittal. Accordingly, I record my finding on the point No.1

in the affirmative.

39. In view of my discussions made above, the Revision

Petition filed by the petitioners succeeds and deserves to be

allowed.

40. Resultantly, I pass the following:

ORDER

Revision Petition filed under Section 397 read with

Section 401 of Cr.P.C. is allowed. Judgment of conviction

passed in C.C. No.141/2009 on the file of Senior Civil Judge

and JMFC, Kollegala, affirmed by Dist. and Sessions Judge,

Chamarajanagar, in Crl.A. No.22/2010, is set aside.

Consequentially, accused Nos. 1 and 2 being the

Revision Petitioners are acquitted of the charges for the

(Protection) Act, 1972 read with Section 379 of IPC. Their bail

bonds shall stand cancelled with liberty.

Intimate this order to both the courts forthwith. Send

back the records of the Appellate and Trial Court, along with a

copy of this Order.

Sd/-

JUDGE

sac*