Karnataka High Court

K Y Munawar Ali vs State Of Karnataka on 28 February, 2023

Bench: S Vishwajith Shetty

                            1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY 2023

                        BEFORE

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                 CRL.R.P.No.541/2014

BETWEEN:

1.     K.Y. MUNAWAR ALI
       S/O K.B. YAKUB SAHEB
       AGED ABOUT 55 YEARS
       R/O MALINAPETE
       KOPPA TOWN
       CHICKMAGALUR DISTRICT
       PIN - 576 125.

2.     H.R. HARISH
       S/O H. RAMEGOWDA
       AGED 43 YEARS
       DRIVER, R/O HONDADAMANE
       MARITHOTA VILLAGE
       NARVE POST, KOPPA TALUK
       CHICKMAGALUR DISTRICT
       PIN - 576 124.

3.     VASU
       S/O ANANTHACHAR
       AGED 31 YEARS
       R/O MALINAPETE
       KOPPA TOWN
       CHICKMAGALUR DISTRICT
       PIN - 576 125.

4.     SHIVANNA GOWDA
       S/O PUTTEGOWDA
       AGED 52 YEARS
       R/O MAKKIMENA VOGGADE
       VILLAGE, N.R. PURA TALUK
       CHICKMAGALUR DISTRICT
       PIN - 576 126.                  ...PETITIONERS
                              2

(BY SRI P.P. HEGDE, SR. COUNSEL FOR
SRI VENKATESH SOMAREDDI, ADV.)

AND:

STATE OF KARNATAKA
BY RFO CHIKKAGRAHARA
CHIKMAGALUR DISTRICT
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.                       ...RESPONDENT

(BY SRI MAHESH SHETTY, HCGP)

       THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE       DATED:28.1.11/11.02.2011      PASSED     IN
C.C.NO.56/10 BY THE CIVIL JUDGE AND JMFC, N.R.PURA AND
ETC.

       THIS PETITION HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
MADE THE FOLLOWING:


                        ORDER

This Criminal Revision Petition under Section 397 of

Code of Criminal Procedure, 1973 (for short 'Cr.PC') has

been filed by the accused challenging the judgment and

order of conviction and sentence passed by the Civil

Judge & J.M.F.C, N.R. Pura (for short the 'Trial Court') in

C.C.No.568/2010 dated 28.01.2011 which was confirmed

by the Principal Sessions Judge, Chikkamagaluru (for

short the 'Appellate Court') in Crl.A.No.192/2013 dated

09.05.2014.

2. Heard the learned counsel appearing for the

parties and also perused the material available on record.

3. Brief facts of the case as revealed from the

records that may be necessary for the purpose of

disposal of this revision petition are that, on 18.08.2009

at about 5.00 a.m, the petitioners illegally entered into

the Megaramakki reserved forest, cut Honne and Beete

trees standing in survey no.33 of Vaggade Village and

converted the same into sizes and loaded 4 bete logs, 62

Honne logs and planks into the van bearing registration

no.KA-18/A-3439 for the purpose of transporting the

same. The said vehicle was intercepted by the forest

officials on the instruction of PW.4, who had received a

credible information regarding illegal transport of wooden

logs. On the basis of the complaint lodged by PW.1, FIR

was registered against the petitioners for the offences

punishable under Sections 24, 62, 71(A)m 74, 80,

104(A) of the Karnataka Forest Act and under Rule 144

and 165 of the Karnataka Rent Rules and under Section

379 of IPC and the case was registered in

C.C.No.56/2010 for the aforesaid offences before the

Trial Court.

4. The petitioners claimed to be tried and

therefore, the prosecution in support of its case in all

examined four witnesses as PWs.1 to 4 and marked 14

documents as Ex.P.1 to P.14. The petitioners had denied

the incriminating evidence available on record against

them during the course of Section 313 of Cr.P.C.,

However, they did not choose to lead any defence nor did

they marked any documents in support of their defence.

The Trial Court by its judgment and order dated

28.01.2011 convicted the petitioners and sentenced them

to undergo Simple Imprisonment for six months and fine

of Rs.1,000/- each in default, further Simple

Imprisonment for two months for the offences punishable

under Section 24 of K.F. Act. Simple Imprisonment for

two years and fine of Rs.2,000/- each, in default to

undergo Simple Imprisonment for 3 months for the

offences punishable under Section 104(A) of K.F. Act.

Simple Imprisonment for 2 months and fine of Rs.500/-

each in default to undergo Simple Imprisonment for one

month for the offences punishable under Section 144 and

165 of K.F. Rules. Simple Imprisonment for one year and

fine of Rs.1,000/- each in default, to undergo Simple

Imprisonment for two months. The appeal filed by the

petitioners against judgment and order of conviction

passed by the Trial Court in Crl.A.No.192/2013 was also

dismissed by the Appellate Court and it is in this

circumstances, the petitioners are before this Court in

this criminal revision petition.

5. Learned Senior Counsel for the petitioners

submits that the courts below have erred in convicting

the petitioners for the alleged offences. He submits that

PWs-1 to 4 are all official witnesses who are highly

interested in the prosecution case, and therefore, the

courts below have erred in placing reliance on their

evidence and convicting the petitioners. He submits that

the seizure of wooden logs under Ex.P-3 has not been

proved by the prosecution. No independent panchas were

secured. He submits that the requirement of Section 68

of the Act, have not been complied in the matter of

seizure and drawing of mahazar. He submits that the

officer who has issued the certificate - Ex.P-8 was not the

Authorized Officer and the requirement of Section 62-C of

the Act has not been complied with. He submits that

admittedly Exs.P-4 & P-5 - photographs have been taken

inside the premises of RFO's office. In support of his

contentions, he has placed reliance on the judgment of

the Hon'ble Supreme Court in the case of STATE OF

KARNATAKA VS PRAKASH & OTHERS - (2019)4 SCC 229.

6. Per contra, learned HCGP appearing for the

respondent submits that the accused were apprehended

in the early morning hours and no independent panchas

could be secured at that point of time. He also submits

that merely for the reason that PWs-1 to 4 are official

witnesses, their evidence cannot be brushed aside if the

said evidence inspires confidence in the mind of the

court. He submits that the courts below have recorded a

concurrent finding of guilt against the petitioners after

appreciating the oral and documentary evidence available

on record, and therefore, he prays to dismiss the

petition.

7. The prosecution in order to prove its case had

examined four witnesses before the Trial Court. PW-1

who was the forest guard had gone along with CWs-2 to

6 on instructions of PW-4 for intercepting the vehicle

which was illegally transporting the wooden logs from the

forest. He has stated that at about 4.00 a.m. in the

morning they had intercepted the vehicle in question

which was transporting the bete and honne wooden logs

and planks, and had seized the same under a mahazar.

He has also stated that since nobody was available in the

locality, independent panchas could not be secured. He

was one of the signatory to the seizure mahazar - Ex.P-2

and he has identified his signature. However, during his

cross-examination, he has stated that near the place of

incident, people were residing and there was also one

shop and at a distance of one furlong from the place of

incident, there were about 7 to 8 houses. He has further

stated that CW-4 - Shivanand had gone to secure the

residents of the said houses to act as panchas, but they

had refused to come. He has further stated that PW-4

had credible information and it is under his instructions,

he along with others had gone for intercepting the

vehicle. He has further admitted that PW-4 has not

visited the spot on the date of incident. Though this

witness has stated that Ex.P-5 - photo was taken at the

spot where the seizure mahazar - Ex.P-3 was prepared,

the other witnesses have clearly stated that Ex.P-5 was

taken in the premises of RFO's office.

8. PW-2 is also a forest guard who was present

along with the other staff of the forest department when

the vehicle in question transporting the wooden logs

illegally was intercepted. However, this witness has not

stated that they had received any instructions from PW-4

who had credible information about the illegal

transportation of wooden logs. This witness has stated

that PW-1 had gone to fetch independent panchas from

the nearby locality and he could not secure any

independent panchas as the local residents had refused

to come. This statement of PW-2 is contradictory to the

statement of PW-1 regarding securing of independent

panchas.

9. PW-3 is the person who had issued the

certificate as provided under Section 62-C of the Act.

Except stating that he was trained and he had experience

based on which, he had issued the certificate, he has not

stated that he was the Authorized Officer by the

Government for issuing the Certificate under Section

62-C of the Act. The Hon'ble Supreme Court in Prakash's

case supra has held that the Officer issuing a certificate

under Section 62-C of the Act is not only required to

receive training for examining the forest produce, but he

should also be the authorized officer by the Government

for issuing such a certificate. Except this certificate, there

is no admissible evidence on record in support of the

case of the prosecution case to prove that the seized

items are Honne and Bete wooden logs and planks. PW-3

has further admitted that Exs.P-4 & P-5 - photos are

taken inside and outside the premises of RFO's office and

he has also admitted that certain wooden logs found in

the photo are not related to the present case.

10. PW-4 - Range Forest Officer was the person

who according to PW-1 had received credible information

about the illegal transportation of wooden logs and it is

under his instructions, PW-1 and other staff members of

the Forest Department had intercepted the vehicle in

question which was allegedly illegally transporting the

wooden logs. However, PW-4 does not state anything

about any credible information received by him or about

any instructions given by him to his staff for intercepting

the vehicle which was allegedly illegally transporting the

wooden logs. On the other hand, he has stated CWs-1 to

6 had appeared before him on 18.08.2009 at about 8.30

a.m. and had produced before him the seized articles,

the vehicle used for transporting the articles and also

three accused persons who were apprehended in the

spot. Therefore, the evidence of PW-1 does not

corroborate with the evidence of PW-4 with regard to the

alleged credible information and instructions given to the

staff for intercepting the vehicle. PW-4 has prepared

Ex.P-3 - spot mahazar. Even this mahazar is not signed

by any independent panchas. Ex.P-3 is prepared on

19.08.2009, and therefore, there cannot be any good

reason for the prosecution for not taking any

independent panchas to the spot. The staff of the

department have acted as panchas even for Ex.P-3.

11. The seizure mahazar as well as the spot

mahazar are not supported by any photographs. Though

it is the case of the prosecution that Ex.P-5 was taken at

the time of preparing the seizure mahazar, during the

course of deposition, it has been admitted by their own

witnesses that Exs.P-4 & P-5 - photographs have been

taken inside and outside the compound of RFO's office.

PW-4 has admitted during the course of his evidence that

on the way to the spot from where the trees were cut, he

had seen some houses, but no satisfactory explanation

has been given by the prosecution as to why the

residents of those houses were not secured as panchas.

The prosecution has also not produced any material to

show that notices were issued to these residents

requesting them to act as panchas. In the absence of

examination of any independent witnesses, the case of

the prosecution becomes very doubtful, more so, having

regard to the contradictions in the evidence of

PWs-1 & 4.

12. Exs.P-9 to P-11 are the confession statements

of accused persons and even while recording the same,

independent witnesses were not secured by the

prosecution. The Hon'ble Supreme Court in the GYAN

SINGH & OTHERS VS STATE OF U.P. - 1995 Supp(4) SCC

658, in almost identical circumstances, has held as

under:

"3. ...... It appears that the forest officials took upon themselves to bear the burden of proving the prosecution case. Admittedly such effort was made. Their statements, in the facts and circumstances of the case, in order to be safe to be acted upon would require some independent corroboration which is not forthcoming.

     We deem it unsafe therefore to maintain
     the   conviction   of    appellants        on   the
     uncorroborated     version     of    the    forest
     officials. ......"

13. No doubt that merely for the reason that the

witnesses examined on behalf of the prosecution to prove

its case are official witnesses, the same cannot be

completely brushed aside. However, when there are

material contradictions in the evidence of the official

witnesses, which raises a shadow of doubt in the mind of

the court, in such circumstances, in the absence of any

corroborative evidence of the independent witnesses, it

would be unsafe to convict the accused persons for the

alleged offences.

14. Under the circumstances, I am of the

considered view that the Trial Court as well as the

Appellate Court were not justified in recording a finding

that the petitioners were guilty of the alleged offence and

accordingly convicting them. Therefore, the judgment

and order of conviction and sentence passed by the

courts below cannot be sustained.

15. Accordingly, this revision petition is allowed.

The judgment and order of conviction and sentence dated

28.01.2011 passed by the Court of Civil Judge & JMFC,

N.R.Pura, in C.C.No.56/2010 and the judgment and order

dated 09.05.2014 passed by the Court of Principal