Karnataka High Court

B K Raja vs The State Of Karnataka on 5 August, 2024

                                                 -1-
                                                               NC: 2024:KHC:31054
                                                            CRL.A No. 397 of 2013




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 5TH DAY OF AUGUST, 2024

                                             BEFORE
                             THE HON'BLE MR JUSTICE VENKATESH NAIK T
                               CRIMINAL APPEAL NO.397 OF 2013 (C)
                      BETWEEN:

                          B.K. RAJA
                          S/O. KORANGAPPA
                          AGED ABOUT 42 YEARS
                          COOLIE
                          IBNIVALAVADI VILLAGE
                          MADIKERI
                          KODAGU-571 201.
                                                                 ...APPELLANT
                         (BY SRI R.K. MAHADEVA, ADVOCATE)

                      AND:

                         THE STATE OF KARNATAKA
                         BY PSI, MADIKERI RURAL
                         POLICE STATION
                         MADIKERI, KODAGU-571 201
                         REPRESENTED BY STATE PUBLIC PROSECUTOR
                         HIGH COURT BUILDING
                         HIGH COURT
Digitally signed by
MOUNESHWARAPPA
                         BENGALURU-560 001.
NAGARATHNA                                                    ...RESPONDENT
Location: HIGH
COURT OF                 (BY SRI M. DIVAKAR MADDUR, H.C.G.P.)
KARNATAKA


                            THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                      374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
                      ORDER OF CONVICTION DATED 11.03.2013 PASSED BY THE
                      AD-HOC DISTRICT JUDGE AND P.O., FAST TRACK COURT,
                      KODAGU, MADIKERI IN SESSIONS CASE NO.84/2006 AND
                      CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
                      PUNISHABLE UNDER SECTION 87 OF KARNATAKA FOREST ACT
                      R/W SECTION 379 OF IPC.
                           THIS CRIMINAL APPEAL IS COMING ON FOR FINAL
                      HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
                      UNDER:
                                 -2-
                                              NC: 2024:KHC:31054
                                          CRL.A No. 397 of 2013




CORAM:     HON'BLE MR JUSTICE VENKATESH NAIK T


                     ORAL JUDGMENT

This appeal is filed by accused No.1 praying to set-

aside the judgment of conviction and order on sentence

dated 11.03.2013 passed by learned Fast Track Court,

Kodagu in S.C.No.84/2006, wherein, the accused has

been convicted for the offence under Section 87 of the

Karnataka Forest Act (hereinafter "the Act") read with

Section 379 of Indian Penal Code (IPC). However, accused

Nos.2 and 3 are acquitted of the charges.

2. The factual matrix of the prosecution case is as

under:-

On 31.08.2004, during night hours, at Ingrivala Vadi

village, Madikeri Taluk, accused Nos.1 to 3 had stolen two

sandal wood trees worth Rs.2,200/- in the land of PW-5

Apacchu and illegally kept the same in the house of

accused No.1 and thereby committed the offence under

Sections 86 and 87 of the Act r/w Section 379 IPC. This

led to registration of FIR and investigation. After receipt of

NC: 2024:KHC:31054

the charge sheet, the trial Court committed the case to

the Sessions Court. The Sessions Court after securing the

accused framed the charges for the aforesaid offences.

3. The prosecution in order to prove its case,

examined in all 14 witnesses as PW.1 to PW.14 and got

marked documents as per Exs.P1 to P11 and seven

material objects as M.O.1 to M.O.7. The statements of

accused were recorded under Section 313 Cr.P.C. The trial

Court after hearing the arguments proceeded to convict

accused No.1 for the offence under Section 87 of the Act

r/w Section 379 of IPC and acquitted accused Nos.2 and 3

for the offence under Sections 86 and 87 of the Act and

Section 379 IPC. Being aggrieved by the judgment of

conviction and order of sentence passed by the trial Court,

accused No.1 has preferred this appeal.

4. Heard learned counsel for the appellant-accused

No.1 and learned HCGP for respondent State.

5. Learned counsel for the appellant would contend

that independent witnesses PWs.1 to 4 have not

supported the case of the prosecution. Except the

NC: 2024:KHC:31054

evidence of the police witnesses and forest officials, there

is no evidence to prove the seizure of sandalwood billets.

6. It is contended that the prosecution has not

produced any revenue records to show that the alleged

spot where the sandalwood billets trees were grown

belongs to PW.5. Further, the certificate Ex-P10 issued by

PW.10 is not in accordance with law and there is non-

compliance of Section 62C of the Act. Hence, in the

absence of compliance of statutory provision, conviction of

the appellant-accused No.1 for the offence under Section

87 of the Act cannot be sustained. Hence, prayed to allow

the appeal.

7. Learned H.C.G.P appearing for the respondent

State submitted that the trial Court on appreciation of

evidence on record has rightly convicted the appellant. He

supported the reasoning assigned by the trial Court. The

evidence of P.W.Nos.5 to 14 is sufficient to convict the

appellant for the offence under Section 87 of the Act.

Further, PW.10 being the Range Forest Officer is

competent to examine the forest produce and issued the

NC: 2024:KHC:31054

certificate as he has undergone training required under

Section of 62C of the Act as per Ex-P10 certificate. On this

ground, he sought for dismissal of the appeal.

8. In view of the submissions made by both parties,

the following points that arise for Court's consideration

is:-

''1. Whether prosecution proved that, appellant-

accused No.1 along with others had stolen

sandalwood billets from the house of PW.5 and

illegally kept the same in his house, thus

committed an offence?

2. Whether the trial Court erred in convicting

the appellant - accused No.1 for the offence

under Section 87 of the Karnataka Forest Act

r/w Section 379 IPC ? ''

9. The prosecution, in order to establish its case has

relied upon the evidence of P.W.1 -M.U. Suresh. In his

evidence, he has stated that he do not know the accused

and the police have not seized any articles in his

NC: 2024:KHC:31054

presence. Hence, he turned hostile to the case of the

prosecution.

10. P.W.2 - P.K. Raghavendra, witness to Ex-P1

mahazar has stated that he affixed his signature at Ex-P1

on 08.09.2004, but the police did not take him to the

house of the accused or PW.5 and no mahazar has been

conducted in his presence, thereby, he turned hostile to

the case of the prosecution.

11. PW.3 - M.K. Krishna, witness to Ex-P2 mahazar.

He has also turned hostile to the case of the prosecution.

12. P.W.4- A.A. Jayaram, witness to seizure

mahazar, in his evidence has stated that the police

conducted mahazar as per Ex-P2 in the house of accused

No.1, wherein, the police seized a knife and saw, but,

PW.4 has not identified the material objects before the

Court. Hence, he was treated as hostile witness and

permitted to cross examine. In the cross examination, he

admits that M.Os.1 to 4 were seized from the possession

of accused person. In the cross examination done by the

NC: 2024:KHC:31054

learned counsel for the accused, he admitted that, he

came to know that M.O.1 to 4 were produced by the

police. He does not know the contents of Ex-P2.

13. P.W.5 - P.S. Apacchu, the owner of the land

where he had grown sandalwood trees in the land, has

stated that on 02.09.2004, accused No.1 was brought by

the police to his house and enquired about removal of

sandalwood billets from his land. In cross-examination,

he admitted that, police have not collected any documents

in respect of his land. He has not stated before the police,

as to police brought accused-Raju on 02.09.2004.

14. P.W.6- K.A.Yellappa, Dy.SP, BCRB, Bengaluru,

who conducted the raid and seized 18 sandal wood billets

from the house of accused No.1 under

Ex.P1-panchanama. In cross-examination, he admitted

that, he did not weigh each sandalwood billets at the time

of drawing mahazar. He did not invite local panchas to

the mahazar.

15. P.W.7 Ramappa M.G., witness to seizure

mahazar-Ex-P4 has stated that on 01.09.2004 at

NC: 2024:KHC:31054

4.30 p.m., the police have seized sandalwood billets from

the house of accused No.1 under Ex-P4 panchanama. In

the cross examination, he admits that he do not know the

contents of the mahazar. He further admitted that, he

has not given statement as per Ex.P1.

16. P.W.8- M.N. Chandra, Head Constable, Forest

Movement Squad, Madikeri, who accompanied PW.6,

reiterated the evidence of PW.6.

17. P.W.9- R. Satishkumar, CPI, Madikeri Rural

Police Station, Madikeri, who received the complaint from

PW.6 and registered the same, sent the FIR to the Court,

visited the spot, drew mahazar, seized a knife and a saw

from the spot under Ex-P2 panchanama. In the

cross-examination, he admitted that, measurement of

M.Os.1 to 4 are not shown in mahazar and not complied

Section 62C of Karnataka Forest Act. The signature of

mahazar witness was not affixed on sandal billets. The

chit containing the signature of mahazar witnesses was

not affixed on M.Os. The seized sandalwood billets were

not sent to RFO and sought valuation report. He has not

NC: 2024:KHC:31054

collected RTC-extract of PW.5, to show that, PW.5 had

grown sandalwood trees in his land. In the spot mahazar,

survey number of alleged coffee estate not stated. He has

not marked and assigned any number to stems

(sandalwood billets). He has not assigned any serial

number to M.Os.1 to 4 and in the mahazar, the size of

sandalwood billets was also not mentioned.

18. PW-10- M.N. Chinnappa, Range Forest Officer,

Periyapatna Division, in his evidence has stated that he

received requisition alongwith 18 wooden pieces from

Madikeri Rural police Station for examination and report.

Thus, he examined all wooden pieces and came to knew

that, wooden pieces are sandalwood billets and hence, he

issued certificate as per Ex-P10. In the cross examination,

he admits that the valuation certificate shall be issued in

Form No.11 of Karnataka Forest Rules, 1969. He admits

that while examining all wooden pieces, he has not shown

any identification mark and individual weights of all 18

wooden pieces have not been mentioned. In Ex.P10, he

has not mentioned the weight of each sandalwood billets.

- 10 -

NC: 2024:KHC:31054

He has not mentioned the date of examination of

sandalwood billets in Ex.P10.

19. PW.11 N. Raju, In-charge Circle Inspector of

Police of Madakeri town, in his evidence has stated that he

accompanied PW.6 while conducting raid in the house of

accused No.1 and he reiterated the oral testimony of

P.W.6. In the cross-examination, the I.O. has not

mentioned House number and survey number. The I.O.

has not secured signature of any witnesses on M.O.6-Bag.

The description of sandalwood billets are also not

described in mahazar.

20. PW.12 B. Basavaraju-Police Sub-Inspector,

Madikeri Police Station, who accompanied PW.6, has

reiterated his evidence.

21. PW.13- Kariyappa another witness to seizure

mahazar Ex-P4, who turned hostile to the case of the

prosecution.

22. PW.14 - R.K. Keshavmurthy, PSI, Madikeri

Rural Police Station, who received report as per Ex-P10

- 11 -

NC: 2024:KHC:31054

from PW.10 and after completion of investigation, filed the

charge sheet, against accused persons.

23. With this evidence, the trial Court acquitted

accused Nos.2 and 3 of the alleged charges and convicted

accused No.1.

24. Learned counsel for the appellant contended

that Section 62C of the Karnataka Forest Act is not

complied with, which is mandatory in nature and hence,

non-compliance of provisions of Section 62C of the Act

would vitiate the prosecution.

25. Learned High Court Government Pleader has

relied upon the Notification issued by Government of

Karnataka on 21.5.2010, which reads as under:

"The Government of Karnataka hereby

notifies as per Rule 62(c) of Karnataka Forest

Act, 1963 authorizing the following trained forest

officers to issue of certificates for offence cases

irrespective of forest produce.

1) Range Forest Officer

- 12 -

NC: 2024:KHC:31054

2)Assistant Conservator of Forests

3) Deputy Conservator of Forests

4) Conservator of Forests

5) Chief Conservator of Forest"

26. In the case on hand, the offences are alleged to

have been committed on 31.08.2004. The Investigating

Officer has not produced the Notification issued by

Government of Karnataka to prove that PW.10 had been

authorized to give his opinion on examination of forest

produce under Section 62C of the Act and the certificate

issued by PW.10 is not in accordance with Form No.11 of

Karnataka Forest Rules.

27. Whereas in the instant case, from the perusal of

Ex-P10, no signature and seal of PW.10- Range Forest

Officer is found place in Ex-P10.

28. Further, independent witnesses to seizure

mahazar witnesses have not supported the case of the

prosecution. In the absence of oral testimony of

independent witnesses, merely on the oral testimony of

official witnesses, the conviction cannot be sustained. In

- 13 -

NC: 2024:KHC:31054

the case on hand, the Investigating officer has not

produced any record or RTC extract to establish that PW.5

owner of the land had grown sandalwood trees in his land.

Further, the Range Forest Officer-PW-10 has not

mentioned the colour and structure of sandalwood billets

in Ex-P10. Therefore, the learned Trial Judge should not

have placed reliance on the information produced by

Ex-P10.

29. Having heard learned counsels from both sides,

the common question involved in this case is that

although the seized goods of forest produce is showed and

proved by the prosecution as sandalwood by the

examining expert, the course adopted for the same was

not in consonance with the provision of Section 62C of the

Act.

30. On perusal of the facts of this case presented

above, it can be gathered that the prosecution could not

produce any evidence to show that PW-10-Range Forest

Officer, who issued the certificate in the present case was

qualified to do the same as prescribed under the provision

- 14 -

NC: 2024:KHC:31054

of Section 62C of the Act, which makes it mandatory that

the officer concerned should have been authorized by the

Government and should have received training for

examining the forest produce.

31. PW.10- The Range Forest Officer nowhere stated

in his evidence that he was duly authorized by the State

Government and competent to issue the certificate in

question.

32. Going by the material on record, it can be said

that the prosecution has failed to prove that the

requirements as contemplated under Section 62C of the

Act were met by the officers concerned before issuing the

impugned certificate.

33. There is also no other admissible evidence on

record in support of the prosecution case that the

confiscated items were sandalwood billets. Unless the

authorisation or notification is produced, it cannot be said

that PW.10 was authorised by the State Government to

issue certificate under Section 62C of the Act. Under such

circumstances, the trial court erred in convicting the

- 15 -

NC: 2024:KHC:31054

appellant-accused No.1 under Section 87 of the Act r/w

Section 397 IPC.

34. In the instant case, nothing is placed on

record to show that, PW.10 had undergone training and

he was authorized officer to issue certificate under Section

62C of the Act. Moveover, at the time conducting raid,

local persons were not invited for conducting mahazar, the

I.O. did not mark nor measured or weighed the

sandalwood billets. The description of sandalwood and its

structure was also not stated.

In the result, I proceed to pass the following:

ORDER

i. The appeal is allowed.

ii. The impugned judgment of conviction and order

of sentence dated 11.03.2013 passed by Fast Track Court,

Kodagu, Madikeri, in S.C. No.84/2006 is set aside.