Karnataka High Court
Ashoka vs State By Range Forest Officer Belur on 5 August, 2024
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CRL.A No.212 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.212 OF 2013
BETWEEN:
ASHOKA
S/O PONNUSWAMY
AGED ABOUT 22 YEARS
BHAKTHARAHALLI
KASABA HOBLI
CHIKMAGALUR DISTRICT-573221.
Digitally signed by
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH ...APPELLANT
COURT OF
KARNATAKA
(BY SRI. S.S. BHARATH, ADV.,)
AND:
STATE BY RANGE FOREST OFFICER BELUR
REPTD BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE.
...RESPONDENT
(BY SRI. M. DIVAKAR MADDUR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 19.02.2013
PASSED BY THE ADDL. S.J., HASSAN IN S.C.NO.84/2009 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 24 AND 86 OF KARNATAKA FOREST ACT & ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No.212 of 2013
CORAM: HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
This appeal is filed by the accused challenging the
judgment of conviction and order on sentence dated
19.02.2013 passed in S.C.No.84/2009 by the Additional
Sessions Judge, Hassan. The accused has been convicted
for the offence punishable under Sections 24 and 86 of the
Karnataka Forest Act, 1963 (hereinafter for the sake of
brevity, referred to as 'the Act') and sentenced to undergo
simple imprisonment for a period of 3 months and to pay a
fine of Rs.500/- for the offence punishable under Section
24 of the Act and for the offence punishable under Section
86 of the Act, the accused is sentenced to undergo simple
imprisonment for a period of 5 years and to pay a fine of
Rs.50,000/-. The trial Court has ordered that both
sentences to run concurrently.
2. The factual matrix of the prosecution case is as
under:
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On 04.10.2008 at about 10:00 a.m., when the
complainant, PW-1 and his staff were on patrolling duty
near Ramadevarahalla reserved forest area, they heard
the tree cutting sound and immediately, PW-1 along with
his staff went to the spot and found that 4 persons had cut
the sandalwood trees and made into billets and encircled
the said place and on seeing them, those persons
attempted to escape, thus, PW-1 ordered one of his staff
to fire the gun in the air. Therefore, his staff
PW-2/M.J.Dhananjaya fired the gun in the air and they
were able to catch accused-Ashok and three persons fled
away from the spot beside the plants. In the spot, they
found a chopper and a plastic bag containing 6
sandalwood billets. On inquiry, accused Ashok revealed his
name and address and also revealed that he has cut
sandalwood trees and converted the same into 6 billets.
Therefore, PW-1 and his staff recovered 6 sandalwood
billets weighing 8 kg and also seized the chopper and drew
panchanama as per Ex.P1. Later, PW-1 and his staff
produced the accused along with complaint and seized
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articles before the Range Forest Officer, Belur, who inturn,
registered the FIR in Cr.No.25/2008-09, for the offences
punishable under Sections 24, 84 and 86 of the Act. The
Investigating Officer investigated the matter and filed the
charge sheet for the aforesaid offences.
3. After committal of the case, the trial court
framed the charge for the aforesaid offences. The
prosecution, in order to prove the charges, has examined
in all 5 witnesses as PWs-1 to 5 and got marked Exs.P-1 to
P-6 and M.Os.1 to 8. The trial Court, after hearing the
arguments, formulated the points for consideration and
after appreciating the evidence on record, passed the
impugned judgment of conviction and sentence which has
been challenged in this appeal.
4. Heard Sri.S.S.Bharath, learned counsel for the
appellant-accused and Sri.M.Divakar Maddur, learned High
Court Government Pleader for the respondent-State.
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5. Learned counsel for the appellant-accused
would contend that the prosecution has not examined any
independent witness in support of the oral testimony of
official witnesses. Except the evidence of the forest official,
there is no other evidence to prove seizure of sandalwood
billets. It is contended that the prosecution has not
produced any revenue record to show that the alleged spot
is forest land and no notification has been produced to
show that the alleged spot comes under forest land.
Further, PWs-1 & 2 are the forest guards, PWs-3, 4 & 5
are the Range Forest Officers. Thus, none of the
independent witnesses are examined in this matter. He
contends that the prosecution has not produced any
documents to show that PW-3 is competent to issue
Certificate at Ex.P-3 as per the provisions contained in
Section 62C of the Act. The prosecution has not produced
any notification containing the name of PW-3 stating that
he is the competent person to issue certificate under
Section 62C of the Act. It is contended that, if there is no
compliance of Section 62C of the Act, conviction for the
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offence punishable under Sections 24, 84 and 86 of the
Act cannot be sustained. Hence, the learned counsel prays
to allow the appeal.
6. Learned High Court Government Pleader
appearing for the respondent-State submitted that the
trial Court, on appreciating the evidence on record, has
rightly convicted the accused. He supported the reasons
assigned by the trial Court. He contended that PW-3,
being the Range Forest Officer is competent to examine
the forest produce and issue certificate as he has
undergone training required under Section 62C of the Act.
On these grounds, he sought for dismissal of the appeal.
7. On the grounds made out and considering the
arguments made by the learned counsel for both sides,
the following points that would arise for Court's
consideration are as under:
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1. "Whether the prosecution proved that,
on 4.10.2008 at about 10:00 a.m., the accused
entered the forest, cut and removed two
sandalwood trees by making it into six billets,
belonging to the government and transporting
the same without any permission, thereby
committed theft of sandalwood billets?
2. Whether the trial Court erred in
convicting the appellant-accused for the offence
punishable under Sections 24 and 86 of the
Karnataka Forest Act, thus requires interference
of this Court?"
8. The prosecution in order to prove its case relied
upon the evidence of PW-1/Manjunatha, the forest guard,
who has stated in his evidence that on 04.10.2008, when
himself, PWs-2 and 5 were on patrolling duty in the
reserved forest area behind nursery of Ramadevarahalla,
they heard wood cutting sound and they went there and
saw four persons cutting the trees, then those four
persons attempted to run away. PW-5 told those persons
not to run, but they did not stop. Therefore,
PW-5/Manjegowda directed PW-2/M.J.Dhananjaya to fire a
gunshot in the air, accordingly, PW-2 fired a gunshot in
the air, but three persons fled away from the spot and
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they could caught hold the accused. On being enquired,
the accused revealed his name and address. They seized
six sandalwood billets from the plastic bag and a chopper
used for cutting the sandalwood trees by drafting
Ex.P-1/panchanama.
9. PW-5/J.Manjegowda, Forester( Vana palaka)
Yalagunda forest, who apprehended the accused and
recovered 6 sandalwood billets from the possession of the
accused by conducting mahazar in the presence of
panchas, has stated in his evidence that on 04.10.2008,
himself and his staff viz., PW-2 M.J.Dhananjay, one
Dharmaraju and PW.1 Manjunath, were on patrolling duty
and at about 10.00 a.m., they heard the sound of cutting
of wood and when himself and his staff went there, they
saw four persons attempting to run away, thus he told
those persons not to run, but they did not stop, hence, he
instructed PW-2 to fire a gun shot in air, accordingly, PW-2
fired a gun shot in air, but three persons escaped,
however, they caught hold of the accused and seized six
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sandalwood billets, a bag and a chopper, by drafting
mahazar-Ex.P.1, thereafter, PW-5 registered the case and
sent FIR as per Ex.P6 to the Court.
10. The evidence of PW-2/M.J.Dhananjaya
corroborates with the oral testimonies of PWs-1 and 5.
11. PW-3/Sathishchandra, Range Forest Officer,
Hassan, who examined the sandalwood billets sent by the
Range Forest Officer, Beluru, has stated that he examined
six sandalwood billets weighing 8 kg., sent to him for
examination. After examination, he opined that the said
billets are of sandalwood and the valuation of the said
billets is Rs.280/-. Accordingly, he issued certificate as per
Ex.P-3. But in the cross-examination, he clearly admitted
that the outer layer and inner layer have not been
separated before weighing those billets. He has not issued
separate report as to the structure, smell of sandalwood
billets. He has not stated in his report as to MOs.2 to 7
sandalwood billets pertains to the same tree or of different
trees. He admits that, in his report, the seal and signature
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did not tally with each other. He also admits that the
molecular analysis test was not done.
12. PW-4/Keshavamurthy, the Range Forest Officer,
Belur, has stated that on 04.10.2008, when he was on
duty, PW-5/Manjegowda produced the accused, six
sandalwood billets, a chopper and a seizure mahazar.
Hence, he arrested the accused and recorded his voluntary
statement and produced him before the Court and sent six
sandalwood billets for examination. In the cross-
examination, he admits that the gun, cartridges, bullets
have not been seized by him and he has not examined any
independent witnesses to the seizure panchanama and he
has not enquired about the persons who escaped and not
included in the charge sheet. He has not conducted any
investigation as to use of weapon, cartridge, etc., and no
report has been submitted to his higher authorities
regarding use of weapon and cartridges. He admits that
while comparing stems, where the sandalwood billets were
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removed, he has not taken any photographs and sketch
was not drawn.
13. Learned counsel for the appellant-accused
contended that the certificate under Section 62C of the Act
from the authorized officer as per the notification is
mandatory, but, in this case, the prosecution has not
examined the authorized officer, therefore, non
compliance of Section 62C of the Act would vitiate the
entire proceedings. Hence, it is just and necessary to
analyze Section 62C of the Act.
14. The learned High Court Government Pleader
has relied on the Notification issued by Government of
Karnataka on 21.5.2010, which is 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
2)Assistant Conservator of Forests
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3) Deputy Conservator of Forests
4) Conservator of Forests
5) Chief Conservator of Forest"
15. In the case on hand, the offences are alleged to
have been committed on 04.10.2008. The Investigating
Officer has not produced Notification issued by
Government of Karnataka to prove that PW-3 had been
authorized to give his opinion on examination of forest
produce under Section 62-C of the Act and certificate
issued by PW-3 was valid in the eye of law.
16. Whereas in the instant case, from the perusal of
Ex-P3- valuation certificate issued by PW.3, no signature
and seal of PW.3- Range Forest Officer is found place in
Ex-P3.
17. Further, the investigating officer or the officer
who conducted raid has not cited any independent witness
and the mahazar was not conducted in the presence of
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any independent local panchas. In the absence of oral
testimony of any independent witnesses, merely on the
oral testimony of official witnesses, the conviction cannot
be sustained. In the case on hand, the Investigating
officer has not produced any record or RTC extract to
establish that the alleged place where sandal trees were
grown in the Government land or forest. Further, the
Range Forest Officer-PW-3 has not mentioned the shape,
colour and structure of sandalwood billets in Ex-P3.
Therefore, the learned Trial Judge should not have placed
reliance on the contents of Ex-P3.
18. Having heard learned counsels from both sides,
the common question involved in this case is that, though
the seized forest produce is showed and proved by the
prosecution as sandalwood by examining the expert, but,
the course adopted for the same by the raiding party and
investigating officer are not in consonance with the
provision of Section 62C of the Act.
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19. 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-3-Range Forest
Officer, who issued the certificate in the present case was
qualified to do the same as prescribed under the provision
of Section 62C of the Act, which makes it mandatory that
the officer concerned should have been authorized by the
Government and should have undergone training for
examining the forest produce.
20. PW.3- 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.
21. 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.
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22. 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.3 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
appellant-accused under Sections 24 and 86 of the Act.
23. In the instant case, nothing is placed on record
to show that, PW.3 had undergone training and he was
authorized officer to issue certificate under Section 62C of
the Act. Moreover, at the time of 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.
24. Therefore, the learned trial Judge should not
have placed reliance on information produced by PW-3.
The prosecution has failed to prove that seized
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billets/wood pieces seized from the possession of accused
were sandalwood billets/pieces. Therefore, the accused
cannot be held guilty of the offences punishable under
Sections 24 and 86 of Karnataka Forest Act.
Hence, the following:
ORDER
i. The appeal is allowed.
ii. The impugned judgment and order of
conviction and sentence dated 19.02.2013
passed in S.C.No.84/2009 by the Additional
Sessions Judge, Hassan, is hereby set
aside. The appellant is acquitted of the
offence punishable under Sections 24 and
86 of the Karnataka Forest Act.
iii. The bail bond of the accused and that of
surety stand cancelled.
iv. The fine amount, if any, deposited by the
appellant be returned.
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v. Registry is directed to send the copy of this
judgment along with the trial Court records
to the trial Court.
Sd/-
(VENKATESH NAIK T)
JUDGE
BSR/mn/-
