Karnataka High Court

Sri Shankarachari vs State Of Karnataka on 16 February, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                         CRL.A No. 469 of 2013




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 16TH DAY OF FEBRUARY, 2024

                                              BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL NO. 469 OF 2013
                      BETWEEN:

                         SRI SHANKARACHARI,
                         S/O SRI. ANANDACHARI,
                         AGED ABOUT 29 YEARS,
                         R/O. MTOOR VILLAGE,
                         HOSANAGAR TALUK,
                         SHIMOGGA DISTRICT.
                                                                 ...APPELLANT
                      (BY SRI. P BASAVARAJU & ASSOCIATES, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA       AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF                 STATE OF KARNATAKA
KARNATAKA
                         BY RANGE FOREST OFFICER,
                         HOSANAGARA RANGE, HOSANAGAR
                         REPRESENTED BY THE
                         STATE PUBLIC PROSECUTOR,
                         HIGH COURT OF KARNATAKA,
                         BANGALORE.
                                                                ...RESPONDENT
                      (BY SRI. B. LAKSHMAN, HCGP)
                           THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV.
                      FOR THE APPELLANT/ACCUSED PRAYING TO SET ASIDE
                      CONVICTION OF THE JUDGMENT AND ORDER DATED
                      18.04.2013 PASSED BY THE P.O., F.T.C.-II, SHIMOGA IN
                      S.C.NO.2/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
                      THE OFFENCE P/U/S 86 AND 87 OF KARNATAKA FOREST ACT,
                      1963 AND ETC,.

                          THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
                      COURT DELIVERED THE FOLLOWING:
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                                                      NC: 2024:KHC:6830
                                                  CRL.A No. 469 of 2013




                                   JUDGMENT

1. This appeal is filed by the sole accused praying

to set aside the judgment of conviction and order of

sentence dated 18.04.2013 passed in S.C. No. 2/2013 by

the Presiding Officer, Fast Track Court - II, Shivamogga.

Appellant accused has been convicted for offence under

Sections 86 and 87 of the Karnataka Forest Act

(hereinafter for the sake of brevity referred to as `the

Act') and he has been sentenced to undergo rigorous

imprisonment for a period of 5 years and to pay fine of

Rs.50,000/- for offence under Section 86 of the Act and

further sentenced to undergo rigorous imprisonment for a

period of 5 years and to pay fine of Rs.50,000/- for

offence under Section 87 of the Act. The trial Court has

ordered both the sentences to run concurrently.

2. Factual matrix of the prosecution case is as

under:

On 07.04.2011 at about 06.45 to 07.00 p.m.,

C.W.6 Forester of Hosanagara Range, Hosanagara

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received a credible information and on that information

C.W.6 along with staff visited the forest land situated in

survey No. 22 of Punage village, where they found

sandalwood pieces. On finding of the same, they

conducted spot panchanama and seized the sandalwood

pieces and arrested the accused and produced the accused

along with sandalwood before Range Forest Officer,

Hosanagara. After production of accused along with

sandalwood pieces, the RFO Hosanagara sent the

sandalwood pieces to RFO, Choradi Range, Choradi for

examination. P.W.7 issued a certificate stating that wood

pieces examined by him are of sandalwood. After

completion of investigation, P.W.6 submitted a charge

sheet against the accused for the above said offences.

3. After committal the Sessions Judge framed

charge for the offence under Sections 86 and 87 of the

Act. Prosecution, in order to prove the charges, has

examined P.W.1 to P.W.7 and got marked Ex.P.1 to

Ex.P.5. and M.O.1 to M.O.5. The statement of the accused

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has been recorded under Section 313 of Cr.P.C. The trial

Court, after hearing arguments, formulated points for

consideration and after appreciating the evidence on

record passed the impugned judgment of conviction and

order of sentence which has been challenged in this

appeal.

4. Heard learned counsel for appellant - accused

and learned HCGP for respondent - State.

5. Learned counsel for appellant - accused would

contend that the villagers who are alleged to have caught

hold the accused, i.e., P.W.1 to P.W.3 have not supported

the case of the prosecution. Except the evidence of forest

officials there is no other evidence to prove seizure of

sandalwood billets. He contends that the prosecution has

not produced any revenue record to show that survey No.

22 is a forest land and no notification has been produced

to show that survey No. 22 is a forest land. Distance

between the forest office and spot is about 10 - 12 KMs

and forest officials received information about the incident

between 06.30 - 06.45 am and reached the spot and

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conducted mahazar - Ex.P.1 between 07.30 - 08.30 am

and it appears to be not probable. There is no notice

issued to the panchas of Ex.P.1 - mahazar. Statements of

P.W.1 to P.W.3 have not been recorded and there is no

compliance of Section 66-C of the Act. The certificate -

Ex.P.4 issued by P.W.7 is dated 18.08.2012 wherein it is

mentioned that the seized billets were examined on

18.08.2012 i.e., more than 1 year 4 months after the

seizure and therefore, there is delay in examination of the

seized wood by P.W.7. The seized wood is wet wood

weighing 13 KGs and even after lapse of 1 year 14 months

weight mentioned in Ex.P.4 by P.W.7 is 13 KGs. The

weight of the wet wood will reduce by passage of time. He

contends that P.W.7 is not competent to issue Ex.P.4 -

certificate and he had got only 3 days training as per

Ex.P.5 - certificate. He contends that the prosecution has

not produced any document to show that P.W.7 is

competent to issue certificate - Ex.P.4 as per the

provisions contained in Section 62 of the Act. Prosecution

has not produced any notification containing the name of

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P.W.7 stating that he is competent to issue certificate

under Section 62-C of the Act. He contends that if there is

compliance of Section 62-C of the Act, conviction for

offence under Sections 86 and 87 of the Act cannot be

sustained. On that point he placed reliance on the

following decisions:

i. Veerakyatharaya Vs. State of Karnataka, Crl.A.

No. 143/2009 C/w. Crl.A. No. 20/2009 decided

on 18.02.2014

ii. State of Karnataka Vs. Prakash and others,

2019 (14) SCC 229

6. He further contends that P.W.1 in his evidence

has stated that he has examined the wood on 18.08.2011,

but, in certificate it is mentioned that he examined the

wood on 18.08.2012. He contends that there is rivalry

between the accused and the Panchayat member which

has been admitted by P.W.5 in the cross-examination. He

further submits that at the instance of Panchayat member

a false case came to be foisted against appellant -

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accused. On these grounds he prayed for allowing the

appeal and acquitting the appellant.

7. Learned HCGP appearing for the respondent -

State argued that the trial Court on appreciation of the

evidence on record has rightly convicted the appellant -

accused. He supported the reasons assigned by the trial

Court. He further argued that the evidence of P.W.4 to

P.W.6 is sufficient to convict the appellant - accused for

offence under Sections 86 and 87 of the Act. He further

argued that P.W.7 being the Range Forest Officer is

competent to examine the forest produce and issue

certificate as he has undergone training required under

Section 62-C of the Act as per Ex.P.5 - certificate. On

these grounds he sought for dismissal of the appeal.

8. On the grounds made out and considering the

arguments advanced, the following point arises for my

consideration.

"Whether the trial Court erred in convicting the appellant - accused for the offence under

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Sections 86 and 87 of the Karnataka Forest Act?

9. My answer to the above point is in the

affirmative for the following reasons:

The prosecution has relied upon the evidence of

P.W.4 -Forest Guard, P.W.5 - Forester and P.W.6 - Range

Forest Officer. The private witnesses examined by the

prosecution (P.W.1 to P.W.3) have not supported the case

of the prosecution. P.W.4 - Isamail has deposed that

during the relevant time he was working as Forest Guard

in Hosanagara Range. He has further deposed that

Forester - Doddamani received credible information

regarding cutting of sandal wood trees and he went along

with him to survey No.22, Punage village forest area and

there, three villages had held one person and told that he

had cutoff sandalwood trees and they found sandalwood

billets fallen there. P.W.4 has deposed about seizer of

sandalwood billets weighing 13 KG under mahazar - Ex.P.1

and he has identified billets as M.O.1 to M.O.5 and he has

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also deposed regarding taking accused persons along with

seized wood to office and reporting to the Forest Official.

During the cross examination unsuccessful attempt has

been made to prove that a false case has been filed at the

instance of one Yuvaraj who is prominent person in the

village.

10. P.W.5 is S.S.Doddamani and he has deposed

that he was working as Forester in Hosanagar Range. He

further deposed that he and P.W.4, on receipt of credible

information, went to the place of the incident and they

found villagers and they told about appellant - accused

and sandalwood billets. He also deposed about seizer of

sandalwood billets and seizure mahazer as per Ex.P.1 in

the presence of panchas and identified M.O.1 to M.O.5.

He has given seizure report as per Ex.P3. During the cross

examination, it is elicited that one Yuvraj is present Gram

Panchayath Chairman and it is further elicited that he has

not produced any document to show that survey No.22 of

Punage village is a forest area. Independent witnesses

(P.W.1 to 3) have not supported the case of the

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prosecution. P.W.4 and P.W.5 did not have any grudge or

grievance against accused. Therefore, P.W.4 and P.W.5

cannot be disbelieved on the ground that they are official

witnesses.

11. Learned counsel for the appellant-accused has

relied upon the decision of this Court in the case of

Veerakyatharaya Vs State of Karnataka1, wherein this

Court has held as under:

"7. The learned counsel for accused has relied on a decision of this court reported in ILR 2010 KAR 3382 (in the case of RAGHAVENDRACHARI vs. THE STATE OF KARNATAKA, BY RANGE FOREST OFFICER), wherein this court has held that issuance of notification under Section 62-C of the Act and examination of forest produce by the Authorised Officer as per notification under Section 62-C of the Act is mandatory. Therefore, non- compliance of provisions of Section 62- C of the Act, would vitiate prosecution.

Crl.A.No.143/2009 C/w Crl.No.20/2009 decided on 18.02.2014.

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8. The learned State Public Prosecutor has relied on Notification issued by Government of Karnataka on 21.5.2010, reading as hereunder:

          "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

3) Deputy Conservator of Forests

4) Conservator of Forests

5) Chief Conservator of Forest"

9. In the case on hand, offences are alleged to have been committed on 29.12.2002. The Investigating Officer has not produced Notification issued by Government of Karnataka to prove that PW8 had been authorized to give his opinion on examination of forest produce under Section 62-C of the Act and certificate issued by PW3 was valid

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in the eye of law. Therefore, the learned Trial Judge should not have placed reliance on information produced by PW8. Therefore, I hold that prosecution has failed to prove that seized billets/wood pieces seized from possession of accused were sandalwood billets/pieces. Therefore, accused cannot be held guilty of offences punishable under Sections 86 and 87 of Karnataka Forest Act."

12. Learned counsel for the appellant-accused has

also relied upon the decision of the Hon'ble Apex Court in

the case of State of Karnataka Vs. Prakash and

Others2, wherein it is held as under:

"8. Having hears the learned counsel from both the sides, the common contention involved in all the aforesaid appeals 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

(2019) 14 SCC 229

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same was not in consonance with the provision of Section 62-C of the Act.

9. On perusal of the facts of cases presented above, we find that the prosecution could not produce any evidence to show that the Range Forest Officer concerned who issued the certificate in the present cases was qualified to do the same as prescribed under the provisions of Section 62-C 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. The forest officers concerned have nowhere stated in their evidence that they were duly authorized by the State Government and competent to issue the certificates in question. Going by the material on record, it can be said that the prosecution has failed to prove that the requirements as contemplated under Section 62-C of the Act were met by the officers concerned before issuing the

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               impugned certificates.              There is also
               no      other    admissible         evidence       on

record in support of the prosecution case that the confiscated items were sandalwood billets. Under the circumstances, the High Court was right in setting aside the order of conviction and sentence passed by the trial court by reaching to the conclusion that the offence under Section 87 of the Act cannot be said to have been established against the accused in accordance with law."

13. Section 62(c) of the Karnataka Forest Act reads

thus:

"62-C. Certificate of Forest Officer to be an evidence.-Any document purporting to be a certificate under the hand of a Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce and who is so authorized by the State Government in this behalf in respect of forest produce, submitted to him for examination and

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report, may be used as evidence of the facts stated in such certificate in any proceedings under this Act, but the Court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Forest Officer as to the subject-matter of his certificate."

14. P.W.7 is Range Forest Officer who has

examined seized billets and certified that they are

sandalwood billets and issued certificate - Ex.P.4. The

prosecution has produced Ex.P.5 - training certificate to

establish that P.W.7 has undergone training and he is

competent to identify the wood and issue certificate. Even

though P.W.7 has undergone training, whether he was

duly authorized by the State Government as required

under Section 62-C of the Act merits consideration. The

prosecution has not produced any authorization issued by

the State Government authorizing P.W.7 to issue

certificate under Section 62-C of the Act. Unless