Karnataka High Court
Soman @ Devarus vs State Of Karnataka on 6 January, 2025
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2025:KHC:179
CRL.A No. 1054 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 1054 OF 2011
BETWEEN:
1. SOMAN @ DEVARUS,
AGED ABOUT 51 YEARS,
S/O VELUDA DEVARASAN HOUSE,
PULLAHALLI,
SULTAN BATHERI TALUK,
VYNADU DISTRICT,
KERALA STATE.
2. SHARLI,
AGED ABOUT 34 YEARS,
S/O SUKUMARAN,
PULIKAL HOUSE, AMORAKUNI POST,
SULTAN BATHERI TALUK,
VYNADU DISTRICT,
Digitally KERALA STATE.
signed by
MALATESH
KC 3. REJI,
Location: AGED ABOUT 39 YEARS,
HIGH
COURT OF S/O PARAMESHWARAN
KARNATAKA DEVARASAN HOUSE,
AMARAKUNI POST,
PULLAHALLI, SULTAN BATHERI TQ,
VYNADU DISTRICT,
KERALA STATE.
-2-
NC: 2025:KHC:179
CRL.A No. 1054 of 2011
4. GEORGE
AGED ABOUT 34 YEARS,
S/O JOSEPH
PADICHARA VILLAGE,
PULLAHALLI,
SULTAN BATHERI TQ,
VYNADU DISTRICT,
KERALA STATE.
...APPELLANTS
(BY SRI. M.T. NANAIAH, SENIOR COUNSEL A/W
SRI. PRABHUGOUD B TUMBIGI, ADVOCATE FOR A1 TO A3;
SRI. SIJI MALAYIL, ADVOCATE FOR A4)
AND:
STATE OF KARNATAKA
BY SARAGUR POLICE STATION,
REPRESENTED BY STATE PUBLIC
PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP FOR R/STATE)
THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED:24.9.11 PASSED BY THE
JUDGE, FTC-V, MYSORE IN S.C.NO.8/07 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143, 148 R/W
149, 353 R/W 149, 307 R/W SEC. 149 OF IPC. AND SEC. 5 R/W
SEC.27(1) AND SEC.28 OF THE ARMS ACT 1959.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-3-
NC: 2025:KHC:179
CRL.A No. 1054 of 2011
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.M.T.Nanaiah, learned Senior Counsel for
Sri.Prabhugouda B. Tumbigi, learned counsel for the
appellant Nos.1 to 3, Sri.Siji Malayil, learned counsel for
appellant No.4 and Sri.Channappa Erappa, learned High
Court Government Pleader for the State/respondent.
2. Present appeal is filed by the accused Nos.1 to
4 challenging the order of conviction passed by the
learned Sessions Judge in SC No.08/2007 whereby the
accused persons were convicted for the offence punishable
under Section 143, 148, 353, 307 read with Section 149 of
IPC, Section 5 read with Section 27(1) and 28 of Arms Act,
1959 and sentenced as under:
Offence Punishment Fine Default
sentence
Section 143 Three - -
read with months
Section 149 simple
of IPC imprisonment
Section 148 One year - -
read with simple
Section 149 imprisonment
NC: 2025:KHC:179
of IPC
Section 353 One year - -
read with simple
Section 149 imprisonment
of IPC
Section 307 Five year Rs.5,000/- Six months
read with simple
Section 149 imprisonment
of IPC
Section 5 Three year Rs.5,000/- Six months
read with simple
Section imprisonment
27(1) of
Arms Act,
Section 28 Three year Rs.5,000/- Six months
of the Arms simple
Act, 1959 imprisonment
3. Brief facts of the case which are utmost
necessary for disposal of the present appeal are as under:
3.1. Sargur Police Station, Mysore District filed the
charge sheet against accused for the offence punishable
under Section 143, 147, 148, 353, 307 read with Section
149 of IPC, Sections 9, 27, 31, 35(1), 35(6) read with
Section 51 of the Wild Life (Protection) Act, 1972, Sections
NC: 2025:KHC:179
25, 27 and 28 of Arms Act, 1959 and Section 3 of
Explosive Substances Act, 1908.
3.2. Gist of the charge sheet materials would reveal
that on 23.06.2005 at about 11.45 a.m. in Kalkere reserve
forest of A.M.Gudi reserve range, accused Nos.1 to 4 and
absconding accused Nos.5 to 7 formed an unlawful
assembly and picked up the altercation with the forest
officer and their sub-staff and they were armed with the
guns, knife, axe and such other deadly weapons and
entered into the forest range in A.M.Gudi especially
Kalkere reserve forest.
3.3. With an intention to obstruct the discharge of
the official duty by the forest officer and also with an
intention to take away the life of the forest personnel,
appellants along with the absconding accused persons
started mercilessly firing against the forest officer and his
sub-staff. Forest officials also retarded. In the process,
accused Nos.1 and 2 sustained injuries and forest officials
took upper hand and caught hold of accused Nos.1 to 3
NC: 2025:KHC:179
from the spot and accused Nos.4 to 7 flew away from the
spot.
4. On committal, learned Sessions Judge secured
the presence of accused Nos.1 to 4 and framed the charge
sheet for the aforesaid offences. Accused persons pleaded
not guilty and therefore, trial was held.
5. In order to bring home the guilt of the accused
persons, prosecution in all examined 18 witnesses as
P.W.1 to 18 and placed on record 28 documents which
were exhibited and marked as Exs.P.1 to 28 and as many
as 21 material objects were placed on record comprising of
guns, unfired bullets, axe without the handle, kife, gun
power, torch, salt, utensils, cartridge, chilli powder, gun
belonging to the forest department and other material
objections.
6. Detailed cross-examination of the prosecution
witnesses yielded some result in creating the doubt in the
case of the prosecution in respect of the offences under
NC: 2025:KHC:179
Section 9, 31, 35(6) read with Section 51 of the Wild Life
(Protection) Act, 1972, Sections 25 of Arms Act, 1959 and
Section 3 of Explosive Substances Act, 1908. As such, the
case ended in acquittal as against those offences.
7. However, on conclusion of recording of the
prosecution witnesses, accused statement as is
contemplated under Section 313 of Cr.P.C. was recorded
and taking note of the denial of the incriminatory
circumstances, learned Sessions Judge heard the parties in
detail and convicted the accused persons for the aforesaid
offences and sentenced as referred to supra.
8. Being aggrieved by the same, accused Nos.1 to
4 are before this Court, in this appeal.
9. Sri.M.T.Nanaiah, learned Senior Counsel
representing the appellant Nos.1 to 3 and Sri.Siji Malayil,
learned counsel for appellant No.4 reiterating the grounds
urged in the appeal memorandum contended that material
NC: 2025:KHC:179
on record is hardly sufficient to maintain the order of
conviction and sentence as referred to supra.
10. Sri.M.T.Nanaiah, learned Senior Counsel also
pointed out that in the absence of seizure of the gun in a
proper manner inasmuch as panch witnesses to seizure
panchanama having turned hostile, conviction for the
offences under Section 5 read with Section 27(1) and
Section 28 of the Arms Act, 1959 is impermissible and
sought for allowing the appeal.
11. He also brought to the notice of this Court that
in the case on hand, there is no evidence on record to
maintain the conviction of the accused persons/appellants
for the offence punishable under Section 307 of IPC
inasmuch as, not a single person from the forest
department has been injured and if at all, the case of the
prosecution is to be believed that the appellants had an
intention to take away the life of the forest officials and
when they were armed with the gun and other deadly
weapons, why would they leave an opportunity to fire
NC: 2025:KHC:179
second or third round against the forest officials if the first
round of firing has got misfired or out of range.
12. He also pointed out that material evidence in
the form of oral testimony of the forest officials is nothing
but self serving testimony. On the contrary, accused
Nos.1 and 2 have sustained injuries as per the wound
certificate placed on record by the prosecution and the
Doctor evidence wherein the doctor has examined the
accused persons and there are pallet injuries found on the
body of accused Nos.1 and 2 and pallets have been
removed from the injury site. Therefore, it is the forest
officials who were aggressive in firing at the innocent
persons when accused persons/appellants have gone for
gracing and collection of forest materials like fallen fire
wood etc.
13. He also pointed out that in the absence of proof
of proper seizure of the weapons said to have been
possessed by the accused persons, the other material
objects namely utensils, axe etc., are all the implements
- 10 -
NC: 2025:KHC:179
which would be carried by the villagers when they go for
collection of fallen fire wood and other things as they were
required to spend couple of days in the forest. Therefore,
seizure of utensils, axe, chilli power etc., would not
improve the case of the prosecution to any extent and
sought for allowing the appeal.
14. Sri.Siji Malayil, learned counsel for the
appellant No.4/accused No.4 while adopting the
arguments put forth on behalf of accused Nos.1 to 3, also
emphasized that accused No.4 was not caught hold off by
the forest officials on the spot which shows that he was
not at all present at the time of incident and he has been
falsely implicated in the case by the investigation agency.
Thus, sought for allowing his appeal.
15. Per contra, Sri.Channappa Erappa, learned High
Court Government Pleader for the State/respondent
supports the impugned judgment.
- 11 -
NC: 2025:KHC:179
16. He contended that seizure of the material
objects even though could not be proved through the
evidence of the mahazar witness, the same is established
by the oral testimony of the investigation officer which is
permissible under law and therefore, conviction of the
appellants is to be maintained.
17. He further pointed out that the empty bullet
cartridges seized from the spot would go to show that
there was a firing by the appellants on the forest officials
and in retard to the said firing, forest officials were also
required to open the fire resulting in injury to accused
Nos.1 and 2. Same is not suppressed by the prosecution
inasmuch as the injured persons were taken to the
medical care immediately and produced before the
Magistrate and injuries are reported to the Magistrate in
the remand application itself. Therefore, the conduct on
the part of the investigation agency and case of the
prosecution cannot be doubted. Therefore, order of
conviction is to be maintained.
- 12 -
NC: 2025:KHC:179
18. He further pointed out that mere absence of
injury on any one of the forest officials would not ipso
facto should result in order of acquittal insofar as the
appellants/accused persons are concerned inasmuch as
firing of the bullets with an unlicensed fire arm would be
sufficient enough in inferring the intention of the
appellants in taking away the life of the forest officials
which would be sufficient enough to maintain the
conviction under Section 307 of IPC and thus, sought for
dismissal of the appeals.
19. Having heard the parties in detail, this Court
perused the material on record meticulously. On such
perusal of the material on record, following points would
arise for consideration:
1. Whether the prosecution has successfully
established all ingredients to attract the offences
punishable under Section 143, 147, 148, 353,
307 read with Section 149 of IPC and Section 5
read with Section 27(1) and 28 of the Arms
Act,1959?
2. Whether the appellants make out a case that the
impugned judgment is suffering from legal
- 13 -
NC: 2025:KHC:179
infirmity and perversity and thus calls for
interference?
3. Whether the sentence is excessive?
4. What order?
REG. POINT Nos.1 AND 2:
having suffered the injuries by firing of the forest officials
and capturing accused Nos.1 to 3 on the spot is not in
dispute.
23. In fact, the injured accused Nos.1 and 2 were
taken to the medical care by the investigation agency
itself. Forest officer has categorically deposed before the
Court about the incident with graphic details and has
specifically stated that group consisted of seven persons
and out of the seven persons, three of accused persons
were captured and four of them successfully escaped from
the scene of the offence.
24. Seizure of the empty cartridges and fired bullets
which were pierced into the trees were seized. However,
- 14 -
NC: 2025:KHC:179
ballistic expert who has been examined as P.W.14 has
given an opinion that the seized bullets were fired through
the fire arms which were also seized from the custody of
accused.
25. Detailed cross-examination of prosecution
witnesses namely forest officials, Doctors and ballistic
expert did not yield any positive materials about the non
firing of the bullets by the seized guns. However, for the
reasons best known to the prosecution, they did not send
the seized guns for the fingerprint examination. Such
report would have been there on record, the accused
persons could not have pleaded anything about the
validity of the seizure of the material objects especially
guns which were said to have been seized by the
investigation agency under the mahazar.
26. P.W.5 - Sri.L.K.Mahadev, being the
independent mahazar witness to the seizure of the fire
arms has turned hostile to the case of the prosecution. It
is no doubt true that seizure can be proved through the
- 15 -
NC: 2025:KHC:179
evidence of the investigation officer when panch witnesses
have turned hostile. But in the case on hand, non sending
the seized weapons to the fingerprint expert and obtaining
the report exposes the hollowness in the case of the
prosecution. Therefore, for the offences punishable under
Section 5 read with Section 27(1) and 28 of the Arms
Act,1959 cannot be sustained.
27. However, the firing of the bullets and exchange
of the firing, amply shows that incident has been
established and same is also established by accused Nos.1
and 2 sustaining injuries. No doubt, the injuries are pallet
injuries as could be seen from the wounnd certificate
issued by the Doctor and as per the oral testimony of the
Doctor. The same would depict that there was a firing
from long range. In other words, the groups were not
opposite to each other and were firing from hiding
themselves. Non sustaining of the injuries to any one of
the forest officials would also show that it was a sort of a
free fight rather than firing by the accused persons alone
- 16 -
NC: 2025:KHC:179
on the forest groups. The explanation offered by the
forest officer is that accused persons opened the fire at the
first instance and the forest officials retarded the firing to
save themselves.
28. All these factors when viewed cumulatively, it is
crystal clear that the incident as is enunciated by the
prosecution has been established by placing cogent
evidence on record and the defence of the accused
persons that they had gone to collect fallen fire wood from
the forest and they have been falsely implicated in the
case, loses its significance.
29. In view of the foregoing discussion, point Nos.1
and 2 are answered partly in the affirmative.
REG. POINT No.3:
30. Since this Court has acquitted the accused
persons for the offences punishable under Section 27 and
28 of the Arms Act for want of evidence as discussed
supra, insofar as other offences are concerned, taking note
of the fact that none of the forest officials are injured,
- 17 -
NC: 2025:KHC:179
sentence of imprisonment ordered by the learned Sessions
Judge needs a relook.
31. Since the accused Nos.1 to 3 were in custody
for some period at the trial and they have spent time in
custody after the pronouncement of the judgment, till the
order of sentence was suspended by this Court, same can
be treated as period of imprisonment by enhancing the
fine amount for the offence punishable under Section 353
and 307 of IPC in a sum of Rs.10,000/- each. Accordingly,
point No.3 is answered partly in the affirmative.
REG. POINT No.4:
32. In view of the findings of this Court on point
Nos.1 to 3 as above, following:
ORDER
i. Appeal is allowed in part.
ii. Accused Nos.1 to 4 are acquitted for the
offences punishable under Section 5 read
with Section 27(1) and 28 of the Arms Act,
1959.
- 18 -
NC: 2025:KHC:179
iii. Conviction of the accused persons for the
offences punishable under Section 143, 148,
353, 307 read with Section 149 of IPC is
maintained and custody period already
undergone by the appellants is treated as
period of imprisonment for the aforesaid
offences by directing them to pay enhanced
fine of Rs.10,000/- for the offence
punishable under Section 353 and enhanced
fine of Rs.10,000/- for the offence
punishable under Section 307 of IPC by each
of the appellants.
iv. For rest of the offences, fine amount is
maintained.
v. It is made clear that appellants shall deposit
the balance of the fine amount on or before
31.01.2025 failing which they shall undergo
simple imprisonment for the period of six
months for the aforesaid offences.
- 19 -
NC: 2025:KHC:179
vi. It is further clarified that accused persons
are acquitted for the offence punishable
under Section 5 read with Section 27(1) and
28 of the Arms Act, 1959, fine amount
deposited by them in respect of those
offences can be adjusted while calculating
the fine amount for the remaining offences.
Office is directed to return the Trial Court Records
with copy of this order forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT:SNN
