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Karnataka High Court
State Of Karnataka vs Mahamed Rafiq on 7 January, 2026
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CRL.A No.535 of 2014
c/w CRL.A No.370 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.535 OF 2014
c/w
CRIMINAL APPEAL NO.370 OF 2014
IN CRL.A. NO.535/2014
BETWEEN:
STATE OF KARNATAKA
BY HONNALI POLICE - 577217.
...APPELLANT
(BY SRI. B. LAKSHMAN, HCGP)
AND:
1. MAHAMED RAFIQ
S/O BUDEN SAB,
AGED ABOUT 33 YEARS,
R/O CHEELAPURA VILLAGE,
HONNALI TALUK - 577217.
2. SADDAM @ SADDU
S/O KANDANA KAVI KHASIM SAB,
AGED ABOUT 25 YEARS,
R/O SASVEHALLI-NALUR ROAD,
CHEELAPURA VILLAGE,
HONNALI TALUK - 577217.
3. DADAPEER
S/O KHASIMSAB,
AGED ABOUT 26 YEARS,
CHEELAPURA VILLAGE,
HONNALI TALUK-577217.
...RESPONDENTS
(BY SRI. RAJU C.N., ADV. FOR R1 TO R3.)
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CRL.A No.535 of 2014
c/w CRL.A No.370 of 2014
THIS CRL.A IS FILED U/S.377 CR.P.C BY THE STATE
PUBLIC PROSECUTOR FOR THE APPELLANT PRAYING TO
MODIFY THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED:4.3.14 PASSED BY THE II ADDL. DIST. AND
S.J., DAVANAGERE IN S.C.NO.100/2013 - AND IMPOSEING
INADEQUATE SENTENCE AGAINST THE RESPONDENT NOS.1 TO
3/ACCUSED FOR THE OFFENCE P/U/S 86 AND 87 OF THE
KARNATAKA FOREST ACT AND SEC. 379 R/W 34 OF IPC & ETC.
IN CRL.A. NO.370/2014
BETWEEN:
1. MAHAMED RAFIQ
S/O BUDEN SAB,
AGED ABOUT 32 YEARS
R/AT CHEELAPURA VILLAGE,
HONNALI TALUK, DAVANAGERE DISTRICT
PIN CODE NO.571450
2. SADDAM @ SADDU
S/O KADANA KAVI KKASIM SAB
AGED ABOUT 25 YEARS
SASVERHALLI LNALUR ROAD,
CHEELAPURA VILLAGE,
HONNALI TALUK, DAVANAGERE DISTRICT
PIN CODE NO: 571 450
3. DADAPEER
S/O KHASIMSAB
AGED ABOUT 26 YEARS
CHEELAPURA VILLAGE,
HONNALI TALUK, DAVANAGERE DISTRICT
PIN CODE NO: 571 450
...APPELLANTS
(BY SRI RAJU C. N., ADV.)
AND:
STATE BY HONNALI POLICE
DAVANAGERE
REPRESENTED BY SPP,
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CRL.A No.535 of 2014
c/w CRL.A No.370 of 2014
HIGH COURT OF KARNATAKA AT
BANGALORE
PIN CODE: 560 001
...RESPONDENT
(BY SRI. B. LAKSHMAN, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV.
FOR THE APPELLANTS/ACCUSED NO.1 TO 3 PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION DATED 4.3.2014
PASSED BY THE II ADDL. DIST. AND S.J., DAVANAGERE IN
S.C.NO.100/2013 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 86 AND 87 OF K.F.ACT AND SEC.379
R/W 34 OF IPC AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 21.11.2025 AND COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV JUDGMENT
Both these appeals arise out of the judgment, 04th March
2014, passed in SC No.100 of 2013 by the II Additional District
and Sessions Judge at Davanagere (for short "the trial Court").
2. For the sake of convenience, the parties herein are
referred to as per their rank and status before the trial Court.
3. Brief facts leading to this appeal are that Honnali
Police submitted charge-sheet against the accused for offence
punishable under sections 86 and 87 of Karnataka Forest Act
and section 379 of Indian Penal Code. It is alleged by the
prosecution that on 3rd July 2012 at about 5.00 pm, upon
receiving credible information about theft of Sandalwood in the
land of one Nagalur Mahadevappa of Tharaganahalli, the Sub-
Inspector of Police, Honnali Police Station, along with the staff,
and panchas rushed to the Spot and found accused 123
engaged in cutting sandalwood blocks into small pieces and
filling the same into a bag illegally and without any permit or
license from the forest authorities with ulterior motive for
wrongful gains by selling the same and thereby committed
offence punishable under sections 86 and 87 of Karnataka
Forest Act read with section 379 of Indian Penal Code.
After filing charge-sheet, case was registered in CC No.267 of
2013. Thereafter, it was committed to the court of sessions
which was registered as SC No.100 of 2013. The accused were
enlarged on bail. Upon hearing on charges, charges were
framed. The same were read over and explained to the
accused in the language known to them. Accused had pleaded
not guilty and claimed to be tried.
To prove the guilt of the accused, the prosecution in all has
examined five witnesses as PWs1 to 5 and marked five
documents as per Exhibit P1 to P5 and six material objects
were marked as MOs1 to 6. On closure of prosecution side
evidence, statement of the accused under section 313 of Code
of Criminal Procedure was recorded. Accused have totally
denied the evidence of prosecution witnesses, but have not
chosen to lead any defence evidence. After hearing on both
sides, the trial court has convicted the accused 1 to 3 for
commission of offence punishable under sections 86 and 87 of
Karnataka Forest Act and section 379 read with section 34 of
Indian Penal Code and sentenced to undergo simple
imprisonment for a period of 1 year 6 months and to pay fine of
₹1,500/- each, in default of payment of fine to undergo simple
imprisonment for period of five months. Being aggrieved by the
impugned judgment of conviction and order on sentence,
appellants-accused have preferred Criminal Appeal No.370 of
2013. Being not satisfied with the imposition of sentence,
State has preferred Criminal Appeal No.535 of 2014 seeking
imposition of maximum sentence.
4. Sri Raju C.N., learned Counsel appearing for the
Appellants/accused would submit that the trial court has
committed and error in convicting the applicants for the
aforesaid offences only on the basis evidence of official
witnesses. He would submit that the respondent police have
not examined the owner of the land and have also not
produced the RTC extract of the land to prove the fact that in
which land the respondent recovered the sandalwood pieces
from the accused. He would submit that the mahazar was
prepared at the police station and they have been falsely
implicated in this case. Except PW1 and PW4, all are official
witnesses. According to the case of the prosecution, at the
time of the incident, several persons were gathered, but the
prosecution has not examined the independent witness to
prove the guilt of the appellants/accused. It is further
submitted that though the investigating officer received the
information on 3rd July 2012, he has not registered the case
and has not entered the same in the general diary. Without
registration of the case, the investigating officer has visited the
spot and conducted seizure Panchama on 3rd July 2012
between 6.00 and 7.00 pm and seized 4 kgs of sandalwood
pieces and another sandalwood pieces weighing 5 kgs, in total
9 kgs worth of ₹16,000/-. It is submitted that the investigating
officer arrested the accused on spot and took them to Police
Station and registered the case in Crime No.165 of 2012
against accused 1 to 3 for the offence punishable under
sections 86 and 87 of Karnataka Forest Act read with Section
379 of Indian Penal Code. It is submitted that the First
Information Report was submitted to the court on 4th July 2012
at 2:45 pm. The Investigating officer has not complied with the
mandatory provisions of section 62C of the Karnataka Forest
Act. The investigating officer has not produced the certificate
issued by the concerned Forest Officer. In the case on hand,
Exhibit P2 is the certificate issued by the Range Forest Officer
who is examined as PW2. PW2 has not whispered anything as
to whether he has undergone training in the examination of
Forest produce or has been issued with any certificate to show
that Range Forest Officer has undergone training in
examination of forest produce and he is authorised by the State
Government in this behalf in respect of Forest produce
submitted to him for exam examination and report may be
used as evidence of the fact stated in the certificate, in the
court proceedings. During the course of cross-examination of
PW2, he has admitted that he has obtained the certificate in
this regard, but has not produced the same before the court.
The learned counsel would further submit that the spot
mahazar is conducted before the registration of case and hence
the same is not sustainable. The seizure mahazar was
conducted on 3rd July 2012 between 6.00 and 7.00 pm and the
same is submitted the court along with first information report
on 4th July 2012. The investigating officer has not reported the
seizure of properties to the higher officer as required under
section 71A of the Karnataka Forest Act. It is further submitted
that PW4-Shivakumar son of Nagalur Mahadevappa has
deposed in his evidence that the land in survey No.70-1 of
Tharaganahalli belongs to him which came from his father, and
he has deposed that there were four sandalwood trees and
further deposed that when he was at Honnali, somebody has
committed theft of two sandalwood trees which he came to
know only on the next day. Further, he would submit that the
complainant is a public servant and he has suo-motu registered
the case and investigation was conducted by the very same
police official who had lodged the complaint. Therefore, in the
absence of independent corroborative evidence, no conviction
can be recorded in such a case. On all these grounds, it is
short for allowing the appeal. In support of his submissions, he
has relied on the following decisions:
1. BHANUPRAKASH AND ANOTHER v. STATE BY
A.C.F. rendered in Crl.R.P.No.604 of 2004
decided on 14.07.2006;
2. SMT. ADURI AND OTHERS v. THE STATE OF
KARNATAKA rendered in Crl.A. No.100123 of
2020 decided on 02.02.2021;
3. XAVIER v. STATE OF KERALA rendered in
Crl.M.C.No.117 of 1997 decided on 27.03.1998;
4. MUKHTIAR AHMED ANSHARI v. STATE (NCT OF
DELHI) rendered in Crl.A. No.325 of 2003
decided on 21.04.2005.
5. Sri B Lakshman, learned High Court Government
Pleader appearing for the State in Criminal Appeal No.535 of
2014, submits that the trial court has erred in imposing the
sentence only for 1 year 6 months for the offence punishable
and sections 86 and 87 of the Karnataka Forest Act. The
learned Sessions Judge has failed to consider section 6 of the
Karnataka Forest Act, which states that in case of forest
offence, having reference the cutting, approving or removal or
damage to a sandalwood tree or any part of sandalwood tree
belonging to the Government, be punishable with imprisonment
for a term which may extend to 10 years and with fine which
may extend to ₹1,00,000/-. Further, he submits that similarly,
the section 87 of the Karnataka Forest Act also mandates that
in contravention of provisions of sub-section (1) of section 87,
the punishment prescribed for imprisonment for a term which
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may extend to 10 years and with fine which may extend to
₹1,00,000/-. The learned High Court Government Pleader,
further submits that the trial court has failed to appreciate the
same while imposing the sentence, though the trial Court has
recorded a categorical finding that all the accused, in
furtherance of common intention, without having any permit or
license from the Forest Department, have cut down two
sandalwood trees standing in the land of Nagalur Mahadevappa
of Tharagananahalli and thereby committed the aforestated
offences. When once the guilt of theft of cutting sandalwood
trees is proved, the learned Sessions Judge has no option but
to convict accused by imposing maximum sentence for the
aforesaid offences. Hence, it is prayed for imposing maximum
sentence to the accused.
6. Having heard the arguments on both sides and
perusal of materials, the following points would arise for my
consideration:
1. Whether the trial court is justified in convicting
the accused for the offence punishable under
Sections 86 and 87 of Karnataka Forest Act read
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with section 379 read with section 34 of Indian
Penal Code?
2. Whether the Appellant-State has made out a
ground for enhancement of sentence?
3. What Order?
Regarding Point No.1:
7. I have examined the materials placed before the
court. To prove the guilt of the accused, the prosecution has
examined 5 witnesses as PWs 1 to 5 and marked five
documents as Exhibit P1 to P5 and five material objects as MOs
1 to 6.
8. PW1- A.C. Mallikarjuna has deposed in his evidence
that about 1 year 4 months back, Police have summoned him
and Rajappa to the Police Station. Accordingly, they went to
the police station. Police took them to the land of Nagalur
Mahadevappa, where Sandalwood trees were being cut. There
were three persons who were in possession of saw, axe,
chopper and one bag. They seized the sandalwood billets as
per mahazar Exhibit P1.
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9. PW2, Devraj Kallappa, Range Forest Officer, Honnali
has deposed that on 8th August 2012, he received material
objects MOs1 to 3-sandalwood pieces from Sub-Inspector of
Police, Honnali and on examination, he asserted the same as
Sandalwood and issued certificate as per Exhibit P2.
10. PW3-Rajashekar Police Constable, Honnali Police
Station, who is said to be one of the raiding party, has stated
that on 3rd July 2012, when he was in Police Station, PSI has
received information at about 5.00 pm, then Head Constables
204, 149, Police Constables 94 and 731 and APC 146 along
with Police Sub-Inspector, went in a government jeep to the
land of Nagalur Mahadevappa at Tharaganahalli and by that
time accused were cutting sandalwood pieces; they were
apprehended and were enquired as to their address and seized
9 kgs of sandalwood billets, 4 sandalwood pieces, a saw, an
axe and a bike bearing Registration.No.KA-27/Q-6513 under
mahazar.
11. PW4-Shivakumar is the son of Nagalur
Mahadevappa, claims to the owner of the land in Survey No.70-
1 of Tharaganahalli, has deposed in his evidence that he had
grown Coconut trees and sandalwood trees in his land. He has
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also stated that on 3rd July 2012 somebody has cut two
sandalwood trees in his land which he came to know only on
the next day after he returned from Honnali and he has
identified MOs1 and 2.
12. PW5-B.G. Kumaraswamy, Sub-Inspector of Police,
Honnali Police Station has deposed as to the investigation
conducted by him.
13. On perusal of materials placed before the Court, it
makes clear that the accused were cutting the sandalwood tree
standing in the land bearing survey No.70-1 of Tharaganahalli,
which belongs to Nagalur Mahadevappa. The said Nagalur
Mahadevappa has not been examined by the prosecution.
Nagalur Mahadevappa has not lodged any complaint with the
police as to the theft of sandalwood trees. Whether Nagalur
Mahadevappa is alive or not has also not been placed by the
prosecution. The prosecution has produced the RTC extract
Exhibit P3, which reveals that the land in survey No.70-1 stand
in the name of one Sri N.M. Shivakumar, son of Nagalur
Mahadevappa and in the cultivators column, the name of Smt.
Palakshama is shown. Though the land standing in the name of
N.M. Shivakumar, the investigating officer has not shown the
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name of Shivakumar in the charge-sheet. Additionally, the RTC
extract does not reveal as to the existence of sandalwood trees
in the said land. Whereas the RTC reveals that there are 50
mango trees. Though there is no reference as to the sandal
trees in the land, the investigating officer has not explained
anything as to why the existence of two sandalwood trees are
not shown in the RTC. Even in the complaint Exhibit P4 which
is suo-motu registered by the Sub-Inspector of Police, Honnali
Police Station does not disclose the survey number and name
of the owner of the land. When the prosecution has failed to
prove the existence of two sandalwood trees in the land in
survey No.70-1 of Tharaganahalli, the question of commission
of theft of sandalwood tree by the accused, does not arise.
Exhibit P1-seizure mahazar reveals that on 3rd July 2012, Police
have conducted mahazar in presence of Sri A.C. Mallikarjuna
and T Rajappa, in the said mahazar, the survey number of land
is not disclosed. One of the Panch witnesses A.C. Mallikarjuna
examined as PW1. He has not deposed anything against this
accused in his examination-in-chief. During the course of
cross-examination, he has stated that when they went to the
spot, there were three persons who flicked the spot. One of the
accused was apprehended. The investigating officer has not
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disclosed the names of the two person who flirt the spot.
Though the investigating officer has seized the sandalwood
billets under mahazar-Exhibit P1, he has not mentioned the
crime number in this mahazar. Only after seizure mahazar, the
Inspector of Police has suo-motu registered the case in crime
No.155 of 2012 and submitted first information report to the
court on 4th July 2012 at 2:45 pm as per Exhibit P5. Though
these properties are seized on 3rd July 2012 between 6.00 and
7.00 pm, First Information Report was not submitted to the
court on the very same day and it was sent only on the next
day at 2:30 pm. The delay in submitting the First Information
Report has not been explained by the prosecution. Though the
investigating officer has seized the sandalwood billets on 3rd
July 2012, he has reported the seizure of the property to the
Court on 4th July 2012 which is also reflected in PF No.119 of
2012. Accordingly, Investigating Officer has failed to comply
with the mandatory provisions of section 102 of Code of
Criminal Procedure. The delay in submitting seizure report to
the jurisdictional Magistrate will create doubt as to the seizure
of the property.
14. Further, according to the prosecution, the Sub-
Inspector of Police has seized one Bajaj XCD motorbike bearing
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registration No.KA-27/Q-6513 having Chassis
No.MD2SJBZZPWJ48286 and engine No.JAMBPJ48773, worth
₹40,000/-. But the investigating officer has not produced the
RC book or 'B' extract of the motorbike to show its ownership.
During the course of cross-examination of PW5, Police Sub-
Inspector B.G. Kumarswamy has clearly admitted that he has
not enquired as to who was the owner of the motorbike. Even
he has not collected the report from IMV. The reasons for non-
production of RC book or its 'B' extract has not been disclosed
by the prosecution.
15. Furthermore, the investigating officer has not
complied with the mandatory provisions of section 62(3) of
Chapter IX of Karnataka Forest Act, 1963. After seizure of the
property, the investigating officer has not intimated the same
to the concerned officer under section 71A of the Karnataka
Forest Act. The investigating officer has also failed to submit
the report soon after the seizure of the property as required
under Section 102 of Code of Criminal Procedure and also
section 62 of Karnataka Forest Act which is admitted by the
PW5. Investigating officer has not mentioned the Crime number
in the seizure mahazar. Viewed from any angle, I do not find
any cogent, convincing or corroborative legal evidence to prove
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the guilt of the accused. Evidence placed before the court is
not sufficient to come to the conclusion that the accused have
committed the commission of alleged offence. Accordingly, the
prosecution has failed to prove the case beyond all reasonable
doubt that the accused have committed the offence punishable
under Sections 86 and 87 of Karnataka Forest Act read with
Section 379 of Indian Penal Code. Hence, I answer point No.1
in the negative.
Regarding Point No.2:
16. While answering Point No.1 this Court has held that
the prosecution has failed to prove the guilt of the accused
beyond all reasonable doubt. Hence, question of enhancing the
sentence does not arise. Accordingly, I answer Point No.2 in
the negative.
Regarding Point No.3:
17. For the foregoing reasons and discussions, I
proceed to pass the following:
ORDER
i) Criminal Appeal No.535 of 2014 preferred by
the State is dismissed;
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ii) Criminal Appeal No.370 of 2014 preferred by
appellants/accused is allowed;
iii) Judgment of conviction and order on sentence
dated 04th March 2014, passed in SC No.100 of
2013 by the II Additional District and Sessions
Judge at Davanagere is set aside;
iv) Appellants/accused are acquitted of the offences
under Section 86 and 87 of Karnataka Forest
Act read with Section 379 read with Section 34
of Indian Penal Code;
v) Fine amount, if any, deposited by the
appellants/accused shall be returned to them in
accordance with relevant Act and Rules;
vi) Registry to send the copy of this judgment
along with trial court records to the concerned
Court.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
