Allowed

Kareem S/O Buden Sab v. State of Karnataka by R F O

Karnataka HC18 Sept 2014CRL.A/30/2009

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against conviction for sandalwood theft under the Karnataka Forest Act and IPC. Citing significant procedural infirmities and evidentiary inconsistencies, the Court set aside the sentence and granted probation of good conduct, while directing the State to reinvestigate the role of a named third accused.

What did the court decide?

Set aside conviction and sentence; granted probation of good conduct for three years; directed State to investigate the role of the third accused.

Kareem S/O Buden Sab Vs State of Karnataka by R F O — Property and Title | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT

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BANGALORE

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DATED THIS THE 18^TH DAY OF SEPTEMBER 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL APPEAL No.30 OF 2009

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BETWEEN:

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Kareem, Son of Buden Sab, Aged about years, Residing at Basavanahalli Village, Madhugiri Taluk, Tumkur District.

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Khasim Sab, Son of Hussain Sab, Aged about years, Residing at Basavanahalli Village, Madhugiri Taluk, Tumkur District. …APPELLANTS

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(By Shri.K.A.Pasha, Advocate)

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AND:

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State of Karnataka By R.F.O., Koratagere,

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Tumkur District. Represented by Public Prosecutor, High Court of Karnataka, Bangalore.

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…RESPONDENT

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(By Shri. K.R. Krishna Murthy, State Public Prosecutor 1) *****

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This Criminal Appeal filed under Section 374(2) of the code of Criminal Procedure, 1973, by the advocate for the appellants praying to set aside the judgment dated 17/22.12.2008 passed by the Principal Sessions Judge, Tumkur, in S.C.No.164/2006 – convicting the appellants/accused for the offence punishable under Section 86 and 87 of Karnataka Forest Act and Section 379 read with 34 of IPC and etc;

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This appeal coming on for Final Hearing this day, the Court delivered the following:

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JUDGMENT

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Heard the learned Counsel for the appellants and the learned State Public Prosecutor.

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The appellants were the accused before the trial court

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for offences punishable under Sections 86 and 87 of the Karnataka Forest Act, 1963 (Hereinafter referred to as the ’KF Act’ for brevity) and Sections 379 read with Section 34 of the

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Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity).

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The case against the appellants was that PW.1 - a forest guard and PW.3 - a Forester, apart from other officials, were on beat duty in the early morning hours of 23.6.2004 in the forest area near Thumnbai on Siddanabetta Road in Kolikal Manna Jangli of Koratagere Taluk, Channarayanadurga Hobli, Budagavi village and at about 5 a.m., they noticed three persons, slowly moving and they had followed them at a distance and found two of them carrying wooden pieces and another person was carrying certain equipment. PWs.1 and 3, along with the help of two daily wage workers Badappa and Bheemenad, apprehended two persons. However, the persons who held certain equipment had managed to escape after throwing the same on the forest floor. They found that it was a machete and a saw and on questioning the two, who were apprehended, they disclosed the names of one Kareem, son of Buden Sab and Khasim, son of Hussain Sab. They had further

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disclosed the name of Buden Sab, who had ran away. Buden Sab was visiting their village and he was vending plastic articles and that he was acquainted with them. He had further offered them Rs.200/- each and he had brought them to Siddanabetta area during the night of 22.6.2004 and instructed them to cut and fell sandalwood trees which they did and thereafter chopped them into pieces and had carried the same on their shoulders. Thereafter they showed the stumps of the trees which were cut and since they were carrying the sandal wood without any permit and since they had cut the sandal wood trees, which were in violation of the provisions of the KF Act, a case was registered against them and a first information report was prepared and after informing the Range Forest Officer, the sandal wood pieces were marked and assigned serial numbers by painting the same on the wood. Similarly, the machete and the saw were also similarly marked as material objects and since they were carrying spring weighing scale, the wood was weighed and a panchnama was drawn up and it is on

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that basis, that further investigation was conducted and thereafter a charge sheet was placed against the accused. Incidentally, PW.5, had also issued a certificate on examination of the sandal wood as to the same being sandal wood. Thereafter, a charge sheet has been filed and after further proceedings, the court had framed the charges, to which the appellants pleaded not guilty. The prosecution had then examined PWs.1 to 5 and marked several exhibits apart from material objects. The accused were examined and their statements were recorded under Section 313 of the Code of Criminal Procedure, 1973 and after hearing both sides, the court below had framed the following points for consideration:-

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“1. Whether the prosecution has proved beyond reasonable doubt that on 23.6.2014 at 5.00 a.m., accused were found transporting the sandalwood trees after cutting and removing the same from Kolikal Manna Jangli forest area, in furtherance of their common intention to sell the same illegally and thereby the accused have committed an offence punishable under Section 86 of Karnataka Forest Act?

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2. Whether the prosecution has proved beyond reasonable doubt that on the above said date, time and place, accused were found transporting the sandalwood trees after cutting and removing the same from Kolikal Manna Jangli forest area, in furtherance of their common intention to sell the same illegally, without having any valid licence or permit from the concerned authorities and thereby the accused have committed an offence punishable under Section 87 of Karnataka Forest Act?

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3. Whether the prosecution has proved beyond reasonable doubt that on the above said date, time and place, the accused committed theft of sandalwood belonging to the Government from Kolikal Manna Jangli forest area, in furtherance of their common intention to sell the same illegally and thereby the accused committed an offence punishable under Section 379 read with Section 34 of IPC?”

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The above points were answered in the affirmative and

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the accused were convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.50,000/- each for the offence punishable under Section 86

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of the KF Act; rigorous imprisonment for a period of 5 years and to pay a fine of Rs.50,000/- each for the offence punishable under Section 87 of the KF Act and rigorous imprisonment for a period of one year and fine of Rs.500/- each for the offence punishable under Section 379 of the IPC read with Section 34 of the IPC. It is that which is sought to be questioned in the present appeal.

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The learned Counsel for the appellants would submit that significantly, though the prosecution has named the third accused namely, Buden Sab in the FIR, the charge sheet is filed only against two, namely, the present appellants. There is no indication as to steps that were taken insofar as Buden Sab, accused no.3 is concerned. He was never treated as an absconder nor was the case split up insofar as accused no.3 is concerned. This gives a serious doubt as to whether the incident had really taken place or whether the appellants were framed in the case as they are from a humble background and have been conveniently proceeded against.

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The learned Counsel would further submit that the case of the prosecution is ridden with inconsistencies and unexplained infirmities, apart from the glaring circumstance of accused no.3 not having been proceeded against, even though he has been named.

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The inconsistency insofar as each of the witnesses had spotted the appellants in the first instance is not forthcoming. In that, there is a contradiction as to whether CW.3 had seen the accused in the first instance or whether it was CW.5. It is also pointed out that the mahazar, which was drawn up is not signed by any independent witnesses. Though there is reference to two daily wage workers, who are said to have apprehended the accused appellants, the contention that the mahazar was not signed by any independent witnesses is, therefore, inexplicable, when those persons were readily available and whose signatures could have been obtained on the mahazar.

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Insofar as the weighment of the seized sandal wood is

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concerned, it is claimed that a spring balance was obtained from a vegetable shop and therefore it is further inexplicable as to why the shop keeper was not brought as a mahazar witness and to claim that the mahazar was not signed by any independent person, would lead to serious suspicion about the manner in which the seizure has taken place. Further, it is also evident that the sandal wood pieces were said to be tied up in several bundles and that the bundles were not untied before

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weighing and the bundles were weighed in that very state. Therefore, the total weight of the sandal wood pieces is indicated. but not the weight of each bundle or each piece. Though PW.1 and his men were said to be on beat duty through out the night and since they were in the area where the trees were being chopped, it is inexplicable that they had not heard the sound of any chopping in the dead of the night and PW.1 has admitted this in his cross-examination. A perusal of the complaint would indicate that it was placed before the Range

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Forest Officer on 23.6.2004 and was registered at 7 a.m., but the mahazar was drawn at 6.30 a.m. and hence the availability of PW.1, the seizure of MOs.1 to 3 and the appellants being apprehended, are the sequence of events, which are not consistent and has not been explained by the witnesses. Further, the stumps, after the trees were cut, were not inspected on the same day. But according to PW.2, it is only three days after the incident, that the spot was inspected and there was gap of about 50 sq.ft. between the two tree stumps. The circumference of the same was about 2½ feet. This is not narrated in the statement of PW.2. But however, on the perusal of the examination in chief, the distance is stated as 150 metres between the stumps. It is a clear contradiction of the statement made earlier and there is a contradiction in the evidence of PW.2 and PW.3 as to the place of occurrence and the manner in which the appellants were apprehended. PW.2 has also not stated as to how many pieces of billets, and of which, how many were cut with bill hooks and how many pieces were cut

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by the saw. Hence, the evidence to the effect that he had seized 16 pieces of sandal wood is incorrect.

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The learned Counsel would further submit that the court below has overlooked these infirmities in proceeding to accept the evidence of the prosecution, in holding that the case had been proved beyond all reasonable doubt. The punishment imposed is of a stringent nature and therefore, the degree of proof required to establish the case was equally high and hence the court below ought to have proceeded with circumspection in holding that the prosecution had proved its case beyond all reasonable doubt and hence, the learned Counsel seeks that the appeal be allowed.

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The learned State Public Prosecutor, on the other hand, would seek to justify the judgment of the court below and would point out that the so-called infirmities that are sought to be highlighted are insignificant and would draw attention to the judgment, to point out that the essential requirements of establishing the commission of the offences punishable under

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the relevant provisions has been discussed by the court below and hence there is no warrant for interference. The court below, having noticed the inconsistency in the evidence of PWs.1 and 3, in that, PW.1 had claimed that they had borrowed the weighing scale from a shop keeper where as PW.3 had stated that it belonged to the department and that they had carried it with them, but however, has held that it is not an aspect which can be treated as a material discrepancy, which would affect the creditworthiness of the witness or that it would go to the root of the case.

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Further, insofar as the source of information, as stated by the witnesses, in apprehending the appellants, is concerned, though PW.1 had stated that the information was given by PW.2, PW.2 on the other hand, had stated that he had not received any information. PW.3 in his cross-examination has stated that PW.1 gave the information. This again, the court below has held, is a circumstance where PWs.1 and 3 have agreed as to having noticed the appellants moving stealthily

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while on their beat duty and therefore, the question as to how

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the information was received would pale into insignificance.

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Insofar as the absence of any independent witness to

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the seizure panchnama and the mahanzar is concerned, the court has opined that the appellants were apprehended early in the morning and it was a forest area and therefore, the attempt of the officers to secure an independent witness, was a futile attempt. Though he has admitted that by about 7 a.m., people would be moving about and would be available to have acted as independent witnesses, but when they did not see anybody even at 7a.m., the court has held that there is no infirmity in the independent witnesses not being available as a witness to the mahazar. Hence, the trial court has ultimately held that the apprehension of the appellants and the seizure of the material is ample proof by the evidence of PWs.1 and 3 and there is no reason to disbelieve their evidence and that it cannot be said that the case was falsely foisted against the accused and has

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opined that the prosecution had established its case beyond all reasonable doubt.

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However, it is to be noticed that admittedly, even as per Exhibit P.4 and as noticed by the court itself, the value of the 16 pieces of sandal wood was estimated at Rs.2,400/-. Therefore, this was a circumstance which ought not to have been lost sight of. If the appellants had been found stealing the property worth Rs.2,400/-, whether the punishment imposed on them, namely, rigorous imprisonment of 5 years and a fine of Rs.50,000/- would be attracted, is a moot point that requires to be taken into consideration.

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Merely because the Code prescribes the minimum punishment, beyond which the sentence could not be reduced, whether in the circumstances of the case, such stringent punishment is warranted, is a question that looms large. Given the status of the present appellants, who are apparently daily wage workers and eking out their livelihood and they having been indulged in the theft, even if the case of the

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prosecution could be accepted, whether it warranted such a stringent punishment and whether such a punishment would be disproportionate to the alleged offence, is a matter, that was required to be considered by the trial court. Therefore, keeping that aspect in view and the several inconsistencies and infirmities that are thrown up, whether the imposition of such a sentence warranted high and strict degree of proof, would be the other question. Unless the prosecution tenders such evidence, which is unimpeachable and cannot be questioned on any aspect, it cannot be said that the prosecution had succeeded in establishing its case beyond all reasonable doubt.

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As seen, there are several inconsistencies and infirmities, which the court has trashed as being insignificant, when indeed there was explanation warranted and certainly required in the eye of law. As for instance, the seizure mahazar not being witnessed by any independent person is a significant circumstance. The contention that none were available and therefore no witness was present is inexplicable.

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It is stated that one Badappa and Bheemanal, daily wage workers had assisted the officers in apprehending the appellants. There is no indication as to whether they disappeared during the seizure panchnama was being drawn up. These two persons could have acted as mahazar witnesses. Further, it was also stated that the spring weighing scale was requisitioned from a nearby shop. It is also inexplicable whether the shop keeper was not available as a mahazar witness. The requirement of mahazar witnesses is to avoid such practices, whereby it would be open for the accused to allege that the officers had framed them in a false case and it is in the interest of the officers themselves therefore, to have mahazar witnesses in any such mahazar that takes place. Hence, the requirement of independent witnesses to the mahazar being held by the trial court as being insignificant cannot be accepted. As a matter of course, this ought to have been ensured. Further, the claim that it was a forest area and no persons were available is also not clear, since by the time the

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entire process was complete, it was broad day light and it was also possible for one of the officers to go and fetch mahazar witnesses to witness the same. This is a circumstance, which has gone unexplained.

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Having regard to the humble background of the appellants, and the above circumstances in view, absolving the appellants completely would not be prudent. For if an element of doubt remains as to the appellants having been driven to commit such a crime by Buden Sab, as claimed by them, there necessarily would have to be deterrent in the appellants not indulging in the said activities. Therefore, in the interest of justice, this court invokes the power under Section 4 of the Probation of Offenders Act,1958 and holds that having regard to the circumstances of the case, including the nature of the offence and character of the offenders, it is expedient to release them on probation of good conduct. They shall be released on their entering into bonds with alteast one surety each, to appear and receive sentence when called upon during the period of

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three years and they shall in the meantime, keep good peace and be of good behaviour and not to be found indulging in any such activity, as alleged in the present case.

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Further, insofar as accused no.3 is concerned, as already noticed, there is a glaring omission in indicating the steps taken insofar as accused no.3 is concerned and his role has been completely overlooked and there is no indication that the case was split up as against the said accused and charge sheet also not having been filed against the accused, for he was named in

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the complaint, is a glaring abrasion and therefore the learned State Public Prosecutor is directed to inform the Chief Conservator of Forests, of the lapse in this regard and to initiate fresh investigation, if necessary as against accused no.3 is concerned. In the light of the above relief granted to the appellants, the sentence of imprisonment and fine is set aside.

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Sd/- JUDGE

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Kareem S/O Buden Sab v. State of Karnataka by R F O

Case brief

What is this about?

What did the court decide?

Kareem S/O Buden Sab v. State of Karnataka by R F O

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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