Allowed

Sri Lokesh v. the Range Forest Officer

Karnataka HC20 Nov 2020CRL.RP/1078/2011

Case brief

AI extract

What is this about?

The High Court set aside the conviction and sentence of two petitioners in a forest product transportation case. The Court found the prosecution evidence unreliable due to the absence of independent witnesses, lack of investigation into the wood's source, and failure to prove the certifying officer was trained under Section 62-C of the Forest Act.

What did the court decide?

The impugned orders of conviction and sentence were set aside, and the petitioners were acquitted of all charges.

Sri Lokesh Vs the Range Forest Officer — Pension and Retirement Benefits | Karnataka HC (2020)

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Crl.R.P.No.1078/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.1078/2011

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BETWEEN:

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SRI LOKESH S/O CHANDRAIAH AGED ABOUT 51 YEARS R/AT CHANNAKESHAVA TEMPLE STREET THARIKERE, CHIKKMAGLUR DISTRICT

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SRI JAYA NAIAKA S/O RAMANAIKA AGED ABOUT 30 YEARS R/AT DUGALAPURA VILLAGE THARIKERE TALUK CHIKKMAGLUR DISTRICT …PETITIONERS

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(BY SRI H.N.M. PRASAD, ADVOCATE)

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AND:

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THE RANGE FOREST OFFICER BHADRA WILD LIFE RANGE LAKKAVALLI THARIKERE TALUK CHIKKMAGLUR DISTRICT …RESPONDENT

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(BY SRI H.R.SHOWRI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 28.02.2011 PASSED BY THE CIVIL JUDGE AND ADDITIONAL J.M.F.C., BHADRAVATHI IN C.C.NO.5593/2006 AND TO SET ASIDE THE ORDER DATED 12.09.2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, BHADRAVATHI IN CRIMINAL APPEAL NO.44/2011.

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Crl.R.P.No.1078/2011

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THIS CRIMINAL REVISION PETITION COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

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O R D E R

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“Whether the impugned orders of conviction and sentence passed against the petitioners for the offence punishable under Section 104A of the Karnataka Forest Act, 1963 and the Rule 165 of the Karnataka Forest Rules, 1969 suffer illegality, impropriety or incorrectness?” is the question involved in this case.

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C.C.No.5593/2006 on the file of the Civil Judge & Additional J.M.F.C., Bhadravathi for the offences punishable under Section 51 of the Karnataka Wild Life (Protection) Act, 1972 (‘the Wild Life Act’ for short) read with Section 104A of the Karnataka Forest Act, 1963 (‘the Act’ for short) on the basis of the charge sheet filed by the Range Forest Officer, Bhadra Wild Life, Lakkavalli Range in F.O.C.No.71/99-2000. The said case was registered against the petitioners on the basis of the complaint of PW.1 as per Ex.P2.

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Crl.R.P.No.1078/2011

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The case of the prosecution in brief was as

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follows:

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(i) On 05.10.1999 at 8.00 p.m. on the basis of credible information of illegal transportation of the forest wood, PW.1 along with forest guards PWs.2 and 3 and his other staff visited Shankaragatta village behind PWD road at Bhadra Wildlife Area and found some people loading the wood to lorry bearing No.KA-14-8283 parked behind the PWD office. PW.1 and his team apprehended the petitioners and the associates of the petitioners escaped. On search the lorry was found loaded with 96 wooden logs consisting of rose wood and teak wood the forest produce.

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(ii) PW.1 seized the said wooden logs along with lorry under mahazar Ex.P1. On enquiry, it was found that the accused were transporting the said forest produce without the required permit.

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(iii) Regarding the incident, PW.1 filed the complaint as per Ex.P1 and on that basis registered the first information report as per Ex.P2. He claims to have

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produced the lorry before the competent authority for confiscation.

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Learned Magistrate on taking cognizance summoned the petitioners and tried them for the offences punishable under Section 51 of the Wild Life Act and Section 104A of the Act. After trial, on hearing the parties, by the impugned order dated 28.02.2011, the trial Court convicted the petitioners for the offences punishable under Section 104A of the Act and Rule 165 of the Karnataka Forest Rules, 1969 (‘the Rules’ for short) and acquitted them of the offence punishable under Section 51 of the Wild Life Act.

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Further, the trial Court sentenced the petitioners to imprisonment for one year and fine of Rs.1,000/- for the offence punishable under Section 104A of the Act and fine of Rs.1,000/- for the offence punishable under Rule 165 of the Rules with default sentence.

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The petitioners challenged the said order of conviction and sentence before the Fast Track Court, Bhadravathi in Crl.A.No.44/2011. The First Appellate Court by the judgment and order dated 12.09.2011 dismissed the appeal and confirmed the order of conviction and sentence passed by the trial Court.

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The trial Court and the First Appellate Court held that though there were no independent witnesses to the incident, the charge was proved by the evidence of PWs.1 to 4 the official witnesses and there was no reasons to disbelieve them.

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Sri H.N.M.Prasad, learned Counsel for the

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petitioners seeks to assail the impugned orders of conviction and sentence on the ground that the whole case of seizure and apprehending the petitioners smacks doubt and very artificial. He further submits that the trial Court and the First Appellate Court ignored the basic rules of Evidence Act regarding the proof of the charge and have mechanically convicted and sentenced the petitioners.

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Learned Counsel for the petitioners further submits that all the witnesses are interested witnesses and in relying on Ex.P5 to hold that the seized wood was forest produce, the trial Court and First Appellate Court failed to appreciate Section 62-C of the Act and the judgment of this Court in Raghavendrachari vs. The State of Karnataka, by Range Forest Officer¹ .

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Sri H.R.Showri, learned HCGP seeks to justify the impugned orders of conviction and sentence on the ground that the scene of offence is the forest area and therefore independent witnesses cannot be expected. He further submits that nothing was elicited to show that PWs.1 to 5 had any animosity or any reason to falsely implicate the petitioners and they corroborated each other in all material particulars. He further submits that in the cross-examination of PW.5 his competence to test the wood was not questioned.

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This Court is aware that this being revision petition against the concurrent findings of the trial Court

1 ILR 2010 KAR 3382

Crl.R.P.No.1078/2011

and the First Appellate Court, the scope of interference is very limited. However, if it is shown that the impugned orders suffer perversity, glaring illegality, impropriety or contrary to the basic principles of law, this Court can interfere in the matter.

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In this case, the prosecution was expected to prove the following things beyond reasonable doubt:

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(i) That on 05.10.1999 at 8.00 p.m. at the scene of offence the petitioners were found loading the teak wood and rose wood, the forest produce in lorry bearing No.KA-14/8283;

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(ii) The seizure of the said forest produce under the mahazar Ex.P1 from the possession of the petitioners and their arrest; &

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(iii) The seized wood was forest produce.

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As rightly pointed out by learned Counsel for the petitioners, there were no independent witnesses in the case. PW.1 is the Range Forest Officer who conducts the raid, registers the case and partly investigates.

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PWs.2 and 3 were his sub-ordinates and alleged

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members of the raiding squad.

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It is no doubt true that merely because the case was investigated by the person who registered the case, the entire prosecution case cannot be disbelieved. However, in such cases, the evidence has to be cautiously evaluated as the complainant will be interested to see that case registered by him ends in conviction. It cannot be ignored that PWs.2 and 3 being sub-ordinates to PW.1 will be under his influence to supplement his case.

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As per the complaint itself, when PWs.1 to 3 conducted raid, apart from the petitioners some other persons were loading forest produce to the lorry, only the petitioners were apprehended and others escaped. But no investigation was conducted to find out who were those other persons and to arrest them.

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Though it was contended that the wood

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loaded was the forest produce felled from the same forest area, the Investigation Officer did not make any

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efforts to find out from which place the said wood was

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cut and drew mahazar in that place.

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17. Further no efforts were made to find out who

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was the owner of the lorry. Though PW.1 in his deposition states that he came to know that the lorry belongs to the father of petitioner No.1, no investigation was conducted in that direction. The Investigating Officer had not collected the registration certificate of the said lorry and produced that with the charge sheet. The owner of the lorry was neither cited as charge sheet witness nor as accused. It is the contention of the petitioners that PW.1 implicated him in the case only for the purpose of their statistics.

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Section 71-A of the Act requires the officer seizing the forest produce in forest offences to produce the same before the authorized officer without any unreasonable delay together with all tools, ropes, chains, boats, vehicles and cattle used in the commission of the offences to enable him to conduct confiscation proceedings.

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In this case, though it was contended that

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the accused cut the wood from the said forest area and were transporting, the tools used in cutting the said wood were not seized. No attempt was made by the Investigating Officer to investigate with regard to those tools. Though it was contended that under Ex.P3, PW.1 produced the seized properties before the authorized officer in compliance of Section 71-A of the Act, in Ex.P3, nowhere it is stated that the properties seized were produced before the authorized officer. The text and tenor of Ex.P3 shows that only the seizure was purportedly reported.

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As rightly pointed out by learned Counsel for the petitioners, Ex.P3 does not bear any seal or signature to show that it was received by the authorized officer. Further such theory of production of property before the authorized Officer goes contrary to the prosecution’s own document Ex.P5 dated 13.04.2011 the certificate allegedly issued by PW.4 that he inspected the seized wood and certified that.

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PW.4 say that on 13.04.2011, he inspected

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the seized wood and certified them to be teak wood and rose wood. If at all the properties were produced before the authorized officer under Ex.P3 on 05.10.1999 itself for the purpose of confiscation, then how PW.4 inspects them after two years and issues certificate is not explained. No order passed in confiscation proceeding was submitted before the trial Court.

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PWs.1 and 4 do not explain where the seized properties were kept for two years and where PW.4 conducted the inspection. This inordinate delay in conducting the alleged inspection for the purpose of certification of the wood creates doubt about seizure and verification of those properties for certification.

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The aforesaid material contradictions, inconsistency, omissions and commissions in the investigation create doubts about the apprehension of the petitioners and the seizure of the lorry and the wood at the scene of offence.

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Though Section 62-C of the Act states that certificate of the Range Forest Officer may be used in evidence regarding facts stated in the certificate, it also states that such Range Forest Officer should have undergone training in the examination of the forest produce and the certificate should be in respect of the forest produce submitted to him for examination.

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Neither PW.1 states that he submitted the seized properties to PW.4 for examination nor PW.4 says who submitted those properties to him for examination. PW.4 in his evidence does not state that he had undergone training in examination of the forest produce. It was seriously contended that to support the case registered by the Department, PW.4 issued false certificate.

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The Courts below proceeded on the premises that in the cross-examination of PW.4, defence Counsel did not challenge that PW.4 has undergone the training as required under Section 62-C of the Act, therefore, it shall be deemed as admission on the part of the accused.

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It is settled principle of law that in a prosecution unless there is statutory presumption of existence of a fact, the burden is on the prosecution to prove the charge beyond all reasonable doubt.

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Sections 101 and 102 of the Evidence Act clearly caste the burden on the prosecution to prove the charge brought against the accused. PW.4 in his chief examination did not speak that he has undergone the training as required under Section 62-C of the Act. Therefore, accused challenging that in the cross examination does not arise. Therefore, the Courts below acted contrary to Sections 101 and 102 of the Evidence Act and Section 62-C of the Act using Ex.P4 as evidence of the facts stated in the certificate.

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In addition to the aforesaid facts, the seizure was said to be conducted during night time in forest area. There were no independent witnesses to the seizure. The evidence of the witnesses on record for not securing the independent witnesses to the mahazar was inconsistent. At one breath it was said that no witnesses

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were available as it was forest area and at another breath it was said that, the villagers refused to act as panchas.

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The sketch of the scene of offence was not drawn by the Investigating Officer and produced in the charge sheet. During night, how they could sight the petitioners, vehicle and the wood and effected seizure was not stated in the mahazar. But the witnesses tried to explain that saying that nearby there was an electrical light pole which is conspicuously absent in mahazar.

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Therefore the entire prosecution case was full of contradictions, omissions and commissions. However, both the Courts proceeded on the presumption that evidence of PWs.1 to 4 shall not be disbelieved as they are official witnesses. The evidence of official witnesses shall not be discarded merely because they are the official witnesses provided the same is cogent, consistent and credible. If the evidence of the official witnesses is apparently surrounded by suspicion the liberty of

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individual cannot be put to stake, only on the ground that

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they are official witnesses.

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In Raghavendrachari’s case referred to

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supra , this Court held that unless it is shown that the officer issuing certificate under Section 62-C of the Act was authorized by the State Government and had undergone training as required in the said Section, such certificate shall not be accepted. On that count also, the order of conviction and sentence passed by the Courts below is unsustainable.

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Further, the trial Court tried the petitioners for the offence punishable under Section 104A of the Act and Section 51 of the Wild Life Act. The trial Court had not charged the petitioners for the offence punishable under Rule 165 of the Rules. Without framing such charge, the trial Court convicted and sentenced them for the said offence also and the First Appellate Court without noticing that aspect upheld the said order of conviction and sentence. That fact shows clear nonapplication of mind of the Courts below.

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33. For the aforesaid reasons, the order of

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conviction and sentence passed by the trial Court and upheld by the First Appellate Court are unsustainable in law. Therefore, the petition is allowed.

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The impugned order of conviction and sentence passed by the trial Court and upheld by the First Appellate Court are hereby set aside.

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The petitioners are acquitted of the offences punishable under Sections 104A of the Karnataka Forest Act, 1963 and Rule 165 of the Karnataka Forest Rules, 1969.

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Sd/JUDGE

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KSR

Sri Lokesh v. the Range Forest Officer

Case brief

What is this about?

What did the court decide?

Sri Lokesh v. the Range Forest Officer

Case brief

What is this about?

What did the court decide?

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