Partly allowed

Kumar @ Giri v. State of Karnataka

Karnataka HC30 Aug 2023CRL.RP/752/2015

Case brief

AI extract

What is this about?

High Court allowed revision petitions in part against conviction and sentence. Conviction under Karnataka Forest Act Section 104A confirmed. Sentence modified to reduce imprisonment to three months but enhanced fine to Rs 10,000 considering gravity of offence.

What did the court decide?

Conviction confirmed. Sentence modified: imprisonment reduced to three months; fine enhanced to Rs. 10,000. Discount of previous detention allowed under Section 428 CrPC.

Kumar @ Giri Vs State of Karnataka — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:31127 CRL.RP No. 752 of 2015 C/W CRL.RP No. 1076 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 752 OF 2015

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C/W

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CRIMINAL REVISION PETITION NO. 1076 OF 2015

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IN CRL.RP.NO.752/2015:

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BETWEEN:

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KUMAR @ GIRI S/O.PUTTAIAH, AGED ABOUT 31 YEARS,

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SANNASWAMY S/O.THIMMAIAH, AGED ABOUT 33 YEARS,

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KUMAR S/O.SANNA KEMPA, AGED ABOUT 33 YEARS,

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Digitally signed by RENUKAMBA K G

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Location: High Court of Karnataka

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ALL ARE R/AT. DODAHEJJURU VILLAGE, HUNSURU TALUK, MYSORE DISTRICT-570 018.

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…PETITIONERS

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(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY RANGE FOREST OFFICER, VEERANAHKOSAHALLI FOREST RANGE, HUNSURU, NOW REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560001. …RESPONDENT (BY SRI. JAIRAM SIDDI, HCGP)

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THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 21.8.2013 PASSED BY THE C.J. AND J.M.F.C., HUNSUR IN C.C.NO.417/2007 FOR OFFENCES P/U/S 104(A) OF KARNATAKA FOREST ACT AND CONFIRMED DATED 18.6.2015 PASSED BY THE V ADDL. DIST. AND S.J., MYSORE IN CRL.A.NO.261/2013.

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IN CRL.RP.NO.1076/2015:

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BETWEEN:

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MANJU S/O SHAMAIAH, AGED ABOUT 24 YEARS,

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SOORA S/O LATE. JAVARAIAH, AGED ABOUT 24 YEARS,

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ALL ARE R/AT. DODDAHEJJURU VILLAGE, HUNSURU TALUK, MYSORE DISTRICT.

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…PETITIONERS

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(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY RANGE FOREST OFFICER, VEERANAHKOSAHALLI FOREST RANGE, HUNSURU, NOW REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.

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…RESPONDENT (BY SRI. JAIRAM SIDDI, HCGP)

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THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE C.J. AND J.M.F.C., HUNSUR IN C.C.NO.417/2007 DATED 21.8.2013 FOR OFFENCES P/U/S 104(A) OF KARNATAKA FOREST ACT AND CONFIRMED BY THE

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V ADDL. DIST. AND S.J., MYSORE IN CRL.A.NO.261/2013 DATED 18.6.2015.

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THESE PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These two revision petitions are filed by the accused

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challenging the judgment of conviction and order of sentence passed in C.C.No.417/2007 by Civil Judge and JMFC, Hunsur and confirmed by V Additional Sessions Judge, Mysore in Crl.A.No.261/2013. Crl.R.P.No.752/2015 is filed by accused Nos.1, 2 and 5, while Crl.R.P.No.1056/2015 is filed by accused Nos. 3 and 4.

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Since, these revision petitions are arising out of the same judgment of conviction and order of sentence, they are heard together and a common order is being passed.

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For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that on 29.03.2007 at 8.30 a.m., CW1 to CW4 were on beat duty in Veeranahosahalli Reserve Forest Area and while they were discharging their duty, they came across accused who were found transporting four logs of jungle wood. It is further assertion of the prosecution that CW1

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to CW4 are able to apprehend accused No.1, while accused No.2 to 5 managed to escape. Thereafter, the wooden logs were seized under a mahazar and a case in crime No.4/2006 came to be registered for the offence under Section 104A of the Karnataka Forest Act, 1963 (hereinafter referred to as ‘the Act’ for short). Later on, after completion of the investigation, the charge sheet came to be laid by the Investigating Officer before the learned Magistrate which was registered in C.C.No.417/2007. The accused No.1 was initially remanded to custody and subsequently, he was enlarged on bail. Accordingly, accused Nos.5 was also arrested and subsequently enlarged on bail while, accused Nos.2 to 4 have obtained anticipatory bail. The charge under Section

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104A of the Act read with Rule 165 of The Karnataka Forest Rules, 1965 and charge under Section 51 of Wild Life Protection Act, 1972 (hereinafter referred to as ‘the 1972 Act’ for short) were framed and the same were read over and explained to the accused. The accused pleaded not guilty and they claimed to be tried.

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To prove the guilt of the accused, prosecution has examined in all 6 witnesses and also placed reliance on 11 documents and four material objects. After completion of the evidence of the prosecution, the statement of accused under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Code’ for short) was recorded to enable the accused to explain the incriminating evidence appearing against them in case of the prosecution. The case of accused is of total denial and they did not choose to lead any oral or documentary evidence in support of their defence.

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After having heard the arguments and after appreciating the oral and documentary evidence, the

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learned Magistrate has convicted the accused for the offence under Section 104A of the Act and Section 51 of the 1972 Act. After hearing on sentence, he has only imposed sentence of five months with fine of Rs.5,000/with a default clause on accused for the offence under Section 104A of the Act and no sentence was imposed for the offence under Section 51 of 1972 Act. Being aggrieved by this judgment of conviction and order of sentence, the accused have approached V Additional Sessions Judge, Mysore in Crl.A.No.261/2013 and the learned Sessions Judge after re-appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by both the courts below. Being aggrieved by these concurrent findings, the accused are before this court by way of these two revision petitions.

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Heard the arguments advanced by the learned

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counsel for revision petitioner and perused the records.

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The learned counsel for the revision petitioner

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would contend that both the courts below have failed to appreciate the oral and documentary evidence in its proper perspective and the evidence of the prosecution witness is not trustworthy and the seizure itself is not properly proved. Hence, he contends that the conviction was improper. Alternatively, he would contend that considering the nature and gravity of the offence, the benefit of Probation of Offenders Act, 1958 (hereinafter referred to as ‘the 1958 Act’ for short) may be extended to the accused.

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Per contra, the learned High Court Government Pleader would support the judgment of conviction and order of sentence passed by both the courts below. He would contend that the offence committed is against forest and wildlife and under such circumstances, it is not proper to extend the benefit under the provisions of 1958 Act as it is likely to affect the environment of the State. Hence, he would further assert that both the courts below have

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appreciated the oral and documentary evidence in its proper perspective and have rightly convicted the accused, which does not call for any interference.

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Having heard the arguments and perusing the

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records, now the following point would arise for my consideration:-

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“Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court suffer from any perversity, illegality or arbitrariness so as to call for any interference by this court?”

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It is the specific case of the prosecution that on 29.03.2007, around 8.00 a.m. in the morning, accused

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have trespassed in Rajeev Gandhi National Park, reserve forest situated in Veeranahosahalli and there they were found transporting four bete logs, which were seized and accused Nos.2 to 5 fled from the spot, while accused No.1 was apprehended and property was recovered. PW1 is the complainant and he is a witness to the seizure mahazar also. PW2-Harish, PW3-Umesh, and PW4-Ganesh are the

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four witnesses and they are the persons who have apprehended the accused and they were in beat duty when the alleged offence was noticed by them. In their evidence, they have specifically deposed regarding accused carrying away four bete logs and they being apprehended and accused Nos.2 to 4 fleeing from the spot. Though they were cross examined at length, nothing was elicited so as to impeach their evidence. No doubt, PW1 to PW4 are official witnesses but, there is no reason for discarding their evidence since, the offence was committed in the reserve forest and there is prohibition entry of the public at large and hence, question of getting independent witnesses at the spot does not arise at all. The evidence of PW1 to PW4 is corroborated with each other and no contradictions or omissions are forthcoming and no evidence is placed to discard their evidence. Merely because, they are government officials, their evidence cannot be ignored but it can be scrutinized cautiously, but no suspicious circumstances are forthcoming to ignore their evidence. Hence, the evidence on record clearly

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establish that the accused were found carrying four wooden logs i.e., bete logs and they have thereby committed an offence under Section 104A of the Act.

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Though both the courts below have held that the accused have committed the offences under Section 51 of the 1972 Act, however, no sentence was imposed by the learned Magistrate for the said offence. The State has also not challenged this aspect of non-imposing of sentence. Under these circumstances, now question of imposing sentence under the 1972 Act, at this juncture does not arise at all. Now the question is only restricted in respect of the offence under Section 104A of the Act.

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The offence under Section 104A of the Act is punishable with imprisonment, which may extend to five years and fine upto Rs.10,000/-. The learned Magistrate has considered the applicability of 1958 Act as argued and has rejected the said contention considering the fact that the offences are under Special enactment and they affect the environment as well as society at large. Hence, he

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has proceeded to impose imprisonment for a period of five months with fine of Rs.5,000/-.

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The learned counsel for the revision petitioner would contend that considering the age of the petitioners and they being tribal people, the benefit of 1958 Act may be extended to the accused. In this context, he placed reliance on an unreported decision of this court in Crl.R.P.No.87/2012 dated 29.11.2011. In the said case, the benefit of 1958 Act was extended no doubt, but simultaneously fine of Rs.10,000/- was also imposed and when fine was imposed, question of extending the benefit of 1958 Act does not arise at all. Further, in the said case, the timber is being transported, but in the instant case, the bete was being transported and that too four logs were transported. Hence, the principles enunciated in the above cited decision cannot be made applicable to the facts and circumstances of the case in hand.

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The learned counsel for the revision petitioner further placed reliance on a unreported decision of this

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court in Crl.R.P.No.1145/2012 dated 23.11.2021. In the said case, only certain teak wood and sesame wood pieces were being transported without any permit and hence, the benefit of 1958 Act was extended, but, simultaneously fine of Rs.25,000/- came to be imposed. Considering the fact that in the said case, only certain pieces of sesame and teak wood were recovered, the said principles cannot be made applicable, as in the instant case, four wooden logs were recovered from the custody of the accused.

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The learned counsel for the revision petitioner would contend that the petitioners are tribals and they are part of the reserve forest and considering this aspect, some leniency may be shown against them by imposing fine only. However, the provisions of Section 104A of the Act mandates sentence and looking to the nature and gravity of offence and its effect on ecology, the benefit of 1958 Act cannot be extended.

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The offence is punishable with imprisonment which may be extended to five years and fine upto

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Rs.10,000/-. In the instant case, the imprisonment was for five months and fine imposed was Rs.5,000/-. Though it is argued that the petitioners are tribal people, the same is not substantiated as records disclose that they are residents of Doddehennur Village. Further it is borne out from the cross examination of the witnesses that they possess agricultural lands adjoining the reserve forest and hence, being the responsible citizen and having granted forest land for their livelihood, they are equally responsible to protect the forest but the records disclose that they have uprooted a bete tree and are transporting the four logs and hence, they are required to be sentenced to imprisonment.

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The statute did not prescribe any minimum

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imprisonment, but maximum imprisonment is up to five years. The age of the petitioners is between 23 to 25 years. Further, they are agriculturists, which is evident from the records but at the same time, the nature of the offence cannot be ignored and considering these facts and

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circumstances, the imprisonment for five months appears to be on little higher side and in my considered opinion, considering the nature and gravity of the offence and petitioners being the adjoining land owners, the imprisonment for three months would serve the purpose but at the same time, the fine requires to be enhanced from Rs.5,000/- to Rs.10,000/-. Considering these facts, with above modifications, the revision needs to be allowed. Considering these facts and circumstances, the revision petitions need to be allowed in part. Accordingly, the point under consideration is answered partly in the affirmative so far as sentence portion is concerned. Accordingly, I proceed to pass the following:

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O R D E R

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(i) The revision petitions are allowed in part.

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(ii) The judgment of conviction dated 21.08.2013 passed by Civil Judge and JMFC, Hunsur in C.C.No.417/2007 and confirmed by V Additional Sessions Judge, Mysore in Crl.A.No.261/2013 dated 18.06.2015 stands confirmed.

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(iii) However, the sentence portion is modified and accused / revision petitioners are directed to undergo Simple Imprisonment for a period of three months and are required to pay a fine of Rs.10,000/-. In default, they are required to undergo further imprisonment for a period of three weeks.

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(iv) The period of detention of the accused in custody is set off against the sentence imposed against them under Section 428 of Code of Criminal Procedure, 1973.

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Sd/JUDGE

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List No.: 1 Sl No.: 14

Kumar @ Giri v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Kumar @ Giri v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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