Partly allowed

Soman @ Devarus v. State of Karnataka

Karnataka HC6 Jan 2025CRL.A/1054/2011

Case brief

AI extract

What is this about?

Appeal against conviction for unlawful assembly, obstructing forest officials and attempt to murder during an armed confrontation in a reserve forest. The High Court upheld convictions under IPC but acquitted the accused under the Arms Act for want of proof of seizure, treating custody as imprisonment and enhancing fines.

What did the court decide?

Acquittal under Arms Act; IPC convictions maintained with custody treated as imprisonment and enhanced fines of Rs.10,000 each under Sections 353 and 307 IPC.

Soman @ Devarus Vs State of Karnataka — Bail and Remand | Karnataka HC (2025)

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NC: 2025:KHC:179 CRL.A No. 1054 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 1054 OF 2011

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BETWEEN:

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SOMAN @ DEVARUS, AGED ABOUT 51 YEARS, S/O VELUDA DEVARASAN HOUSE, PULLAHALLI, SULTAN BATHERI TALUK, VYNADU DISTRICT, KERALA STATE.

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SHARLI, AGED ABOUT 34 YEARS, S/O SUKUMARAN, PULIKAL HOUSE, AMORAKUNI POST, SULTAN BATHERI TALUK, VYNADU DISTRICT, KERALA STATE.

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REJI, AGED ABOUT 39 YEARS, S/O PARAMESHWARAN DEVARASAN HOUSE, AMARAKUNI POST, PULLAHALLI, SULTAN BATHERI TQ, VYNADU DISTRICT, KERALA STATE.

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NC: 2025:KHC:179 CRL.A No. 1054 of 2011

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4. GEORGE

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AGED ABOUT 34 YEARS, S/O JOSEPH PADICHARA VILLAGE, PULLAHALLI, SULTAN BATHERI TQ, VYNADU DISTRICT, KERALA STATE.

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…APPELLANTS

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(BY SRI. M.T. NANAIAH, SENIOR COUNSEL A/W SRI. PRABHUGOUD B TUMBIGI, ADVOCATE FOR A1 TO A3; SRI. SIJI MALAYIL, ADVOCATE FOR A4)

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AND:

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STATE OF KARNATAKA BY SARAGUR POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE.

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA, HCGP FOR R/STATE)

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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.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC:179 CRL.A No. 1054 of 2011

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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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.

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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:

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Offence	Punishment	Fine	Default sentence
Section 143 read with Section 149 of IPC	Three months simple imprisonment	-	-
Section 148 read with Section 149	One year simple imprisonment	-	-

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of IPC
Section 353 read with Section 149 of IPC	One year simple imprisonment	-	-
Section 307 read with Section 149 of IPC	Five year simple imprisonment	Rs.5,000/-	Six months
Section 5 read with Section 27(1) of Arms Act, 1959	Three year simple imprisonment	Rs.5,000/-	Six months
Section 28 of the Arms Act, 1959	Three year simple imprisonment	Rs.5,000/-	Six months

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Brief facts of the case which are utmost necessary for disposal of the present appeal are as under:

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3.1. Sargur Police Station, Mysore District filed the

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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

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25, 27 and 28 of Arms Act, 1959 and Section 3 of Explosive Substances Act, 1908.

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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.

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3.3. With an intention to obstruct the discharge of

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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

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from the spot and accused Nos.4 to 7 flew away from the spot.

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On committal , learned Sessions Judge secured

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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.

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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.

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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

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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.

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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.

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Being aggrieved by the same, accused Nos.1 to 4 are before this Court, in this appeal.

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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

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on record is hardly sufficient to maintain the order of conviction and sentence as referred to supra.

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Sri.M.T.Nanaiah, learned Senior Counsel also

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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.

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He also brought to the notice of this Court that

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in the case on hand, there is no evidence on record to maintain the conviction of the accused persons/appellants

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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

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second or third round against the forest officials if the first round of firing has got misfired or out of range.

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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.

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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

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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.

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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.

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Per contra, Sri.Channappa Erappa, learned High Court Government Pleader for the State/respondent supports the impugned judgment.

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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.

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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.

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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.

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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:

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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?

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2. Whether the appellants make out a case that the impugned judgment is suffering from legal

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NC: 2025:KHC:179 CRL.A No. 1054 of 2011

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infirmity and perversity and thus calls for interference?

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3. Whether the sentence is excessive?

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4. What order?

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REG. POINT Nos.1 AND 2:

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In the case on hand, accused 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.

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In fact, the injured accused Nos.1 and 2 were

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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.

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Seizure of the empty cartridges and fired bullets which were pierced into the trees were seized. However,

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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.

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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.

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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

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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.

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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

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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.

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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.

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In view of the foregoing discussion, point Nos.1 and 2 are answered partly in the affirmative.

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REG. POINT No.3:

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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,

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sentence of imprisonment ordered by the learned Sessions Judge needs a relook.

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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 .

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REG. POINT No.4:

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In view of the findings of this Court on point Nos.1 to 3 as above, following:

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ORDER

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i. Appeal is allowed in part.

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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.

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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.

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iv. For rest of the offences, fine amount is maintained.

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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.

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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.

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Office is directed to return the Trial Court Records with copy of this order forthwith.

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 65 CT:SNN

Soman @ Devarus v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Soman @ Devarus v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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