Babu Pandu Mirashi Vs State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 16.11.2017 PASSED BY I ADDL. DISTRICT & SESSIONS JUDGE, KARWAR SITTING AT SIRSI IN CRL.A.NO.122/2012 AND THE JUDGMENT DATED 10.08.2012 PASSED BY THE JMFC, HALIYAL IN C.C.NO. 124/2010 BY ALLOWING INSTANT PETITION AND CONSEQUENTLY THE ACCUSED NOS.1 AND 2/PETITIONERS BE ACQUITTED IN THE INTEREST OF JUSTICE AND EQUITY, AND ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE ORDER THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition is directed against the judgment of conviction and order of sentence dated 10.08.2012 passed in C.C.No.124/2010 by the JMFC, Haliyal, (for short, ‘the Trial Court’) confirmed in Crl.A.No.122/2012 dated 16.11.2017 by the I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi, (for short, ‘the First Appellate Court).

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Parties to this revision petition are referred to as per their rank before the Trial Court for convenience.

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It is the case of the prosecution, that on 19.08.2009 at about 10:30 am, at Donshirgur village both these accused in their respective house had stored chopped teak timbers 20 numbers stolen from the forest

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worth Rs.35,000/- without any pass or permit with an intention to sell the same. It is alleged that thereby these accused have committed the offences under Sections 24(d)(e) of the Karnataka Forest Act and Section 379 of IPC.

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The investigation officer on completion of the investigation has filed the charge sheet against the accused. On hearing both the side, the learner trial Magistrate framed the charges against the accused for which the accused pleaded not guilty.

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To prove the case of the prosecution, it in all examined 5 witnesses from PWs.1 to 5 and got marked 6 documents from Exs.P1 to P6 and MO.No.1. Closed prosecution evidence.

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Thereafter, accused Nos.1 and 2 were

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questioned under Section 313 of Cr.P.C. so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their

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complicity in the crime and did not chose to lead any defence evidence on their behalf.

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The learned trial Magistrate on hearing the arguments and on evaluation of the evidence, found the accused guilty of the aforesaid offences and sentenced them as under.

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“Acting u/s 248(2) of Cr.P.C. the accused No.1

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and 2 are hereby convicted for an offences punishable u/s 24(d)(e) Karnataka Forest Act and u/s 379 of I.P.C.

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Accused No.1 and 2 are sentenced to undergo simple imprisonment for 30 days and shall also sentenced to pay a fine of Rs.1,000/- each. In default of sentence, both the accused shall undergo S.I. for 30 days each for an offence punishable u/s 24(d)(e) Karnataka Forest Act.

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Accused No.1 and 2 are sentenced to undergo simple imprisonment for 1 year and shall also

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sentenced to pay a fine of Rs.2,000/- each. In default of sentence, both the accused shall undergo S.I. for 90 days each for an offence punishable u/s 379 of IPC.

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This judgment of conviction and order of

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sentence was challenged by the accused before the First Appellate Court in Criminal Appeal No.122/2012. The First Appellate Court on reassessment of the evidence having heard the arguments of both the side, confirmed the said judgment of conviction and order of sentence passed by the learned Magistrate. This is how accused Nos.1 and 2 are before this Court challenging the said impugned judgments of the Courts below by filing this revision petition.

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The learned counsel for the accused revision

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petitioner, Sri Vishwanath Hegde would submit that, first of all, the complainant himself is an investigation officer in

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this case and the principles of natural justice and fair trial have not been followed by the investigating agency. Thus,

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the prosecution has utterly failed in its duty. Further, he would submits that, the witnesses so examined in this case though states so many facts about the seizure of the said MO No.1- 20 teak wood logs, but in the cross examination, they have stated inconsistent evidence. Therefore, according to his submission, all is not well with the case of prosecution. In addition to narrating the facts of the case and grounds urged in the revision petition, the learned counsel for the accused would submit that, both judgments of the Courts below required to be interfered by this Court and accused are entitled for acquittal. Hence, he prays to allow the revision petition.

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As against this submission, Smt. Mala Bhute, the learned AGA would submits that, both the Courts below having noticed about storing of the teak wood logs in the backyard of the house of accused No.1 illegally cutting them from the forest area to sell them, on getting such information, the complainant conducted the inspection/the raid, noticed storing of the said teak wood

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logs. Immediately, he prepared the panchanama and seized them. Even she would further submit that accused No.1 has identified the said place as it belongs to him. From the possession of the accused only, those teak wood logs were seized and the accused have not given proper account for the same. The learned AGA further submits that, the trial Court as well as the First Appellate Court on appreciation of the evidence only, have found the accused guilty. No interference is required according to her submission.

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I have given my anxious consideration to the arguments of both the side. Perused the records.

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It is a case of illegal cutting of forest produce defined under the provisions of the Karnataka Forest Act. Teak wood is a forest produce. To cut the teak wood tree, being the forest produce, one must require a license. It is a case of the prosecution that, the accused herein without obtaining any permission or permit from the concerned forest department had cut the wooden logs marked as MO

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No.1, stored the same in the backyard of the house of accused No.1. When raided, they have not given proper account for the same, thereby these accused persons have committed the offences not only under the provisions of the Karnataka Forest Act, but also under the provision of the Indian Penal Code, having committed theft of the forest produce.

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To prove the guilt of the accused as stated supra, prosecution relies upon Ex.P1-punchnama wherein it shows that, in all 20 wooden teak wood logs were seized from the possession of the accused. No doubt, it is submitted by the learned counsel for the accused that, door number is not mentioned etc. But, about seizure of these wooden logs is stated not only by the panchas, but also by the I.O. To that effect, they examined PW1- K. Pande Kalingamuttu, who was a contractor by profession. According to his evidence, on 19.08.2009 at about 10:00 am, he was called to the police station and it was informed to him that, they wanted to conduct the inspection/search

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with regard to the storing of the teak wood logs and accordingly, he accompanied the police. They went to the house of the accused in the backyard and noticed storing of the said MO No.1- i.e., 20 teak wood logs. On enquiry, the accused did not give proper account. Therefore, panchanama was prepared as per Ex.P1. He is a signatory to the said panchanama. There is no effective cross examination directed to PW1 disputing his presence when the punchnama Ex.P1 was prepared. Except, the denial nothing is elicited.

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Even during the course of cross examination, he has stated about the nature of the said wooden sticks. Therefore, as his presence is not disputed seriously by the defence, it can very well be stated that PW1 was very much present when the panchanama was prepared and the said MO No.1-20 teak wood logs were seized from the possession of the accused.

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PW2-Mohammad Shafi is the police constable

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who accompanied the P.S.I. to the scene of offence, where

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accused No.1 stated to have stored the said MO No.1. According to him, at 10.20 pm, on the day, at the instructions of his superior officer, he accompanied the P.S.I and went to the house of the accused towards the back yard and noticed storing of the said MO No.1. They were seized by the P.S.I. under Ex.P1. He too has been cross examined at length, but nothing worth is elicited. Further, PW3- Ashok Biradar is examined by the prosecution to prove the contents of Ex.P2. He is RFO. He identified Ex.P2 and issued the certificate certifying that the said wooden logs are the teak wood logs. This fact is not disputed by the defense. PW4- Ganpathi Arer has prepared the notes at Ex.P4 and he identifies the same. He states that, house No.69 does not belongs to the accused. To the extent of issuing Ex.P4 only, his evidence is to be accepted.

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PW5-K.R. Nadakarni, was a P.S.I. of Ambika

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Nagar police station at the relevant time. As per his evidence, on 19.08.2009, when he was in the police station on duty, he received an information that at Donshirgur village, accused Nos.1 and 2 herein had stored the teak wood logs. Accordingly, he collected the panchas as well as requested the staff to accompany him. He went

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to the house of the accused and noticed storing of the teak wood logs in the backyard of the accused. The accused did not give any proper account for the same. Therefore, he seized them under Ex.P1 in the presence of the panchas and filed a complaint as per Ex.P5. It is the defence of the accused that, this PW5 has acted as a complainant as well

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as the investigation officer. According to his evidence, he has arrested the accused persons and produced them before the Court. Thereafter, he has filed the charge sheet. He is the investigation officer in this case. But, his competency of investigation is not questioned by the accused before any forum. For the first time, the learned counsel for the accused submits that, there is no fair trial

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at all as PW5 was acted as a complainant as well as investigation officer. In support of his submission, he relied upon the judgment of the Hon’ble Apex Court in Crl.A.No.1880/2011 in between Mohan Lal Vs. the State of Punjab . In para 11 of the said judgment, the Hon’ble Apex Court has observed with regard to the fair trial to an accused and constitutional guarantee as provided under Article 21 of the Indian Constitution. It is true that the investigation must be fair and reasonable. There should not be any affecting of the constitutional

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guarantee given to the accused persons. But, in this case, the accused persons were found in possession of the teak wood logs without any pass or permit. It is alleged by the prosecution that, such a teak wood logs were cut from the forest area and were stored without any pass or permit in order to sell them to have an unlawful gain. On getting such information, PW5 went to the said place and seized

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the said wooden logs. I do not find any lapse on the part of PW5 in conducting the raid and seizing them and also filing the charge sheet. Though this PW5 has been cross

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examined at length by the defense, but, he is consistent about possession of MO No.1 with the accused persons and seizure of the same.

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The learned trial Court while considering the evidence placed on record by the prosecution has come to a conclusion that, these accused persons are responsible to commit the offences as alleged by the prosecution. There is no explanation offered by any of the accused that, how they came in possession of the MO. In the absence of offering an explanation, the adverse inference has to be drawn against the accused. Accordingly, it is drawn. Even the learned Appellate Court has also observed while confirming the judgement of the trial Court that, a presumption is very much available under Section 80 of the Karnataka Forest Act. Now, merely because PW.5 is an Investigation Officer in this case, that doesn't mean that, it will give benefit to the accused persons. Accused have not offered any explanation either in the crossexamination directed to any of the witnesses or during the

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course of the statement under Section 313 of Cr.P.C. As presumption is very much available, I do not find any factual or legal error committed by the trial Court in convicting and sentencing the accused.

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The learned counsel for the accused further submits that, these accused persons are coolie people. When the Revision is filed, the accused No.2 was aged 52 years old and accused No.1 was 24 years old. By this time, accused No.2 has crossed more than 62 years and he has become a old person. Accused No.1 is the only bread earner in the family. Therefore, he submit that, some leniency may be shown in imposing the sentence by modifying the same. He submits that, already accused have paid the fine amount and as they must have gone to the Goa State for the purpose of eking their livelihood, if the sentence of imprisonment is imposed on them, their family would be put to hardship and loss. Taking into consideration of the submissions of the accused-revision petitioner, sofar as punishment for offence under Section

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24 (a and d) is concerned, it is prescribed that, on conviction, the accused be punishable with imprisonment

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for a term which may extend to two years or one year or with fine which may extend to Rs.2,000/- or with fine and in addition, be liable to pay such compensation etc. So

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also, for the offence under Section 379 of IPC, the punishment prescribed is a description of a term which

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may extend to 3 years or with fine or with both. This case is of the year 2009 and now we are in the year 2025 and almost 16 years have been lapsed. This is the only mitigating circumstance to show some leniency. As stated

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by the learned counsel for the accused persons, both the accused are not in the State and they have gone out of the

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State for eking their livelihood. If the sentence of imprisonment is imposed, it may cause hardship to the accused persons. As already fine amount is paid, the sentence imposed by the trial Court is to be modified to the extent of fine only by setting aside the sentence of imprisonment. Accordingly, I pass the following:

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ORDER

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i) The revision petition is allowed in part .

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ii) The sentence of imprisonment passed by the trial Court confirmed by the First Appellate Court is hereby set aside.

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iii) However, the sentence of fine imposed on the accused is maintained. If the fine amount is not paid, the accused shall pay the fine amount.

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iv) If in case of default, the accused shall undergo the sentence of imprisonment as imposed by the trial Court.

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v) Registry to send back the trial Court records along with a copy of this judgment forthwith.

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vi) Registry is directed to communicate the operative portion of the judgment to the trial Court and First Appellate Court for compliance through mail.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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PJ/VMB/CT-VG LIST NO.: 1 SL NO.: 22

Babu Pandu Mirashi v. State of Karnataka

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Babu Pandu Mirashi v. State of Karnataka

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