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1969 DIGILAW 346 (MAD)

State of Mysore v. Abdulla Khan

1969-09-15

K.BHIMIAH, M.SANTHOSH

body1969
Judgment Santhosh, J.- This is an appeal by the State against the acquittal of 10 respondents-accused by the learned Sessions Judge of Hassan. The 10 respondents accused were convicted by the Second Magistrate, Hassan in CO No. 1714 of 1965, for having committed an offence under sections 72 and 74 of the Mysore Forest Act, 1900. The learned Magistrate sentenced each of the respondent to rigorous imprisonment for 9 months in addition to a fine of Rs. 1,000 each, and in default of payment of fine 2 months rigorous imprisonment. In the appeal filed by the respondents, the learned Sessions Judge of Hassan allowed the appeal and set aside the conviction and sentence passed on them. In this appeal the State challenges the said order of acquittal of the 10 respondents-accused by the learned Sessions Judge of Hassan. The prosecution case briefly stated is as follows: The Superintendent of Police, Hassan, got information that some smuggling of sandalwood was going on in the Kagnoor forest area. He directed P.W. 12, Inspector Syed Hassan Ali, to detect the smuggling. P.W. 12 Inspector of Police along with P.W. 1 P.S.I. Somiah, P.W. 2 P.S.I. Narasimhaiah and other subordinates, went on 17th April, 1965 at about midnight to the Kagnoor forest and lay in wait to see whether smuggling was going on there. At about 4 a.m. they found a lorry bearing No. A.P.T. 6681 came to Survey No. 132 and 133 Kagnoor village. Shortly thereafter a van bearing No. MYX 2796 also came there. About 12 persons got down from the lorry and the van and were whispering for about 2 to 4 minutes. Then they went to a bush in Survey No. 133 and removed sandalwood billets which had been heaped there. They began taking the sandalwood billets from that place and loaded them into the lorry. P.W. 12 and his staff went and surrounded them. Two of the persons escaped and ran away. The police party apprehended the ten respondents-accused before this Court. Thereafter panchayatdars were sent for and after panchayatdars came there, panchanama Exhibit P-1 was prepared. The Police Officer found near the bush 78 billets of sandalwood. Measurements of these billets have been given in panchanama Exhibit P-1. They also found that inside the lorry 24 billets of sandalwood. They also found in the lorry 60 bags of coconut husk. Thereafter panchayatdars were sent for and after panchayatdars came there, panchanama Exhibit P-1 was prepared. The Police Officer found near the bush 78 billets of sandalwood. Measurements of these billets have been given in panchanama Exhibit P-1. They also found that inside the lorry 24 billets of sandalwood. They also found in the lorry 60 bags of coconut husk. M.O.1, a sword was also found in the cabin of the lorry. Thereafter A-6 pointed out to the Police Officer the stumps of the trees from which the sandalwood had been cut in the adjoining Survey No. 132. Mahazar Exhibit P-8 was prepared with regard to these stumps of sandalwood found in Survey No. 132. P.W. 12 then sent the 10 accused to the Hassan Police Station. As it was discovered that the place of occurrence was not within the limits of Hassan Police Station but within the Alur Police Station, a case was registered in the Alur Police Station and the accused were produced in the evening before the District Magistrate, Hassan. P.W. 12 got a certificate Exhibit P-5 from the Forest Authorities that the billets seized were sandalwood billets. After completing the investigation, P.W. 12 submitted a charge-sheet against the appellants before the First Glass Magistrate, Hassan. It may be mentioned that in the course of the trial all the panch witnesses examined in the case, did not support the prosecution and were treated as hostile and cross-examined by the prosecution. The learned Magistrate accepted the evidence of the Police Officers, P.W.1, P.W.2 and P.W.12, and held that the prosecution have proved the charge against the accused and convicted and sentenced the accused as mentioned above. When the matter came up in appeal, the learned Sessions Judge was of the opinion that it was not safe to act only on the evidence of the Police Officers. The learned Judge also held that there was no corroboration of the evidence of the Police Officers and as such there could be no conviction of the accused and acquitted them. Sri Mandagi, learned Counsel appearing on behalf of the State, has contended that the view of the learned Sessions Judge that the evidence of the Police Officers should be corroborated is erroneous. He argued that in law, no such corroboration is necessary. Sri Mandagi, learned Counsel appearing on behalf of the State, has contended that the view of the learned Sessions Judge that the evidence of the Police Officers should be corroborated is erroneous. He argued that in law, no such corroboration is necessary. He further contended that even otherwise there was sufficient corroboration of the evidence of the police Officers in the instant case. Corroboration, if at all, need not be on material particulars, but only general corroboration, is sufficient. He contended that the fact that the accused were caught and the fact that the sandalwood billets were seized is sufficient corroboration of the version of the Police Officers. From the circumstances of the case, he argues, as at the time of the apprehension of the accused there were no other persons present, it would be unreasonable to expect corroboration in any forest area when the occurrence has taken place at about 4 a.m. in the early morning. He also argued that the learned Sessions Judge was not right in thinking that the panchayatdars were present at the time of the apprehension of the accused. Panchanama, Exhibit P-1 clearly indicates that the panchayatdars came later and were informed of the apprehension of the accused. Sri Mandagi also argued that the view of the Sessions Judge that the Police Officers were not entitled to investigate into that case, as it was outside the jurisdiction of the Hassan Police station, is not correct. Under sections, 550 and 551 of the Code of Criminal Procedure, the Police Officers were entitled to investigate into the case, particularly as the investigation had been done under the direction of the Superintendent of Police. He has also relied on section 15 of the Mysore Police Act. He has contended that no written order from the Superintendent of Police is necessary to authorise the Police Officers to investigate into this case. Sri R.N. Narasimha Murthy, and Sri S.C. Bhagawan, learned Counsel appearing on behalf of the respondents-accused, have contended that it is not safe to act in the instant case merely on the evidence of the Police Officers. It has been stressed that all the independent witnesses examined in the case have not supported the prosecution. Hence it is not safe in such a case to base conviction only on the uncorroborated testimony of the Police Officers. It has been stressed that all the independent witnesses examined in the case have not supported the prosecution. Hence it is not safe in such a case to base conviction only on the uncorroborated testimony of the Police Officers. It is also argued that the evidence of the Police Officers is contradictory as they have given different versions as to when the Mahazar had been written and when the panchayatdars were sent for. It is also stressed that P.W. 2 has stated in cross-examination that the entire proceedings were over by 4 p.m. This is in direct conflict with the evidence of the Police Officers that the panchanama Exhibit P-1 was completed by about 9 a.m. It is contended that a false case has been foisted on the respondents by the Police. It is also argued that P.W. 12 is only a Prosecuting Inspector and the written order authorising him to investigate into this case by the Superintendent of Police has not been produced. The main question for our consideration in this case is whether the evidence of the Police Officers, P.W. 1, P.W. 2 and P.W. 12 is reliable and whether it is safe to act on their evidence to base a conviction of the Respondents-accused. The evidence of P.W. 12, Police Inspector Hassan Ali is as per the directions of the Superintendent of Police, Hassan, he proceeded to Kagnoor Forest on 16th April, 1965 at about mid-night in a police van along with P.W. 1 Sub-Inspector, Somaiya, P.W.2, Sub-Inspector Narasimhayya, and other police staff. They stopped their van at the distance of 3/4 mile from the spot. Thereafter they proceeded to the spot by walking and hid themselves near S.No. 133 of Kagnoor village. At about 4 A.M. a lorry bearing No. A.P.T. 6681 from H. M. Hoskote side came. After about 5 minutes a van bearing No. MYX 2796 also came. A-7 was driving the said lorry. A-1, A-8, A-9, A-10 and A-12 got down from the lorry. A-2, A-3, A-4, A-5 got down from the van. A-6 was also in the lorry. All of them were whispering for about 2 to 4 minutes. Then they started loading sandalwood billets that were heaped near by in a bush. Thereafter he and his staff encircled the accused with fire arms. A-l1 and A-12 somehow managed to escape and ran away. A-6 was also in the lorry. All of them were whispering for about 2 to 4 minutes. Then they started loading sandalwood billets that were heaped near by in a bush. Thereafter he and his staff encircled the accused with fire arms. A-l1 and A-12 somehow managed to escape and ran away. Thereafter he sent a Police Constable to fetch panchayatdars. He found coconut husk inside the lorry and 24 billets of sandalwood. They also found 78 billets of sandalwood in the bush. Measurements of the various billets were taken. He also found a sword M.O. 1 in the cabin of the lorry. Thereafter he prepared a Mahazar Exhibit P-1. A-6 pointed out the stumps of trees from which sandalwood had been cut. He also prepared Exhibit P-8 with regard to the stumps. The evidence given by P.W. 12 about the removal of the sandalwood billets from the bush into the lorry and the apprehension of the accused has been corroborated by P.W. 1, Sub-Inspector of Police Somaiya and P.W. 2, Sub-Inspector of Police, Narasimhayya. The evidence given by these 3 witnesses is consistent and has not been shaken in cross-examination. No material contraditions in their evidence has been elicited. These three persons are responsible officers and there are no good grounds to disbelieve their evidence. The discrepancies regarding the time of drawing the mahazar are only of minor nature. They are not material discrepancies which go to the discredit of the evidence of the witnesses. It may be mentioned that the mahazar Exhibit P-1 had been prepared only for the seizure of the 102 billets which were found at the scene. The evidence of the Police Officers about the accused loading the sandalwood billets into the lorry and their apprehension has been spoken to only by the Police Officers. The panch witnesses had come subsequently to the scene. The evidence given by the police officers with regard to the removal of the billets and the apprehension of the accused is not shaken in any way in cross-examination. The answer elicited from P.W. 2 that the proceedings were over by 4 p.m. does not in any way help the defence. He has not been questioned as to what exactly he meant by saying (Sumaru 4 ganbage ellamugamuku sayankala alatimaduendu bareyuvudu hesareberadavu). The answer elicited from P.W. 2 that the proceedings were over by 4 p.m. does not in any way help the defence. He has not been questioned as to what exactly he meant by saying (Sumaru 4 ganbage ellamugamuku sayankala alatimaduendu bareyuvudu hesareberadavu). This may very well refer to the whole thing being completed up to the removal of the billets of sandalwood in the lorry from the scene. There is no force in the contention of the defence that a false case has been foisted on the accused by the Police. It may be pointed out that these 10 accused come from different places and 4 or 5 of them are persons hailing from Hyderabad. How the police could have got these different persons and foisted a false case on them is not clear. We may also point out that from the very nature of the things it would not be possible for the police to secure 102 billets of sandalwood valued at Rs. 15,000 and plant the same on some accused hailing from different places. We are therefore of opinion that there is no force in the contentions urged by the learned Counsel appearing on behalf of the defence. We may also point out that the learned Sessions Judge erred in thinking that in law there should be corroboration of the evidence of the Police Officers. In Raja Khima v. State of Saurashtra1 their Lordships of the Supreme Court, in paragraph 40 have observed as follows: “The presumption that a person acts honestly applies as much in favour of a Police Officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds there for. Such an attitude could do neither credit to the Magistracy nor good to the public. It can only run down the prestige of the Police Administration.” Again this Court in Govinda v. State of Mysore2 has pointed out that there is no universal or inflexible rule that the evidence of a Police witness is always 1: able to be discarded in the absence of corroboration. In the said case the High Court confirmed the conviction of the accused based only on the solitary evidence of a Police Constable in a prohibition case. In the said case the High Court confirmed the conviction of the accused based only on the solitary evidence of a Police Constable in a prohibition case. Again in Govinda Reddy v. State of Mysore3 Hombe Gowda, J., as he then was speaking for the Bench laid down that the evidence of the Police Officers could be accepted without calling for corroboration. Therefore the learned Sessions Judge was not right in thinking that the evidence of the Police Officers should not be accepted without corroboration. We may point out that in the instant case, there is ample corroboration of the evidence of the Police Officers. We may first mentioned that the Police Officers corroborate each other. It is not a case of a solitary evidence of a single Police Officer, but of 3 Police Officers. Further, the evidence given by P.W. 1, P.W. 2 and P.W. 12 find corroboration by the recovery of 102 billets of sandalwood valued at about Rs. 15,000. The evidence given by the Police Officers finds further corroboration in the stumps of trees from where sandalwood had been cut in S.No. 132. The evidence given by the Police Officers is also corroborated by the seizure of the lorry and the van and the arrest of the ten Respondents at the spot. We arc therefore clearly of opinion that the learned Sessions Judge was not right in thinking that there was no corroboration of the evidence of the Police Officers, P.W. 1, P.W. 2 and P.W. 12. It is no doubt true that the various panch witnesses who have been examined in the case have not supported the prosecution. After going through their evidence, we have no doubt that they have been won over. Each of the panch witless begins his evidence by waying that he has not seen any of the accused. It may be pointed out that they are all people of the locality where smuggling of sandalwood was going on. P.W. 3 and 4 are the owners of S. No. 132 and S. No. 133. Smuggling; of sandalwood could not have taken place from their lands without their connivance. Under these circumstances, it is not surprising that they have not supported the prosecution case We may also point out that one of the panch witness, P.W. 13 has admitted that the Police drew the mahazar Exhibit P-1 at the spot itself. Smuggling; of sandalwood could not have taken place from their lands without their connivance. Under these circumstances, it is not surprising that they have not supported the prosecution case We may also point out that one of the panch witness, P.W. 13 has admitted that the Police drew the mahazar Exhibit P-1 at the spot itself. All the panch witnesses have attested the panchanama Exhibit P-1. P.W. 13 has also admitted that what is written in panchanama Exhibit P-1 is quite correct. When he attested Exhibit P-1 all the sandalwood billets were there. He has also admitted that Exhibit P-1 has been read out to the attestors and after satisfying that it has been correctly written, all the attestors including himself attested the same. Admissions made by P.W. 13 also corroborate the evidence given by Police Officers P.W. 1, P.W. 2 and P.W. 12. There is considerable force in the contention of Sri Mandagi that the learned Sessions Judge made a mistake in thinking that the panchayatdars were actually present at the time when the accused were apprehended. This is obviously a mistake committed by the learned Sessions Judge. In Exhibit P-1, panchanama, it has been stated as follows: “We, panchayatdars, were summoned to the said place and we were informed all this.” This clearly shows that the panchayatdars came there subsequently and they were informed that had taken place there earlier. We may also point out that the view of the learned Sessions Judge that the Police Officers had no jurisdiction to investigate the case as it was outside the limits of Hassan Police Station is not correct. atesection 379, Indian Penal Code, read with Section 550 of the Criminal Procedure Code authorises any Police Officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any offence. Such Police Officer if subordinate to the officer in charge of a Police Station, shall forthwith report the seizure to that officer. It may be pointed out here that P.W. 12 is the Inspector of Police and as such is a Police Officer superior in rank to the officer in charge of the Police Station. Such Police Officer if subordinate to the officer in charge of a Police Station, shall forthwith report the seizure to that officer. It may be pointed out here that P.W. 12 is the Inspector of Police and as such is a Police Officer superior in rank to the officer in charge of the Police Station. Section 551 states that Police Officers superior in rank to an officer-in-charge of a Police Station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. Sri Mandagi has also relied on section 15 of the Mysore Police Act of 1963 which authorises the Superintendent of Police to give directions with regard to the duties to Police Officers subordinate to him. In this case, the evidence disclose that the Superintendent of Police of Hassan directed P.W. 12 to detect cases of smuggling of sandalwood in the Kagnoor Forest. The fact that the prosecution has not produced any written order by the Superintendent of Police is of no consequence. No provision of law or Standing Orders have been brought to our notice which lay down that the directions given by the superior officers to his subordinates should always be in writing. Apart from this we may also point out that it is well settled by the various decisions of the Supreme Court and this Court that the irregularity in the investigation does not affect the legality of the trial. See H.N. Kr Risked v. State of Delhi1. From what has been stated above, it is clear that the view taken by the learned Sessions Judge is opposed to law and is manifestly erroneous. There are compelling reasons to set aside the order of acquittal of the respondents passed by the learned Sessions Judge We therefore allow the appeal, and set aside the order of acquittal of respondents 1 to 10 of the offence under section 379 of the Indian Penal Code in view of the fact that more than 2 1/2 years have elapsed from the date of their acquittal, we consider that a lenient sentence should be passed on them. We set aside the sentence of 9 months rigorous imprisonment and fine of Rs. 1,000 imposed on them by the learned Second Magistrate, Hassan. We set aside the sentence of 9 months rigorous imprisonment and fine of Rs. 1,000 imposed on them by the learned Second Magistrate, Hassan. We find respondents 1 to 10 guilty of the offence under section 379, Indian Penal Code and sentence each of them to rigorous imprisonment for three months. S.V.S. ----- Order accordingly.