Judgment : 1. This appeal is filed challenging the Judgment dated 24.6.2008 passed by the Fast Track Court-II, Shimoga in S.C.No.168/2007, convicting the appellants for the offence under Section 87 of Karnataka Forest Act and sentencing them to undergo R.I. for a period of five years and to pay a fine ofRs.50,000/-each in default of payment of fine to undergo R.I. for one year. 2. It is the case of the prosecution that on 31.12.2002 in the evening, both accused were found in illegal possession of sandal wood billets weighing about 20 Kgs and both accused were loading the sandal wood billets in a Car bearing Registration No.KA.19/M-6972 by the side of Tunga left bank canal in the limits of Ramina Koppa village intending to transport the same unauthorisedly, thereby they are alleged to have committed an offence under Section 87 of Karnataka Forest Act. 3. In order to prove the case, the prosecution has examined in all 5 witnesses; got marked Exs.P1 to P4 and produced MOs.1 and 17. The defence of the accused was one of total denial. However, by the impugned Judgment, the trial Court has convicted the appellants/accused and sentenced them as aforesaid. It is this judgment which has been challenged by the appellants/accused in this appeal. 4. The Range Forest Officer of Shankar Range, Shimoga and other officials conducted a routine check on 31.12.2002 on the left side of Tunga bank canal in the limits of Ramina Koppa village. When they so conducted the raid at about 3 p.m. they sighted a white colour Maruti Van, in which two persons were loading the small wooden pieces and when they went near to the spot, one of the persons who was loading ran away, whereas the other person was caught hold of by the forest guards. The name of the person caught was disclosed as Indaju s/o Fazalulla Khan, aged about 20 years, who disclosed that the person, who ran away is his brother by name Areef Khan s/o Fazalulla Khan, aged about 30 years. When the raiding party went near the Car bearing Registration No.KA.19/M- 6972, it was found that there were Sandal Wood pieces inside the car, which were seized. When the accused was questioned whether he has the permit or license for possession of sandal wood, he did not have any such authority. When the raiding party went near the Car bearing Registration No.KA.19/M- 6972, it was found that there were Sandal Wood pieces inside the car, which were seized. When the accused was questioned whether he has the permit or license for possession of sandal wood, he did not have any such authority. Therefore, accused was apprehended and he was brought to the forest office along with the property and a mahazar as per Ex.P1 was drawn. Thereafter, on the basis of the information given by accused No.1, accused No.2 is also arrested and after investigation, charge sheet came to be filed. 5. During the trial, prosecution has examined one Smt.Kanakalakshmi as PW.1. She is a Forest Guard in Shankar Range, Shimoga. She has stated that on 31.12.2002 at about 3 p.m. herself and Forest Officers-Mohan Kumar and Manjojirao , Lokesh Naika and others were conducting the routine inspection on the Tunga left bank canal road and at that time, near the garden of one Fazalu, two persons were found cutting the tree. When they arrived both the accused started running and at that time they caught hold one of the accused, his name was disclosed as Indaju, who is accused No.1 before the Court. It is stated by PW.1 that the property seized was sandal wood and the said sandal wood and the accused was brought to the forest office by about 4.30 p.m. It is stated by her that many people had gathered at the forest office and they forcibly whisked away the accused-Indaju, who was subsequently secured by the forest officers. She has stated that Mahazar-Ex.P1 was drawn in her presence in the forest office. 6. PW.2-Manjojirao has stated that on 31.12.2002, when there was a routine inspection, it was found that a Car was being loaded with some wooden pieces. When they went near, two persons were found near the Car, who started running. One of them was caught hold by them. Car contained 16 pieces of sandal wood. Mahazar was prepared and thereafter the Car, the accused and the sandal wood billets were seized. In the cross-examination, it is stated that he has signed Ex.P1 in the Range Forest Office. 7. PW.3-Annappa is the Range Forest Officer. He has stated that on the basis of the information given by PW.2-Manjojirao, a case in Crime No.117/2002-03 was registered and the property was seized, accused was arrested. In the cross-examination, it is stated that he has signed Ex.P1 in the Range Forest Office. 7. PW.3-Annappa is the Range Forest Officer. He has stated that on the basis of the information given by PW.2-Manjojirao, a case in Crime No.117/2002-03 was registered and the property was seized, accused was arrested. Thereafter, he has kept the wood in the Range Forest Office. He has stated that Range Forest Officer- Mohan Kumar has examined the wood and has given a Certificate as per Ex.P2 stating that the wood seized is sandalwood. 8. PW.4-H.R.Subramnya is the Range Forest Officer. He has stated that after examining the wood seized in Crime No.117/2002-03, he has certified the same as sandal wood as per Ex.P2. 9. PW.5-Mohan Kumar is the Forest Guard, who has also stated that he was present at the time of apprehending the accused and seizure of the sandal wood. 10. It is seen from the aforesaid evidence of the prosecution witnesses that the learned Sessions Judge has convicted the accused and sentenced them as aforesaid. 11. Heard Ms. Akhila H.K., learned counsel appearing for the appellants and Sri. Satish R.Girji, learned HCGP for the Respondent/State. 12. Learned counsel for the appellants submits that though independent witnesses were available, no witnesses have been cited or examined by the prosecution in order to prove that the accused were in possession of sandal wood. No mahazar has been drawn at the place, where the stump of the sandal wood was found at the time of seizure of sandal wood. It is also submitted by her that the evidence of PW.1 is discrepant to the evidence of PWs.2 and 5. It is further submitted by her that the certificate issued by PW.4 is not in accordance with the provisions of Section 62(c) of Karnataka Forest Act. PW.4- Subramanya is not authorised to issue a Certificate as per Ex.P2. Hence, it is submitted that the conviction cannot be sustained and therefore it is submitted that the accused may be acquitted. 13. Sri Satish R. Girji, learned HCGP on the other hand, supports the Judgment of conviction. 14. On a careful consideration of the entire materials on record, it is seen at the outset that PW.1- Kanakalakshmi has not stated in her evidence that the accused were loading the car with the wooden pieces. 13. Sri Satish R. Girji, learned HCGP on the other hand, supports the Judgment of conviction. 14. On a careful consideration of the entire materials on record, it is seen at the outset that PW.1- Kanakalakshmi has not stated in her evidence that the accused were loading the car with the wooden pieces. Whereas PW.2-Manjojirao states that one Car was standing near the farm and that the said Car had been loaded with wooden pieces. PW.1 states that they had observed the cutting of the trees. Whereas PW.2 does not state that they have observed the cutting of the trees. Hence, the evidence of PWs.1 and 2 is discrepant from each other. Another witness PW.5-Mohan Kumar on the other hand states that two persons were found putting the wooden pieces into the Maruti Van and both the accused started running on the spot, All the three witnesses do not say as who exactly has caught hold of accused No.1. PW.1 on the other hand says that since the accused was brought to the forest office, village people gathered and whisked him away. It is not known as to when accused No.1 was again apprehended. There is no evidence to that effect. There is no evidence to prove the involvement of accused No.2 in the case and that only because accused No.2 is elder brother of accused No.1, he has been charge sheeted. So far as the Certificate issued by PW.4 is concerned, this Court in Criminal Appeal No.1923/2007 has held as follows:- "On a careful consideration of the entire material on record, it is seen that at the very outset, the prosecution has not complied with the mandatory provisions of Sec.62(c) of the K.F.Act. So far as the Certificate issued by PW.4 is concerned, this Court in Criminal Appeal No.1923/2007 has held as follows:- "On a careful consideration of the entire material on record, it is seen that at the very outset, the prosecution has not complied with the mandatory provisions of Sec.62(c) of the K.F.Act. Sec.62 (c) of the K.F. Act reads as under: "CERTIFICATE OF FOREST OFFICER TO BE AN EVIDENCE:- Any document purporting to be a certificate under the hand of a Forest Officer not below the rank of a Range Forest Officer who has undergone training in the examination of forest produce and who is so authorized by the State Government in this behalf in respect of forest produce, submitted to him for examination and report, may be used as evidence of the facts stated in such certificate in any proceedings under this Act, but the Court may, if it thinks fit, and shall on the application of the prosecution or the accused person summon and examine any such Forest Officer as to the subject matter of this certificate". 15. It is seen that PW.4, who has tested the forest produce and certified that it is sandal wood and has issued Ex.P2 is not authorized by the Government to issue such a Certificate and therefore there is no compliance of Section 62(c) of the Karnataka Forest Act. In view of the same, the fact that the wood seized is sandal wood is not proved by the prosecution. Further, though the witnesses say that the Car has been seized nothing prevented the Investigating Officer to trace the registered owner of the said vehicle and produce the documents connected with the vehicle since all the witnesses say that the Car number was found on the Car. 16. In that view of the matter, the prosecution has not proved the case against the appellants beyond all reasonable doubt and the appellants are entitled for an order of acquittal. Accordingly, I pass the following: ORDER i) The appeal is allowed. ii) The order of conviction and sentence imposed on the appellants for the offence under Section 87 of Karnataka Forest Act is hereby set aside and they are acquitted of the said offence leveled against them. iii) The bail bond executed by the appellants is discharged; iv) The fine amount, if deposited shall be refunded to them.