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2023 DIGILAW 1324 (KAR)

N. T. Manjunatha v. State of Karnataka

2023-11-20

H.P.SANDESH

body2023
JUDGMENT 1. Heard the petitioners' counsel and also learned High Court Government Pleader appearing for the respondent/State. 2. The factual matrix of case of the prosecution before the Trial Court is that, on credible information on 18/10/2004, CWs.1, 3 and 5 along with three panchas went near Heggodu cross, Genasinakuni road, and found a bike and a mini lorry (407), 6 to 7 people who involved in shifting rose wood logs into the mini lorry. When forest officials covered, they started running, out of them 3 were caught and arrested, rest of them are escaped. On enquiry the arrested persons disclosed their names as Eshwara Naika, Thirthesha and Manjunath. They also disclosed the name and address of the persons who run away from the spot. The forest officials found six logs inside the mini lorry and one was lying outside. Further they found no license to transport and departmental seal over the logs. They measured the logs and gave the number and also seized the lorry. To that effect mahazar was drawn. 3. During the course of investigation, on 21/10/2004 the police found the place where the logs were cut and removed. Three more logs were found at that place. The mahazar was also drawn. In all 10 logs were in found and seized in this case. The forest officials registered the case and investigated the matter under Sec. 104(A) of the Karnataka Forest Act and under Sec. 379 of IPC. The police after the investigation of the matter filed the charge sheet and accused persons were secured, they have not pleaded guilty and claimed to be tried. 4. The prosecution examined PW1 to PW7 and got marked the documents Exs.P1 to P6 and M.O.1. The Trial Court having considered both oral and documentary evidence available on record, convicted the accused Nos.1 to 3 and acquitted accused Nos.4 to 7. Accused Nos.1 to 3 have been sentenced to undergo simple imprisonment for a period of three months with fine of Rs.2, 500.00 each. In default, to undergo simple imprisonment for one month each and also accused Nos.1 to 3 are entitled for set off. 5. Being aggrieved by the judgment of conviction and sentence, an appeal is filed in Criminal Appeal No.37/2010. In default, to undergo simple imprisonment for one month each and also accused Nos.1 to 3 are entitled for set off. 5. Being aggrieved by the judgment of conviction and sentence, an appeal is filed in Criminal Appeal No.37/2010. The Appellate Court having heard the appellant's counsel and the counsel for the respondent formulated the following points; (i) Whether the appellants have made out any grounds to interfere with the judgment of conviction and sentence. (ii) What Order? 6. The Appellate Court having re-assessed the material available on record comes to the conclusion that the evidence of witnesses substantiated the case of the prosecution and confirmed the judgment. The counsel for the petitioner would vehemently contend that, both the Courts failed to consider the material available on record. The very seizure is doubtful. The counsel also would submit that the witnesses who have been examined as PW.4 to PW7 are having animosity against these petitioners, since there was a case between them in Civil Court. The counsel also would submit that the evidence of witnesses is contrary to each other. The case of the prosecution that they took the panch witnesses along with them and seized the same and PW5 says that when he went to spot, already they have seized the logs and hence it is clear that he did not accompany the officials of forest department. The counsel also would submit that the photograph which is produced before the Court clearly discloses that, there are 10 logs, they found 7 logs at the spot and all these contradictions are not taken note of. The counsel also would submits that the witnesses speaks that the logs are marked with red colour paint, and on perusal of the photograph the same is not in red colour, but it is white colour and material contradictions are also found in the evidence of PW.1 to PW7. These material contradictions have not been considered by both the Courts and hence, this Court has to exercise the revisional jurisdiction, since both the Courts not considered the material on record in a proper perspective. 7. These material contradictions have not been considered by both the Courts and hence, this Court has to exercise the revisional jurisdiction, since both the Courts not considered the material on record in a proper perspective. 7. Per contra, the learned HCGP appearing for the State would vehemently contend that, the very judgment of the Trial Court is very clear that though at the spot seven logs along with vehicle is seized and other three logs were also seized on subsequent date i.e. on 21/10/2004 and to that effect the Trial Court also mentioned in paragraph No.4. Hence, there is no material contradiction in the case of the respondent. The counsel also would submit that the evidence particularly of PW1, PW2 and PW3, who are the official witnesses and PW4 to PW7 clearly discloses that they were part of seizure and identified accused Nos.1 to 3 when they have been caught hold at the spot. 8. The counsel for the State also would submit that Ex.P4 is the mahazar under which other three logs are seized at the spot, where they cut and removed the rose wood and hence there is no material contradictions. 9. Having heard the petitioners' counsel and also the counsel appearing for the State and also the material available on record, the points that would arise for consideration of this Court are: (i) Whether the Courts below have committed an error in convicting and sentencing the petitioners herein? (ii) Whether this Court can exercise the revisional jurisdiction to set aside the judgment of conviction and confirmation? (iii) What order? Points No.1 and 2: 10. Having heard the petitioners' counsel and also learned HCGP appearing for the State and also the accusation made against the petitioners that, on 18/10/2004 on credible information they went and seized seven rose wood logs and subsequently seized other three logs on 21/10/2004, in total ten logs were seized. Apart from that, vehicles were also seized at the spot. 11. The prosecution in order to prove the case contend that, these revision petitioners have caught red handedly at the spot along with seven logs and there was a motorcycle at the spot. It is also their case that, in the early morning hours they went to the spot along with panch witnesses and seized the same. 11. The prosecution in order to prove the case contend that, these revision petitioners have caught red handedly at the spot along with seven logs and there was a motorcycle at the spot. It is also their case that, in the early morning hours they went to the spot along with panch witnesses and seized the same. PW1, PW2 and PW3 are the forest guards and their evidence is similar that all of them went to spot and found the accused persons and some of them were ran away from the spot and they were loading the logs to the said vehicle and they were able to held only three persons at the spot. The arrested persons have revealed the names of the persons who ran away from the spot. It is also their case that, out of seven logs, six logs are already loaded and another log was lying near the vehicle and there is no mark on the said log and mahazar was drawn in terms of Ex.P1 and vehicle was also seized. 12. PW1 in the cross examination admits that he cannot give the details who are there in the vehicle and who are present near the vehicle. FOC numbers were taken from the office and numbers are mentioned at the office. 13. PW2 also in the cross examination held that this incident was taken place in the forest. In the cross examination he admits that they put the seal with red colour paint and hammer seal will not be removed for any reason and admits that FOC number was mentioned in the mahazar and nowhere the FOC number is found except the mahazar and no details of mentioning of FOC number in the said mahazar and also admits that M.O.1 photo, hammer seal and red paint are not found. PW2 also admits that they have not recorded any voluntary statement of accused persons. He also admits that while cutting and removing the logs, they used axe, saw and spade and even for loading of the logs, they require rope and the same is not found and no other equipments are seized and nothing is mentioned in the mahazar. He also admits that drawing of mahazar on 22/10/2004 also not stated anything. 14. He also admits that while cutting and removing the logs, they used axe, saw and spade and even for loading of the logs, they require rope and the same is not found and no other equipments are seized and nothing is mentioned in the mahazar. He also admits that drawing of mahazar on 22/10/2004 also not stated anything. 14. The witness PW3 also in his cross examination cannot say whether FOC numbers are collected over the phone and also he did not say anything about the information received and also in which vehicle all of them went to spot and also he cannot tell who are all apprehended the accused persons. He also admits that, in M.O.1 they are not finding the seal and the hammer number on the log is in red paint. The other four witnesses are panch witnesses and all these witnesses speaks about rose wood are loading in a 407 vehicle and one log was lying near the said vehicle and mahazar was also drawn and identified signatuere Ex.P1(a) and also PW5 identifies his signature in the mahazar as Ex.P4(c). 15. The witness PW4 in the cross examination admits that after apprehending the accused persons, the forest officials did not enquire the accused persons. He also admits that there was a dispute between two villagers in respect of Mavinakere village and a civil suit is pending and no identification parade was conducted with regard to the persons who fled away from the spot. He claims that the statement was recorded in the early morning 6.15 to 6.30. 16. PW5 also in the cross examination admits that, he cannot identify which log was lying near the vehicle, but he says that when they went to spot already accused Nos.1 to 3 were apprehended. Except drawing of mahazar, no other mahazars are conducted. 17. PW6 also in cross examination claims that he went to spot at around 5.30 to 5.45 a.m. except two persons came along with him, no other persons were there and they did not watch the accused persons at the spot. He also admits that M.O.1 photograph was taken in his presence and also he says that all the logs were seized on the very same day and he cannot give the details of paint which was used for marking of the logs. He also admits that M.O.1 photograph was taken in his presence and also he says that all the logs were seized on the very same day and he cannot give the details of paint which was used for marking of the logs. Except two persons came along with him no other persons were there and he did not watch the accused persons at the spot. He also admits that M.O.1- one photograph was taken in his presence and also he says that all the logs were seized on the very same day, he cannot give details of paint which was used for marking of the logs. He admits that they went near the place where they cut and removed the logs and only branches are lying and the same was not seized. He also admits that there was a civil dispute between villagers and also accused persons. CW7 in the crossexamination admits that the incident was held in the forest area and they are having the documents to show the same and also he claims that when they went to the spot, in order to evidence the fact they are having the documents and also admits that M.O.1-photo was taken in the depot and not at the spot and the same was taken in the presence of the panchas and he cannot tell the date and who wrote the FOC number on the logs and on what date the same was mentioned. 18. The next witness is PW7- the ACF who drawn the mahazar. In his evidence he states that statement of accused Nos.1 to 3 is recorded in the office at 10.00 a.m. to 11.00. He also admits that the vehicle documents were not seized and also not taken the extracts. 19. 18. The next witness is PW7- the ACF who drawn the mahazar. In his evidence he states that statement of accused Nos.1 to 3 is recorded in the office at 10.00 a.m. to 11.00. He also admits that the vehicle documents were not seized and also not taken the extracts. 19. Having considered both oral and documentary evidence placed on record, no doubt it is the case of the prosecution that raid was conducted on 18/10/2004 that too in the early morning, while going to the spot, they took two panchas and also categorically admits that FOC numbers were taken from the office, but the fact is that the same was mentioned at the spot while drawing the mahazar and when the mahazar was conducted they put the FOC number and the evidence of the PW1, no doubt it is clear that according to him there were seven logs and out of that six logs were already loaded to the vehicle and one log was lying near the vehicle, but PW1 categorically admits that FOC numbers are mentioned in the office, but the mahazar was drawn in the spot. It is important to note that other witnesses admit that FOC number was mentioned in the office as well as M.O.1- photo was taken in the depot. It is also important to note that PW2 evidence is contrary to the evidence of PW1 and he categorically admits that, if hammer seal is put at any region, the same will not be erased and he also admits that in the mahazar itself the FOC number is mentioned and the same is not found in any other documents and further admits that the FOC number is not mentioned in the mahazar and also in M.O.1 hammer seal and marking of the said logs in red paint also not found on the same and also there are contra evidence before the Court with regard to recording of voluntary statement of the accused persons and PW2 says that no such voluntary statement was recorded and other witness says that voluntary statement was recorded in the early morning in between 6.30 a.m. to 6.45 a.m., and PW7 -ACF in his evidence says that voluntary statement was recorded in the office at 10.00 a.m. to 11.00 a.m., 20. It is also important to note that it is the case that this crime was committed in the forest and in order to show the said land belongs to the forest, no document is placed before the Court, only drawing of mahazar Ex.P1 and Ex.P4 are produced before the Court. It is important to note that Ex.P4 was drawn on 21/10/2004 and not on the same day and witnesses who have been examined also categorically says that Ex.P4 was not drawn in their presence. No doubt it is case of the counsel appearing for the respondent/State that there were two mahazars and 10 logs, no material contradictions in terms of M.O.1, but the fact that with regard to the seizure of other three logs at the spot where they cut and removed the rosewood tree, none of the witnesses of the case of the prosecution says that in their presence only seized the same. No doubt PW6 says that both the mahazars are drawn on the same day, but according to the prosecution both the mahazars are drawn on different dates, one drawn on the date of the raid and another on subsequent date i.e. on 21/10/2004. But, PW6 claims that M.O-1 photo was taken in his presence but, on perusal of M.O-1, there are 10 logs and not the 7 logs and only PW6 says that only branches were found at the spot and he did not speaks anything about the seizure of other 3 logs on the subsequent date. 21. It is also important to note that the panch witnesses PW4 to PW6 categorically admits that there is a civil dispute between the accused and their villagers and hence it is clear that there is an animosity between panch witnesses PW4 to PW6 since witnesses are also turned against the accused persons. 21. It is also important to note that the panch witnesses PW4 to PW6 categorically admits that there is a civil dispute between the accused and their villagers and hence it is clear that there is an animosity between panch witnesses PW4 to PW6 since witnesses are also turned against the accused persons. Having considered all these materials available on record, both the Courts ought to have taken note of the material contradictions with regard to the seizure and drawing of two mahazars on two different dates and witnesses are not part of both the mahazars and PW6 says that both the mahazars are drawn on the same date, but the records reveals that mahazars are drawn on different dates and other witnesses PW4 and PW5 not speaks about the mahazar-Ex.P4 and categorically admits that except the said mahazar which he had signed, no other mahazars were conducted in his presence and also no other equipment for cutting and removing of the rosewood tree were seized at the spot and nothing is mentioned in the mahazar to that effect and all these facts clearly discloses the very case of the prosecution cannot be accepted. The PW5 claims that when he went to spot, already the accused persons were apprehended but it is the case of the prosecution that on credible information they secured the two panchas from the village and took along with them and his evidence is contrary to the evidence of PW1 and PW3 and also the panch witnesses PW4 to PW6. Under these circumstances benefit of doubt ought to have been extended in favour of the petitioners. 22. No doubt the accused Nos.4 to 6 have been acquitted and no appeal is filed by the State and the fact that material contradictions are found, both the trial Court and also the appellate Court fail to appreciate the same. 23. Under these circumstances benefit of doubt ought to have been extended in favour of the petitioners. 22. No doubt the accused Nos.4 to 6 have been acquitted and no appeal is filed by the State and the fact that material contradictions are found, both the trial Court and also the appellate Court fail to appreciate the same. 23. The appellate Court while re-assessing the evidence available on record, even not considered all these materials instead of given the reasons in two pages without looking into the evidence available on record and answer elicited from the mouth of the witnesses only in paragraph Nos.24 to 26 extracted the chief-evidence of PW1 to PW3 and PW4 to PW7 that they have spoken about the presence of the accused Nos.1 to 3 at the scene of offence and they have seen those 3 accused persons indulged in illegal transportation of wooden logs. Nothing is discussed with regard to the answers elicited from the mouth of prosecution witnesses, without assessing the evidence of cross-examination, committed an error in confirming the judgment of the Trial Court and hence, the appellate Court has also committed an error in reappreciating the evidence available on record. Both the Courts committed an error in ignoring the material available on record particularly material contradictions available on record. Hence, it is a fit case to exercise a revisional jurisdiction and both the orders of the Trial Court as well as the appellate Court suffers from its legality and its correctness and finding is given not based on the legal material available on record and reasons assigned are also incorrect and hence I answer the points as affirmative. Point No.3: In view of the discussions made above, I pass the following: ORDER Revision petition is allowed. The impugned judgment of conviction and sentence of the Trial Court in C.C No.259/2005 19/4/2010 and confirmation order passed by the appellate Court in Crl.A. No.37/2010 dtd. 5/2/2016 are set-aside. Consequently bail bonds executed by the petitioners are cancelled and if any fine amount is deposited, ordered to be refunded in favour of the revision petitioners on proper identification.