SHAIK HUSSAIN @ KADAR v. STATE OF KARNATAKA
Case at a glance
Outcome
Dismissed
Both the appeals are dismissed
Provisions considered
- Code of Criminal Procedure, 1973 ss. 313, 374(2), 377
- Indian Penal Code, 1860 ss. 327, 379
- Karnataka Forest Act ss. 86, 87
Key paragraphs
- Para 1111. On appreciation of evidence on record in its proper perspective, the trial court has rightly convicted the accused for the commission of offence under Sections 379 and 327 of Indian Penal Code and sections 86 and 87 of Karnataka Forest Act. On perusal of…
- Para 1212. With regard to sentence passed by the trial court is concerned, the trial Court has assigned reasons while passing the sentence that the accused are very poor persons and it is - 12 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No.…
Judgment
(BY SMT. HEMA KARIYAPPA, ADV. FOR R1, VIDE COURT ORDER DATED: 16.03.2015 SRI. M. S. VENKATESHAIAH, ADV.) ...RESPONDENTS THIS CRL.A. IS FILED U/S.377 OF CR.P.C PRAYING TO MODIFY THE JUDGMENT AND ORDER DT.21/10/2011 PASSED BY THE FTC., TIPTUR IN S.C. Nos.119/2009 AND 271/2010 IN SO FAR AS IT RELATES TO IMPOSING INADEQUATE SENTENCE ON RESPONDENT/ACCUSED No.1 FOR THE OFFENCE P/U/S.86 & 87 OF KARNATAKA FOREST ACT AND ON RESPONDENT No.2 FOR THE OFFENCE P/U/S.86 OF THE KARNATAKA FOREST ACT. THESE APPEALS, COMING ON FOR ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT
Criminal appeal No.6 is preferred by the appellant and against the judgment of conviction and Order on Sentence dated 21st October 2011 passed in SC No. 119 of 2009 and 271 of 2010 by the Fast Track Court, Tiptur (for short “the trial Court”). Criminal appeal No.186 of 2012 is preferred by the State, seeking enhancement of sentence.
For the sake of convenience, the parties herein are referred to as per their status before the trial court.
Brief facts leading to this appeal are that the Police Sub-Inspector, Huliyar Police Station, Chikkanayakanahalli Taluk, filed charge-sheet against accused 1 and 2 for the offence punishable under sections, 379 and 327 of Indian Penal Code and Sections 86 and 87 of Karnataka Forest Act. It is alleged by the prosecution that on the intervening night of 27/28th November 2017 at 12:30-1245 in the midnight, accused 1 and 2 with common intention, intending to take dishonestly the sandalwood from the lands of CW1-Thyagaraju situate at Ganadalu village, Huliyar Hobli, cut and uprooted the - 4 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR sandalwood tree from the said lands which belong to Government and when CW1 tried to restrain the accused from removing the sandalwood piece, accused No.1 voluntarily caused hurt to CW1 with an axe attempted to store the said sandalwood in the land of CW1-Thyagaraju and thereby have committed the alleged offences.
After filing of charge-sheet case came to be filed in CC No.84 of 2008. Thereafter, the case was committed to court of sessions and was registered in SC No.119 of 2009 and 271 of 2010 and summons was issued. Accused appeared before the sessions court and were enlarged on bail. Upon hearing on charge, the trial court framed charges, the same was read over and explained to the accused in the language to them. Having understood the same, accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, prosecution has examined seven witnesses as PWs1 to 7 and marked six documents as Exhibits P1 to 6 and eight material objects as MOs1 to 8. On closure of prosecution side evidence, statement of the accused under section 313 of Code of Criminal Procedure was recorded. The accused have denied the incriminating circumstances appearing against them. However, have not - 5 - NC: 2025:KHC:49041 CRL.A No.
6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR chosen to lead any defence evidence on their behalf. Having heard the arguments on both sides, the trial court convicted the accused No.1 for the offence punishable under sections, 379 and 327 of Indian Penal Code and under Sections 86 and 87 of Karnataka Forest Act and sentenced to undergo simple imprisonment for a period of three years with fine of Rs.5,000/- for the offence punishable under section 86 of Karnataka Forest Act. The accused was further sentenced to undergo simple imprisonment for three years and payment of fine of Rs.5,000/- for offence punishable under section 87 of Karnataka Forest Act and to undergo simple imprisonment for a period of one month for the offence punishable under section 379 of Indian Penal Code and further to undergo rigorous imprisonment for a period of three years with Rs.5,000/- for the offence punishable under section 327 of Indian Penal Code.
The trial Court convicted accused No.2 for the offence punishable under section 379 of Indian Penal Code and section 86 of Karnataka Forest act and sentenced to simple imprisonment for period of 3 years with payment of fine offer Rs.5,000/- and to undergo simple imprisonment for a period of five months for offence punishable under Section 86 of Karnataka Forest Act and further to - 6 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR undergo simple imprisonment for two years with payment of fine of Rs.1,000/- for the offence punishable under section 379 of Indian Penal Code. Being aggrieved by the judgment of conviction and order on sentence, accused No.1-Shaik Hussain has preferred criminal appeal No.6 of 2012 and the State has preferred Criminal Appeal No.186 of 2012, seeking enhancement of sentence.
Smt. Hema Kariyappa learned counsel appearing for the appellant-accused would submit that the impugned judgment of conviction and order on sentence is illegal, irregular and contrary to law and facts on record. The learned counsel would submit that as per the case of prosecution, police have seized sandalwood billets which are shown as item No.1 to 5 in Property Form-Exhibit P1 wherein the total weight of seized sandalwood billets is 20.500 kilograms. Whereas Exhibit P4-Letter dated 16th January 2008 of Range Forest Officer, Bukkapatna Range, Sira Taluk, items 1 to 5 reveals that the sandalwood billets seized weigh 12.500 kilograms, which is not in consonance with the weight shown in the Property Form. Further, she would submit that PW3 has deposed with regard to mahazar. During the cross- - 7 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR examination, PW3 did not disclose the boundaries with regard to mahazar.
Hence, PW2 cannot be said as a witnesses. PW4- Investigating Officer, has deposed with regard to conducting the investigation. During the course of cross-examination, he has deposed that the blood-stained clothes has not been recovered. PW5 is a formal witness. He has deposed that the billets seized are sandalwood billets. During the course of cross-examination, he has admitted that the sandalwood billets, being damp, has not been weighed and approximate weight is stated. He further admitted that the weight of sandalwood billets at the time of recovery and the weight of sandalwood billets produced, are different. PW6 has deposed as to the treatment given to PW1-injured. The Doctor has opined that the injury might have been caused due to assault by iron rod. However, the iron rod has not been recovered by the police. The learned Counsel would further submit that Exhibit P2 reveals that the Police have seized one saw-mill blade, whereas what is produced before the Court is an iron rod.
On all these grounds, it is sought to allow the appeal. Alternatively, learned Counsel would submit appellant/accused has already undergone the sentence passed - 8 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR by the trial Court. In this regard, Jail Authorities have also submitted report to the learned Advocate General, as per the order of this Court. She would submit that the trial Court has assigned proper reasons while imposing sentence, same is proper and in accordance with law. Therefore, if this decides to dismiss the appeal filed by the appellant, the appeal filed by the State also be dismissed, as there are no valid grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court.
As against this, Ms. Asma Kouser, learned Additional SPP appearing for the respondent-State would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts. However, the trial Court has not imposed the minimum sentence as prescribed under Sections 86 and 87 of the Karnataka Forest Act. Hence, she sought for enhancing the punishment from three years to five years.
Having heard the arguments on both sides and on perusal of materials and record, the following points, would arise for my consideration: - 9 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR
1. Whether the trial court has committed an error in convicting the accused for the offence under sections 379, 327 of IPC and sections 86 and 87 of Karnataka Forest Act?
2. Whether the appellant-State has made out a ground to interfere with the judgment of conviction and order on sentence passed by the trial court?
3. What order? Regarding Point No.1:
I have examined the materials place before this Court. It is alleged by the prosecution that Police Sub- Inspector, Huliyar Police Station, Chikkanayakanahalli Taluk, filed charge-sheet against accused 1 and 2 for the offence punishable under sections, 379 and 327 of Indian Penal Code and Sections 86 and 87 of Karnataka Forest Act. It is alleged by the prosecution that on the intervening night of 27/28th November 2017 at 12:30-1245 in the midnight, accused 1 and 2 with common intention, intending to take dishonestly the - 10 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR sandalwood from the lands of CW1-Thyagaraju situate at Ganadalu village, Huliyar Hobli, cut and uprooted sandalwood tree from the said lands which belong to Government and when CW1 tried to restrain the accused from removing the sandalwood piece, accused No.1 voluntarily caused hurt to CW1 with an axe attempted to store the said sandalwood in the land of CW1-Thyagaraju and thereby have committed the alleged offences.
To prove the guilt of the accused, prosecution has examined seven witnesses as PWs1 to 7 and marked six documents as Exhibits P1 to 6 and eight material objects as MOs1 to 8.
The evidence of PWs1 and 2 reveals that PW1- complainant and PW2, have seen the accused No.1 uprooting the sandalwood tree from their lands. They have seen another person escaping from the said place. According to them, incident took place during night time. They have caught hold accused No.1 at the time of uprooting the sandalwood tree and that time, with an intention to escape from the said from them, accused No.1 assaulted with crow-bar upon the head of PW1 - 11 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR and thereby caused injuries to him. The doctor has deposed as to injuries caused to the injured and also as to issuance of wound certificate. PW3 also supported the version of PWs1 2 and 4.
On appreciation of evidence on record in its proper perspective, the trial court has rightly convicted the accused for the commission of offence under Sections 379 and 327 of Indian Penal Code and sections 86 and 87 of Karnataka Forest Act. On perusal of material is placed before this court, it could be seen there are some minor omissions and contradictions in the evidence of prosecution witnesses, but the same will not go to the root of the case. The said minor omissions and contradictions will not affect the case of the prosecution. Accordingly, I do not find any error or illegality in the judgment of conviction and order on sentence passed by the trial Court. Hence, I answer point No.1 in the negative. Regarding Point No.2:
With regard to sentence passed by the trial court is concerned, the trial Court has assigned reasons while passing the sentence that the accused are very poor persons and it is - 12 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR the first offence proved against them and hence lenient view may be taken against them. The charge-sheet submitted by the Investigating Officer itself reveals that the accused are coolies by profession. The Chief superintendent of Central Prison, Parappana Agrahara white letter No.CPB/CTP- Sec/14793/2025, addressed to Advocate General, has stated that accused are released after completion of sentence dated 29th October 2025 passed by this Court. The report submitted by the Chief Superintendent of Central Prison, reveals that the Jail authorities have given 198 days remission to accused No.1- Shaik Hussain. Considering the conduct of the offender, the jail authorities have given remission of 198 days. The trial Court has properly appreciated the material on record and considering the poverty of the accused as also the value of the property in question, the trial Court has imposed appropriate sentence. Considering the facts and circumstances of the case, I do not find any error in the impugned order of sentence passed by the trial Court. Accordingly, I answer point No.2 also in the negative. - 13 - NC: 2025:KHC:49041 CRL.A No. 6 of 2012 C/W CRL.A No. 186 of 2012 HC-KAR Regarding Point No.3:
For the aforestated reasons and discussion, i proceed to pass the following:
Operative part
O R D E R Both the appeals are dismissed. Sd/- (G BASAVARAJA) JUDGE List No.: 1 Sl No.: 36
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Both the appeals are dismissed
Which statutory provisions did this judgment involve?
Code of Criminal Procedure, 1973 — ss. 313, 374(2), 377; Indian Penal Code, 1860 — ss. 327, 379; Karnataka Forest Act — ss. 86, 87.
Which court decided this case, and when?
Karnataka High Court, on 21 Oct 2011. The bench was G BASAVARAJA.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.