STATE OF KARNATAKA v. DEVARAJACHARI @ DEVARAJA

Judgment

1. The Criminal Appeal No. 370/2013 is filed by the State on the ground that the sentence awarded is inadequate and lesser than the minimum sentence. Crl.A.No. 594/2013 is filed by accused No.1 praying to set aside the judgment of conviction and order of sentence dated 05.01.2013 passed in S.C.No. 70/2012 by the I Additional Sessions Judge, Mysuru.

2. The appellant - accused No.1 has been convicted for the offences punishable under Sections 86 and 87 of the Karnataka Forest Act (hereinafter for the sake of convenience referred to as `the Act’) and Section 379 of IPC. The appellant - accused No.1 has been sentenced to undergo simple imprisonment for 5 years for the offence punishable under Section 86 of the Act and to pay fine of Rs.10,000/- and in default, to undergo simple imprisonment for 6 months; to undergo simple imprisonment for 5 years for the offence punishable under Section 87 of the Act; to undergo simple imprisonment for - 4 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 2 years for offence punishable under Section 379 of IPC and to pay fine of Rs.1,000/- and in default, to undergo simple imprisonment for one month.

3. The factual matrix of the prosecution is that, during the intervening night of 28th and 29th May 2006, P.W.5 - C.L. John, Police Constable of RPF (Railway Protection Force) was on night duty from 11.00 p.m. to

6.00 a.m. and when he was patrolling between 04.30 -

05.00 a.m., near Railway Hospital, he heard sound of some persons running near quarters No. 17-C and he found that 3 persons were running and he chased and caught hold of one person and brought the said person before RPF Police Station and produced him before the ASI

of RPF - Sri. Puttaswamy -P.W.1. Then P.W.1 enquired and took the said person to the compound of the Railway Hospital, he found that one sandal wood tree was cut down and said sandal wood had grown with two branches from the ground itself and one branch was cut down and another branch was intact and the cut sandal wood log - 5 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 had fallen on the ground. On enquiry, the said person revealed that the persons who ran away are one Raveendra and Yogeesh and they all together cut down the said sandal wood tree. Said sandalwood log was measuring 7.5 feet and its girth was 16 inches. ASI of RPF lodged a complaint before the Ashokapuram Police Station. The Police after investigation filed charge sheet against accused Nos. 1 to 3 for offence punishable under Sections 86 and 87 of the Act read with Section 379 of IPC. Case against accused Nos.1 and 3 came to be committed to the Sessions Court and case against accused No. 2 came to be split up. The Sessions Court framed charge for offences under Sections 86 and 87 of the Act and Section 379 of I.P.C.

4. The prosecution in order to prove the charge has examined P.W.1 to P.W.8 and got marked Ex.P.1 to Ex.P.5 and M.O.1 – sandalwood log. The statement of accused Nos. 1 and 3 came to be recorded under Section 313 of Cr.P.C. The trial Court after hearing arguments on - 6 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 both sides formulated points for consideration and convicted accused No. 1 as noted above and acquitted accused No. 3 for the offences charged against him. Said judgment of conviction and order of sentence has been challenged by accused No.1 in Crl.A. No. 594/2013. The State has filed Crl.A. No. 370/2013 on the ground that the sentence of fine is inadequate.

5. Heard learned counsel for appellant - accused No. 1 and learned HCGP for respondent – State.

6. Learned counsel for accused No. 1 who is the appellant in Crl.A. No. 594/2013 would contend that the evidence on record will not establish the offence against accused No.1. The prosecution has not proved the case beyond reasonable doubt. Seizure of M.O.1 – sandalwood log is not proved. The blade (saw) said to have been used by the accused persons to cut the sandalwood tree has not been seized. Even though P.W.1 – PSI, Railway Protection Force had authority he has not registered the case. On - 7 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 these grounds he prayed to allow the appeal and acquit accused No. 1.

7. Learned HCGP argued that the seizure of M.O.1 – sandalwood log and securing accused No.1 from the spot has been proved by the evidence of P.W.1 and P.W.5. Seized log - M.O. 1 is found to be sandalwood log as per report of P.W.7 as per Ex.P.4. The spot mahazar – Ex.P.3 has been proved by the evidence of P.W.2 and the Investigating Officer. Considering all these aspects the learned Sessions Judge has rightly convicted accused No.1 for offence charged against him.

8. He further argued that minimum sentence for offence under Sections 86 and 87 of the Act for the first offence is, imprisonment not less than 5 years and the amount of fine shall not be less than Rs.50,000/-. The trial Court even though has awarded the minimum sentence of imprisonment for offence under Sections 86 and 87 of the Act has awarded sentence of fine only for offence under Section 86 of the Act but has awarded lesser than the - 8 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 minimum fine. The trial Court has not awarded any sentence of fine for offence under Section 87 of the Act. Therefore, the fine awarded for offence under Sections 86 and 87 is lesser than the minimum fine. With this he prayed to award atleast minimum fine. With this, he prayed to allow Crl.A. No. 370/2013 and dismiss Crl.A. No. 594/2013.

9. Having heard learned counsel for the parties the Court has perused the trial Court and the trial Court records.

10. Considering the grounds urged and arguments advanced, the following points arise for my consideration. (i) Whether the trial Court erred in convicting the appellant - accused No.1 for offence under Sections 86 and 87 of the Karnataka Forest Act and Section 379 of IPC? - 9 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 (ii) Whether the sentence of fine awarded for offence Sections 86 and 87 of the Karnataka Forest Act is lesser than the minimum?

11. My answer to the above points are as under: (i) Point No. II - Negative (ii) Point No. II - Affirmative

12. Seizure of sandalwood log from the custody of accused No. 1 is the main ingredient in order to establish the ingredients of offence under Section 379 of IPC and Sections 86 and 87 of the Act. Witnesses to the seizure mahazar, namely, P.W.3 and P.W.4 have not supported the case of the prosecution with regard to drawing of seizure mahazar – Ex.P.2 under which M.O.1 sandalwood log has been seized. On a reading of the evidence of P.W.3 and P.W.4 it is clear that both of them were present in Ashokanagar Police Station at about 05.00 pm on

29.05.2006 – the day on which Ex.P.2 – seizure mahazar was drawn. P.W.1 has deposed regarding the seizure of - 10 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 sandalwood log cut by accused Nod. 1 and seizure of the same by the PSI under Ex.P.2 – mahazar and he signing the said mahazar as per Ex.P.2(a). P.W.2 has identified the said sandalwood log which is marked as M.O.1. P.W.8 – PSI has deposed that on 29.05.2006 P.W.1 – Sri. Puttaswamy lodged a complaint and he had also produced accused No. 1 and one sandalwood log and he seized the same under mahazar Ex.P.2 and he has identified his signature at Ex.P.2(c). P.W.8 has also identified the sandalwood log at M.O.1. P.W.1 and P.W.8 have identified accused No. 1 as the person whom P.W.5 – Sri. C.L. John had caught hold on that day and produced along with the sandalwood log. P.W.1 and P.W.8 are government officials and they do not have any grudge or ill-will against the accused. Nothing is suggested to those witnesses to show grudge or ill-will against the accused person. Prosecution in order to establish that sandalwood tree was cut near quarters No. 17-C of Railway Quarters near Railway Hospital has examined P.W.2 who has deposed that on

30.05.2006 in between 08.30 to 09.00 am the Police had - 11 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 called him near quarters No. 17-C of Railway Quarters near Railway Hospital and ASI – Puttaswamy was also there and he observed that one sandalwood tree was cut and stump was about 1-½ feet in height from the ground and one Mohamed Koya was also present and he signed the mahazar. Evidence of P.W.1 to 4 and 8 clearly establishes that one sandalwood tree was cut near quarters No. 17-C of Railway Quarters near Railway Hospital and said sandalwood log was seized from the custody of accused No.1 who is the appellant herein.

13. P.W.5 – C.S. John has deposed that on

28.05.2006 during night hours he was on patrolling duty near Railway workshop near the Railway Hospital and at about 04.30 – 05.00 am near Railway Hospital he heard some sound and observed that three persons were carrying the log and then he went near them and said persons threw away the log and tried to run away and he chased and caught hold of one person and the other two persons ran away. He has identified accused No.1 as the - 12 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 said person whom he had caught hold on that day. Said person who had been caught hold has revealed that said log was cut near quarters No. 17-C of Railway Quarters near Railway Hospital and thereafter he was produced before P.W.1. P.W.1 has intimated the said fact to P.W.6. P.W.1 has lodged the complaint. Said testimony of P.W.5 is consistent and cogent with regard to the cutting of sandalwood tree and carrying of sandalwood log by accused No.1 and two others.

14. P.W.7 is the official who examined M.O.1 and certified that it is sandalwood billet and it is weighing 22 KGs. He has identified the said log which is at M.O.1. Considering all these aspects the trial Court has rightly held that the prosecution has proved that appellant - accused No. 1 has committed offence under Sections 86 and 87 of the Act and Section 379 of IPC.

15. In order to consider whether the sentence imposed on appellant - accused No. 1 is lesser than the - 13 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 minimum sentence it is necessary to extract Sections 86 and 87 of the Act which reads thus:

86. Penalty for offence in regard to sandalwood.- In any case of a forest offence having reference to the cutting, uprooting, or removal or damage to, a sandal tree or any part of a sandal tree belonging to Government, or to an occupant or holder of land or other person referred to in Section 83, the offender shall, on conviction, be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to[one lakh rupees. [Provided that.- I. in the case of first offence the term of imprisonment shall not be less that five years and the amount of fine shall not be less than fifty thousand rupees; and II. in the case of a second or subsequent offence the term of imprisonment shall not be less than seven years and the amount of fine - 14 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 shall not be less than seventy-five thousand rupees.

87. Regulation of sale and manufacture of sandalwood and sandalwood oil.- (1) No person shall possess, store or sell or attempt to store or sell sandalwood or disintegrate or attempt to disintegrate sandalwood in mills or by other contrivance, manufacture or distil, or attempt to manufacture or distil oil from sandalwood, or re-distil, refine, possess, store or sell or attempt to refine , store or sell oil extracted from sandalwood, except under a licence obtained from such Forest Officer on payment of such fees, and subject to such restrictions and conditions as may be prescribed: Provided that no such licence shall be refused in respect of distillation of oil from sandalwood and possession and storage of sandalwood for purposes of distillation, and the sale of sandalwood oil so distilled, by persons bona fide carrying on the business of distillation immediately prior to the commencement of this Act, in any area of the State: - 15 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 Provided further that no such licence shall be necessary for possession of sandalwood up to three kilograms and sandalwood oil upto one hundred grams for bona fide domestic use. Provided also that nothing in this sub- section so far as it relates to obtaining a licence to possess, store or sell or attempt to store or sell sandal wood shall apply to any person or occupant or holder of land referred to in section 83 in respect of sandal wood obtained from sandal tree grown by such person or occupant or holder in his land.

2. whoever contravenes the provisions of sub-section (1) shall, on conviction, be punishable with imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees: Provided that,- I. in the case of first offence, the term of imprisonment shall not be less than five years and the amount of fine shall not be less than fifty thousand rupees; - 16 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 II. in the case of a second or subsequent offence, the term of imprisonment shall not be less than seven years and the amount of fine shall not be less than seventy five thousand rupees.

16. For both the offences under Sections 86 and 87 of the Act if the offence is first offence then term of imprisonment shall not be less than five years and amount of fine shall not be less than Rs.50,000/-. There is no discretion vested with the Court to award lesser than the minimum sentence. The trial Court has awarded sentence of imprisonment of five years which is minimum sentence for offence under Sections 86 and 87 of the Act. The trial Court has imposed sentence of fine of Rs.10,000/- for offence under Section 86 of the Act and no sentence of fine has been imposed for offence under Section 87 of the Act. The minimum sentence of fine for both offences under Sections 86 and 87 of the Act is Rs.50,000/-. There is no - 17 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 option available to the Court to award fine lesser than Rs.50,000/- for both offence under Sections 86 and 87 of the Act. The trial Court considering that appellant - accused No.1 is poor and as he was working as a carpenter, awarded fine of Rs.10,000/- for offence under Section 86 of the Act and no fine is awarded for offence under Section 87 of the Act. Said fine amount imposed for offence under Section 86 of the Act is lesser than the minimum fine and therefore, fine in a sum of Rs.50,000/- is require to be imposed for offence under Section 86 of the Act.

17. The trial Court has not imposed any fine for offence under Section 87 of the Act even though the minimum fine amount to be imposed is Rs.50,000/-. Therefore, fine of Rs.50,000/- is required to be imposed on appellant - accused No.1 for offence under Section 87 of the Act.

18. In view of the above, the following - 18 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 O R D E R I. Crl.A. No. 594/2013 filed by appellant - accused No.1 is dismissed. II. Crl.A. No. 370/2013 is filed by the State is allowed as under: (i) conviction of the appellant - accused No.1 for offence under Section 379 of IPC and Sections 86 and 87 of the Act is affirmed. (ii) While maintaining the sentence of imprisonment for a term of 5 years for both the offences under Sections 86 and 87 of the Karnataka Forest Act as imposed by the trial Court, the sentence of fine for offence under Sections 86 and 87 of the Act is awarded in a sum of Rs.50,000/-each. (iii) In default of payment of fine, the appellant - accused No. 1 shall undergo - 19 - NC: 2024:KHC:21191 CRL.A No. 370 of 2013 C/W CRL.A No. 594 of 2013 simple imprisonment for a period of six months. (iv) Both sentences of imprisonment shall run concurrently. Sd/- JUDGE MPK,LRS List No.: 1 Sl No.: 24