Dadapeer and Sanaulla vs State

A.S. Pachhapure, J.—The appellants have challenged their conviction and sentence for the offence punishable u/s 86 of the Karnataka Forest Act [hereinafter referred to as "the Act" for short] and Section 379 IPC., on a trial held by the Sessions Judge, Chitradurga. The facts relevant for the purpose of this appeal are as under:

On 09/10.02.2011 while P.W. 8-PSI was on duty in the Police Station received a credible information about theft of sandalwood tree in the Railway Quarters at Chikkajajuru, he along with P.W. 5 and another police constable went to the spot and found 3 billets of sandalwood tree were kept in front of the railway quarters bearing No. 18C for being transportation and he apprehended the appellant/accused, who were present at the place and on enquiry it revealed that they cut the sandalwood tree and were transporting the same. After weighing the sandalwood billets, the total weight was 40 kgs. In the presence of panchas-P.Ws. 1 and 2, P.W. 8 seized the sandalwood billets-M.Os. 1 to 3 under mahazar-Ex. P1 and the saw M.O. 4. On returning to the Police Station, he registered a suo motu complaint in Crime No. 31/2011 and sent the FIR-Ex. P8 along with Ex. P7-suo motu complaint to the Magistrate and produced the accused before the Court. M.O. 3 was sent for opinion of the Expert-P.W. 4-Narasimhamurthy and secured the certificate-Ex. P5. After collecting the relevant documents, P.W. 8 filed a charge-sheet against the appellants for the charge under Sections 86 and 87 of the Act r/w. Section 379 IPC.

During the trial, the prosecution examined P.Ws. 1 to 8, got marked the documents Exs. P1 to 9 and M.Os. 1 to 4. The statements of the accused were recorded u/s 313 Cr.P.C. But, no defence evidence was adduced.

The trial Court after hearing the counsel and on appreciation of the material, convicted and ordered the appellants to undergo rigorous imprisonment for 5 years and pay the fine with default sentence for the charge u/s 86 of the Act and lesser sentence for the offence punishable u/s 379 IPC. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned counsel for the appellants and also the learned High Court Government Pleader.

It is the submission of learned counsel for the appellants that the material placed on record is insufficient to sustain a conviction for the aforesaid offences. He also submits that the evidence of P.W. 4-Expert cannot be accepted in law as it is in contravention of Section 62(c) of the Act. On these grounds, he has sought for setting aside the conviction and sentence.

On the other hand, learned High Court Government Pleader has supported the Judgment and Order of the trial Court.

Section 62-C of the Act is extracted hereunder for the sake of convenience:

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 his certificate.

As per the version of the prosecution, P.W. 4 is the Range Forest Officer and the aforesaid provision require him to issue a certificate and such an Officer must have undergone training in the examination of forest produce and has to be authorized by the State Government in his behalf. It is such person, who is competent to issue a certificate. Under the said provision it is only those persons, who are the Range Forest Officers, who have undergone training under the examination of the forest produce and they were authorized by the State Government to issue a certificate in his behalf on examination of the forest produce. The scrutiny of the evidence of P.W. 4 does not reveal that he had undergone any training in examination of the forest produce and the prosecution has not produced any notification of the State Government authorizing him to examine the forest produce and issue the certificate.

This Court in a decision reported in Raghavendrachari Vs. State of Karnataka, by Range Forest Officer] has held that;

There must be evidence about the Range Forest Officer having undergone training in the examination of forest produce and must be a person authorized by the State Government to issue certificate of forest produce.

There are many other decisions of this Court wherein consistently held as stated above. It is no-doubt true that in the cross-examination of P.W. 4, nothing is suggested about his inefficiency in issuing the certificate. But, when the law requires certain things to be observed by a person, it is necessary for the prosecution to fulfill the requirement by bringing the evidence on record, to accept the same. So, this is an inherent defect in the prosecution launched against the appellants for the aforesaid charges. It is no-doubt true that any ordinary man can examine a forest produce and say whether it is a sandalwood billet or not, but that is not requirement of the law. There has to be legal evidence to prove the said fact. If once the evidence of P.W. 4 is rejected on this ground, there remains no material for the prosecution to establish that the appellants are guilty of possessing sandalwood or having committed an offence either u/s 86 of the Act. So far as the offence punishable u/s 379 IPC is concerned, it is relevant to note that the appellants were apprehended at the time when they were transporting M.Os. 1 to 3-the billets from the place of the incident. The fact of apprehending the appellants at the place of the incident has been satisfactorily proved from the evidence of P.Ws. 5 and 8. That apart, immediately after registration of the complaint the accused have been produced before the Court. Furthermore, though P.Ws. 1 and 2, the attesting witnesses for mahazar-Ex. P1 have not supported the case of the prosecution, it is in the evidence of P.W. 5 and the contents of Ex. P1 that in the Railway Quarters, a tree was cut and the billets-M.Os. 1 to 3 were from the said cut tree. So, from this evidence, it could be said that the appellants cut the tree and were shifting its billets by committing an act of theft in the premises of the Railway Quarters. Though the billets may not be the sandalwood billets, at least there is an evidence that the tree having been cut and removed from the place of the incident. This much of the evidence is sufficient to hold the appellants are guilty for the offence punishable u/s 379 IPC. In that view of the matter, the conviction of the appellants for the charge u/s 86 of the Act is set aside, affirming the conviction and sentence for the offence punishable u/s 379 IPC.

In the result, the appeal is allowed in part. The conviction of the appellants for the charge u/s 86 of the Act is set aside and they are acquitted of the said charge. The conviction and sentence of the appellants for the charge u/s 379 IPC is affirmed.

Since the appellants have already completed the sentence, they are ordered to be released forthwith.