Mohammed Rafi vs State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Section 86 of the Karnataka Forest Act [hereinafter referred to as "the Act" for short] and under Section 379 r/w. 511 IPC, on a trial held by the learned Sessions Judge, Mandya.

The facts reveal that on 11.01.2001, the appellant herein had approached P.W. 1-Smt. Parvathamma and the members of her family to take the sandalwood tree that was grown by them in the backyard of their house. She had refused to give the sandalwood tree. The appellant had threatened that he would cut and remove the tree in the night.

In the early morning at 3.00 a.m. on 12.01.2001, P.W. 1 and the members of her family heard the noise of cutting a tree with saw and they came out of the house and saw the appellant running away and they chased and held him on the spot. They saw that the sandalwood tree was uprooted by cutting at the stem. In the circumstances, the police were informed of this incident. A complaint was filed as per Ex. P1.

The appellant was arrested by the Police. Spot-mahazar was held as per Ex. P2. The sandalwood cut tree piece-M.O. 1 was sent for the opinion and the certificate-Ex. P3 was secured. After recording the statement of the witnesses and collecting the required documents, a charge-sheet was laid against the appellant for the charges under Section 379 r/w. 511 IPC and under Sections 86 and 87 of the Act.

During the trial, the prosecution examined P.Ws. 1 to 5, got marked the documents Exs. P1 to 6 and M.Os. 1 and 2. The statement of the accused were recorded under Section 313 Cr.P.C. No defence evidence was led.

The trial Court heard the counsel for the parties and on appreciation of the evidence, convicted the accused for both the charges and ordered him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 50,000-00, in default to undergo rigorous imprisonment for one year for the offence punishable under Section 86 of the Act and lesser sentence was awarded for the offence punishable under Section 379 r/w. 511 IPC. Aggrieved by the conviction and sentence, this appeal is filed.

Learned counsel for the appellant is absent. Even on the last two occasions, both the appellant and his counsel were absent. The appellant is not in custody. He was granted bail on 28.01.2011. When the appellant/accused is not in custody and both the appellant and his counsel are absent, it is held by the Apex Court in the decision reported in Surya Baksh Singh Vs. State of Uttar Pradesh, that the Court cannot dismiss the appeal for default and can hear the appeal in the absence of the appellant and dispose of the same on merits. In view of the dictum laid-down by the Apex Court in the aforesaid Judgment and as sufficient time was granted to the appellant and his counsel, the appeal is heard in their absence.

I have heard learned High Court Government Pleader for the State.

The appellant in the appeal memo has taken-up many contentions and it is his grievance that the sandalwood tree had fallen on its own and the offence under Section 379 IPC or under the Forest Act has not been proved. He states that there is considerable distance between the place of occurrence and the place where the cut sandalwood tree was found and therefore he contends that he was not in possession of the sandalwood tree at that time. It is also his submission that the witnesses examined are the interested witnesses and there are no independent witnesses and hence he submits that the case of the prosecution cannot be accepted. It is also his contention that there is discrepancy in the evidence and he is entitled to the benefit of doubt. The documents placed on record are not sufficient. There is no spot-mahazar and the documents are created. It is also his contention that there is discrepancy in respect of his name in the records and there is no explanation for that. It is also his contention that P.W. 3 has given inconsistent version and therefore, the prosecution case cannot be accepted. A specific contention is raised in para 16 that no expert''s opinion is produced to prove that the cut tree was sandalwood tree and therefore, he submits that the prosecution case cannot be accepted. On these grounds, he has sought for setting aside the conviction.

Learned High Court Government Pleader supporting the Judgment and Order submits that apart from the members of the family who are acquainted with the appellant even prior to the incident have deposed about the theft of the sandalwood in the night hours and their evidence is supported by the evidence of an independent witness, who is examined as P.W. 3. He submits that there is ample material on record to affirm the conviction and sentence ordered.

So far as the certificate produced at Ex. P3 is concerned, the Officer has certified that the tree piece which was sent for examination was sandalwood tree piece and accordingly, he has certified the same under Ex. P3. Though the author of this document is not examined, it is relevant to mention here that this document was admitted in evidence with the consent of both the parties. When the appellant consented for admitting Ex. P3 in evidence, he cannot now put-forth his contention that such document cannot be read as evidence. Therefore, Ex. P3 will have to be accepted as a genuine document and as under this document it is certified that M.O. 1 is the sandalwood tree piece and it has to be accepted that the wood which was sent for examination was sandalwood piece.

So far as the incident in question is concerned, the prosecution relies upon the evidence of P.Ws. 1 to 3. P.W. 1-Parvathamma is the relative of P.W. 2, whereas P.W. 3 is the neighbour. Both P.Ws. 1 and 2 are the members of the same family. The husband of P.W. 1 is the brother of P.W. 2. As could be seen from their evidence it is stated that on the day earlier to the incident of theft of the sandalwood tree, the accused came to their house and asked for removing and taking away the sandalwood tree. P.W. 1 did not agree for the same and she states that at that time the accused gave a threat that he would cut and takeaway the sandalwood tree in the night hours.

So also, P.W. 2, who is close relative of P.W. 1 was informed about this fact and he accordingly stated in his evidence having had the information from P.W. 1 about the threat given by the accused. There is consistent version in the evidence of P.Ws. 1 and 2 so far as the arrival of the appellant in the house of P.W. 1 is concerned. There is no reason for P.W. 1 to unnecessarily implicate the appellant against whom she has no grudge or enmity at any time in the past.

That apart, it is relevant to note that P.Ws. 1 and 2 consistently speak in the evidence that in the night between 2.30 and 3.00 a.m. they heard the noise of cutting a tree with saw and having came out side of the house with the battery and in the battery light they saw a person running away from the backyard premises. They chased him and apprehended at the spot. He was none-else than the very person, who had come on the day time asking for the sandalwood tree. So far as this version of the prosecution, there is consistency in the evidence of P.Ws. 1 and 2. In the absence of any mala fides on the part of P.Ws. 1 and 2 or enmity between them and the appellant, there is no reason to discard the evidence of these two witnesses merely on the ground that they are interested witnesses. When they did not have any enmity with the appellant and when there are no mala fides on their part, the evidence of the interested witnesses could be accepted and there are no reasons to reject their version.

That apart, P.W. 3 is the neighbour and he states in his evidence that in the night at 3.00 a.m. he heard about this incident having been informed by P.W. 2 and the accused had left his moped in front of their house. This motorcycle which was left in front of the house of P.W. 2 was seized by the Police under mahazar.

As the incident has occurred in the night, rather it is impossible or cannot be expected that any independent witness could be present at the time when the incident occurred. It is only P.Ws. 1 and 2, the members of the one family from whose backyard the sandalwood tree was cut were heard of the noise of cutting the tree with saw. In that context, they came out side with the battery and saw the appellant running from backyard. In the circumstances, they chased and apprehended him. He was produced before the Police Officer-P.W. 5 and arrested by the Police. To this extent, the evidence of the prosecution is consistent and it is relevant to note that upon registration of the complaint, immediately the appellant was arrested.

In the aforesaid circumstances, it is not possible to accept an independent witness to be present at the time of the incident to witness the same. Merely because an independent witness is not examined, it is not the law that the evidence of the members of the family is to be rejected. As stated above there was no enmity between P.Ws. 1 and 2 on one side and the appellant on the other side. Therefore, I do not think that there is any wrong committed by the trial Court in accepting the evidence of P.Ws. 1 and 2 along with the evidence of P.W. 3. So, looking to the aforesaid material, I am of the opinion that the incident has been proved satisfactorily.

Though it is contended that the sandalwood tree had fallen on its own, but the fact that M.O. 2 saw was seized by the Police at the place of the incident itself would clearly indicate that the saw was used for cutting the sandalwood tree, which is borne out from the mahazar-Ex. P2, which is supported by the evidence of P.W. 4 that the sandalwood tree was cut and the saw was found at the place of the incident. These circumstances would clearly indicate that the sandalwood tree which was grown by P.Ws. 1 and 2 in their backyard of the house was cut to remove the same. So, the uprooting of the sandalwood tree by the appellant in the night hours was with an intention to commit an act of theft and removing of the cut sandalwood tree attracts the provisions of Section 86 of the Act. So, looking to the material placed on record and on appreciation of the evidence, I am of the opinion that the trial Court was justified in convicting the appellant for both the offences. Considering the aforesaid findings in the context of the contentions raised, the appellant has not made out any grounds to warrant interference in the impugned Judgment and Order.

Consequently, the appeal fails and it is accordingly dismissed.