Judgment:
ORDER
Mohamed Anwar, J.
1. Heard the arguments of the learned counsel on both sides.
2. The six petitioners herein were the six respective accused, who had been tried in the Court of the Additional Civil Court and Chief Judicial Magistrate, Shimoga in C.C. No. 422/1991 for the offence Under Section 411, I.P.C. and for the offence Under Section 87 of the Karnataka Forest Act 1963 ('the Act of 1963' in short) and are convicted of both these offences and each of them is sentenced to undergo rigorous imprisonment for a period of 3 years on the count of Section 411 I.P.C.; and also to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for a period of one year each for the offence Under Section 87 of the Act of 1963. When the trial court's judgment of conviction and sentence dated 28th Nov. 1992 was challenged before the Lower Appellate Court in Criminal Appeal Nos. 90 and 91/1992, the same came to be confirmed by its judgment dated 26th Nov. 1999. The petitioners have now approached this Court in Revision Under Section 397 of Cr.P.C., questioning the legality and correctness of the judgment of the trial Court and also of the Lower Appellate Court passed confirming the same.
3. The petitioners are here-in-after referred to respectively as Accused No. 1, Accused No. 2, Accused No. 3, Accused No. 4, Accused No. 5 and Accused No. 6 in which order they were made to face the trial before the learned Magistrate. The charge against them was that on 22-8-1991 at about 3 p.m. on Puradalu-Malliganahalli path way each of Accused No. 1 to Accused No. 6 was found in possession of one gunny bag containing sandal wood billets, all valued at Rs. 11, 319.00, belonging to the Government of Karnataka, knowing that they are the stolen property, without any permit or licence and thereby offences Under Section 411 of I.P.C. and Under Section 87 of the Act of 1963 were committed by them.
4. On the accused pleading not guilty, the prosecution adduced its evidence at the trial to establish the charge against them. That evidence consisted of the oral testimony of P.Ws. 1 to 7, documentary evidence comprising Exs. P1 to P. 13 and the material objects at M.O. Nos. 1 to 39. On close of the prosecution evidence the accused were examined by the learned Magistrate Under Section 313, Cr.P.C. They took the defence of total denial of prosecution case against them.
5. Thereafter on appreciation of the prosecution evidence the learned Magistrate recorded his affirmative finding on guilt and held the charges proved of against all the accused, and passed his judgment of conviction dated 28-11-1992. Thereafter, on 1-12-1992 he proceeded to hear the accused on the question of quantum of sentence to be imposed on each of them. Then the sentences against each of the accused as indicated above have been passed by him. The learned Sessions Judge, in the aforesaid appeals preferred by all the accused before him, on reappreciation of the prosecution evidence, has concurred with the aforesaid affirmative findings of the learned Magistrate and dismissed the said appeals by his judgment impugned herein.
6. The Lower Court records have been secured in this Revision Proceeding. I have been taken through the prosecution evidence on record by the learned counsel for both parties. The prosecution case as disclosed by its materials is that on 22-8-1991 on receiving the credible information that some persons were engaged in smuggling the sandal wood at the aforestated place, the police of jurisdictiorial Shimoga Town P.S. viz., P.W. 2 P.S.I. Crime, PW 4, P.S.I., PW 6, C.P.I., together with panch witnesses P.Ws. 1 and 7, proceeded to the said spot and were lying in wait near the said place. At about 3.55 p.m., Accused Nos. 1 and 6 were seen emerging from the nearby forest with a head load of gunny bag each. Then the aforesaid team of the police officers and the panchas pounced upon them and caught hold of A. 1 to A. 5 red handed, while A.6 made good his escape by throwing his gunny bag load at the spot itself. On inspection of the contents of the said gunny bags of respective A.1 to A. 5 by the said police and panchas it was found that A.1's gunny bag at M.O. 7 contained 6 sandal wood billets marked at M.Os. 1 to 6 weighing 34 Kgs; A. 2's gunny bag at M.O. No. 14 contained 6 sandal wood billets at M.Os. 8 to 13, weighing 32.5 Kgs; A. 3's gunny bag at M.O. 20 contained 5 billets of sandal wood at M.Os. 15 to 19, weighing 25 Kgs; A.4's gunny bag M.O. 30 contained 9 sandal wood billets at M.O. Nos. 21 to 29, weighing 20.700 Kgs; A.S's gunny bag M.O. 36 contained 5 sandal wood billets at M.Os. 31 to 35, weighing 24.5 Kgs; and the gunny bag M.O. 39 of A.6 which was thrown away at the spot by him was containing 2 sandal wood billets at M.Os. 37 and 38, weighing 25 Kgs. Then all these sandal wood billets with respective gunny bags were duly marked and seized under Seizure Panchanama Ex. P.2 prepared by P.W. 6, C.P.I at the spot between 4.45 p.m. and 6 p.m., attested by panchas PWs. land 7. Then the said raiding party together with the arrested accused Nos. 1 to 5 and the said seized articles, returned to the Police Station where P.W. 5 gave his report of the Crime at Ex. P. 5 to P.W. 2 S.H.O. who then registered the Crime No. 243/91 Under Sections 379, 411, IPC, and Under Section 86 and 87 of the Act of 1963 against the Accused Nos. 1 to 6, and Ex. P.7 F.I.R. was despatched by him to the jurisdictional Magistrate. During investigation, A. 6 was arrested by PW 6 Investigating Officer. The seized sandal wood billets were subjected to test and examination of PW 3 Assistant Conservator of Forest, who, after examining them, issued his certificate Ex. P6 opining that the seized billets were sandalwood. On completion of investigation, charge-sheet was laid by PW 6 I.O., before the trial Magistrate.
7. As indicated above, at the trial, the aforesaid evidence for the prosecution was brought on record in proof of the charge against accused, and on the basis of that evidence, the charge has been held proved against them by the trial Court. The trial court's judgment of conviction and sentence against all accused has been upheld by the lower appellate Court.
8. Section 87 of the Act of 1963 provides for minimum sentence of three years of imprisonment with minimum fine of Rs. 10,000/- and maximum sentence upto seven years of imprisonment with fine extending upto Rupees 25,000/- on conviction of a person for the first offence of he possessing sandalwood exceeding three Kilo-grams in weight without obtaining a licence from the competent Forest Officer under the Act.
9. The prosecution case against each of the accused has been fully supported at the trial by PWs. 2, 3, 4, 5, 6 and 7-co-panch to Ex.P. 2 seizure panchanama having alone turned hostile. The trial Court, therefore, on the basis of the positive evidence of PWs. 2 to 7, rightly recorded its affirmative finding to the effect that at the stated date, time and place, each one of A1 to A6 was found in unlawful possession of the sandalwood billets as alleged by the prosecution. This finding of the trial Court on the guilt of each of A1 to A6, on re-appreciation of evidence, has been affirmed by the lower appellate Court. In that view of the matter, the concurrent findings of facts of both the courts below arrived at and recorded on the basis of the aforestated prosecution evidence on record do not warrant any interference in this revision. Consequently, the conviction recorded against each of A1 to A6 for the offence Under Section 87 of the Act of 1963 as also the sentence of Imprisonment for three years with fine of Rs. 10,000/- imposed on each of them being the minimum prescribed sentence, provide no scope for interference.
10. But then, the question is whether conviction of accused recorded by the trial Court Under Section 411, I.P.C. and affirmed by the lower appellate Court could be sustained in law. Section 411, I.P.C., makes dishonest receiving of stolen property an offence. It states:
411. Dishonestly receiving stolen property -- Whoever dishonestly receives or retains any stolen property, knowing or having reason, to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine , or with both.
One essential ingredient of this offence is that the property found in possession of a person must be proved by the prosecution that it was the property stolen by some one else and that the same had been received by the person found in possession thereof. It is nobody's case that any sandalwood billets at M.O. Nos. 1 to 29 and 31 to 38 found in possession of A1 to A6 were the billets were stolen from custody of the Government by any person or persons other than the accused, This basic flaw in the charge against accused Under Section 411, IPC has been singularly lost sight of by both the Courts below and thereby the legal requirements of Section 411, IPC are misconceived by them. The learned trial Magistrate proceeded to draw support from the presumption under the Act that all sandalwood is the property of the Government. In drawing upon this presumption, he has misdirected himself. It is Section 84 of the Act of 1963 which raises a presumption of the sandal trees' being the exclusive property of Government. The material portion of this provision runs:
84. Sandal Trees exclusive property of Government. -- (1) Notwithstanding anything contained in any law, contract, grant or other instrument or judicial decision -
(i) all sandal trees which may grow in any land after the date of commencement of this Act, and
(ii) all sandal wood trees existing on any land prior to the commencement of this Act shall be exclusive property of the State Government.
It could be plainly seen from this provision that the presumption created by Section 84 is in respect of the sandal trees existing on any land and not in respect of the sandalwood. What is seized in the instant case from the possession of accused are not sandal trees but sandalwood. In order to fasten the liability Under Section 411, I.P.C. on the accused, what was further required of the prosecution to establish by convincing and satisfactory evidence was that the sandalwood billets seized from respective possession of each of the accused were the part and parcel of particular sandal trees existing at a particular spot in a particular land. The evidence in proof of this material fact is singularly lacking in this case. Therefore, the conviction of all the accused Under Section 411, IPC, recorded by the Courts below is (not) sustainable in law. To this extent, the revision deserves to be allowed.
11. Hence, for the reasons aforestated, the revision is partly allowed. The impugned conviction of all the petitioners accused for the offence Under Section 87 of the Karnataka Forest Act, 1963 and also the sentence passed against each of the accused for this offence is upheld, and the revision petition challenging this part of the judgment of both the courts below stands dismissed; whereas their conviction and sentence for the offence Under Section 411, I.P.C. passed against each of the petitioner accused is set aside and they are acquitted of this offence (i.e. 411, I.P.C.). The impugned judgments of both the Courts below shall stand modified to/this extent.