Anil and Kunjumon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 17TH DAY OF AUGUST 2016/26TH SRAVANA, 1938** **CRL.REV.PET.NO. 726 OF 2005 (A)** **--------------------------------** **AGAINST THE JUDGMENT IN CRA NO.194/2000 OF ADDITIONAL DISTRICT & SESSIONS COURT, (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA DATED 17-04-2004** **AGAINST THE JUDGMENT IN CC NO.578/1997 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA DATED 23-09-2000** **-----------------------------------** **REVISION PETITIONER(S)/APPELLANTS/ACCUSED.:** **------------------------------------------** **1. ANIL, S/O VIJAYAN, CHAIVU KALAYIL VEEDU, APPUPPANTHODU, ARUVAPPULAM VILLAGE, KOZHENCHERY TALUK.** **2. KUNJUMON, S/O.DAMODHARAN, CHAIVUKALAYIL VEEDU, APPUPPANTHODU, ARUVAPPULAM VILLAGE, KOZHENCHERY TALUK.** **BY ADVS.SRI.JOHN BRITTO SRI.C.A.RAJEEV** **RESPONDENT(S)/RESPONDENT/COMPLAINANT.:** **--------------------------------------** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING THE DEPUTY RANGER, FOREST STATION, KOKKATHODU.** **BY SPECIAL GOVERNMENT PLEADER ADV. SRI.NAGARAJ NARAYANAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. ----------------------Crl. Rev.Pet. No.726 of 2005 ---------------------------------Dated this the 17[th] day of August, 2016** ## **O R D E R** This revision petition is preferred by the accused against the judgment in Criminal Appeal No.194 of 2000 of the Additional Sessions Judge, (Adhoc), Fast Track-II, Pathanamthitta. They were accused in C.C. No.578 of 1997 of the Judicial First Class Magistrate Court-II, Pathanamthitta under Secs.27(i)(e)(iii) and (iv) of the Kerala Forest Act. The learned Magistrate convicted the accused under Secs.27(i)(e)(iii) and (iv) of the Kerala Forest Act and sentenced them to rigorous imprisonment for one year each and fine of Rs.1,000/(Rupees thousand only) each in default simple imprisonment for three months each. Against that, they preferred the above Criminal Appeal before the Additional Sessions Judge, (Adhoc), Fast Track-II, Pathanamthitta, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the accused preferred this revision petition. Crl. Rev.Pet. No.726 of 2005 2 2. The charge against the accused is that on 09.10.1997, the accused trespassed into the reserve forest of Kokathode Forest Station, cut and removed one teak tree and attempted to remove it, thereby caused a loss of Rs.2500/- to the government. PW1 to PW3, while conducting beat duty, detected the offence. Forest Range Officer filed the above case in the Judicial First Class Magistrate Court-II, Pathanamthitta. During trial, prosecution examined PW1 to PW3 and marked Exts.P1 to P3. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. 3. When the matter came up for hearing, the Deputy Range Officer reported that the 2[nd] revision petitioner, Muraleedharan died on 04.04.2013 and he produced the death certificate issued from the Secretary, Veliyam Grama Panchayath which is marked as Ext.C1. The Forest Range Officer, Naduvathumuzhi also reported that Kunjumon and Muraleedharan are one and the same person. The certificate issued by the Village Officer is Crl. Rev.Pet. No.726 of 2005 3 marked as Ext.C2. There is abatement of appeal after the death of the appellant but no such abatement is possible in the case of revision. In the circumstance, I heard the 1[st] revision petitioner. 4. According to Section 394 Cr.P.C., every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. Section 394 Cr.P.C. reads as follows: **“394. Abatement of appeals.-** (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. Explanation .-In this section “near relative” means a parent, spouse, lineal descendant, brother or sister.” Proviso says that if the appeal is against a conviction and sentence of death or of imprisonment and the appellant Crl. Rev.Pet. No.726 of 2005 4 dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant apply to the Appellate Court for leave to continue the appeal, and if leave is granted, the appeal shall not abate. According to Section 394(2) Cr.P.C., every other appeal (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. But in case of revision, even after the death of the revision petitioner, the revision would survive. S.394 Cr.P.C. applies only to appeals alone and in the absence of any statutory provision, High Court has power to pass appropriate orders in exercise of its revisional jurisdiction. 5. Five Judges Bench of the Apex Court in **Pranab Kumar Mitra** v. **State of W.B. and another** [ AIR 1959 SC 144] considered the question of abatement in revision and observed that where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu, then Crl. Rev.Pet. No.726 of 2005 5 notwithstanding the death of the convicted person pending the revision, it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view. 6. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a subordinate court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not Crl. Rev.Pet. No.726 of 2005 6 a ground for interfering with the above power. 7. Learned counsel appearing for the revision petitioner contended that there is a delay of one month in reporting the matter before court. The accused was not arrested from the place of occurrence and no evidence has been adduced by the prosecution to prove the identity that they had trespassed into the reserve forest. In the absence of proper evidence regarding identity, vague statements made by PW1 to PW3 is not sufficient for fastening criminal liability against the revision petitioner. 8. In the light of the above arguments, I have examined the evidence of forest officials with regard to the seizure of timber which was attempted to be removed by the revision petitioners. PW1 deposed that on 09.10.1997 while he was working in the forest department as a guard he conducted beat duty with forester and other guard, when they reached near Appoppanthode, two persons were found carrying logs on their head. He identified them. On seeing the forest officers, they were frightened and ran away. PW1 Crl. Rev.Pet. No.726 of 2005 7 prepared Ext.P1 mahazar. During cross examination PW1 replied that both accused ran towards both directions and he saw them at a distance of 20 feet and he admitted that he knew the name and address of the accused. PW2 supported the evidence of PW1. On the basis of Ext.P1 mahazar he prepared Ext.P2 occurrence report. But he admitted that he did not know the accused earlier. He did not conduct any investigation in this matter and he arrived at the place of occurrence at 5.00 p.m. PW3 who accompanied PW1 deposed that he saw the accused at a distance of 15 metres. 9. Analysing the evidence of PW1 to PW3, it is clear that there is no consistent case for the prosecution with regard to the identity of the accused. The evidence of PW1 and PW3 are inconsistent. Report of the seizure was made to the Magistrate Court on 29.11.1997. Therefore, on a perusal of the oral evidence of these witnesses, it is clear that the prosecution utterly failed to prove the case against the accused. In the absence of proper identity, Exts.P1 to P3 is not sufficient for a Crl. Rev.Pet. No.726 of 2005 8 conviction. It is the duty of the prosecution to prove the case beyond reasonable doubt. 10. Apex Court in **State of Haryana** v. **Gurdial Singh and another** ( **AIR 1974 Supreme Court 1871)** held that inconsistent version of the occurrence witness is rightly discarded. In another decision **Dr. S.L. Goswami** v. **The State of Madhya Pradesh [AIR 1972 Supreme Court 716]** it is held that the onus of proving all the ingredients of an offence is always upon the prosecution and in no stage does it shift to the accused. When the accused persons are charged with having committed an offence, it is for the prosecution to prove the ingredients of the offence. The accused has to explain the essential elements in the prosecution which would have negatived it. Therefore, only direct knowledge with regard to the occurrence is unbelievable. The infirmity attached to the testimony of the forest officials show that more convincing evidence is necessary to believe their story. In the absence of such Crl. Rev.Pet. No.726 of 2005 9 evidence, conviction and sentence passed by the Judicial First Class Magistrate Court-II, Pathanamthitta under Secs.27(i)(e)(iii) and (iv) of the Kerala Forest Act are set aside, they are acquitted and set at liberty. Revision petition is disposed of as above. **P.D. RAJAN, JUDGE** NS/20/08/2016 / True Copy / P.A. To Judge