## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE MARY JOSEPH**
**MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941**
**Crl.Rev.Pet.No. 928 of 2013**
**AGAINST THE ORDER/JUDGMENT IN CRA 358/2009 of ADDITIONAL DISTRICT COURT & SESSIONS (ADHOC), KOLLAM DATED 31-01-2013**
**AGAINST THE ORDER/JUDGMENT IN CC 33/2005 of JUDICIAL MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),PUNALUR DATED 03-10-2009**
## **REVISION PETITIONER/APPELLANT/1ST ACCUSED:**
**BABU, S/O.YOHANNAN, AGED 40 YEARS ROAD PURAMPOKKIL VEEDU, PULIMKUKKU, ANDOORPACHA EDAMON VILLAGE, PATHANAPURAM, KOLLAM DISTRICT.**
**BY ADVS. SRI.BINU PAUL SRI.SHAJI THOMAS SRI.T.V.VINU**
## **RESPONDENT/RESPONDENT/COMPLAINANT:**
**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031**
**OTHER PRESENT:**
**G.P. FOR FORESTS SRI RAVI KRISHNAN**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## O R D E R
1. The Revision on hand is directed against judgment dated 31.1.2013 of Additional District & Sessions Judge (Adhoc)-l, Kollam, (for short 'the appellate court') which was preferred from judgment dated 3.10.2009 of the Judicial First Class Magistrate -II (Forest Offences), Punalur, (for short 'the trial court') in C.C.No.33/2005. The revision petitioner is the appellant in Crl. Appeal No.358/2009 and the first accused before the trial court. He stands convicted for the offence punishable under Section 27(i) e(iii) and (iv) of the Kerala Forest Act, 1961 (for short, 'the Act', for future reference). The allegation of the prosecution was that the accused, two in numbers trespassed into the 1964 teak plantation in Ayiranalloor Section of Yeroor Reserve in Anchal Range on 17.08.2000 and cut a dried teak wood tree and a maruth tree, converted them into firewood, attempted to remove the same therefrom and thereby caused a loss to the tune of Rs.500/- to the Government. Accordingly, alleging that they have committed the offences punishable under Section 27(1) e (iii) and 27(1) e (iv) of the Act, the O.R was booked against them.
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On questioning the 1[st] accused, he has spoken that the firewood was meant for manufacture of illicit arrack by one Mr.Geethav and thereby he was made third accused in the prosecution case. On inspection of the place of occurrence by the officials, stumps of a teak wood and Maruth were located. The weapon allegedly used for the commission of the offence was a chopper and the first accused handed over the same to the officials at the spot. Half Metric tonnes of firewood was taken into custody from the place of occurrence. Ext.P1 seizure mahazar was prepared and the first accused was arrested.
2. PW1, the leader of the officials of forest on beat duty on 17.08.2000 when examined had deposed fully supportive of the prosecution case. PW2, 3 & 4 were officials of forest who were with PW1 in the beat duty and and witnesses to the occurrence. They also deposed in terms corroborative to that of PW1. PW4 has arrested the 1[st] accused and recorded his confession statement. The accused and the knife were identified by him. PW6 verified the scene of occurrence, seizure mahazar and other material objects involved in the case. PW7 concluded investigation and filed Form II Report
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before the court. Ext.P4, Notification to establish that the place of occurrence is within the reserve forest is also produced.
3. This is a case wherein oral evidence of official witnesses and the documents prepared by them are available and independent evidence is totally lacking. The place of occurrence being inside the forest, there is no scope to obtain an independent witness. Ext.P4 notification proves that the place of occurrence is part of reserve forest and therefore, undoubtedly the entry thereto is prohibited and trespass is made punishable by the provisions of the Act.
4. According to the prosecution, the chopper and the cut pieces of firewood were seized. The chopper is produced before the court and marked in evidence as MO1. The contention of the learned counsel was that, the prosecution failed to produce the firewood seized before the court and offered no explanation about it and their silence to say about, would defeat the prosecution case. As per Ext.P1 and version of PW1, the firewood were seized but, kept in the forest itself. According to PW1, a report of seizure was prepared and forwarded to the court as mandated by Section 52 of the Act.
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Sub section (2) of Section 52 of the Act mandates that if timber or forest produce with respect to which an offence is believed to have been committed is seized under Sub-section (1) of Section 52, the officer seizing the same shall place a mark on such property to indicate that the same has been seized and shall as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made. According to the learned Public Prosecutor, such a report was forwarded to the Magistrate and that would satisfy the non-production of the timber before the court. It is pertinent to note that such a
report is not marked in evidence by the prosecution. Therefore, it cannot be stated that a report of the nature has been prepared and forwarded to the Magistrate as per the mandate of the provision. Therefore, neither the timber seized from the forest nor a report as contemplated under sub-section (2) of Section 52 is available in evidence, as rightly submitted by the learned counsel for the petitioner.
5. In view of **State of Kerala and others v. Ancy Philip and another** [2008(3) KHC 256], physical production of timber before the Magistrate is not warranted but the
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prosecution needs to produce relevant records before the Magistrate showing seizure and the officer who has seized the article has to satisfy that the offence has been committed. Therefore, want of materials to evidence seizure is liable to defeat the prosecution case as rightly pointed out by the learned counsel for the revision petitioner.
6. The further argument was that the 2[nd] accused was not arrested by the prosecution, though their specific case was that they have previous acquaintance with him. It is true that 2[nd] accused was not arrested by the officials at any point of time during investigation, though he was personally known to them.
7. It is true that the 2[nd] accused was not arrested from the spot. According to the officials, he had fled from the scene and though chased by them, could not be apprehended. Forest officials being 6 in numbers, the story that he escaped is one difficult to swallow. Evenif, it is taken for granted, he being a person whose whereabouts are known to them could have been arrested by them during the course of investigation. It seems that the 2[nd] accused appeared in court in obedience to summons issued therefrom. Therefore, the
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version of forest officials that he being absconding, was not arrested during investigation is also not believable.
8. The argument thirdly advanced was that even as per the prosecution case, both accused were found by them engaged in cutting forest trees and stacking firewood. The trial court, acquitted the 2[nd] accused for the reason that the prosecution failed to establish the guilt against him. If that being the circumstance, it is urged by the learned counsel that, the prosecution case cannot be taken as proved against the first accused alone. According to the learned counsel, the findings of the courts below are perverse and are liable to be reversed for the reason.
9. Per contra, the learned Public Prosecutor has contended that the said argument is not acceptable for the reason that, concrete evidence is available to support the finding of guilt of the first accused. According to him, he was found by the officials cutting the forest trees and they have deposed on those aspects collaboratively. The chopper allegedly used by him in the commission of the offence was seized and available in evidence as MO1.
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10. Apart from all the above, the confession statement of the first accused was recorded and available in evidence as Ext.P2. PW4 has also deposed about recording of confession statement from the first accused. According to the learned Public Prosecutor, the evidence as discussed would only indicate the complicity of the first accused in the crime and the courts below are perfectly justified in finding him guilty, convicting and sentencing him.
11. In view of **Ram Chander v. State of Punjab** [1983 SCC (Crl) 316] when co-extensive and identical evidence is found against two accused and one among them was acquitted on benefit of doubt, in the absence of difference between the allegations against the two accused, the other accused must also be acquitted. In **Sasi v. State of Kerala [2013 (3) PLJR 121, MANU/SC/0531/2013]** in an identical factual situation as in the case on hand, the Apex Court has held that when all the accused were charged for cutting and removing logs of wood from the reserve forest area at the same time and three among them were acquitted, the finding of guilt, the order of conviction and sentence as against the 4[th] accused will not sustain.
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12. On the strength of the discussions made by this Court as above and the dictums referred supra, this court has no hesitation to hold that the prosecution case against the first accused would not lie independently when a co-accused, who had been tried for the very same offence was acquitted, for the reason that the prosecution failed to establish the guilt against him. For the foregoing reasons, the revision petition is liable to succeed.
13. In the result, the revision petition stands allowed. The concurrent findings and order of conviction and sentence imposed on the first accused by the courts below vide judgment dated 03.10.2009 of Judicial First Class Magistrate -II (Forest Offences), Punalur in C.C.No.32/2005, which was confirmed by judgment dated 31.01.2013 of Additional District & Sessions Judge (Ad hoc) -I, Kollam in Crl.A.No.358/2009 stands reversed. The revision petitioner herein stands set at liberty after cancellation of the bail bond executed by him.
MARY JOSEPH Judge
kkb.
