Crl.Rev.P.No.271 of 2003

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN** **WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933** **Crl.Rev.Pet.No. 271 of 2003()** **-----------------------------** **CRA.1/1999 of III ADDL.SESSIONS COURT, KOLLAM CC.35/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II (FOREST OFFENCES),PUNALUR ....................** **REVN. PETITIONER(S): APPELLANTS/ACCUSED NOS.3,4,5 & 6:** **------------------------------------------------------** **1. LALU, S/O. SREEDHARAN, RESIDING AT ARAMKUZHI KALAYIL VEEDU, ANCHAL.** **2. RAJENDRAN, RESIDING AT RAJESH MANDIRAM, THACHANKONAM, THINKALKARIKKAM.** **3. VISWAMBARAN, RESIDING AT CHEENIVILA VEEDU, VALLILA, PATHANAPURAM.** **4. KUNJUMON @ CHUDUKATTU KUNJUMON, S/O. MATHAI, RESIDING AT CHEENIVILA VEEDU, VALLILA, PATHANAPURAM.** **BY ADV. SRI.T.C.SURESH MENON SRI.PRINCE.K.ELIAS** **RESPONDENT(S): NOT PARTY/RESPONDENT/NOT PARTY:** **----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE RANGE OFFICER, ANCHAL RANGE, KOLLAM.** **BY PUBLIC PROSECUTOR, SMT.S.HYMA** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SU** ## **P.S. GOPINATHAN, J.** ---------------------------------------------------------- **Crl. Rev.P.No.271 of 2003** ---------------------------------------------------------- **Dated this the 21st day of December, 2011** ## **ORDER** The revision petitioners are accused 3 to 6 in CC.35/1997 on the file of the Judicial Magistrate of the First Class II, (Forest offences), Punalur. The Forest Range Officer, Anjal in O.R.No.19/1994 prosecuted the revision petitioners along with accused 1 and 2, alleging offence under Section 27 (1)(e)(iii) and (iv) of the Kerala Forest Act with an allegation that on 28/5/1994, the revision petitioners along with other accused cut down 21 teak trees standing in the teak estate 1968, Yeroor reserve forest. Cut down trees were sliced into pieces and 18 pieces were removed from the spot. While in the process of removing logs from the spot, PW6, along with PWs 1, 2 ,4 and 5 detected out. The accused took to their heels. Ext.P1 mahazar was prepared and case was registered for which Ext.P3 Form No.1 was prepared. After completing the investigation, complaint was filed before the Magistrate. Responding to the process, accused 1 and 3 to 6 entered appearance. Second accused remained absconding. So case against the second accused ## **Crl. Rev.P.No.271 of 2003 2** was split up and other accused were proceeded. They pleaded not guilty. Hence, they were sent for trial. On the side of the prosecution, PWs 1 to 6 were examined and Exts.P1 to P5 were marked. After closing the evidence for the prosecution, the accused were questioned under Section 313 of the Code of Criminal Procedure. They denied the incriminating evidence. On their behalf, two witnesses were examined as Dws 1 and 2. DW1 is the first accused and DW 2 is an independent witness. They were examined to bring on record that the first accused was not there in station as he had to attend some funeral. The learned Magistrate on appraisal of the evidence, arrived at a conclusion of guilt after rejecting the plead of alibi. Consequently, the accused were convicted and sentenced to simple imprisonment for one year and six months and a fine of Rs.3,000/- for offence under Section 27 (1)(e)(iii). No separate sentence was awarded for offence under Section 27 (1)(e)(iv). Aggrieved by the above conviction and sentence, the revision petitioners preferred Criminal Appeal No.1/999 before the Sessions Judge, Kollam. The appeal was later made over to the Additional Sessions Judge-III, who by the impugned judgment dated 22/3/2002, confirmed ## **Crl. Rev.P.No.271 of 2003 3** the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred. 2. I have heard Advocate.Sri Jibu P Thomas, learned counsel appearing for the petitioners and Sri A.P.Madhavan Kutty, learned special Govt.Pleader for Forest. Perused the judgment impugned. I was also taken through the evidence of the witnesses by the learned counsel appearing for the revision petitioners. 3. PWs 1, 2, 4 and 5 harmoniously would depose that on getting information that some forest offence was being committed, they proceeded on patrolling and found the revision petitioners and others carrying three wooden logs, one piece by two persons. Seeing PW6 and party, the accused threw away the wooden logs and took to their heels. Though PW6 and party chased them, they could not be apprehended. Returning to the spot, the wooden logs were seized for which a mahazar was prepared. On further investigation, it was noticed that 21 teak trees were cut down and sliced into. 18 pieces were already removed from the spot and 43 pieces were lying at the spot. During ## **Crl. Rev.P.No.271 of 2003 4** the course of investigation, revision petitioners 3,5 and 6 were arrested and on the basis of their statements, the removed 18 pieces of the logs were detected out for which, Ext.P2 mahazar was prepared. Going by the judgment impugned and the evidence , I find no reason to interfere with the findings of facts entered into by the Courts below. There is no suggestion that PWs 1, 2 and 4 to 6 were any way ill motivated against the petitioners to implicate them in a forest offence. It was revealed out in evidence that the accused were familiar to the witnesses. There is no suggestion that they had got any axe to grind against the revision petitioners. No reason is suggested to disbelieve the above witnesses. Therefore, I find that the Courts below had correctly appreciated the evidence and arrived at a conclusion that revision petitioners along with other accused cut down 21 teak trees, cut into pieces and 18 pieces were removed from the spot. As a result, the Government had suffered a loss of Rs.6,500/- 4. The learned counsel for the petitioners had taken a contention that there is no notification as contemplated under Section 19 of the Kerala Forest Act 1961. Therefore, conviction under challenge is not sustainable. In support of ## **Crl. Rev.P.No.271 of 2003 5** that plea, the learned counsel relied on the decision reported in _Chacko Pyli & Others v. State of Kerala 1966 KLT_ _102_ . Going by the evidence of PW3, the Forest Range Officer, I find that the ratio of the above decision has no application to the case on hand because, PW3 had specifically deposed that the spot from where the teak trees were cut down would come within the reserved forest and that Ext.P5 is the notification. There is no case that Ext.P5 was not duly published in the gazette. No material is produced to show that the notification is not in accordance with law. It is crucial to note that regarding notification, there was no challenge while PW3 was cross examined. Going by the trial court judgment, it is seen that the contention advanced before the trial court is that Ext.P5 notification was issued under the Travancore Act 1069 and that there was no notification as contemplated under Section 19 of the Kerala Forest Act 1961. Referring to Section 85(3) of the Kerala Forest Act 1961, the special Govt. Pleader would submit that, all notifications issued under the Travancore Forest Act, 1069 would be valid till a revised notification is issued. Section 85(3) of the Kerala Forest Act 1961 reads as follows: ## **Crl. Rev.P.No.271 of 2003 6** “ _All rules prescribed, appointments made, powers conferred and orders issued under the enactments hereby repealed shall be deemed to have been respectively prescribed, made, conferred and issued hereunder till new rules and enactments are made under the various sections of this Act. “_ In view of the Section 85(3) of the Kerala Forest Act 1961, all notifications issued under Travancore Forest Act, 1069 would be valid under the Kerala Forest Act, 1961 also and would be in force till a new notification is issued. Therefore, I find that Ext.P5 is a valid notification. The argument regarding the legality and validity of Ext.P5 is rightly rejected by the Courts below. In the above circumstance, I find that the conviction entered by the Courts below is unassailable as it is based upon cogent evidence. 5. Regarding the sentence, the learned counsel for the petitioners would submit that the offence alleged were committed long back and therefore, it is a special reason to avoid substantial sentence. Having due regard to the facts and circumstances, I find that this is a case of mass trespass into forest and indiscriminate cutting down of ## **Crl. Rev.P.No.271 of 2003 7** forest trees. Determent sentence is essential. Leniency in sentence, whether on ground of delay in disposal of case or otherwise would give only a wrong signal. In the event, substantive sentence is avoided, in effect, the sentence would turn to be a flee bite sentence making the entire process a mockery. However, taking into account of the long duration of the prosecution, I find that the substantive sentence can be reduced to simple imprisonment for one year. In the result, while confirming the conviction, the substantive sentence is reduced to simple imprisonment for one year. The fine imposed by the trial court shall stand sustained with default clause. The Trial Court shall see the execution of sentence and report compliance. **P.S.GOPINATHAN, JUDGE** su