Divakaran s/o Achuthan, Sura s/o Ityathi, Darvin s/o Suma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933** **Crl.Rev.Pet.No. 1376 of 2002 ( )** **------------------------------------CRA.385/2000 of ADDL.SESSIONS COURT (ADHOC)-II, ERNAKULAM CC.107/1996 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MUVATTUPZHA** **...................** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED:** **-------------------------------------------------------------** **1. DIVAKARAN S/O. ACHUTHAN, ALUMKAL,** - **KANJIRAVALY, MANNAMKANDAM VILLAGE.** **2. SURA S/O. ITYATHI, EDAKKUDY VEEDU,** - **NERIYAMANGALAM, KOTHAMANGALAM.** **3. DARVIN S/O. SUMA, VELIYIL VEEDU,** - **NERYAMANGALAM VILLAGE, KOTHAMANGALAM.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **-----------------------------------------------------** - **1 STATE OF KERALA, REPRESENTED BY** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. C.H. JASMINE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **N.K.BALAKRISHNAN, J. ---------------------------------------------------Crl.R.P.No.1376 of 2002 ---------------------------------------------------Dated this the 11th day of January, 2012** ## **Order** The petitioners are the accused who were convicted by JFCM Court-II, Muvattupuzha for offence punishable under Section 27(i)(e) (iii) of the Kerala Forest Act. The complaint was filed by the Forest Range Officer, Neryamangalam. The case of the prosecution is that on 21.10.1994 the revision petitioners were found in Pathadipalam area of the Neriyamangalam Reserve Forest removing a teak wood, rolling it using another wooden stick or pole. They were seen by P.W.1 and other officials from a distance. On seeing the forest officials, all the three accused ran away. Though the forest officials chased the accused and attempted to apprehend, their attempt did not succeed. Ext.P1 mahazar was prepared showing the length and girth of the teak wood. They could also see the stump of the cut teak tree a few meters away from the place where the accused was found removing/rolling the teak wood using a wooden pole. The measurement of the cut stump was also noted in Ext.P1 Crl.R.P.1376/2002 2 mahazar. It was found that the teak wood was cut using a saw. According to the prosecution, these facts can be seen from Ext.P1 mahazar also. The value of the cut log as on that date was stated to be Rs.4000/-. Ext.P1 was signed by P.W.1 and other officials. P.W.4, the Station Forester inspected the spot on 22.10.1994, i.e., on the next day itself and verified the correctness of the facts mentioned in Ext.P1 and made endorsement to the effect that the facts stated in Ext.P1 are correct. The endorsement was separately marked as Ext.P1(a). The evidence given by P.Ws.1 to 4 and Exts.P1 to P3 were relied on by the learned Magistrate to find the accused guilty. 2. After reappreciation of the evidence, the learned Sessions Judge concurred with the finding and the appeal was dismissed. 3. The learned counsel for the revision petitioner would submit that the accused persons were not apprehended then and there and no attempt was also made by the accused to apprehend them or to record their statement and as such there is no legal evidence to show that the petitioners were the persons who were actually seen in the forest. The fact that the area wherefrom teak tree was cut and the place where the accused Crl.R.P.1376/2002 3 were seen removing the cut log falls within Neryamangalam Reserve Forest is not disputed by the defence. The learned counsel for the petitioners vehemently argued that there was no independent witness to Ext.P1 mahazar. The incident took place inside the forest. No independent witness can be expected to be inside the forest. Similarly, the forest officials who are expected to conduct routine beat duty cannot take independent persons on all days to the forest expecting an offence to be witnessed by such witnesses. Therefore, the contention that because of the fact that there were no independent witnesses, the evidence given by forest officials and Ext.P1 should be discarded, bereft of any merit. 4. The other ground prominently projected by the learned counsel for the petitioners is that there is no legal evidence to prove the identity of the three persons who were stated to have been seen by P.W.1 and other forest officials. P.Ws.1 and 2 have deposed that the revision petitioners were found removing the cut log using another wooden stick or pole. There was no defence that those accused persons were not known to P.Ws.1 and 2 earlier nor was any suggestion that it was not possible for P.Ws.1 Crl.R.P.1376/2002 4 and 2 and other officials to identify the accused persons. Therefore, the contention advanced in that line also cannot be sustained. 5. The next ground that has been projected by the learned counsel is that the cut wooden log which was attempted to be removed was not produced before the court. The learned Public Prosecutor would submit that the properties are liable for confiscation and evidently the same must be produced before the authorised officer for confiscation. It is important to note that not even a single question was put to P.Ws.1 to 4 with regard to the non-production of the property. The learned Public Prosecutor further submits that the mere fact that the accused were removing the cut log as borne out from the evidence is beyond challenge. There was no explanation for the accused as to why they happened to be inside the forest. The learned counsel for the petitioners has relied upon the decision of this court in **State of Kerala v. Ancy Philip** (2006(1) KLT 699) and argued that forest officers are bound to produce the timber before the court and since the timber log seized and made mention in Ext.P1 was not produced, the petitioners are entitled to be acquitted. The Crl.R.P.1376/2002 5 argument is that without the thondy article it is impossible to have a successful prosecution. The aforesaid decision was reversed by the apex court. (see: **State of Kerala v. Ancy Philip** (2008(3) KLT 477). Therefore the argument on that ground is unmerited. 6. It is also important to note that the evidence regarding the detection of the offence was appreciated by the learned Magistrate who had the opportunity to assess the evidence, watching the demeanour of the witnesses. There was no serious challenge with regard to the identity of the petitioners. The learned Sessions Judge after reappreciation of the evidence did not upset the finding rendered by the trial court. Therefore, the argument on that ground also is found untenable. 7. It was also argued by the learned counsel for the revision petitioners that the offence was detected on 21.10.1994. The occurrence report reached the court only on 29.10.1994. According to the learned counsel, there was inordinate delay in filing the report before the court below. But there also no question was put to the prosecution witnesses as to the prejudice that was caused by the delay of about one week. The learned Crl.R.P.1376/2002 6 Public Prosecutor would submit that it is only to be treated as a private complaint where the procedure for warrant case instituted on a complaint has to be followed. The accused had opportunity to putforward all such contentions evenat the stage of recording evidence under Section 244 Cr.P.C. No question was put by the defence. After framing charge, the witnesses were cross examined by the accused. Nowhere it was stated that any prejudice whatsoever was caused by the delay of 7 days in producing the occurrence report. I find that also not a reason to upset the verdict of conviction. 8. The evidence given by P.Ws.1 and 2 regarding detection of the offence could not be seriously challenged. That evidence was accepted by the trial court and the appellate court. Sitting in revision this court finds no reason to upset the concurrent finding entered by the two courts below. The conviction is thus confirmed. 9. The petitioners were sentenced to undergo S.I. for one year each and to pay fine of Rs.1000/- each and in default to undergo S.I. for three months each. That is the minimum punishment prescribed for the offence. Hence this revision is only Crl.R.P.1376/2002 7 to be dismissed. 10. In the result, this revision is dismissed confirming the conviction and sentence passed against the petitioners. **N.K.BALAKRISHNAN, JUDGE.** srd Crl.R.P.1376/2002 8