Joy, S/o Evaneous and Thankachan, S/o Mathai v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934** **Crl.Rev.Pet.No. 3407 of 2006 ( )** **--------------------------------** **(CRA.947/2003 OF IV ADDL. SESSSIONS COURT, ERNAKULAM. CC.690/1999 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM)** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** **----------------------------------------** **1. JOY, S/O. EVANEYOUS, PALLATTU VEEDU, 8TH MILE BHAGAM, THATTEKKADU, KUTTAMPUZHA KOTHAMANGALAM TALUK.** **2. THANKACHAN, S/O.MATHAI, NIRAPPUKANDATHIL VEEDU, 8TH MILE BHAGAM, THATTEKKADU KUTTAMPUZHA, KOTHAMANGALAM TALUK.** **BY ADV. SRI.JOHN JOSEPH(ROY)** **RESPONDENT/RESPONDENTS/COMPLAINANT:** **------------------------------------** **STATE OF KERALA** **ASSISTANT WILD LIFE WARDEN, SALIM ALI BIRD SANCTUARY, THATTEKKADU, KOTHAMANGALAM REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM.** **R1 BY ADV. SRI.M.P.MADHAVAN KUTTY SP.GP(FORESTS)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SCL.** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ Crl. R.P. No: 3407 of 2006 -----------------------------------------Dated this the 30[th] day of November, 2012 ## **O R D E R** Petitioners were concurrently found guilty and convicted of the offence under Sec. 27(1) (e) (III) and (IV) of the Kerala Forest Act and were sentenced to rigorous imprisonment for one year each and to pay Rs.5,000/- each as fine for the offences mentioned above. This revision petition is filed by the petitioners against the said conviction and sentence. 2. The case of the prosecution is that on 2.7.1997, when PW1 and PW2, the forest officials attached to Thattekkadu Beat Station of Malayattoor Reserved Forest, were on beat duty at 8[th] mile of Thatteekkad Birds Sanctuary, they found the petitioners sawing one rose wood tree into pieces by using one round saw. The saw was identified as M.O.1. These petitioners were questioned by ## **Crl.R.P. No: 3407/2006** **-2-** PW1 and PW2. It was found that rose wood tree was cut, felled and sized into logs. Ext.P1 Mahazar was prepared narrating the said incident. As per that mahazar, MO1 round saw was also seized. PW3 is the Deputy Ranger of Forest who verified the Mahazar with reference to the scene and found that the factors mentioned in Ext.P1 are correct. Thereafter, the complaint was filed. 3. After recording the pre-charge evidence, charges were framed against the accused. They pleaded not guilty. 4. PW1 to PW4 were examined. Exts. P1 to P4 were marked. Two witnesses were examined on the side of defence as DW1 and DW2. M.O.1- round saw was also identified. Learned Magistrate analysed the evidence and found that the petitioners are guilty of offence as mentioned above. Learned Additional Sessions Judge after reappraisal of the evidence confirmed the conviction and sentence. **Crl.R.P. No: 3407/2006** **-3-** 5. Learned counsel for the revision petitioner submits that though the place of occurrence is only about 100 metres away from residential houses, forest officials did not venture to get any of the residents as witnesses to the incident. In the absence of independent witness, the court below should not have found the petitioners guilty of the offence solely based on the evidence given by PW1 and 2, it is argued. The other point that has been canvassed by the learned counsel for the petitioners is that the sized timber logs were not produced and marked before the court and so that also is fatal to the prosecution. Though PW2 has stated that a label or something of that sort was affixed on MO1 (round saw), nothing was found at the time when PW1 and PW2 were examined. Though it was stated that some mark was put by using a chalk that also was not seen. That is also highly suspicious, the learned counsel submits. **Crl.R.P. No: 3407/2006** **-4-** 6. The other point that has been vehemently pressed into service by the learned counsel is that though PW1 and PW2 have stated that there is a special notification with regard to Thattekkad Birds Sanctuary, which was the area alleged to have been trespassed upon by the petitioners, to cut and size the rose wood, that notification has not been produced. Ext. P3 is only a general notification in respect of Malayattoor Reserve Forest. Since the case of the prosecution is that the accused were found at the 8[th] Miles of Thattekkad Birds Sanctuary the specific notification should have been produced but as that notification was not produced, petitioners are entitled to get the benefit of reasonable doubt, the learned counsel submits. The learned counsel submits that the courts below were not justified in ignoring the evidence given by DW1 and DW2, which will show that the petitioners were taken by the forest officials from their respective houses. Though it was stated by PW2 **-5-** ## **Crl.R.P. No: 3407/2006** that when the accused were arrested their confession statements were recorded, no such statement was produced before the court. That also would expose the falsity of the prosecution case, the learned counsel submits. 7. The learned counsel for the petitioners has relied upon the decision of the Supreme Court in **Gyan Singh and others v. State of U.P. 1996 SCC (Cri) 73** in support of his submission that in the absence of independent witnesses, the conviction entered solely on the evidence of the Forest Official is unsustainable. That was a case where the Forest Officials were waiting on the road near the check post, as the information received was that a truck with wood sleepers were being transported. Therefore, that was a case where the officials could have secured the presence of independent witnesses. But here the accused persons were seen sawing the wooden logs into pieces when the forest ## **Crl.R.P. No: 3407/2006** **-6-** officials were on beat duty in that forest area. That was inside the reserve forest. 8. The learned counsel submits that the evidence given by PWs 1 and 2 would show that there were persons residing near the scene of occurrence about 100 metres away and so there was no difficulty for getting those persons as witnesses to the mahazar. Sri. Madhavankutty, the learned Special Government Pleader (Forest) submits that there is no case for the accused that witnesses were present nearby. The evidence given by PWs 1 and 2 would show that it was not possible for the inmates of that house or place of incident to be brought and made witnesses as there is no case that the witnesses were present at the spot to witness the incident. 9. The two courts below have found the evidence given by PWs 1 and 2 regarding the arrest of the accused ## **Crl.R.P. No: 3407/2006** **-7-** and seizure of the articles reliable and acceptable. Though it was argued by the learned counsel for the revision petitioner that because the wooden logs were not produced the accused are entitled to get acquittal based on the decision in State of **Kerala v. Ancy Philip 2006 (1) KLT 699** , that decision was overruled/reversed by Supreme Court in **State of Kerala v. Ancy Philip 2008 (3) KLT 477** . The notification produced and marked in this case shows that the area in question is a reserve forest. Hence contention to the contrary advanced by the petitioners is only to be rejected. 10. Since the accused were proved to have trespassed into the reserve forest and as they were seen cutting and sawing one rose wood tree, the conviction for the offences under section 27(1)(e)(III) and (IV) is only to be confirmed. Since the substantive sentence awarded by the court below **-8-** ## **Crl.R.P. No: 3407/2006** is only imprisonment for one year (which is the statutory minimum) and to pay Rs.5,000/- as fine, I find not reason to interfere with the sentence imposed on the petitioners. In the result, this Criminal Revision Petition is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj