MADHANAN and RAJU v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 Crl.Rev.Pet.No. 1199 of 2006 -----------------------------------(CRA.75/2002 of ADDL. DISTRICT AND SESSIONS COURT -I(ADHOC), PATHANAMTHITTA CC.90/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI ) .................... REVN. PETITIONERS(S): APPELLANTS/ACCUSED.1 --------------------------------- 1. MADHANAN, S/O.BHASKARAN, KOCHUMURIYIL, MUNPILAVU,CHITTAR. 2. RAJU, S/O.BHASKARAN, PUTHENVEETTIL, MUNPILAVU, CHITTAR. BY ADV. SRI.JACOB P.ALEX RESPONDENT(S): COMPLAINANT. ------------------------ THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN,J.** **---------------------------------------------------------Crl.R.P.No. 1199 of 2006 --------------------------------------------------------Dated this the 24[th] day of June,2011** ## **O R D E R** The allegation against petitioners who are accused in O.R.No.6 of 1998 of the Thannithodu Forest Station is that on 23.9.1998 and the previous two days, the accused trespassed into the Munpilavu Bhagom reserve within the Thannithodu Forest Station limit, illegally felled one 'Venthekku trees', converted it in logs and tried to remove the same by causing a loss of Rs.3500/- to the Government. Thus, according to the prosecution, the petitioners have committed the offences punishable under Sections 27(1)(e),27(2)(iii) and (iv) of the Kerala Forest Act. With the above allegation, O.R.No.6 of 1998 of the Thannithodu Forest Station was registered and after investigation, a complaint was preferred before the court of Judicial First Class Magistrate, Ranni whereupon cognizance was taken for the above offences and instituted C.C.No.90 of 1999. Crl.R.PNO.1199 of 2006 :-2-: During the trial, Pws.1 to 3 were examined from the side of the prosecution and Exts.P1 to P5 were marked. No evidence either documentary or oral was adduced from the side of the defence. The trial court finally found that the prosecution had succeeded in proving that the accused have committed the offences and accordingly, they are found guilty of the above offences. On such conviction, the accused were sentenced to undergo rigorous imprisonment for one year each and to pay fine of Rs.1000/- each and in default of payment of fine, to undergo simple imprisonment for one month. 2. Aggrieved by the above orders of conviction and sentence and the judgment of the trial court, the accused had preferred an appeal, but by judgment dated 9.1.2006 in Crl.A.No.75 of 2001, the court of Additional District and Sessions Judge (ADHOC)-I, Pathanamthitta dismissed the appeal confirming the conviction and sentence imposed on the accused. Thus, the present revision petition is filed against the above conviction and sentence and against the Crl.R.PNO.1199 of 2006 :-3-: judgments of the trial court as well as the appellate court. 3. I have heard Sri.Jacob.P.Alex, learned counsel appearing for the revision petitioners and also the learned Public Prosecutor. I have also perused the judgments of the courts below and other materials and evidence on record. 4. Learned counsel, during his arguments, emphatically submitted that Exts.P4 and P5 confession statements relied on by the trial court as well as the appellate court cannot be pressed into service because the said statements are unreliable and not proved properly. Another submission of the learned counsel is that the alleged place of occurrence is near to a public road and several people are residing there, but no independent witness is examined and cited by the prosecution and as such, the evidence of the official witnesses, viz., Pws.1 to 3 remained as uncorroborated. Another ground taken by the counsel is that the thondi articles are not produced before the court and therefore, the conviction and sentence imposed against the Crl.R.PNO.1199 of 2006 :-4-: revision petitioners are improper, illegal and irregular. In support of the above submission, the learned counsel placed reliance upon the decision of the Apex Court reported in **Pradeep Narayan Madgaonkar and others** v. **State of Maharashtra** (1995 SCC (Cri) 708) and **Gyan Singh and Others** v. **State of U.P** . (1996 SCC(Cri) 73). 5. On the other hand, the learned Public Prosecutor, stoutly opposing the contentions advanced by the learned counsel, submitted that the evidence on record are sufficient to prove the guilty of the accused and as such, no interference is warranted. It is the specific submission of the learned Public Prosecution that the seizure was effected in pursuance of the secret information received by the prosecution agency and it is further established that the teakwood seized are part and parcel of the venthekku which was removed from the reserve forest. It is also the submission of the learned counsel that the failure to examine any independent witness is not a ground to Crl.R.PNO.1199 of 2006 :-5-: discredit or disbelieve the evidence of the official witnesses of the prosecution, especially when the accused have no case of false implication. Thus, according to the learned Public Prosecutor, the findings of the courts below are purely based upon the evidence and materials on record and no interference is warranted. 6. I have carefully considered the arguments advanced by learned counsel appearing for the revision petitioners as well as the learned Public Prosecutor and I have also gone through the authorities cited. 7. The revision petitioners/accused faced charges under Sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act on the allegation that they have trespassed into the Munpilavu Bhagom reserve within the limits of Thannithodu Forest station and illegally felled one venthekku tree and converted it into logs and tried to remove the same by causing a loss of Rs.3500/- to the Government. According to the prosecution, they came to know the above said Crl.R.PNO.1199 of 2006 :-6-: illegal act of the accused on getting secret information and pursuant to such information, according to the prosecution, as described in Ext.P1 seizure mahazar, they adopted procedure and timbers were seized. It is the above seizure and the allegations are challenged by the defence. In order to prove the above allegation, the prosecution has examined PWs.1 to 3 and produced five documents. Among the above five documentary evidence, the most material and crucial are Ext.P1 seizure mahazar and Exts.P4 and P5 confession statements respectively of accused Nos.1 and 2. It is true that the prosecution has produced the documents before the court in time without any delay. In the light of the arguments advanced by counsel for the petitioners and the learned Public Prosecutor, the question to be considered is whether the prosecution has succeeded in establishing its allegation against the accused beyond reasonable doubt. As pointed out by the learned Public Prosecutor, when the prosecution witnesses were examined, there is no cross-examination for the false implication of Crl.R.PNO.1199 of 2006 :-7-: the accused in the crime. According to me, the failure on the part of the accused in making any such suggestion or allegation is not sufficient to approve the allegation as raised by the prosecution. In this juncture, it is relevant to note that as rightly pointed out by the learned counsel for the petitioners, Pws.1 and 3 proceeded towards the spot viz., the house of the accused in pursuance of an information claimed to have received by them. But, no independent witness was taken along with them even though they have got prior information. It is also pertinent to note that as pointed out by the counsel, there is no dispute also that several people are residing in the locality, but none of such person was cited or examined as independent witness. There is no rule that unless there is independent witness or evidence, the evidence of official witnesses can not be relied or acted upon. But, in the present case, the necessity of independent witnesses is warranted because of the conflict that occurred in the evidence of Pws.1 and 3 and prosecution case as such. According to Pws.1 and 3, when they Crl.R.PNO.1199 of 2006 :-8-: were effecting the seizure on 23.9.1998, they recorded Exts.P4 and P5 confession statements of accused Nos.1 and 2 respectively. But, on a perusal of Exts.P4 and P5, it is seen that the above alleged confession statements were recorded before the Deputy Forest Range Officer that too on 24.9.1998. Thus, it is crystal clear that Exts.P4 and P5 relied on by the prosecution are not properly proved, in the sense, Exts.P4 and P5 are not proved by examining the Deputy Forest Range Officer, before whom accused Nos.1 and 2 are alleged to have made the confession statements. Still the question remains about the date of recording of confession statements of accused Nos.1 and 2. Though Pws.1 and 3 say that the confession statements were recorded on the date of occurrence on 23.9.1998 itself, Exts.P4 and P5 show that it is recorded on 24.9.1998. The above infirmities among the prosecution evidence itself are sufficient to create doubt which ought to have been cleared by adducing independent evidence. Though several persons are residing in the locality, the prosecution did not Crl.R.PNO.1199 of 2006 :-9-: care to examine any of such persons from the locality. In this case, it is relevant to note that the seizure is not from the physical possession of the accused. Apart from the description in Ext.P1 seizure mahazar, there is no evidence to show that the properties are recovered from the properties in the possession or in the ownership of the accused. Therefore, according to me, in this juncture, it is relevant to consider the decision cited by the counsel for the petitioners in the **Gyan ' s case. Singh** In the case, the seizure was effected after stopping the offending truck loaded with wood sleepers in which there were six accused. In that case, the Honourable Apex Court has held as follows:- “........... _Still we feel that the necessity of independent corroboration would not have vanished especially when Mr.Chudhri admitted that about a 100 yards away from Nanda Chauki, there was habitation wherefrom somebody could be called to witness the recovery of stolen wood when the truck stood successfully stopped and the accused secured. Besides after the stoppage of the truck, somebody could even be called to witness the recording of confessions. It appears that the forest officials took upon themselves to bear the entire burden of proving the prosecution case. Admittedly, such effort was made. Their statements, in the facts and circumstances of the case, in order to be safe to be acted upon would require some_ Crl.R.PNO.1199 of 2006 **==> picture [28 x 9] intentionally omitted <==** _independent corroboration which is not forthcoming. We deem it unsafe therefore, to maintain the conviction of the appellants on the uncorroborated version of the forest officials.........”_ In the present case, as I indicated earlier, the seizure was not effected from the physical possession of the accused and therefore, as held by the Apex Court in the above decision, the independent evidence is absolutely necessary to corroborate the evidence of official witnesses. As held by the Apex Court in the decision in **Pradeep Narayan ' s case Madgaonkar** , prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. In the present case, by the materials produced by the prosecution, it appears that regarding the confession statements itself, there is contradiction, which alone is sufficient to doubt the prosecution case and in such a situation, it is more responsible on the part of the prosecution to prove the seizure with the support of independent evidence. But, in the present case, as I indicated earlier, there is no independent evidence. Crl.R.PNO.1199 of 2006 :-11-: 8. In the light of the above facts and circumstances and the discussion and the materials referred above, I am of the view that the prosecution has miserably failed to prove the allegation against the accused beyond reasonable doubt and therefore, the petitioners/accused are entitled to get the benefit of doubt. Consequently, the conviction and sentence recorded by the trial court as well as the appellate court are liable to be set aside and I do so. In the result, this revision petition is allowed setting aside the judgments of the J.F.C.M.Court,Ranny in C.C.No.90 of 1999 dtd.21.1.2002 and the Additional District and Sessions Judge (ADHOC) Court -I, Pathanamthitta in Crl.A.No.75 of 2002 dtd.9.1.2006 and the petitioners/accused are acquitted of all the charges levelled against them and the bail bond, if any, executed by them shall stand cancelled and they are set at liberty. ## **V.K.MOHANAN** ,Judge MBS/ ## Crl.R.PNO.1199 of 2006 :-12-: