N.P. Mohanan, Koori Abu and Koya @ Ramachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** ## **WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935** ## **Crl.Rev.Pet.No. 301 of 2004 (C)** **------------------------------------------[CRL.APPEAL NO.129 OF 2000 OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, MANJERI, C.C. NO.297 OF 1991 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE - I, PERINTHALMANNA]** **...............** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED 1 TO 3:** **-----------------------------------------------------------------------------------** **1. N.P.MOHANAN, S/O. M.PRABHAKARAN, MATHIRAVATTOM, MATTARA, ARAKKUPARAMBA, PERINTHALMANNA, MALAPPURAM DISTRICT.** **2. KOORI ABU, S/O. KUNHIKOYA, MATTARA, ARAKKUPARAMBA, PERINTHALMANNA, MALAPPURAM DISTRICT.** **3. KOYA @ RAMACHANDRAN, S/O. VELUTHAKKAN, MATTARA, ARAKKUPARAMBA, PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADVS.SRI.THOMAS ANTONY, SRI.M.P.PRAKASH.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **-----------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SPL. GOVT. PLEADER FOR FOREST SRI. M.P. MADHAVANKUTTY.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-02-2014, THE COURT ON 19-03-2014 PASSED THE FOLLOWING:** **Prv.** ## **CRL.R.P.NO.301/2004- C:** ## **APPENDIX** ## **PETITIONERS' ANNEXURE:** ## **ANNEXURE -1:** **TRUE COPY OF THE JUDGMENT DATED 11/12/1997 IN CRIMINAL APPEAL NO.97 OF 1992 OF THE COURT OF SESSIONS, MANJERI.** ## **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## K. RAMAKRISHNAN, J. -----------------------------------------------------Crl. R.P. No.301 of 2004 -----------------------------------------------------Dated this the 19[th] day of March, 2014 ## O R D E R Accused in CC.No.297/1991 on the file of the Judicial First Class Magistrate Court, Perinthalmanna are the revision petitioners herein. 2. They were charge-sheeted by the Deputy Ranger, Karuvarakundu Forest Station, Kalikavu Range, alleging offences under Section 27(1)(g) and 27(2)(c) of the Kerala Forest Act, 1961 in O.R.No.33/89 of Karuvarakundu Forest Station. 3. The case of the prosecution was that, on 18.05.2009, the accused persons criminally trespassed into Arakkuparamba Government Vested Forest area and were found collecting timber logs, which were stocked there in a heap worth more than loss of Rupees 150/- and thereby all 2 Crl. R.P. No.301 of 2004 of them committed the offence punishable under Section 27(1)(g) and 27(2)(c) of Kerala Forest Act. 4. After the evidence, the trial court earlier found the revision petitioners guilty under Section 27(1)(g) and 27(2)(c) of the Kerala Forest Act and the same was questioned by them before the Sessions Court, Manjeri, by filing Criminal Appeal No.97/1992 and the learned Sessions Judge allowed the appeal, set aside the finding of guilty under Section 27(1)(g) of the Act and acquitted them of that charge and remanded the case for re-consideration, regarding the question, as to whether the offence under Section 27(2)(c) of the Kerala Forest Act was committed or not. Thereafter, PW5 was examined and Ext.P5 and P5(a) were marked on the side of the prosecution. The accused were again questioned under Section 313 of the Code of Criminal Procedure, on the basis of further evidence and thereafter, no defence evidence was adduced. After 3 Crl. R.P. No.301 of 2004 considering the evidence on record, the leaned magistrate again found the revision petitioners guilty under Section 27 (1)(g) and 27(2)(c) of the Kerala Forest Act and convicted them there under and sentenced them to undergo rigorous imprisonment for three months each for the offence under Section 27(1)(g) of the Act and further sentenced to undergo rigorous imprisonment for one year and also to pay a fine of ₹ 1,000/-, in default to undergo simple imprisonment for one month each under Section 27(2)(c) of the Act and directed the substantive sentence is to run concurrently. 5. Aggrieved by the same, the revision petitioners preferred appeal before the Sessions Court, Manjeri, as Crl. Appeal No.129/2000 and it was dismissed by the Additional District and Sessions Judge (Ad hoc), Fast Track-I, Manjeri, by judgment dated 16.06.2003, which is being challenged by the revision petitioners before this Crl. R.P. No.301 of 2004 4 court by filing the above revision. 6. Heard the learned counsel for the revision petitioners and learned Special Government Pleader for Forest. 7. The learned counsel for the revision petitioner submitted that, the revision petitioners were acquitted by the Sessions Judge earlier in Crl. Appeal No.97/1992 for the offence under Section 27(1)(g) of the Act and the case was remanded only for the purpose of considering the question of commission of offence under Section 27(2)(c) of the then Act. So, the courts below were not justified in convicting the revision petitioners for the offence under Section 27(1)(g) of the Act again and the same is liable to be set aside, as it is beyond the scope of remand. 8. He had also argued that, they have not produced the original notification showing the place from 5 Crl. R.P. No.301 of 2004 where the alleged incident happened is a reserve forest and no notification as required under Section 19 of the Act has been produced. The document produced is not the notification required to be produced under Section 19 of the Act and it has not been properly proved as known to law as well. So as such, the notification cannot be said to be proved, so as to come to the conclusion that, the incident occurred within the reserve forest area. So, the Courts below were not justified in convicting the appellant for the offence under Section 27(2)(c) of the Act. He had also argued that, they have not cut and removed any trees and mere stacking of logs will not amount to an offence. Further, there is no acceptable evidence adduced to prove that, the identity of the accused persons have been established by the prosecution beyond reasonable doubt, as the evidence will go to show that, the prosecution witnesses have no prior acquittance with the accused persons. There Crl. R.P. No.301 of 2004 6 is nothing mentioned in the mahazar that, they were known to PW1 even earlier. So under the circumstances, the courts below were not justified in coming to the conclusion that the prosecution has proved beyond reasonable doubt that the accused have committed the offence and as such, they are entitled to get acquittal of the charge levelled against them, giving them the benefit of document. 9. On the other hand, the learned Government Pleader for Forest argued that, in the case of a vested forest on the date of notification itself the private forest is vested with the Government and by virtue of the deeming provision, it will be deemed to be reserve forest as well and as such non production of the notification, if any is not fatal in such cases. Only the case of reserve forest, it must be proved by the prosecution by producing the notification required under Section 19 of the Kerala Forest Act. Further Ext.P5 and P5(a) were produced and marked through PW5 7 Crl. R.P. No.301 of 2004 and it is noted in the deposition itself that, the original was produced and it was verified and then photostat copy produced was marked. That was not objected by the counsel for the accused in the lower court. So at this stage, the revision petitioner has not entitled to challenge the same, as it has to be presumed that, court have verified the original and allowed the photocopy marked through the witness. So the notification has been produced and it has been marked through witness and it was established that it is a forest area. 10. Further the evidence of PW1 will go to show that, he had seen the accused persons attempting to remove the timber logs and they have no business to come to the forest area and thereby the offence under Section 27(2)(c) of the Act is attracted. So according to the learned counsel, the prosecution has proved the guilt of the accused and there is no interference called for, as both the court below, 8 Crl. R.P. No.301 of 2004 on facts found that the prosecution has proved the guilt of the accused beyond reasonable doubt. The revisional court cannot re-appreciate the evidence at this stage. 11. Earlier the accused were charge-sheeted for the offence under Section 27(1)(g) and 27(2)(c) of the Kerala Forest Act then stood. Earlier PWs 1 to 4 were examined and Exts. P1 to P4 were marked to prove the case of the prosecution and after the evidence, the trial court found the revision petitioners guilty under Section 27(1)(g) and 27(2)(c) of the Act and convicted them for the said offences and sentenced them to undergo rigorous imprisonment for one year under Section 27(2)(c) of the Act and also sentenced to undergo rigorous imprisonment for one year and also to pay a fine of ₹ 1,000/-, in default to undergo simple imprisonment for three months for the offence under Section 27(1)(g) of the Act. That was challenged by the revision petitioners by filing Crl. Appeal 9 Crl. R.P. No.301 of 2004 No.97/1992 before the Sessions Court, Manjeri, and the Sessions Court allowed the appeal and set aside the finding of guilt of the accused under Section 27(1)(g) of the Act and acquitted them of that charge, but remanded the case only for the purpose of considering the question of commission of offence under Section 27(2)(c) of the Act, as the notification has not been produced and proved by the prosecution. After remand, PW5 was examined and Exts.P5 and P5(a) were marked on the side of the prosecution. P5 is the copy of the notification showing the disputed area, as part of the private forest vested in the Government under the provisions of the Kerala Private Forest Vesting and Assignment Act. After remand, the trial court again found the revision petitioner guilty under Section 27(1)(g) of the Act also and this was confirmed by the appellate court in Crl. Appeal No.129/2000. 12. There is some force in the submission made 10 Crl. R.P. No.301 of 2004 by the counsel for the revision petitioners that, courts below were not justified in convicting the revision petitioners for the offence under Section 27(1)(g) of the Act, as the appellate court earlier acquitted them of that charge and remanded the case only for the purpose of considering the question of commission of offence under Section 27(2)(c) of the Act alone. So once the appellate court has earlier found that, the revision petitioners have not committed any offence under Section 27(1)(g) of the Act and acquitted them of that charge and remanded the case only for the purpose of considering the question of commission of offence under Section 27(2)(c) of the Act, the courts below were not justified in again convicting the accused persons for the offence under Section 27(1)(g) of the Act. So, the courts below have committed illegality in further reappreciating the evidence for the consideration of commission of offence under Section 27(1)(g) of the Act, for 11 Crl. R.P. No.301 of 2004 which, the appellate court had earlier granted benefit of doubt and acquitted them of that charge. So the finding of the courts below that the revision petitioners have committed the offence under Section 27(1)(g) and consequential sentence imposed are unsustainable in law and the same is liable to be set aside and the revision petitioners are entitled to get acquittal of the charge under Section 27(1)(g) of the Act. 13. Considering the fact that, it is noted in the deposition of PW5 that, the original notification has been produced, it was verified and the copy of the document was allowed to be marked itself, will go to show that, the court is satisfied with the copy produced, after verifying the original and it was only thereafter, the copy was allowed to be marked in evidence. So under the circumstances, it cannot be said that, the notification has not been produced and proved in accordance with law, as contended by the Crl. R.P. No.301 of 2004 12 counsel for the revision petitioner. So under the circumstances, it cannot be said that, the notification has not been proved in accordance with law. 14. As regards the offence under 27(2)(c) of the Act is concerned, the prosecution relied on the evidence of PWs 1, 2 to 4 and PW5 and Ext.P1 mahazar and P5 and P5 (a) notifications and relevant entry regarding this area in the notification. Section 27(2)(c) of the Kerala Forest Act then stood reads as follows: ## **27. Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests** .- (1) Any person who - - x x x (2) Any person (a) x x x (b) x x x (c) trespass or pastures cattle or permits or causes cattle to trespass; or x x x x shall be punished with imprisonment for a term which may extend to 3 years or with fine which may extend to One thousand Rupees or with both. 15. In order to establish the offence, it must be 13 Crl. R.P. No.301 of 2004 proved by the prosecution that, the accused have trespassed into the forest area. PW1 is the Forest Guard who had first seen the incident. According to him, he was working as Forest Station Guard of Karuvarakundu Forest Station in Kalikavu Range. On 18.05.1989, while he was doing patrol duty as usual and when he was examining Arakkuparamba Bhagam, he found the accused persons stacking the timber logs and by the time he reached there they ran away from the place. Though he chased them, he could not catch them. Thereafter, he came there and prepared Ext.P1 mahazar. He had further stated that the place is situated within 23 hectors of land vested in the Government. He had also stated that except himself, none had seen the incident. He had further stated that, he did not arrest the accused persons from that place and he had no prior acquaintance with the accused persons and he had come to understand the names of the persons by enquiring 14 Crl. R.P. No.301 of 2004 with the neighbouring persons. So it is clear from this that he had no prior acquaintance with the accused persons and it is not known from whom he had made enquiries to identify the accused persons, as the persons, who had committed the crime as well. He had also stated that, he did not see the accused persons cutting the trees and he had not seen any weapons used for cutting the trees in the hands of the accused persons. He had no case that, he had later identified the accused persons during the course of investigation as well. The evidence of PWs 2 to 5 is not helpful to prove the identity of the accused persons, as the persons who had committed the crime. Even in Ext.P1 mahazar, he had no case that, he had prior acquaintance with the accused persons and he knew them earlier. There was no mention regarding the same in Ext.P1 mahazar as well. Further in Ext.P1, it was not mentioned that he had inquired about the identity of the accused persons from Crl. R.P. No.301 of 2004 15 somebody else and it was on that basis that he had mentioned the names of the accused persons in Ext.P1 mahazar. So under the circumstances, there is some force in the submission made by the counsel for the revision petitioners that, the prosecution has failed to prove the identity of the accused persons, as the persons who had trespassed into the forest area, even assuming that the offence was committed from a forest area. 16. These aspects were not considered by the courts below at all, but they simply came to the conclusion on the basis of evidence of PW1 that the prosecution has proved beyond reasonable doubt that, the accused have trespassed into the forest area and committed the offence. In the absence of any convincing evidence regarding the identity of the accused persons, as the persons who have committed the crime, it cannot be said that the prosecution has proved beyond reasonable doubts that the accused have 16 Crl. R.P. No.301 of 2004 trespassed into the forest area and committed the offence under Section 27(2)(c) of the Act and as such, the finding of the court below that, the prosecution has proved beyond reasonable doubt that, the accused have committed the offence under Section 27(2)(c) of the Act is unsustainable in law and the same is liable to be set aside and the revision petitioners are entitled to get benefit of doubt and they are entitled to get acquittal of the charge levelled against them for offence under Section 27(2)(c) of the Act, giving them the benefit of doubt. 17. As regards the identity of the property is concerned, PWs 1 to 5 has categorically stated that, it was from Arakkaparamba vested forest land that the offence has been committed. In order to prove the same, they have produced Ext.P5 copy of the notification and proved Ext.P5 (a), as the area relating to the present disputed land. The case of the prosecution was that, it was a vested forest and 17 Crl. R.P. No.301 of 2004 deemed to be reserve forest under the provisions of the Kerala Private Forest Vesting and Assignment Act, 1975. ## 18. **In the decision reported in 1978 KLT 646 (Range Officer v. Aisumma)** , it has been held that: “Section (4) of the Private Forests (Vesting and Assignment) Act, 1971, clearly states that all private forests vested in the Government under sub-section (1) of S.3 shall, so long as they remain vested in the Government, be deemed to be reserved forests constituted under the Kerala Forest, Act 1961 (Act 4 of 1962) and the provisions of that Act shall, so far as may be apply to such private forests. Therefore, in the light of the deeming provision in S.4 of Act 26 of 1971 there is no necessity for the issue of a notification under S.19 of the Kerala Forest Act [Act 4 of 1962] in respect of a private forest vested in the Government under subsection (1) of S.3 of Act 26 of 1971] to constitute the same as a reserved forest, so long as it remained vested in Government.” 19. So it has clear from the above decision that, in respect of private forest vested in the Government by virtue of Private Forest Vesting and Assignment Act, 1971, there is no necessity to issue any further notification declaring that as a reserve forest, as contemplated under Section 19 of the Kerala Forest Act, as by virtue of the Crl. R.P. No.301 of 2004 18 deeming provisions under Section 4 of the Kerala Private Forest Vesting and Assignment Act, 1971, it will be deemed to be a reserve forest and the provisions of the Kerala Forest Act, 1961, as far as will be applicable to this area as well. 20. In the decision reported in **1988 (1) KLT 92 (Assistant Collector of Central Excise v. Vasanthakumar)** , a Division Bench of this court has held that: A notification issued under the statute by executive is law and judicial notice can be taken of it and Section 57 of evidence Act will be applicable in such cases. Mere non production of the notification is not fatal in such cases. 21. In the decision reported in **1970 KLT 991 (Executive Officer Chalakudy Panchayat v. V.P. Devassy)** , it has been held that: Crl. R.P. No.301 of 2004 19 Notification bringing a law into force, then it must be taken judicial notice of by the court under Section 57 of the Evidence Act. When a notification is being issued by an executive by virtue of the delegated power under the parent Act, then such notifications issued by the executive will have the force of law, which has to be taken judicial notice of by the courts. 22. In the decision reported in **1977 KLT 691 (A.M Antony v. Forest Range Officer)** , it has been held that: Before a person can be held victim under Section 27 of the Kerala Forest Act, it has to be proved that the act Complained of was done in a reserve forest. This is an important ingredient of the offence. Section 57 of the Evidence Act speaks of the relevant provision of the law on the point regarding the proof of notification etc. There are certain notifications which a court is entitled to take judicial 20 Crl. R.P. No.301 of 2004 notice of. The notification in question is not one coming under this category. It is an executive in character and is done, which court cannot take judicial notice of under Section 57 of the Evidence Act. So, there is a burden cast on the prosecution to pr,oduce the notification to prove that the area in question is part of the reserve forest, so as to find the accused guilty for the offence under Section 27 of the Act. 23. In the decision reported in **2012 (2) KHC 416 (Sivaraman and Others v. State of Kerala)** , it has been held that: If the certified copy of the notification has been produced, then that will be sufficient to prove the notification and it must be certified by the head of the department as true copy. But it was a case of reserve forest and not a vested forest. 24. In respect of the vested forest, this court in Crl. R.P. No.301 of 2004 **==> picture [13 x 9] intentionally omitted <==** the decision reported in **2012 KHC 231 (Kunjali and others v. Forest Range Officer and another)** relying on the decision reported in **A.N. Antony's case** (supra) held that: Non production of notification under Section 19 of the Forest Act is not fatal in such cases. Further it has been specifically mentioned in the mahazar that it is a vested forest. 25. Further PW5 was examined to prove Ext.P5 notification and item 34 was marked as Ext.P5(a), as the area relating to Arakkaparamba vested forest having an extent of 23 hectors. Further none of the accused persons have any case that they have got any right in that property. Further it was noted in the deposition of PW5 that, the original of the notification was produced and the photostat copy attested by the Assistant Public Prosecutor was marked. Crl. R.P. No.301 of 2004 22 26. In view of the discussions made about, the findings of the court below that, the prosecution has proved the case against the revision petitioners beyond reasonable doubt and the consequential conviction and sentence passed by the court below, against the revision petitioners are unsustainable in law and the same are liable to be set aside. The revision petitioners are entitled to get acquittal of the charge levelled against them, giving them the benefit of doubt. In the result, the revision petition is allowed and the order of conviction and sentence passed by the Judicial First Class Magistrate Court, Perinthalmanna, under Section 27(1)(g) and 27(2)(c) in case No.O.R.33/89 of Karuvarakundu Forest Station and confirmed in Criminal appeal No.129/2000 of the Additional District and Sessions Court (Ad hoc), Fast Track-I, Manjeri, are hereby set aside. The revision petitioners are acquitted of all the charges Crl. R.P. No.301 of 2004 23 levelled against them, giving them the benefit of doubt. Office is directed to communicate this order to the court below and sent back the records to the court below at the earliest. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss