Prabhakaran Pillai & Basheer @ Kunjan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** **Crl.Rev.Pet.No.1428 OF 2008** **AGAINST THE JUDGMENT IN CRA 386/2007 DATED 22-01-2008 OF III ADDITIONAL SESSIONS JUDGE, KOLLAM** **CC 68/2003 DATED 24-05-2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II(FOREST OFFENCES), PUNALUR** ## **REVISION PETITIONERS/APPELLANT/ACCUSED:** **1 PRABHAKARAN PILLAI, S/O. THANKAPPAN PILLAI, KEEZHOOTTUVADAKKETHIL, 30 ACRE, KULATHUPUZHA VILLAGE, KOLLAM. 2 BASHEER @ KUNJAN, S/O. KUNJUMUHAMMED, SABEEN MANZIL, 30 ACRE, KULATHUPUZHA VILLAGE, KOLLAM.** **BY ADV. SRI. SIJU KAMALASANAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER, THENMALA.** **SRI. M. S. BREEZ, SR.PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.1428 OF 2008** **2** ## **ORDER** ## **Dated this the 9th day of October, 2020** This Criminal Revision is directed against the judgment dated 22.01.2008 in Crl.Appeal No.386/2007 of the III Additional Sessions Judge, Kollam, confirming the conviction and sentence rendered in C.C No.68/2003 on the file of the Judicial First Class Magistrate Court–II (Forest Offences), Punalur. The revision petitioners are accused Nos.4 and 6 in C.C.No.68/2003 on the file of the Judicial First Class Magistrate Court–II (Forest Offences), Punalur and the appellants in Crl.Appeal No.386/2007 on the file of the Additional Sessions Court-III, Kollam. The offence alleged against the accused 4 and 6 is punishable under Section 27 (1) (e) (iv) of the Kerala Forest Act, 1962 (hereinafter referred to as 'the Act'). 2. The prosecution case in brief is that, on 19.02.2002 the accused 1 to 6 trespassed into the 1960 Match Wood plantation, which is coming under the category of reserve **Crl.Rev.Pet.No.1428 OF 2008** **3** forest and cut and felled two dried stump of two teak trees from the said plantation and thereafter sliced into pieces and attempted to remove the same causing a loss of Rs.4,000/- to the Government. Thus the accused 1 to 6 are alleged to have committed the offence punishable under Section 27 (1) (e)(iii) & (iv) of the Act. 3. The crime was registered for the offence under Section 27 (1)(e)(iii) & (iv) of the Act against the accused. After completion of investigation, a complaint was lodged before the trial court. 4. During the trial of the case, PW1 to PW6 were examined and marked Exts.P1 to P10 on prosecution side. On closing the evidence of the prosecution, accused Nos.1, 2 and 4 to 6 were questioned under Section 313 (1) (b) of Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. A3 had absconded and the case against him was re-filed as C.C No.63/2007. 5. Heard the learned counsel for the revision petitioners/accused 4 and 6 and the learned Public Prosecutor for the State. **Crl.Rev.Pet.No.1428 OF 2008** **4** 6. PW1, the forest guard of Kalluvarambu section, testified that on 19.02.2002 while he was doing patrol duty along with other staff in Kulathupuzha 1960 Match Wood plantation, they heard the pruning sound of cutting and removing trees, whereupon they proceeded towards the spot. When they reached the spot, they found some persons cutting timber pieces. According to PW1, on seeing the forest officials, the accused took to their heels. However, the forest officials chased them and apprehended A4 and A6 on the spot itself. According to PW1, on being questioned, they disclosed their names and addresses and also that of the other accused, who ran away from the spot. A pruning saw, which was used for sawing the timber pieces was recovered from the place. PW1 further stated that the Government sustained a loss of Rs.4,000/- on account of the illegal act of the accused. He prepared Ext.P1 mahazar and arrested A4 and A6 from the spot. PW1 further stated that he has recorded Exts.P2 and P3 confession statement of A2 and A3. 7. PW2 and PW3 are two official witnesses to Ext.P1 mahazar prepared by PW1. PW2 identified MO1 before court. **Crl.Rev.Pet.No.1428 OF 2008** **5** 8. PW4, the then Forest Range Officer supported the version of PW1 to PW3. According to him, due to the alleged act of the accused the Government sustained a loss of Rs.4,000/-. During the course of investigation, PW4 recorded Exts.P2 and P3 confession statements of A4 and A6, respectively. PW5, the Range Officer submitted Form-II report before court along with Ext.P10 notification to prove that the place of occurrence is coming within the reserve area as defined under the Act and the Rules framed thereunder. 9. The learned counsel for the revision petitioners/accused 4 and 6 contended that Ext.P10 notification issued under Section 19 of the Act had not been proved in accordance with law and as such the conviction and sentence imposed against the revision petitioners/accused 4 and 6 are _prima facie_ unsustainable. The learned counsel for the revision petitioners/accused 4 and 6 further contended that Ext.P10 is only a copy of the notification signed by the Chief Conservator of Forest, Southern Region, Kollam. According to the learned counsel, the notification issued by the Government under Section 19 of the Act has to be proved in **Crl.Rev.Pet.No.1428 OF 2008** **6** accordance with law under Sections 78, 74 and 65 of the Evidence Act. Relying on the decision reported in _**Chacko Pyli and others v. State of Kerala**_ [1966 KLT 102], it is contended that in case when the original is a public document within the meaning of Section 74 of the Evidence Act or in case when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence, it is mandatory under Section 65 of the Evidence Act to prove the document in accordance with law and no other kind of secondary evidence is admissible. 10. Per contra, the learned Senior Public Prosecutor submitted that it is not practically possible to produce the original notification invariably in all forest cases as evidence. It is further submitted that examination of Chief Conservator of Forest to prove the notification is practically not possible. It is further submitted that being a notification issued in the Gazette, the Court is empowered to take judicial notice under Section 57 of the Evidence Act. What has been produced is the copy of the Gazette notification duly signed by the Chief **Crl.Rev.Pet.No.1428 OF 2008** **7** Conservator of Forest in exercise of his official functions, it has been submitted. 11. Ext.P10 is a notification issued under Section 18 of Regulation II of 1068 dated 17.09.1901 specifying Kulathupuzha Reserved Forest No.2, Pathanapuram, Shencottah Taluk, Anchal and Pullarali Village having an area of 120 sq. miles as reserved forest. In Ext.P10 notification the boundaries are clearly specified. The following are the boundaries of the Kulathupuzha Reserved Forest No.2:- ## _Boundary:_ _“North : Quilon Shencottah road East : The water shed between Travancore and Tirunelvely river from Ariyankavu Kottavasal to Alacurrichy Peak. South & West : From Alacurrichy, the Kulathupuzha river to the Parappanar bridge, thence public road. Remarks : Coffee and teak Estates are excluded. Also all private lands (adjudged) to be such by FSO will be assumed or exclud_ ed.” 12. According to PW1, he prepared Ext.P1 mahazar on the spot. On a perusal of Ext.P1 mahazar, there is nothing to indicate that the alleged occurrence took place within the **Crl.Rev.Pet.No.1428 OF 2008** **8** boundaries specified in Ext.P10 notification issued by the competent authority. Since Kulathupuzha Reserved Forest No.2 is situated within specified boundaries, it is essential on the part of the officer concerned to specify the exact boundaries in Ext.P1 mahazar to prove that the occurrence took place within the reserve forest as stated in Ext.P1 mahazar. 13. Coming to the validity of Ext.P10 notification, separate mode of proof is provided under Sections 78, 74 and 65 of the Evidence Act to prove a certified copy of the notification. In Paragraph 5 of _**Chacko Pyli's case**_ (supra), a Division Bench of this Court held as follows:- _“5. A court is not under S.57 of the Evidence Act entitled to take judicial notice of a notification issued by the Government under S.19 of the Act. But such a notification is a public document within the meaning of S.74 of the Evidence Act. What is the mode of proof of the contents of the notification. The publication of the notification has to be in the Gazette. S.78 of the Evidence Act prescribes special modes of proving the contents of various kinds of public documents. S.61 of the Evidence Act embodies the rule that “contents of documents may be proved either by primary or secondary evidence”. 'Primary evidence' is defined in S.62 while S.63 gives an inclusive definition of_ **Crl.Rev.Pet.No.1428 OF 2008** **9** _'secondary evidence'. The contents of public documents can also be proved by production of secondary evidence. S.65 allows secondary evidence being given when the original is a public document within the meaning of S.74. In case when the original is a public document within the meaning of S.74 or in case when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India to be given in evidence S.65 of the Evidence Act says that certified copy the document but no other kind of secondary evidence is admissible. If the official Gazette containing the notification under the Act is produced in court it has to presume its genuineness under S.81 of the Act. In view of these provisions of the Evidence Act, it was the duty of the prosecution to have established one of the ingredients of the offence viz., that the act complained of was done in a Forest constituted as a Reserved Forest by the issue of a notification under S.19 of the Act and by the publication of the same in the Gazette, either by the production of the Gazette or by a certified copy of the notification and adduce evidence of the publication of the same in the Gazette. No other evidence is admissible in the case.”_ 14. Admittedly, Ext.P10 is a signed copy of the notification issued by the competent authority. No doubt, the notification is a public document within the meaning of Section 74 of the Evidence Act. The publication of the notification was done in the Gazette in accordance with Section 78 of the Evidence Act. Section 65 of the Evidence Act permits **Crl.Rev.Pet.No.1428 OF 2008** **10** secondary evidence being given when the original is a public document within the meaning of Section 74 of the Evidence Act. The official Gazette containing the notification has not been produced before the trial court to presume the genuineness under Section 81 of the Evidence Act. What has been produced is only a copy of the original notification. Hence, it was the duty of the prosecution to prove that the act complained of was done within the reserve forest in accordance with the notification under Section 19 of the Act. The said notification is to be proved either by production of the Gazette or by a certified copy of the notification before the court. In this case, the original of Ext.P10 notification is not produced before the trial court. The certified copy is also not produced. 15. In this case Ext.P10 notification has not been proved in accordance with law. Ext.P10 is neither the original nor a certified copy. It is only a copy of the notification signed by the Chief Conservator of Forest. This is not seen certified as true copy by anybody. Just because it contains the seal of an officer, it cannot be said to be a true copy or a copy **Crl.Rev.Pet.No.1428 OF 2008** **11** certified by him. In _**Kanthaswami v. State of Kerala**_ [2019 (2) KLT 113], this Court held that the notification, as required under Section 19 of the Act, has to be proved in accordance with law. The notification has not been proved in this case. There is no evidence to show that the alleged occurrence took place within the reserve forest as detailed in Ext.P10 notification. 16. Judged by the above standards, this Court is of the view that the trial court and the appellate court erroneously appreciated the evidence and wrongfully convicted and sentenced the accused 4 and 6 for the offence punishable under Section 27 (1) (e) (iv) of the Act. Thus, the conviction and sentence imposed by the trial court as confirmed in appeal are liable to be set aside. 17. In the result, the Crl. Revision Petition is allowed. The revision petitioners/accused 4 and 6 are found not guilty of the offence under Section 27 (1)(e)(iv) of the Kerala Forest Act, 1962 and they are acquitted thereunder. Cancelling their bail bonds, this Court directs that they be set at liberty. If any fine amount is deposited during the pendency of the **Crl.Rev.Pet.No.1428 OF 2008** **12** proceeding pursuant to an interim order passed by this Court, the same shall be refunded to the revision petitioners/accused 4 and 6 in accordance with law. Pending applications, if any, stand disposed of. The criminal revision petition is allowed accordingly. ## **Sd/-** **N.ANIL KUMAR JUDGE** SPR