Santhosh and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941** **Crl.Rev.Pet.No. 4175 of 2006** **AGAINST THE ORDER/JUDGMENT IN CRA 234/2004 of COURT OF SESSIONS PATHANAMTHITTA DATED 11-08-2006** **AGAINST THE ORDER/JUDGMENT IN CC 232/2001 of JUDICIAL MAGISTRATE OF FIRST CLASS ,RANNI DATED 06-07-2004** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED:** **1 SANTHOSH, S/O.RAJAPPAN CHARIVUKALAYIL, VADASSERIKKARA, RANNY.** - **2 SYAMKUMAR S/O. RAJAPPAN CHARIVUKALAYIL, -DO- -DO-.** - **3 MOHANAN S/O. BABY KARUVELIL, VADASSERIKKARA, RANNY.** - **4 JOHN M.GEORGE S/O. GEORGE MELETHU HOUSE, VADASSERIKKARA, RANNY.** ## **BY ADV. SRI.MANU RAMACHANDRAN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 FOREST RANGE OFFICER VADASSERIKKARA.** ## **BY ADV. PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **PP REVIKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No. 4175 of 2006 2 **C.R.** ## **O R D E R** This revision petition is filed by the accused challenging the judgment passed by Court of Sessions, Pathanamthitta dismissing Crl.A No.234/2004, confirming the finding of guilt of the revision petitioners for the offences punishable under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act, 1961 (for short 'the Act') and imposing punishment of simple imprisonment for one year, fine of Rs.1,500/- and default sentence of one month and simple imprisonment for one year respectively for the aforesaid offences. 2. It is urged by Sri.Manu Ramachandran, the learned counsel for the revision petitioners that the judgment under challenge suffers for wrong appreciation of evidence. According to him, to establish its case the prosecution has relied on the versions of official witnesses examined before the Court as PW1 to PW9 and documentary evidence adduced as Exts.P1 to P4. The documentary evidence also takes in, the confession statements of the accused recorded by PW6 and PW8, who are none other than the Forester, Thaannithodu and the Range Officer, Vadasserikkara. Exts.P6 to P13 are the confession statements recorded. Altogether the accused allegedly involved in the commission of the offences are four in numbers. All of Crl.Rev.Pet.No. 4175 of 2006 3 them had faced trial jointly. The argument of the learned counsel was that the finding on guilt of the accused was arrived at by the Court based on the confession statements recorded from the accused and the corroborative oral evidence tendered by official witnesses. According to him, for attracting the offence, the act alleged must be established as committed within a reserve forest. To establish that, the document relied on by the prosecution is Ext.P3, which is only a photocopy of the Notification. According to him, the trial court as well as the appellate court relied on it to take a view that the accused have committed the alleged act within a reserve forest notified by the Government. 3. The contention of the learned counsel based on Ext.P3 was that, it being only a photocopy of the original, the trial court and the appellate court ought not to have relied on it to rest its finding that the act alleged was committed by the accused within a reserve forest and therefore, they are guilty. Addressing this Court on the above twin aspects, the learned counsel canvassed to reverse the judgment under challenge. 4. Per contra, the learned Public Prosecutor has contended that though the Notification marked as Ext.P3 is only a photocopy of the original one, it being certified by the Forest Range Officer, Vadasserikkara, there is nothing wrong in Crl.Rev.Pet.No. 4175 of 2006 4 treating it as a certified copy of the Notification. According to him, the official witnesses remained consistent in their versions and their versions also corroborate in material particulars of the prosecution case and therefore, the trial court is perfectly right in arriving at a finding that the accused is guilty of the offences. Accordingly, he urged the court to confirm the judgment. 5. The revision petitioners stand accused of committing the offences punishable under Sections 27(1)(c)(iii) and 27(1)(e) (iv) of the Act. There cannot be any dispute that the official witnesses corroborate on their versions tendered that the accused were found by them cutting forest trees and removing those through a water channel on 16.10.2000. But, the corroborative versions of witnesses alone would not suffice to find them guilty for the offences. It is incumbent upon the prosecution to establish that the place where the acts alleged were committed by the accused was part of a reserve forest. 6. A reference to Section 19 of the Act is apposite in the context. The Section speaks about publication of a Notification by the Government in the Official Gazette specifying the limits of forests which it intends to reserve and to declare those as reserve forests from a date fixed by the Notification. It further provides that copies of such Notification shall be published at the headquarters of each Taluk in which any portion of the land Crl.Rev.Pet.No. 4175 of 2006 5 included in such Notification is situated and in every town, village and headquarters of Panchayats in the neighbourhood of such land. The contention of the learned Public Prosecutor was that Ext.P3 depicts a Notification as contemplated under Section 19 of the Act and the trial court and the appellate court are perfectly justified in relying on it to find the accused as guilty for the offences charged against them. 7. Ext.P3 Notification marked in evidence was attested by the Chief Conservator of Forests as true copy of the Notification published on page 1233 of Government Gazette dated 20.11.1917. It is difficult to discern from Ext.P3 whether it is a true copy of the one published by the Government in the Official Gazette dated 20.11.1917 and certified by the Chief Conservator of Forests. It is only a copy of the true copy of the Notification, attested by the Chief Conservator of Forests. Ext.P3 was also found attested by the Forest Range Officer, Vadasserikkara. Copy of the true copy of the Notification attested by the Forest Range Officer, Vadasserikkara was marked in evidence as Ext.P3. The law on the point is well settled that only the original or the certified copy of the original document is admissible in evidence in cases of the nature. Since the copy of a certified copy of the document attested by the Forest Range Officer is available in the case on hand, the courts Crl.Rev.Pet.No. 4175 of 2006 6 below ought not to have relied on the same to reach a finding that the offences alleged have been committed by the accused. 8. **Jose Uthuppan and another v. Forest Range Officer, Panthanamthitta & another [2015(4) KHC 761]** and **Joonus v. State of Kerala [2018(3) KLT 420]** have been relied on by the learned counsel for the revision petitioner in support of his contention that the prosecution is unsuccessful in establishing that the place of occurrence is within a reserve forest. The gist of the dictum in the above rulings was that for an offence under Section 27 of the Act to sustain, it is incumbent on the prosecution to establish that the acts alleged were committed within a reserve forest. It is further held by the above courts that the prosecution must either produce the Official Gazette containing Notification or a certified copy of the Notification in order to establish that the offences alleged were committed inside a reserve forest. Since in the case on hand, the Notification relied on by the prosecution is only a copy of the true copy of the Notification attested by the Chief Conservator of Forests, it cannot be relied on by the prosecution. In order that a document to be treated as a certified copy of a public document, every public officer having the custody of the document shall issue on demand, a copy of it on payment of the legal fee, together with a certificate written on such copy that Crl.Rev.Pet.No. 4175 of 2006 7 it is a true copy of such document or part thereof, as the case may be, and such certificate shall also be sealed, whenever such officer is empowered under law to make use of a seal. Section 77 of the Evidence Act says that certified copies as stated above can be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies. 9. Section 78 of the Evidence At states that Acts, Orders or Notifications of the Central Government in any of its departments or of the Crown Representative or of any State Government or any department of any State Government by the records of the departments, shall be certified by the head of those departments for the purpose of proving the same and adducing those in evidence. Therefore, Notification being a public document, its certification must be in accordance with Section 78 of the Evidence Act or in other words it must be certified by the Head of the Department, who is custodian of it. 10. As already stated, Ext.P3 is nothing but a copy of the Notification signed by the Chief Conservator of Forests and countersigned by the forest Range Officer. Therefore, it is not certified copy of a document and ought not to have been relied on by the trial court to enter into a finding that the acts allegedly constituting the offences were committed by the Crl.Rev.Pet.No. 4175 of 2006 8 accused in a reserve forest and that the guilt of the accused for the offences for which he was charged and tried with are established. 11. In the case on hand Ext.P3 being a copy of the Notification signed by the Chief Conservator of Forests and counter signed by the Forest Range Officer, it cannot be a certified copy and therefore ought not to have been relied on by the trial court as well as the appellate court in finding the accused guilty of the offences alleged. Even if the official witnesses have corroborately stated about the alleged acts, for want of original or certified copy of the Notification, the prosecution case is only to fail. In the result, the Crl.R.P stands allowed. The concurrent findings of the appellate court and that of the trial court are set aside. The bail bonds executed by the accused are cancelled and all of them are set at liberty. Sd/- **MARY JOSEPH** ## **JUDGE** ab/ttb