Santosh S/o Parameswaran Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 9TH DAY OF JUNE 2016/19TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 1081 of 2005 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRIMINAL APPEAL NO. 138/2001 of ADDITIONAL DISTRICT & SESSIONS (ADHOC)FAST TRACK COURT-II, PATHANAMTHITTA DATED 21-03-2005 AGAINST THE JUDGMENT IN CC 907/1997 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,PATHANAMTHITTA DATED 16-09-2001** **REVISION PETITIONER(S)/2ND APPELLANT/2ND ACCUSED:** **-----------------------------------------------SANTHOSH S/O. PARAMESWARAN PILLAI, KULATHUMANNIL THEZHEMANNIL, KULATHUMON, KOODAL VILLAGE, ADOOR TALUK.** **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENT(S)/1[st] RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY DEPUT RANGER, FOREST STATION, PADOM, IN OR.NO.18/1996, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-06-2016, ALONG WITH CRRP. 2562/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. Nos.1081 of 2005 & 2562 of 2012 ---------------------------------------------Dated this the 9[th] day of June, 2016 ## **ORDER** These revision petitions are preferred by the accused against the concurrent judgment of conviction in Crl. Appeal No.138/2001 by the Additional District & Sessions Judge (Adhoc) Fast Track Court-II Pathanamthitta. They were accused in C.C.No.907/1997 before Judicial First Class Magistrate Court-I, Pathanamthitta ((for short 'Act') and convicted u/s.27(1)e III & IV of Kerala Forest Act 1961 and sentenced to simple imprisonment for one year and fine of ₹ 1000/-, in default simple imprisonment for three months. Against that, both accused preferred the above Criminal Appeal before Additional District and Sessions Judge Crl.R.P. No.1081/2005 &con.case 2 (Adhoc) Fast Track Court-II, Pathanamthitta where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, the 2nd accused approached this Court. 2. The case is that on 10.7.1996 morning, the accused cut and removed a teak tree from the teak plantation, which was detected by the forest officers of Padam forest station while conducting beat duty at Pothupara, thereby the Government sustained a loss of ₹400/-. The accused abandoned the logs and ran away on seeing the forest officers. They reported the matter to the Deputy Range Officer, Padam who filed a case against the accused. 3. Normally High Court exercise its revisional jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the Crl.R.P. No.1081/2005 &con.case 3 fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interpreting with the above power. Therefore this jurisdiction as a supervisory power has to use inorder to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. 4. The main contention advanced by the learned counsel appearing for the revision petitioner is that there is inordinate delay of three months in reporting the seizure to the Magistrate, and the procedures were not properly complied with in this case. The address and identity of the revision petitioners were not mentioned in Crl.R.P. No.1081/2005 &con.case 4 Ext.P1 mahazar, therefore that document itself is not sufficient for a conviction. 5. While adverting to the above argument it appears that there is misreading of evidence and both courts had an impression that prosecution substantially established its case. But on perusal of the evidence, it is found that many factors which ought to have been taken in favour of the revision petitioner were omitted by the learned Judges. According to Section 52 of the Kerala Forest Act, when there is reason to believe that a forest offence has been committed in respect of a timber or other forest produce, such timber or produces together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any forest officer or a police officer. Every officer seizing any property under sub-section (1) shall place on such property or the receptacles, if any,in which contained a mark indicating that the same has been so seized, and shall as soon as may be Crl.R.P. No.1081/2005 &con.case 5 make a report of such seizure to the Magistrate having jurisdiction to try the offence, on account of the seizure which has been made. If the offender is not known, the seizing officer shall report the seizure to his official superior. Any forest officer not below the rank of a Ranger, is given power to release the article seized under Section 52, he can release the article on execution of a bond by the owner of property or production so released before the Magistrate having jurisdiction if required during trial. Therefore, it is seen that a forest officer of the rank of Ranger has given power to release the article seized under Section 52. When a forest officer without order of a Magistrate and without a warrant arrest any person on suspected of having committed any forest offence, if such person refuses to give his name and residence or the given name and the residence is false or reason to believe that he will abscond. Such arrested person shall be informed of the grounds of arrest, forthwith take Crl.R.P. No.1081/2005 &con.case 6 them to the nearest police station. The officer-in-charge of the station shall act according to law. Any forest officer is not inferior to the rank of a Ranger, who or whose subordinates have arrested any person under S.63 may release such person on bail on his executing a bond if and when so required before the Magistrate having jurisdiction or the officer-in-charge of the nearest Police Station. 6. In this context, I have examined whether there is any compliance of the statutory provision provided in the Forest Act. The evidence of PW1 shows that on 10.7.1996 while he was working in the Padom Forest Station he conducted beat duty along with PW2 at that time he noticed two persons, the residents of the Retnagiri Estate layam carrying logs, when he approached them, they abandoned the logs and escaped from there, but he could not arrest them. The logs were seized after Crl.R.P. No.1081/2005 &con.case 7 recording it as the Government property and kept in their custody. PW1 prepared Ext.P1 mahazar and Ext.P2 form NO.I report. He examined the stump and recorded the size, girth, length of the logs at the time of preparation of Ext.P1, but it is not co-relating with the seized logs. PW2 supported the oral evidence of PW1 and identified Ext.P1 mahazar and Ext.P2 report. When cross examining of PW1, he admitted that he knew the name and address of the revision petitioners, but they did not disclose the correct address and house number in Ext.P1 seizure mahazar. The time of beat duty was not mentioned in Ext.P1. It is pertinent to note that the forest officials have to record the exact time of beat duty in the mahazar, if such time is not mentioned in Ext.P1 and the time of detection is also not mentioed the details furnished in Ext.P1 are not fully believable. Therefore, more reliable evidence is necessary 8 Crl.R.P. No.1081/2005 &con.case to prove the detection of the offence. The details of the house and number of the layam are not specifically noted in the mahazar. Moreover, the address mentioned in Ext.P1 has no clarity and it is not reliable. 7. The Forest Officer, PW3 has verified Exts.P1 and P1(a), and mentioned the time of visit of PW1 and PW2. But that evidence is not corroborating the evidence of PW1 and PW2. Besides this, the occurrence was on 10.7.1996. Form No.1 was produced before Court on 17.7.1996. The reason for the delay in forwarding the report was also not specifically mentioned in it. **The Forest Officer shall as soon as he gets information, may report the trespass and offence committed and seizure of the article to the Magistrate having jurisdiction to try the case.** Apex Court in Kamalesh Kumar v. State of M.P. [AIR 1985 MP 130] held that Moreover, the delay in Crl.R.P. No.1081/2005 &con.case 9 forwarding the occurrence report to the Magistrate has also not been properly explained by them. Therefore, it is the primary responsibility of the forest officials to collect all materials to fasten the criminal liability upon the accused person. The mere fact that the prosecution witnesses are forest officials is not a ground to discard their evidence in total. In the absence of any hostility towards the accused, the Court cannot throw out the prosecution case on the ground that their evidence is not admissible. When there is no independent evidence, the Court has to examine the evidence whether the materials placed before Court is strong enough to sustain the conviction. It is difficult to obtain independent witness inside the Reserve Forest. In such a circumstances, the question is whether the evidence adduced by the forest officials are believable or not. On a close scrutiny of the Crl.R.P. No.1081/2005 &con.case 10 evidence of PW1 and PW2, it is found that the accused were not identified at the time of preparing Ext.P1. Their address, house number, permanent residence, ration card relating to connect the accused were not verified by the Range Officer or Forester. 8. The general rule is that the substantive piece of evidence is the statement made by a witness in court and the facts which establish the identity of an accused person are relevant under S.9 of the Indian Evidence Act. The evidence of mere identification of the accused person at the trial for the first time is of a weak nature. The evidence should ordinarily clarify as to how and under what circumstances he identified the accused person and the details of the acts played by him in the crime has to be deposed by him with reasonable particularity. The evidence of a prior knowledge about the accused has to be Crl.R.P. No.1081/2005 &con.case 11 proved by the witness either direct or by circumstances, which will strengthen the trustworthiness of that evidence. If such evidence is available it is considered a safe rule for corroboration of the testimony of witnesses in a court of law to prove the identity of the accused. If the accused were strangers to them, an earlier identification proceeding is necessary. On the other hand if the court is satisfied by the evidence of a particular witness, the Court can rely such testimony safely without any other corroboration. The primary object of enabling the witnesses to identify the accused in any offence, who were not previously known to them, prosecution has to furnish evidence to corroborate their testimony in court. In the result, conviction and sentence passed by the trial Court u/s.27(1) e, III and IV of the Kerala Forest Act are set aside. The revision petitioners are acquitted Crl.R.P. No.1081/2005 &con.case 12 and set at liberty. Crl.R.Ps are allowed. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.1081/2005 &con.case 13