Sarasijan and others v. State of Kerala and Forest Range Officer, Goodrickal Forest Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 19TH DAY OF JANUARY 2018 / 29TH POUSHA, 1939** **Crl.Rev.Pet.No. 3076 of 2005** **-----------------------------JUDGMENT IN CRA 272/2003 of SESSIONS COURT, PATHANAMTHITTA DATED 05-09-2005 JUDGMENT IN CC 340/2000 of J.M.F.C., RANNI DATED 8.7.2003** **------------------------** ## **REVISION PETITIONER(S)/APPELLANTS/ACCUSED :-** **------------------------------------------** **1. SARASIJAN, S/O.BHASKARAN, PATHALIL HOUSE, KOCHUKOICKAL, SEETHATHODU, CHITTAR.** **2. SASI (DIED), S/O.BHASKARAN, PATHALIL HOUSE, KOCHUKOICKAL, SEETHATHODU, CHITTAR.** **3. SOMAN, S/O.DAMODHARAN, PUTHUPARAMBIL HOUSE, KOCHUKOICKAL, SEETHATHODU, CHITTAR.** **4. PUSHPARAJAN, S/O.GANGADHARAN, PUTHENTHARAYIL, KOCHUKOICKAL, SEETHATHODU, CHITTAR.** ## **BY ADV.SRI.MANU RAMACHANDRAN** ## **RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :-** **-----------------------------------------------** **1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. THE FOREST RANGE OFFICER, GOODRICKAL FOREST STATION.** **BY SRI.K.P.MADHU, SPL.GOVT.PLEADER FOR FOREST OFFENCES** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.UBAID, J.** ## **-----------------------------------------Crl.R.P. No.3076 of 2005 --------------------------------------------------Dated this the 19[th] day of January 2018** ## **O R D E R** The revision petitioners herein are the four accused in C.C.No.340/2000 of the Judicial First Class Magistrate Court, Ranny. They faced prosecution in the court below under Sections 27 (I) e (iii) and 27 (I) e (iv) of the Kerala Forest Act (for short, 'the Act'), on the allegation that some four days prior to 3.2.1998, they trespassed into the Government Forest within the Goodrical Forest Range of Konni reserve, cut two precious teak trees, sawed the logs into pieces, and tried to remove the pieces from the forest on 3.2.1998. The offence was detected by the Section Forester and the Forest Guards on beat duty within the reserve. They seized the logs as per a mahazar, and produced the materials, including the mahazar before the higher authorities. After verification of the facts, a Form I report was sent to the court, and after investigation, the Forest Range Officer filed final report. All the four accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them. Crl.R.P. No.3076 of 2005 -: 2 :- 2. The prosecution examined five witnesses, and proved Exts.P1 to P7 documents in the trial court. The MO1 and MO2 weapons seized by the forest officials as per the detection mahazar were also identified during trial. All the accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C., and projected a defence of total denial. The accused did not adduce any evidence in defence. 3. On an appreciation of the evidence, the trial court found all the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for one year each, and to pay a fine of `1,000/- each under Sections 27 (I) e (iii) and 27 (I) e (iv) of the Act, by judgment dated 8.7.2003. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Pathanamthitta with Crl.A.No.272/2003. In appeal, the learned Sessions Judge, Pathanamthitta confirmed the conviction and sentence, and accordingly, dismissed the appeal. 4. Pending the revision petition, the 2[nd] accused (2[nd] revision petitioner) died, and the fact of death was recorded in the proceedings on the basis of the death certificate produced by the Forest Range Officer. Crl.R.P. No.3076 of 2005 -: 3 :- 5. On hearing both sides, and on a perusal of the materials, I find that there are certain doubtful circumstances and infirmities in this case, the benefit of which must go to the accused. PW2 is the Section Forester, and PW1 is the Forest Guard, who detected the offence. Their evidence is that during beat duty within the forest, they saw the four accused carrying some logs of teak tree. The two witnesses have no consistent case as regards the arrest of the accused. PW2 would say that the accused were not arrested because, they are familiar to him. It is not known how the accused are familiar to him. He stated that the address and other details were furnished by the accused. There is no explanation how the accused happened to furnish all the details, if they are in fact familiar to him. Any way, the evidence of PW1 is quite contradictory to that of PW2, that the accused were in fact arrested on the spot, but the fact of arrest was not recorded in the mahazar. Of course, the detection mahazar does not show that the accused were arrested on the spot by the Forest Range Officer. When PW1 says that the accused were arrested on the spot, and they were released, PW2 says otherwise that they were not arrested. There is no explanation why the accused were not Crl.R.P. No.3076 of 2005 -: 4 :- arrested on the spot. PW2 says that the statements of the accused were recorded later, but PW1 says otherwise that the statements were not recorded. Thus, these two witnesses are not consistent as regards the recording of statement also. 6. PW4 is the Deputy Range Officer, who claims to have recorded the statements of the four accused. Exts.P4 to P7 are said to be the statements given by the accused. On a perusal, I find that these are stereo type statements. The witness says that the statements were recorded in the presence of independent witnesses. But, nobody was examined by the prosecution. It is not known when the statements were recorded, or how, or on what date the Forest Range Officer recorded the statements. According to him, the accused were not arrested, and they were not later given notice also to give statement. In a case, where the accused were not arrested and released on bail, or in a case where the accused were not given notice for appearance, the Forest Range Officer will have to explain how, or in what circumstance he happened to record the statements of the accused. PW1 is definite that no such statement was recorded by anybody. Here, the Ext.P4 to Ext.P7 statements become doubtful. Crl.R.P. No.3076 of 2005 -: 5 :- 7. It is well settled that in a prosecution like this, the prosecution is bound to produce the copy of the notification issued by the Government under Section 19 of the Act. Ext.P3 is said to be such a copy. This is not in fact a notification issued under Section 19 of the Act. This is also not seen properly certified as true copy by the competent person. It is seen signed by the Chief Conservator of Forest (Protection). It is not known who was the competent person to certify the true copy of the notification. The person who certified the true copy was not examined also by the prosecution. 8. In **Chacko Pyli and Others** v. **State of Kerala** [1966 KLT 102], a Division Bench of this Court held that the notification under Section 19 of the Act duly published in the Gazette is a pre-requisite and it must be proved in evidence also. Only a competent person can certify the true copy of the notification. In **State of Kerala** v. **Adichan Sasi** [1975 KHC 136] this Court held that a notification issued under the Travancore Forest Act, 1068 will deem to be a notification issued under Section 19 of the Act. But, the Ext.P3 document will not show that it is a copy of the notification issued under the Travancore Forest Crl.R.P. No.3076 of 2005 -: 6 :- Act. Of course, in **Adichan Sasi's case** , this Court held that the notification issued under the Forest Act is a public document, and a certified copy issued by the Chief Conservator of Forest is admissible in evidence. But, there is no evidence regarding the actual authority competent to certify the notification, whether it is Chief Conservator of Forest (Protection), or Chief Conservator of Forest (General). Any way, in view of the clear contradiction regarding the arrest of the accused, and also the clear suspicion regarding the recording of statements of the accused by the Deputy Forest Range Officer, I find that the accused will have to be acquitted. I find some infirmities in the prosecution case, and I also find that the evidence regarding the detection, or the presence of the accused in the forest, and also regarding the recording of Exts.P4 to P7 statements is doubtful. The benefit of all these must go to the accused. In the result, the revision petition is allowed. The sentence as against the 2[nd] revision petitioner has become unenforceable under the law due to death. The revision petitioners 1, 3 and 4 are found not guilty of the offence under Sections 27 (I) e (iii) and 27 (I) e (iv) of the Kerala Forest Act, and Crl.R.P. No.3076 of 2005 -: 7 :- they are acquitted of those offences in revision. The conviction and sentence against the revision petitioners 1, 3 and 4 in C.C. No.340/2000, confirmed in appeal by the Court of Session, Pathanamthitta, in Crl.A.No.272/2003 will stand set aside, and they will stand released from prosecution. **Sd/P.UBAID** **JUDGE** //TRUE COPY// P.A. TO JUDGE Jvt/20.1.2018