High Court of KeralaSingle Judge2018-01-30Revision allowed; accused acquitted; conviction...

Soman v. State of Kerala

Case / Petition Number:Crl.R.P. No. 620 of 2009

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. UBAID
Judgment Date: 2018-01-30
Court Decision / Holding: The revision petition is allowed. The petitioner is acquitted of offences under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act. The conviction and sentence in CC 291/1998, affirmed by the Court of Session in Crl.A. No. 194/2000, are set aside.
Final Disposition: Revision allowed; accused acquitted; conviction and sentence set aside.

Parties to the Case

Appellants / Petitioners

Soman, s/o Kesavan

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• K. J. George Kunnumpurath (Adv.)

Counsels for Respondents

• Public Prosecutor, High Court of Kerala; Sri K. P. Madhu (Special Public Prosecutor, for Forest Offences)

Case Synopsis & Summary

This is a Kerala High Court criminal revision petition by Soman (the first accused) challenging a conviction for offences under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act in CC 291/1998 before the Judicial First Class Magistrate, Punalur. The trial court convicted both accused after examining five witnesses and admitting Exts. P1–P6, based largely on statements made during investigation (Exts. P5 and P6) and seizure of teak pieces. No direct eyewitness testimony established trespass or cutting; the accused denied the incriminating circumstances under Sec. 313 Cr.P.C., and no defence evidence was adduced. On appeal, the Second Accused was acquitted while the First Accused’s conviction and sentence were upheld. In the revision, the High Court scrutinized the record and found several infirmities: (i) no one directly witnessed trespass or removal of the standing teak; (ii) Exts. P5 and P6 were not proved to have been properly recorded by the person who purportedly recorded them; (iii) Ext. P4, the Government notification under Section 19, was not properly proved by the officer who certified it; (iv) the notification requirement under Section 19 is a pre-requisite for prosecution under Section 27. Relying on established precedents, including Chacko Pyli and A.M. Antony, the Court held Ext. P4 deficiency fatal and allowed the revision, acquitting the petitioner. The conviction and sentence are set aside.

Provisions of Law Cited

Kerala Forest Act: Sections 27(1)(e)(iii) and 27(1)(e)(iv)Kerala Forest Act, Section 19 (notification)Cr.P.C., Section 313

Legal Doctrines & Maxims

Notification under Section 19 of the Kerala Forest Act is a pre-requisite for prosecution under Section 27 (doctrine)
Copy of Government notification must be properly proved by the person certifying it (A.M. Antony v. Forest Range Officer)
Statements recorded during investigation require proper proof of recording and admissibility (Exts. P5, P6)

Submissions & Arguments

Contentions of Appellants / Petitioners

The accused argued that there was no direct evidence of trespass or tree-cutting; the prosecution relied on statements recorded during investigation (Exts. P5 and P6) and on Ext.P4 purported notification under Section 19. The statements were not properly proved to have been recorded, and Ext.P4 was not proven by the certifying officer. Without direct eyewitnesses and valid notification, the prosecution case collapses, warranting acquittal.

Contentions of Respondents

The State contends that the evidence, including the statements recorded during investigation and Exts. P5–P6, together with the mahazar and seizure, suffices to sustain conviction; Ext.P4 (notification) is a decisive pre-requisite under Section 27, and the apparent lack of proper proof would not necessarily negate the prosecution if corroborating evidence exists.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chacko Pyli & Others v. State Of Kerala	1966 KLT 102	Positive	Division Bench held that a Government notification under Section 19 is a pre-requisite for prosecution under Section 27; applicable doctrine relied upon by the High Court.
State of Kerala v. Adichan Sasi	1975 KHC 136	Mentioned Only	Cited to note a contrary view that a notification under Travancore Forest Act can be deemed under Section 19 in some contexts; not applied in this case.
A.M. Antony v. Forest Range Officer	1977 KLT 691	Positive	Held that a copy of the notification must be properly proved by the certifying officer; used to underscore the need for proof of Ext.P4.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **TUESDAY, THE 30TH DAY OF JANUARY 2018 / 10TH MAGHA, 1939** **Crl.Rev.Pet.No. 620 of 2009** **IN CRA 194/2000 of I ADDL.D.C. & ADDL.MACT,KOLLAM** **IN CC 291/1998 of J.M.F.C.-II(FOREST OFFENCES),PUNALUR** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED** **SOMAN, S/O. KESAVAN, AGED 47 YEARS, VELLACHALIL CHARUVILA VEEDU, URUKKUNNU, THENMALA VILLAGE, PATHANAPURAM.** **BY ADV.SRI.K.J.GEORGE KUNNUMPURATH** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT & STATE** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPECIAL PUBLIC PROSECUTOR SRI. K.P. MADHU, (FOR FOREST OFFENCES)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ds** ## **P.UBAID, J.** - - - - - - - - - - - - - - - - - - - - - - ## Crl.R.P. No. 620 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of January, 2018 ## **O R D E R** The revision petitioner herein is the first accused in C.C.No. 291 of 1998 of the Judicial First Class Magistrate Court-II (Forest Offences), Punalur. He and the second accused faced prosecution in the court below under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act (for short “the Act”) on the allegation that on 05.04.1998, they trespassed into the Government Forest within the Yeroor Reserve (Teak Plantation) of the Anchal Forest Range, and cut and removed a standing teak tree. The offence was detected by some Forest Guards during their usual beat duty. They found the stump of a teak tree on inspection, and accordingly, a mahazar was prepared by them. Later, during investigation, it is alleged, some teak pieces were seen at the homestead of the first accused. These pieces were taken into custody by the Forest Guards ## **Crl.R.P. No. 620 of 2009** **-2-** as per another mahazar, and the fact was reported at the Forest Station. Accordingly, a Form-I report was sent to the court. The Forest Range Officer took over investigation, and he submitted final report in court after investigation. 2. Both the accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them. The prosecution examined 5 witnesses and proved Exts.P1 to P6 documents in the trial court. 3. Both the accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. They did not adduce any evidence in defence. 4. On an appreciation of the evidence, the trial court found both the accused guilty. On conviction, they were sentenced to undergo simple imprisonment for one year each, and to pay a fine of Rs.1,000/- each under the two Sections. ## **Crl.R.P. No. 620 of 2009** **-3-** 5. Aggrieved by the judgment of conviction dated 05.09.2000, the accused approached the Court of Session, Kollam, with Crl.A.No. 194 of 2000. In appeal, the learned First Additional Sessions Judge, Kollam, found the second accused not guilty, and accordingly, he was acquitted. The appellate court confirmed the conviction and sentence against the first accused, and accordingly, the appeal brought by him was dismissed. Now the first accused is before this Court in revision, challenging the legality and propriety of the conviction and sentence. 6. On hearing both sides, and on a perusal of the entire materials, I find that there are some factual and legal infirmities in this case, the benefit of which must go to the accused. 7. Admittedly, nobody had seen the accused trespassing into the forest, or cutting or removing any standing tree. The whole prosecution is based on the statements given by the accused during investigation. The ## **Crl.R.P. No. 620 of 2009** **-4-** evidence given by PW1 and PW2 is that during their beat inspection, they saw the stump of a teak tree, and this fact was reported at the Forest Station. Later, they saw some teak pieces at the homestead of the first accused. These pieces were taken into custody, and a mahazar was prepared there also. It appears that the case was investigated by the Forest Range Officer, examined as PW3. PW5 is the Section Forest Officer, who verified the mahazar. The Form-I report was sent to court by the Range Officer. The prosecution mainly relies on the Ext.P5 statement (given by the first accused?), and the Ext.P6 statement (given by the second accused?). These two statements were marked during trial, but the statements are not seen properly proved by the person who recorded it. 8. Ext.P5 is said to be the statement given by the first accused. This shows that it was recorded by the Section Forester. He was examined as PW5. He has no case that he had recorded the statement of the first accused. The **Crl.R.P. No. 620 of 2009** **-5-** statement also contains the seal and signature of the Forest Range Officer. He was examined as PW3, and the statement was marked through him. He has also no case that he had recorded the statement of the first accused. Then it is not known who recorded the Ext.P5 statement of the first accused, or when or how it was recorded. 9. Admittedly, the accused were not arrested by any Forest Official. The prosecution was brought by the Forest Range Officer on the basis of the alleged seizure, and also the statements given by the accused. For the accused to give a statement, he must be either arrested by the Forest Officials, or he must have been given notice later for appearance to record the statements. There is nothing to show that any such notice was given to the accused at any time for recording statements. Admittedly, the accused was not arrested on the spot. PW3 or PW5 has no case that he had recorded the statement of any of the accused. In such a situation, the Ext.P5 statement is inadmissible in evidence, ## **Crl.R.P. No. 620 of 2009** **-6-** and on the basis of this statement, a prosecution cannot be built. 10. It is well settled that for a prosecution under Section 27 of the Act, the notification issued by the Government under Section 19 of the Act is a pre-requisite. This is settled by a Division Bench of this Court in **Chacko Pyli & Others** v. **State Of Kerala** (1966 KLT 102). Of course, in **State of Kerala** v. **Adichan Sasi** (1975 KHC 136), this Court held that a notification issued under the Travancore Forest Act can be deemed to be a notification under Section 19 of the Act. Ext.P4 is said to be the Government notification. This is not a notification under the Kerala Forest Act, or under the Tranvancore Forest Act, or under the Tranvancore-Cochin Forest Act, 1951. This is a true copy certified by the Principal Chief Conservator of Forest. But he is not seen examined to prove the copy of the notification. In **A.M. Antony** v. **Forest Range Officer** (1977 KLT 691), this Court held that the copy of the **Crl.R.P. No. 620 of 2009** **-7-** notification must be properly proved by the person who certified it. But in this case there is no such evidence proving the Ext.P3 notification. This also is a legal infirmity affecting the prosecution case. In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offences under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act, and he is acquitted of the said offences in revision. Accordingly, the conviction and sentence against the revision petitioner in C.C. No. 291 of 1998 of the trial court, confirmed in appeal by the Court of Session, Ernakulam, in Crl.A.No. 194 of 2000, will stand set aside. Sd/- **P.UBAID** **JUDGE** ds 01.02.2018 //True Copy// P.A. To Judge