Vinod and Asharaf v. State of Kerala (Criminal Revision Petition No. 896 of 2006)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 896 of 2006 ( )** **-------------------------------AGAINST THE JUDGMENT IN CRA 110/2002 of III ADDL. SESSIONS JUDGE, KOLLAM DATED 04-02-2006** **AGAINST THE JUDGMENT IN CC 351/1998 of J.M.F.C.-II(FOREST OFFENCES), PUNALUR DATED 27-05-2002** ## **REVISION PETITIONER/APPELLANTS NOS.2 & 3/ACCUSED NOS.2 & 3;:** - **----------------------------------------------------------------------------------------------------** **1. VINOD, S/O. RAGHAVAN, VADAKKEKKARA VEEDU, C-82, NEAR CHOZHIYAKKODU, MILLPALAM, KULATHUPUZHA VILLAGE.** **2. ASHARAF, S/O. YUSUF KUNJU, CHARUVILAPUTHEN VEEDU, MYLAMOODU,, THINKALKARIKKAM VILLAGE.** ## **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT/RESPONDENT/COMPLAINANT::** **---------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER, KULATHUPPUZHA (O.R.NO.12/98) THROUGH THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **P.P. SRI.P.V.ELIAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. ----------------------------Crl.R.P.No.896 of 2006 --------------------------------Dated this the 30[th] day of May, 2016. ## O R D E R The petitioners herein are the two among the three accused (viz., A-2 & A-3) in Calendar Case, C.C.No.351/1998 on the file of the Judicial First Class Magistrate Court-II (Forest Offences), Punalur, who are seeking to challenge the legality, propriety and correctness of the impugned conviction and sentence imposed on them as per the judgment dated 27.5.2002 of that learned Magistrate in that Calendar Case as affirmed by the impugned appellate judgment dated 4.2.2006 of the appellate Sessions Court concerned (Court of III Additional Sessions Court, Kollam) in Crl.A.No.110/2002. The above said Calendar Case arose out of the complaint filed by the Forest Range Officer, Kulathupuzha, against the three accused therein for the alleged offences punishable under Secs.27(1)(e)(iv) and (v) of the Forest Act. 2. The gist of the prosecution case is that the three accused had trespassed into the western bank of the Kallada river flowing through the Mylammoodu area of Kulathupuzha Reserve Forest in Crl.R.P.896/06 - : 2 :- Kulathupuzha Forest Range and unlawfully collected sand from the river and tried to remove the same from the forest area, which resulted in the Government sustaining a loss of Rs.1,000/- and that thereby the accused have committed the aforesaid offences under the Kerala Forest Act. The trial court as per the impugned judgment dated 27.5.2002 in Calendar Case, C.C.No.351/1998, had convicted all the three accused for the aforesaid offences and sentenced them to undergo simple imprisonment for one year each and to pay a fine of Rs.1,000/- each and in default thereof, to suffer simple imprisonment for three months for the offence under Sec.27(1)(e)(iv) of the Forest Act and they are also convicted and sentenced to go simple imprisonment for one year under Sec.27(1)(e)(v) of the Forest Act and the said sentences shall run concurrently, etc. The appellate court dismissed the Crl.A.No.110/2002 as per the impugned judgment dated 4.2.2006, thereby confirming the impugned conviction and sentence imposed on all the three accused. Only accused 2 & 3 have preferred the present Criminal Revision Petition to challenge the above said conviction and sentence rendered against them for the alleged offences. 3. Heard Sri.C.Rajendran and Sri.C.P.Anilraj, learned Crl.R.P.896/06 - : 3 :- Advocates appearing for the revision petitioners (accused 2 & 3) and the learned Prosecutor appearing on behalf of the respondent-State of Kerala. 4. The specific charge framed against the petitioners is that on 7.4.1998, the accused had unauthorisedly entered into the western bank of the Kallada river flowing through the Mylammoodu area of Kulathupuzha Reserve Forest and illegally collected sand from the river and tried to remove the same from the forest and thereby caused a loss of Rs.1,000/- to the State Government and thus committed the offence under Sec.27(1)(e)(iv) and (v) of the Kerala Forest Act, 1961. It is now well established that for sustaining conviction and sentence for the above said offences under Sec.27(1)(e)(iv) and (v) of the Forest Act, 1961, the prosecution should establish that the offence has occurred within the territorial limits of Reserve Forest area as notified under Sec.19 of the Kerala Forest Act,1961, or under such similar enactments. Sec.19 of the Kerala Forest Act, 1961, which deals with notification declaring reserved forest, stipulates that when the proceedings prescribed in the preceding sections have been taken, the Government may publish a notification in the Gazette specifying the Crl.R.P.896/06 - : 4 :- limits of forests which it is intended to reserve and declaring the same to be reserved from the date to be fixed by such notification and copies of the notification shall also be published at the headquarters of each Taluk, in which any portion of the land included in such notification is situate, and in every town, village and headquarters of Panchayats in the neighbourhood of such land and from the date so fixed, the forest shall be deemed to be “Reserved Forest”. Considering various aspects of the matter, this Court in the case Josekutty and anr. v. Forest Range Officer, Pathanamthitta and anr. reported in 2015 (4) KHC 761 = 2015 (2) KLD 568 has held that the notification issued under Sec.19 of the Kerala Forest Act, 1961, is executive in character and not legislative in character. This Court in the ruling in the case Chacko Pyli and Ors. v. State of Kerala reported in 1966 KLT 102 has held that under Sec.57 of the Evidence Act, a court is not entitled to take judicial notice of a notification issued by the Government under Sec.19 of the Kerala Forest Act, 1961. But that such a notification is a public document within the meaning of Sec.74 of the Evidence Act and that Sec.78 of the Evidence Act prescribes special modes of proving the contents of various kinds of public documents and Crl.R.P.896/06 - : 5 :- Sec.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 Sec.62 while Sec.63 gives an inclusive definition of ‘secondary evidence’. The contents of public documents can also be proved by production of secondary evidence and that Sec.65 allows secondary evidence being given when the original is a public document within the meaning of Sec.74. That in case when the original is a public document within the meaning of Sec.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, Sec.65 of the Evidence Act says that certified copy of 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 Sec.81 of the Act. Accordingly, this Court held in the ruling in Chacko Pyli's case (supra) reported in 1966 KLT 102 that in view of the aforequoted 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 Crl.R.P.896/06 - : 6 :- of a notification under Sec.19 of the Act and by the publication of the same in the Gazette, either by 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. It will be useful to refer to the relevant part of the said Division Bench ruling in Chacko Pyli's case (supra) reported in 1966 KLT 102, para 5 thereof, which reads as follows: “5. ..................................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.” 5. This Court in the judgment dated 15.5.2015 in Criminal Revision Petition No.868/2014 in the case Jose Uthuppan & Anr. v. Forest Range Officer, Pathanamthitta, & Anr. reported in 2015 (4) KHC 761 = 2015 (2) KLD 568, held that it is implicit from the provisions of Sec.19 of the Kerala Forest Act, 1961 that the Government has to not only issue the notification, but that the Government also has to publish the same in the official gazette and therefore, it is the duty of the prosecution not only to establish that the notification was issued, but that the prosecution also has to Crl.R.P.896/06 - : 7 :- establish that the said notification was published in the Gazette of Kerala and this can be done either by producing the gazette containing the notification or by producing the certified copy of the notification and adduce evidence of its publication in the gazette. Thus it was reiterated by this Court in Jose Uthuppan's case supra that, in order to establish that the act complained of was committed in a forest constituted as a reserved forest, the prosecution must either produce a gazette containing the notification or a certified copy of the notification and adduce evidence of its publication in the gazette. This Court in Jose Uthuppan's case supra observed that the said view is supported by the Division Bench ruling of this Court in Chacko Pyli's case reported in 1966 KLT 102, para 5. In view of the aforestated reasons, this Court, in both the reported rulings in Chacko Pyli's case supra and Jose Uthuppan's case supra, had allowed those Criminal Revision Petitions filed by the accused and had set aside the impugned conviction and sentence rendered against them for the offences under Sec.27 of the Kerala Forest Act, 1961. 6. In the instant case, Ext.P-3 was marked through PW-3, Forest Range officer, who had filed Ext.P-2 Form 1 report. Other Crl.R.P.896/06 - : 8 :- than marking Ext.P-3 notification, PW-3 has not given any evidence regarding the contents of Ext.P-3. PW-3 has only stated that Ext.P-3 is the notification and the same has been marked through him. It is not even deposed by PW-3 that Ext.P-3 is the certified copy of the gazette notification concerned and no evidence is also given by him as to who has issued the same and as to the reasons for not making available the original of the gazette publication, etc. Towards the end of Ext.P-3, it is stated as follows:- “Certified that the above is true copy of the notification of Kulathpuzha reserve published in page 1039 of Travancore Government Gazette Part I dated 17.9.1901/2.2.1077.” Ext.P-3 bears the signature, name seal and office seal of the Chief Conservator of Forests (Protection), Forest Headquaters, Thiruvananthapuram, who is said to have issued the same certifying that the same is true copy of the gazette notification concerned. Ext.P-3 does not even bear the date on which the said certification has been made by the Chief Conservator of Forests. In the light of the legal principles laid down regarding the manner and mode of proving a statutory gazette notification issued under Sec.19 of the Kerala Forest Act, 1961, at least the prosecution should have ensured that the Chief Conservator of Forests concerned, who had Crl.R.P.896/06 - : 9 :- issued Ext.P-3 or a responsible officer in his office or at least PW-3 should have deposed as to the details of the said notification and that it was in fact published in the gazette. PW-3 has not even stated that Ext.P-3 has been published in the gazette. Moreover, a perusal of Ext.P-3 would reveal that the whole of Ext.P-3 appears to be a printed document and even the words, “Certified that the above is true copy of the notification of Kulathpuzha reserve published in page 1039 of Travancore Government Gazette Part I dated 17.9.1901/2.2.1077.” are also included in the printed version. Only the signature, name seal and office seal of the Chief Conservator of Forests concerned are additionally incorporated therein. As not even the date of issuance of the said certification has been mentioned in Ext.P-3, certainly a responsible officer of the Forest Department should have deposed before the court below as to the details of the facts regarding the actual publication of the notification in the gazette, more so particularly as the said notification is not issued directly under Sec.19 of the Kerala Forest Act, 1961, but is said to be issued under Sec.18 of Regulation II of 1068 and bearing the date 17.9.1901/22-1077 (ME) and it is said to be published in the Travancore Government Gazette Part 1, page 1039. As stated above, Crl.R.P.896/06 - : 10 :- even PW-3 has not even deposed in the box that Ext.P-3 was published in the gazette and he would only say that Ext.P-3 is the notification and the prosecution has marked Ext.P-3 through PW-3. Except this, no proper and cogent evidence has been adduced by the prosecution regarding the factum of publication of Ext.P-3 in the Travancore Gazette and as to the reasons that weighed with them in not making available the original of the gazette publication, etc. 7. The Division Bench of this Court in the ruling in Chacko Pyli's case supra and a learned Single Judge of this Court in Jose Uthuppan's case supra have clearly held that in a case where the prosecution is not producing the original gazette publication or the Sec.19 notification, then they should produce certified copy of the notification and adduce evidence of its publication in the gazette. It is not in dispute that the prosecution has not produced the original of the gazette notification concerned. Therefore, in the light of the various aspects discussed above and in the light of the conclusive legal position settled as stated above, this Court is of the considered opinion that since the prosecution has not adduced necessary and cogent evidence in the matter of publication of the Crl.R.P.896/06 - : 11 :- notification concerned in the gazette, and as to how Ext.P-3 can be relied on as the gazette notification envisaged in Sec.19 of the Act, it is only to be held that the prosecution has not discharged their burden in proving the factum of the gazette notification as envisaged in Sec.19 of the Kerala Forest Act, 1961. Therefore, on this ground alone, the impugned conviction and sentence imposed on the revision petitioners should be interfered with, as the same is illegal and improper. 8. There is yet another aspect of the matter. The necessity to produce either the original of the gazette publication or its certified copy and to adduce evidence regarding the notification under Sec.19 of the Kerala Forest Act, 1961, is that the prosecution should clearly and cogently prove before the criminal court concerned that the forest offence has in fact occurred within the precincts or the territorial limits of the reserved forest concerned. Therefore, a perusal of the Sec.19 notification and the details discernible therefrom on the one hand and the mahazar, Form 1 complaint, etc. on the other hand, should clearly and unequivocally disclose and convince the court that going by the description of the place of occurrence of the offence in the mahazar, compliant, etc. Crl.R.P.896/06 - : 12 :- the same is located within the well defined territorial limits of the forest area as disclosed in Sec.19 notification. In Ext.P-1 mahazar it is stated that the three accused had illegally entered into the Kallada river that flowing through Kulathupuzha Forest Reserve and had committed the above act punishable under the Kerala Forest Act and the place of occurrence of the incident is described as Mylammoodu Beat at Mylammoodu reserve. In Ext.P-2 Form 1 report, the scene and date of occurrence of the offence is described as situated at the western portion of the Kallada river flowing through the Mylammoodu area situated in Mylammoodu Beat in Kulathupuzha Forest Range. In the summary of the case described in Ext.P-2 report, it is stated that the accused had unauthorizedly entered into the western side of the Kallada river flowing through the Mylammoodu area, which is coming within the Kulathupuzha Forest Reserve limits. In Ext.P-3 notification the following details are given: “Kulathupuzha Reserve Travancore Government Gazette Part I Dated: 17-9-1901 2-2-1077 Page:1039 ## NOTIFICATION It is hereby notified under Section 18 of Regulation II of 1068 that from and after this date the tract specified in the subjoined schedule shall be deemed to be a Reserved Forests. - : 13 :- Crl.R.P.896/06 Huzur Cutcherry Trivandrum, 11[th] September 1901 K.Krishnaswamy Rao, Dewan No. and name of Reserve : Kulathupuzha Reserved Forest No.2 Taluk and Village, in which :Pathanapuram, Shencottah Taluk the Reserve in situated Anchal and Pullarah Village Poramboke extent ; 120 Sq. miles Boundary: North : Quilon Shencottah road East : The water shed between Travancore and Tirunelvely river from Ariyankavu Kottavasal to Alacurrichy Peak South & West : From Alvacurrichy, the Kulathpuzha river to the Parappanar bridge, thence public road. Remarks : Coffee and teak Estates are excluded. Also all private land (adjudged) to be such by FSO will be assumed or excluded. Certified that the above is true copy of the notification of Kulathpuzha reserve published in page 1039 of Travancore Government Gazette Part I dated 17.9.1901/2.2.1077. Sd/- Chief Conservator of Forests” A mere perusal of Ext.P-3 on the one hand and Ext.P-1 mahazar and Ext.P-2 Form 1 report on the other hand would clearly show that none of the crucial places mentioned in Ext.P-1 mahazar and Ext.P-2 Form 1 report, like Mylammoodu area, Kallada river, etc, are finding a place in Ext.P-3 notification. So a perusal of this document would not necessarily disclose that the place of occurrence Crl.R.P.896/06 - : 14 :- described in Ext.P-1 mahazar and Ext.P-2 Form 1 report is clearly located within the territorial limits of Ext.P-3 notification. Therefore, the Forest officials concerned were under a duty to ensure that clear, cogent and precise details are given in Ext.P-1 mahazar and Ext.P-2 Form 1 report as to where exactly the Mylammoodu area where the incident is said to have occurred, is located vis-a-vis the four boundaries of the forest reserve as disclosed in Ext.P-3 notification. None of the crucial locations in the four boundaries mentioned in Ext.P-3 is in any way named or described or referred to in Ext.P-1 mahazar or Ext.P-3 Form 1 report, with the result that a mere perusal of those documents will not necessarily disclose the case of the prosecution that the incident of the offence had in fact occurred within the territorial limits of Kulathupuzha forest reserve as per Ext.P-3 notification. The crucial aspect is that all the three official witnesses, who are stated to be occurrence witnesses, have given divergent and even conflicting versions as to the location of the place of occurrence. PW-1 has stated that the scene of occurrence is 60 meters towards west from the eastern pillar of Dhali kadavu. Whereas PW-2 has stated that the scene of occurrence is 300 meters towards west from the eastern pillar at Crl.R.P.896/06 - : 15 :- Dhali river and he has also stated that Mylammoodu is half kilometer away from Dhali. PW-4, on the other hand, would depose that Dhali is one kilometer away from Mylammoodu. Therefore, in the light of the above said aspects, more particularly the lack of any details in Ext.P-1 mahazar and Ext.P-2 Form 1 report to necessarily show that the place of occurrence mentioned therein is clearly locatable within the territorial limits of the forest reserve as per Ext.P-3 notification and in view of the divergent and almost contradictory versions of the three prosecution witnesses regarding the exact location of the place of occurrence, it would be highly unsafe for the criminal court to rely on Ext.P-3 or on the evidence tendered by PWs-1 to 3 to come to the considered conclusion that the place of incident has in fact occurred within the territorial limits of the Kulathupuzha forest reserve. The contra view taken in the impugned judgments is perverse and unreasonable. This is all the more reinforced by the crucial fact that, apart from the three official witnesses, viz., PW-1, PW-2 and PW-4, no other independent witnesses have been cited by the prosecution either for proving Ext.P-1 mahazar or for giving evidence regarding the incidents in question. Crl.R.P.896/06 - : 16 :- 9. In the light of all these aspects, this Court is of the considered opinion that the impugned conviction and sentence rendered on the revision petitioners as per the impugned judgment of the trial court, as affirmed by the impugned judgment of the appellate court, suffer from grave illegality, perversity and impropriety and the same is liable to be interdicted in these revision proceedings. In this view of the matter, the impugned conviction and sentences imposed on the revision petitioners for the offences under Sec.27(1)(e)(iv) and (v) of the Kerala Forest Act, 1961 are set aside. The petitioners are acquitted of the above said offences and they are set at liberty. The bail bonds executed by them will stand discharged. With these observations and directions, the aforecaptioned Criminal Revision Petition stands allowed. sdk+ bkn Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. To Judge.