Wilson, S/o Antony and Mathew @ Raju v. Kerala Forest Department and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939** **Crl.Rev.Pet.No. 187 of 2005 ( )** **--------------------------------** **AGAINST THE JUDGMENT DATED 05-01-2005 IN CRIMINAL APPEAL NO.172/1999 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-I), PATHANAMTHITTA** **AGAINST THE JUDGMENT DATED 23-11-1999 IN CC NO.542/1996 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, RANNI** **REVISION PETITIONERS/ACCUSED:** **-------------------------------** **1. WILSON, S/O ANTONY, RESIDING AT THOTATHIL HOUSE, ALAPPURAKKATTU MURI, KOTTANGAL, MALLAPPALLY.** **2. MATHEW @ RAJU, S/O. KOSHY,** - **RESIDING AT KUZHITHATTUMURAPPEL HOUSE, VALUPARA, ANGAMMOOZHY, CHITTAR, SEETHATHODE.** **BY ADVS.SRI.P.K.CHITHRABHANU SRI.M.S.KALESH** ## **RESPONDENTS/COMPLAINANTS:** **---------------------------** **1. KERALA FOREST DEPARTMENT, REPRESENTED BY DEPUTY RANGE OFFICER, FOREST STATION, PLAPPALY.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SPECIAL GOVERNMENT PLEADER (FOREST) SHRI NAGARAJ** **NARAYANAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SKV** **CR** ## **K.P. JYOTHINDRANATH, J.** =============================== Crl.R.P. No.187 of 2005 ================================= Dated this the 27[th] day of June, 2017 ## ORDER The challenge is against the concurrent findings of the courts below in a prosecution under Section 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act. Apart from the challenge against the appreciation of evidence of DWI and DW2, the point raised before me by the learned defence Counsel is as follows:- It is the submission that as per the dictum laid down by this Court in **Mundamdra Kareem and Another v. Deputy Ranger, Forest Station, Pothukal and Another** Crl.R.P. No.187 of 2005 2 reported in [2014 (4) KHC 529], the conviction and sentence under Section 27(I)(e)(iii) alone need be therein. The ingredients of Section 27(I)(e)(iv) will be over lapping the earlier one. The second point raised before me is regarding the proof of reserve forests as required under Section 19 of the Forest Act. A copy of notification as required to be certified under Section 57 of the Evidence Act was not produced in this case. Hence, it is contended that it is not proved that the incident occurred in a reserved forest. In this regard, the learned counsel highlighted the decision in **Jose Uthuppan and Another v. Forest Range Officer, Pathanamthitta and Another** reported in [2015 (4) KHC 761]. 2. I heard the learned Special Government Pleader (Forest). Crl.R.P. No.187 of 2005 3 ## 3. Facts of the case:- On 02.10.1996, Forest officials attached to Plappally Forest Station was on beat duty in Plathodu Nalumukku forest area of Goodrical Forest Range. They saw two persons carrying Teak logs. They were intercepted. They had felled a teak tree from the forest and attempted to remove the same from the reserved forest and thereby caused a loss of Rs.2,000/-. Prosecution altogether examined 5 witnesses and Exts.P1 to P5 were marked. On the side of the defence, DWI and DW2 were examined. Prosecution case is that appellants were arrested from the forest while carrying the teak logs, whereas the defence case was that appellants were taken into custody from their houses and a false case has been foisted. After appreciating the evidence, two courts believed the prosecution case and disbelieved the evidence adduced by the defence. 4. Two courts below, after appreciating the Crl.R.P. No.187 of 2005 4 evidence, found that accused was found carrying teak logs and felled teak tree. A re-appreciation of evidence in that regard is not necessary. The next question raised before this Court is that whether the prosecution succeeded in proving that the tree was felled from a reserved forest to attract the offence, further conviction and sentence under two heads were necessary. 5. Following the decision laid in **Chacko Pyli and Others v. State of Kerala** [1966 KLT 102], this Court held in **Jose Uthuppan and Another v. Forest Range Officer, Pathanamthitta and Another** reported in [2015 (4) KHC 761] that for a person can be held guilty, the prosecution has to establish that the act complained was done in a reserved forest and further held that to establish the commission of offence in a reserved forest, the prosecution must either produce gazette containing notification or a certified copy of notification and adduce evidence of its publication in Gazette. Crl.R.P. No.187 of 2005 5 6. A Single Bench of this Court earlier doubted the correctness of dictum laid down in **Chacko Pyli and Others v. State of Kerala (supra)** and on reference, it was considered by a Division Bench of this Court in **v. S.Nagarajan, Assistant Collector of Customs Vasanthkumar and Another** reported in [1988 Crl.LJ 1217]. In para 17 of the said judgment the court held that “The long line of decisions of the Supreme Court referred to above would lead to the conclusion that power exercised by the executive by virtue of the conferment of the delegated authority by the Statute is a legislative Act and hence law within the meaning of Section 57 of the Evidence Act.'' 7. This Court while rendering the decision in **Jose Uthuppan and Another v. Forest Range Officer, Pathanamthitta and Another** reported in [2015 (4) KHC 761] was considering a prosecution case where allegation was that accused blasted stones from the land occupied Crl.R.P. No.187 of 2005 6 by the accused pending dis-reservation proceedings. 8. **Chacko Pyli and Others v. State of Kerala (supra)** was decided at a time when there was private forests in Kerala. The scenario changed by the enactment of the Vesting of Private Forest Act, 1971. After the said enactment, there is no private forests in Kerala. All private forests vested in the Government. Further, by virtue of Section 4 of the said Act, all such vested forests are deemed reserved forest. Thus, when there is evidence that the offence committed in a forest area, the burden will be on the defence to show that it is not a forest. When there is evidence that place of incident is inside a forest, by virtue of the provision in the Vesting of Private Forest Act, it will be a vested forest where by virtue of Section 4 of the said Act, it will be a deemed reserved forest. That is, if there is evidence to show that felling took place inside a forest, proof by production and marking of a notification as required under Section 19 of the Kerala Forest Act is Crl.R.P. No.187 of 2005 7 not necessary, but it will be a matter of appreciation of evidence. 9. The next point argued before this Court is regarding the conviction on two heads. Surely, this Court held in **Mundamdra Kareem and Another v. Deputy Ranger, Forest Station, Pothukal and Another** reported in [2014 (4) KHC 529] that without trespassing inside the forest, accused persons cannot cut and remove timber and hence conviction under Section 27(I)(e)(iii) alone will be attracted. In this case also, the allegation is that there is a trespass into a forest. Thereafter, cut and removal of the tree. Primafacie, it can be seen that as per the dictum laid down in the above referred decision, a conviction under both heads will not be necessary. Thus, conviction under Section 27(I)(e)(iv) is hereby set aside. 10. This Criminal Revision Petition is partly allowed and conviction under Section 27(I)(e)(iii) up held and the conviction and sentence under Section 27(I)(e)(iv) hereby Crl.R.P. No.187 of 2005 8 set aside. The learned counsel submitted that some leniency has to be shown in respect of sentence. It can be seen that after the amendment of 1993 brought to the Forest Act, a minimum sentence of one year has to be imposed for an offence like this. In this case, only a minimum sentence of one year was seen imposed. Thus, the sentence imposed under Section 27(i)(e)(iii) maintained. This Crl.R.P. is partly allowed as stated above. Sd/- **K.P. JYOTHINDRANATH, JUDGE** SKV P.A. TO JUDGE