Yesudas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 15TH DAY OF SEPTEMBER 2020/24TH BHADRA, 1942** **Crl.Rev.Pet.No.2469 OF 2009** **AGAINST THE JUDGMENT IN CRA 321/2007 DATED 02-06-2009 OF SESSIONS COURT, THODUPUZHA** **CC 87/2003 DATED 28-09-2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, DEVIKULAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **YESUDAS, S/O.RAJAYYA, 100 VEEDU BHAGOM, MARAYOOR GRAMA PANCHAYATH, MARAYOOR VILLAGE, DEVIKULAM.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **- RESPONDENT/RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11-09-2020, THE COURT ON 15-09-2020 PASSED THE FOLLOWING:** Crl.R.P.No.2469 of 2009 **==> picture [22 x 8] intentionally omitted <==** ## **ORDER** The petitioner is the sole accused on the file of the Judicial First Class Magistrate Court, Devikulam for an offence punishable under Section 27(1)(e)(iii) and (iv) of the Kerala Forest Act. The learned Magistrate by judgment in C.C.No.87/2003 dated 28.9.2007 found that the accused is guilty under Section 27(1) (e)(iv) of the Kerala Forest Act and sentenced to undergo rigorous imprisonment for one year and further directed to pay a sum of Rs.1,000/- as fine and in default of payment of fine to undergo simple imprisonment for one month more and acquitted the accused under Section 27(1)(e)(iii) of the Kerala Forest Act. The accused filed Crl.Appeal No.321/2007 before the Sessions Court, Thodupuzha. By judgment dated 2.6.2009, the learned Sessions Judge dismissed Crl.R.P.No.2469 of 2009 **==> picture [22 x 8] intentionally omitted <==** the appeal confirming the conviction and sentence imposed by the trial court. Feeling aggrieved, the accused has come up before this Court in revision. 2. The prosecution case in brief is as hereinbelow:- PW2-the Forest Watcher attached to Marayoor Police Station while on patrol duty on 19.7.2002 through Nanchivayal No.II, Sandal Reserve Forest found the petitioner lopping sandal wood pieces with a chopper. It is further alleged that they have recovered 12 kgs. of lopped sandal wood and found the stump of the sandal wood tree was cut and removed by the petitioner. PW2 also recovered a chopper and saw used for the commission of the crime from the scene of occurrence. Crl.R.P.No.2469 of 2009 **==> picture [22 x 8] intentionally omitted <==** 3. During the trial, PWs.1 to 3 were examined and marked Exts.P1 to P4 on prosecution side. Exts.D1 to D4 were marked on the side of the accused. 4. After hearing the parties, the learned Magistrate convicted and sentenced the petitioner under Section 27(1)(e)(iv) of the Kerala Forest Act. Against the conviction and sentence, the accused preferred Crl.Appeal No.149/2005 before the Sessions Court (Ad hoc)-II, Thodupuzha. The learned Sessions Judge set aside the conviction for non-production of the sandal wood pieces and remanded back the case to the trial court for fresh disposal. On receipt of case records on remand, the learned Magistrate issued direction to the Forest officials to produce the sandal wood pieces involved in this case. Accordingly, the Crl.R.P.No.2469 of 2009 **==> picture [22 x 8] intentionally omitted <==** Forest Range Officer, Marayoor filed Ext.P4 report stating that the sandal wood pieces involved in this case were already sold in public auction under the orders of the court and hence he was not able to produce the same before the court. Hence the trial court analysed the available evidence in the case and passed the impugned judgment. No fresh materials were produced by the prosecution subsequent to the remand. 5. In Crl.A.No.149/2005, by the judgment dated 17.4.2006, the learned Sessions Judge extracted a paragraph reported in **State of Kerala vs. Ancy Philip [ILR 2006(1) Kerala 531]** as follows:- _“When timber or other forest produce are seized alleging commission of forest offence in respect thereof, the same has necessarily to be tried by_ Crl.R.P.No.2469 of 2009 ..6.. _the Magistrate having jurisdiction to try the same. In order to have a successful prosecution of the accused, it is essential that the forest produce, which is the subject matter of the offence complained of, is produced before the Magistrate. Without the 'thondi' article, it is impossible to have a successful prosecution. Further, the accused should necessarily be given an opportunity to contest the case of the prosecution relating to the nature of the timber seized which can be done only if the timber is produced before the Magistrate.”_ 6. In view of the decision cited above, the learned Sessions Judge was of the view that timber seized from the spot is absolutely essential for the purpose of the trial. Hence the case was remanded back to the trial court to enable the prosecution to produce the sandal wood pieces recovered as per Ext.P1. The learned Sessions Judge directed to summon and further examine the witnesses already examined by the trial court. Crl.R.P.No.2469 of 2009 **==> picture [22 x 8] intentionally omitted <==** 7. On going through the trial court judgment dated 28.9.2007, it is clear that the sandal wood pieces were not produced by the prosecution as per the remand order. No steps were taken to further examine the witnesses. On the basis of the evidence on record, the learned Magistrate entered a finding that the prosecution failed to adduce reliable evidence to establish cutting and removing of the sandal wood tree from the reserved forest by the accused. Accordingly, the learned Magistrate held that the prosecution failed to establish an offence punishable under Section 27(1)(e)(iii) of the Kerala Forest Act against the accused. However, the learned Magistrate found the accused guilty of the offence punishable under Section 27(1)(e)(iv) of the Kerala Forest Act. Crl.R.P.No.2469 of 2009 ..8.. 8. It is a fact that the main case of the Forest Officials alleging cutting and removing of sandal wood pieces in the reserved forest is not proved. The accused was acquitted for the said offence as well. The very same court which disbelieved the version of the prosecution witnesses believed the version of the very same witnesses for convicting the accused on the ground of trespass. 9. PW2 the Forest Watcher, one of the members of the detecting party, testified that while he was proceeding through Nanchivayal No.II Sandal Reserve Forest on 19.7.2002, he found the accused in the reserved forest. According to him, the accused was taken into custody from the reserved forest. He was produced before the court soon after his arrest. A mahazar was also prepared at the place of detection Crl.R.P.No.2469 of 2009 **==> picture [22 x 8] intentionally omitted <==** as per Ext.P1. PW2 adduced evidence in terms of Ext.P1 mahazar which contains details of detection, seizure and arrest of the accused. PW2 also produced Ext.P3 notification duly attested by the Chief Conservator of Forest to prove that Nanchivayal Sandal Wood Reserve Forest, Block No.II is reserved forest as contemplated under the Forest Act. 10. Initially the trial court convicted the accused by the judgment dated 15.4.2005 for the offences punishable under Sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act. The same is evident from paragraph 10 of the judgment. However, the trial court convicted the accused for a period of one year and a fine of Rs.2,000/- in default to undergo simple imprisonment for a period of one month more for the offence punishable under Section 27(1)(e)(iii) of the Kerala Forest Act. No Crl.R.P.No.2469 of 2009 **==> picture [28 x 8] intentionally omitted <==** separate sentence was awarded for the offence under Section 27(1)(e)(iv) of the Kerala Forest Act. The judgment of the trial court dated 15.4.2005 was challenged before the learned Sessions Court in Crl.A.No.149/2005. The learned Sessions Judge set aside the conviction and sentence by the judgment dated 17.4.2008 and remanded back the case. Going by the judgment of the learned Sessions Judge dated 17.4.2008, it is clear that production of timber was absolutely necessary to prove the prosecution case. The said finding was not challenged by the prosecution. After the remand no fresh evidence was adduced. Considering the allegations levelled against the accused and the sequence of events in this case, conviction and sentence against the accused for the offence under Section 27(1)(e)(iv) of the Act after Crl.R.P.No.2469 of 2009 **==> picture [28 x 8] intentionally omitted <==** finding that the offence under Section 27(1)(e)(iii) of the Kerala Forest Act is not proved are clearly unsustainable. The prosecution case is that the accused trespassed into the forest land for the purpose of cutting and removing of sandal wood trees in the reserved forest. The court disbelieved the version that the accused cut and removed the sandal wood trees from the reserved forest. Consequently, when the timber cutting story of the prosecution is disbelieved, the story of trespass into the reserved forest is doubtful. 11. Further, PW2 alone was examined to prove the occurrence. PWs.1 and 3 are not occurrence witnesses. PWs.2 and 3 stated that the place of occurrence is a thickly populated area. In such circumstances, at least, one or two independent Crl.R.P.No.2469 of 2009 **==> picture [28 x 8] intentionally omitted <==** witnesses can be brought in for the preparation of mahazar and seizure of the alleged sandal wood pieces. Though the prosecution had urged before the trial court that the sandal wood pieces were sold away in auction, no evidence was adduced to substantiate the same. The alleged thondi articles were sold by the officials without obtaining permission of the court. 12. Ext.P3 notification and Ext.P1 mahazar are not sufficient to prove the boundary of the reserved forest and the place of occurrence. PW2 has no clear idea to prove the boundaries of the reserved forest notified as per Ext.P3. Unless and until clear cut evidence is adduced to prove that the accused trespassed into the forest area, it is not safe to convict the accused on the allegation of trespassing into the reserved forest having human settlement, where the Crl.R.P.No.2469 of 2009 **==> picture [28 x 8] intentionally omitted <==** alleged occurrence took place. Hence the presence of the accused alone is not sufficient to convict the accused for the offence punishable under Section 27(1)(e)(iv) of the Kerala Forest Act. 13. Judged by the above standards, this Court is of the view that both the trial court as well as the appellate court appreciated the evidence illegally and wrongfully convicted the accused for the offence punishable under Section 27(1)(e)(iv) of the Kerala Forest Act. In the result, the Criminal Revision Petition stands allowed. The revision petitioner/accused is found not guilty of the offence punishable under Section 27(1) (e)(iv) of the Kerala Forest Act and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any fine amount is Crl.R.P.No.2469 of 2009 **==> picture [28 x 8] intentionally omitted <==** deposited by the revision petitioner/accused during the pendency of this revision before the trial court pursuant to an interim order issued by this Court, the same shall be released to the revision petitioner/accused in accordance with rules. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj