IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 Crl.Rev.Pet.No. 3259 of 2007() ------------------------------ CRA.478/2005 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.462/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER:APPELLANT/ACCUSED: --------------------------------------- ANANDAN K.S., S/O. SREEDHARAN, KUNNEL HOUSE, NELLIKUTHU, MOOTHEDAM, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT: RESPONDENT/COMPLAINANT: -------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER, PADUKKA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO. 3259 OF 2007 -------------------------------------------------- Dated this the 5th day of January, 2009 O R D E R Revision petitioner is the accused in C.C.462 of 2004 on the file of Judicial First Class Magistrate-II, (Forest Act Offences), Manjeri. Revision petitioner was charged for the offence under section 27(1)(e)(iv) of Kerala Forest Amendment Act, 1993, and section 52 read with section 9(1) (2) of Wild Life Protection Act, 1972. He was acquitted of the offence under section 9(1)(2)of Wild Life Protection Act and was convicted and sentenced to undergo simple imprisonment for one year and a fine of Rs.1,000/- and in default simple imprisonment for one month for the offence under section 27 (1)(e)(iv) of the Forest Act. Petitioner challenged the conviction before Sessions Court, Manjeri in Crl. Appeal 478 of 2005. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the revision petitioner and the learned Public Prosecutor were heard. 3. The argument of the learned counsel appearing for the CRRP 3259/2007 2 revision petitioner is that there is no evidence to prove that it was the revision petitioner, who had escaped from the scene of occurrence, as alleged by the prosecution and the identity of that person as the revision petitioner was not established. It was also argued that Ext.P1 mahazar shows that the scene of occurrence is a road, used by the public and therefore even if petitioner had walked along that road, it is not an offence under section 27(1)(e)(iv) of the Forest Act. It is therefore argued that the conviction is not sustainable. Learned counsel finally submitted that in any case the sentence awarded is excessive and revision petitioner should have been granted benefit of Probation of Offenders Act. 4. Learned Public Prosecutor argued that Courts below appreciated the evidence in the proper perspective and found that the scene of occurrence is a reserve forest. It was pointed out that when Ext.P3 notification was proved by P(3) notification published under section 3(1) of Forest Act, proved by the evidence of PW4, that aspect was not challenged in cross-examination and therefore it is proved that revision petitioner trespassed into the forest. It was also argued that though petitioner was acquitted for the offence under the Wild Life Protection Act, his identity was established by the evidence of PWs 1 and 2 as he was known to them even earlier and in such circumstances conviction of the revision petitioner is perfectly legal. CRRP 3259/2007 3 Learned Public Prosecutor also submitted that the sentence awarded is the minimum sentence provided and petitioner is not entitled to the benefit of Probation of Offenders Act. 5. PW4 was examined to prove Ext.P3, notification, published under section 3(1) of the Kerala Forest Act. The fact that the scene of occurrence is within the reserve forest declared under Ext.P3 notification was not challenged when PW4 was examined. The Courts below were therefore fully justified in holding that it is a reserve forest. 6. Though revision petitioner disputed the identity of the revision petitioner, PWs 1 and 2 deposed that they have previous acquaintance with the revision petitioner as he used to work in the plantation. When questioned under section 313 of Code of Criminal Procedure, it is the case of the revision petitioner also that he was known to the forest officials. In such circumstances evidence of PWs 1 and 2 that they identified revision petitioner as the person who was found inside the forest on 27.5.1993 at about 3 p.m. while patrolling within the limits of Amarambalam Reserve forest accepted by the Courts below is perfectly legal. The evidence establish that revision petitioner had trespassed into the forest. The fact that revision petitioner was acquitted for the offence under Wild Life Protection Act was on account of the failure to establish that MO1 gun was CRRP 3259/2007 4 serviceable or that it was used for the purpose of firing. But that does not enable the revision petitioner to contend that he did not trespass into the forest. Evidence of PWs 1 and 2 establish that though they chased revision petitioner, he ran away and escaped from the scene. But the fact that he was found at the place is conclusively proved by the evidence of PWs 1 and 2. 7. Though based on Ext.P1 mahazar. where the road is mentioned, it was argued that revision petitioner was not found inside the forest but was walking through the public road. As rightly found by the Courts below, evidence establish that it is not a public road but a road inside the forest which leads only to the forest. In such circumstances findings of the Courts below that prosecution conclusively established that revision petitioner trespassed into the forest and thereby committed an offence under section 27(1)(e)(iv) of the Forest Act is perfectly legal. 8. Question then is whether revision petitioner is entitled to the protection of Probation of Offenders Act and whether the sentence awarded is excessive. Considering the nature of the offence, revision petitioner is not entitled to the protection of Probation of Offenders Act. Section 27(1)(e) provides for a sentence of imprisonment for a term which shall not be less than one year but which may extend to five years and fine which shall not be less than five thousand rupees CRRP 3259/2007 5 but may extend to five thousand rupees. It is therefore clear that the sentence awarded is the minimum sentence provided under the Act. In such circumstances, I find no reason to interfere with the sentence also. Revision is dismissed. Judicial First Class Magistrate-II, Manjeri is directed to execute the sentence. M. SASIDHARAN NAMBIAR, JUDGE okb