IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Crl.Rev.Pet.No. 3478 of 2008() ------------------------------ CRA.5/2007 of SESSIONS COURT, KOLLAM CC.12/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), PUNALUR .................... REVN. PETITIONER(S)/APPELLANTS/ACCUSED 1 TO 3: --------------------- 1. SHIBU S/O GOPI, BOUNDARIKATHU VEEDU, 50 ACRE, KULATHUPUZHA. 2. SHIBU S/O. SUKUMARAN KANI, KULAMBI SETTLEMENT, KULATHUPUZHA VILLAGE. 3. JAYAN S/O. CHANDRAN, PULILMOOTTIL VEEDU, PAPRAM KOVIL, KULATHUPUZHA VILLAGE. BY ADV. SRI.ALAN PAPALI SRI.SOJAN MICHEAL RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3478 OF 2008 ------------------------------------------ Dated this the 29th day of October, 2008 O R D E R Petitioners are the accused in C.C. 12 of 2002 on the file of Judicial First Class Magistrate-II (Forest Offences), Punalur. Prosecution case is that 5.7.2001 the three accused persons trespassed into the 1972 Teak Plantation within the reserve forest and removed the teak tree from the forest and converted to furniture. PWs 2 and 3, the Forest Guards while on beat duty, found the petitioners removing the furniture and questioned them and on the information furnished and as pointed out by them, located the teak tree cut and seized the furniture after preparing Ext.P6 mahazar and thereafter prepared Ext.P5 Form I report and registered the case. After completing the investigation, charge was laid for the offence under section 27 (1)(e)(iii) of Kerala Forest Act. Petitioners pleaded not guilty. Prosecution examined four witnesses and marked six exhibits and identified material objects 1 and 2. The learned Magistrate on the evidence found the petitioners guilty and convicted and sentenced them to simple imprisonment for one year each and a CRRP 3478/08 2 fine of Rs.1,000/- and in default simple imprisonment for one month. Petitioners challenged the conviction and sentence before Sessions Court, Kolllam in Crl. Appeal 5 of 2007. Leaned Sessions Judge on reappreciation of evidence confirmed the conviction and dismissed the appeal. It is challenged in this revision. 2. Learned counsel appearing for petitioners were heard. 3. The argument of the learned counsel is that Courts below did not properly appreciate the evidence and there is no evidence to prove that petitioners cut the teak tree as alleged. It was argued that Ext.P4 notification was not properly proved and evidence of PW3 shows that the teak tree was not standing within the reserve forest area and evidence of PWs 1 to 3 establish that petitioners are residing in the Settlement colony adjacent to the reserve forest and on the evidence Courts below should not have found that petitioners trespassed into the reserve forest or cut the teak tree from 1972 Teak Plantation area and therefore the conviction is not sustainable. The learned counsel also argued that though Exts.P1 to P3 confession statements of the petitioners were marked, these CRRP 3478/08 3 were not put to the petitioners at the time of questioning under section 313 of Cr.P.C. and therefore based on them petitioners cannot be convicted and in any case benefit of doubt should have been granted to the petitioners especially when there is a minimum substantive sentence of simple imprisonment for one year. 4. On hearing the learned counsel and going through the judgments of the Courts below, I cannot agree with the submission of learned counsel that evidence was not properly appreciated. Though relying on the evidence of PW3 it was argued that PW3 deposed that the tree was not cut within the reserved forest, evidence of PW3 makes it absolutely clear that he does not know the boundary of the reserve forest and therefore based on the evidence of PW3, petitioners are not entitled to contend that the tree was not cut within the forest area. Ext.P4 notification, the certified copy of the gazette notification, establish that it is a reserve forest. Ext.P6, the seizure mahazar prepared by PW1, which is a contemporaneous record, establish that PWs 2 and 3 while on beat duty found petitioners carrying the teak log through the forest. Learned counsel argued that Ext.P6 mahazar shows that they were CRRP 3478/08 4 carrying the logs on the boundary of the forest and therefore it cannot be found that petitioners were carrying teak logs through the reserve forest. What is stated in Ext.P6 mahazar is that timber logs were being carried through the forest within the boundary of the reserve forest. It is not as canvassed by the learned counsel. Though it was argued that there is no evidence to prove that the timber logs were cut from the forest, evidence of PWs 2 and 3 with Exts.P1 to P3 statements conclusively establish that they found petitioners carrying the timber logs through the forest. 5. Learned Magistrate and learned Sessions Judge appreciated the evidence and rendered a factual finding that the petitioners were found removing the teak timber logs through the forest. 6. Section 27 of Forest Act provides the penalty for trespass or damage in Reserved Forests or acts prohibited in such forests. Under sub section (1)(e)(iii), any person who cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same is punishable with imprisonment for a term which shall not be CRRP 3478/08 5 less than one year but may extend to five years and with fine which shall not be less than one thousand rupees but may extend to five thousand rupees. Therefore even if there is no direct evidence to prove that it was the petitioners who cut the teak tree, evidence of PWs 2 and 3 corroborated by Ext.P6 establish that they were found removing the timber logs of teak tree cut from the reserve forests. On the evidence prosecution has conclusively proved that petitioners committed the offence under section 27(1)(e)(iii) of Kerala Forest Act, 1961. Hence conviction of the petitioners for the offence under section 27(1) (e)(iii) is perfectly legal. 7. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioners for the minimum sentence provided under the section. Therefore there is no reason to interfere with the sentence also. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-