IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 Crl.Rev.Pet.No. 540 of 2002 --------------------------------------- CRL.A.NO.18/1999 OF SESSIONS COURT, THODUPUZHA, CC.NO.438/1996 OF JUDL. MAGI. OF FIRST CLASS-I ,THODUPUZHA. .................... REVISION PETITIONERS/APPELLANTS/ACCUSED: ------------------------------------------------------------------------ 1. KUTTAPPAN, S/O.KUNJAN,KAKKANATTU VEEDU, VELLARAMKUNNU BHAGOM, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM. 2. SUBHADRA, W/O. KUTTAPPAN,KAKKANATTU VEEDU, VELLARAMKUNNU BHAGOM, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM. BY ADV. MR.JOHN JOSEPH (ROY). RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY FOREST RANGE OFFICER,KUTTAMPUZHA RANGE REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P. NO. 540/2002-C: ORDER ON CRL.M.P. NO. 3487/2002 IN CRL.R.P. NO. 540/2002 DISMISSED 05/11/2009. SD/- P.Q.BARKATH ALI, JUDGE. //TRUE COPY// P.S. TO JUDGE. Prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 540 of 2002 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 5th day of November, 2009 O R D E R Revision petitioners, husband and wife, are the accused in C.C.No.438 of 1996 of the Judicial Magistrate of the First Class-I, Thodupuzha registered under sections 27(1)(e)(i) and (iv) of the Kerala Forest Act and the appellant in Crl.A.No.18 of 1999 of the Sessions Court, Thodupuzha. They were convicted under sections sections 27(1)(e)(i) and (iv) of the Kerala Forest Act and sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs.1,000/- each under each count and in default to undergo simple imprisonment for two months each on each count. Substantive sentence was ordered to run concurrently. The conviction and sentence of the revision petitioners were confirmed in appeal. They have challenged their conviction and sentence in this revision. 2. The case of the prosecution as shaped in evidence before the trial court was that on July 15, 196 and three days prior to the incident the accused trespassed into the Vellaramkuthu in Malayattoor Reserve in Kuttampuzha Range, attempted to cultivate the land after clearing the reeds Crl.R.P. 540/02 2 and undergrowths, as a result of which, the Government has sustained a loss of Rs.2,000/- and that thereby committed th offences punishable under sections 27(1)(e)(i) and (iv) of the Kerala Forest Act. 3. The accused persons, on appearance before the trial court, pleaded not guilty to the charge under sections 27(1)(e)(i) and (iv) of the Kerala Forest Act. PWs.1 and 2 were examined and Exts.P1 to P3 were marked on the side of the prosecution. After hearing both sides, charge under section 27(1) (e) (i) and (iv) of the Kerala Forest Act was framed against the accused, to which they pleaded not guilty. PWs.1 and 2 were then recalled and further cross-examined. When questioned under section 313 Cr.P.C., the accused denied having committed any offence. No defence evidence was adduced. The trial court on an appreciation of the evidence found the accused persons guilty of the offence punishable under section 27 (1)(e)(i) and (iv) of the Kerala Forest Act, convicted them there under and sentenced them as aforesaid. On appeal the learned Sessions Judge confirmed their conviction and sentence. Before the lower appellate court the accused produced Exts.D1 to D3. Now the accused have come up in revision challenging their conviction and sentence. 4. Heard the counsel for revision petitioner and the Public Prosecutor. Crl.R.P. 540/02 3 5. Following points arise for consideration:- 1) Whether the conviction and sentence of the revision petitioners rendered by the trial court under sections 27 (1)(e)(i) and (iv) of the Kerala Forest Act, which were confirmed in appeal by the appellate court, can be sustained? 2) Whether the sentence imposed on the revision petitioners is excessive or unduly harsh? 6. On the side of the prosecution PWs.1 to 3 were examined and Exts.P1 to P3 were marked. PW1 is the Forest Guard at Manikandanchal Out Post, Anakulam Station, Kuttampuzha Range. He testified that while himself and CW1 were on beat duty on July, 15, 1996, they found the accused persons clearing the forest area for cultivation. According to him, the first accused ran away and as the second accused was a resident of that locality, she was not arrested. PW2 is a Forester in the Manikandanchal Outpost who went to the place of occurrence on 17-7-1996 for verification. Ext.P1 is the verification certificate. I have gone through the evidence of PWs.1 and 2. There is nothing to suspect their credibility. Ext.P2 is the copy of the Notification which shows that Vellaramkuthu bhagam is a reserve forest. Hence, in my view, the trial court as well as the lower appellate court is perfectly justified in coming to the conclusion that the revision petitioners are guilty under sections 27(1)(e)(i) and (iv) of the Kerala Forest Act. Crl.R.P. 540/02 4 7. The specific case of the revision petitioners is that they are the residents of the nearby Tribal Settlement Colony, that they have obtained Ext.D3 order of the High Court against the various officials against their forcible eviction and that in view of the enmity, the forest officials have cooked up this case against them. There is no merit in the above contention. The properties in question in Ext.D3 are already under cultivation. In the present case the accused persons cleared the reeds and undergrowths for cultivation. Therefore, the lower appellate court is justified in rejecting the above case of the revision petitioners. Hence, for all these reasons, I am inclined to confirm the conviction of the revision petitioners under sections 27(1)(e)(i) and (iv) of the Kerala Forest Act. 8. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one year each and to pay fine of Rs.1,000/- each under each count under sections 27(1)(e)(i) and (iv) of the Kerala Forest Act. The revision petitioners are aged more than 60. Admittedly, they are the residents of the nearby Tribal Settlement colony. PW2 admitted in cross- examination that the revision petitioners are residing about only 20 metres away from the scene of incident. Therefore, I feel that a fine of Rs.1,000/- each under each count, in default to undergo simple imprisonment for two months each under each count would meet the ends of justice. Crl.R.P. 540/02 5 9. In the result, the revision petition is allowed in part and the conviction of the revision petitioners under section 27(1)(e)(i) and (iv) of the Kerala Forest rendered by the trial court, which was confirmed in appeal is upheld. The sentence imposed on the revision petitioners is modified to the effect that they are sentenced to pay fine of Rs.1,000/- each under each count, in default to undergo simple imprisonment for two months each under each count. 10. The learned counsel for the revision petitioners submitted that the revision petitioners have already deposited the fine amount before the trial court and that the same may be adjusted towards the fine amount. If they have already deposited the amount, it shall be adjusted towards the fine amount. Their bail bonds are cancelled. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. 540/02 6 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 848 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 3rd day of November, 2009