IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1407 of 2002() ------------------------------ CRA.95/1997 of SESSIONS COURT, MANJERI CC.370/1995 of JUDL.MAGISTRATE OF FIRST CLASS-II (FOREST OFFENCES), MANJERI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED 2 TO 4 ---------------------------------------------- 1. KUTTY @ KURUVILA, S/O. DEVASSIA, ELAMTHURUTHIYIL HOUSE, KARIMBU, KOZHIKODE TALUK, KAKKUDAMPOYIL. 2. JAMES, S/O. VARKEY, ADINAL HOUSE, KARIMBU, KOZHIKODE TALUK, KAKKUDAMPOYIL. 3. JIMMY, S/O. DEVASSIA, VAVAKKAL HOUSE, KARIMBU, KOZHIKODE TALUK, KAKKUDAMPOYIL. BY ADV. SRI.M.P.PRABHANANDAN SRI.SOJAN MICHEAL RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1407 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2009 ORDER The revision petitioners are accused 2 to 4 in C.C.No.370/1995 of Judicial First Class Magistrate Court, Manjeri and appellants in Crl.Appeal No.95/97 of Sessions Court, Manjeri. They were convicted under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of Kerala Forest Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- each , in default to undergo simple imprisonment for one month each under each count by the trial court. The substantive sentences were ordered to run concurrently. The offence against the first accused was compounded and he was acquitted by the trial court. The conviction and sentence of the revision petitioners were confirmed in appeal. Now accused 2 to 4 have come up in revision challenging their conviction and sentence. 2. The case of the prosecution as shaped in evidence before the trial court was that the revision petitioners along with the first Crl.R.P.No.1407/2002 Page numbers accused trespassed into the reserve forest within the limits of Kodumpuzha range and cut the trees therein on 22-04-1994 and that thereby committed the offences punishable under Sections 27(1)(e)(iii) and 27(1)(e)(iv) . 3. On appearance before the trial court, the accused persons pleaded not guilty to a charge under Sections 27(1)(e)(iii) and 27(1)(e) (iv) of Kerala Forest Act. PWs 1 to 4 were examined and Exts.P1 to P7 were marked on the side of the prosecution. When questioned under Section 313 of Cr.P.C. by the trial court, the accused persons denied the entire incident. No defence evidence was adduced. 4. On an appreciation of the evidence, the learned Magistrate found the revision petitioners guilty of the offence punishable under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of Kerala Forest Act, convicted them thereunder and sentenced them as aforesaid which is confirmed in appeal. Now accused 2 to 4 have come up in revision challenging their conviction and sentence. 5. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. Crl.R.P.No.1407/2002 Page numbers 6. The following points arise for consideration : 1) Whether the conviction of the revision petitioners under Sections 27(1)(e)(iii) and 27(1) (e)(iv) of Kerala Forest Act rendered by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? Point No.1 7. PWs 1 to 4 were examined and Exts.P1 to P7 were marked on the side of the prosecution before the trial court. PWs 1 and 3 are the forest guards. They gave evidence to the effect that on 22-02-1994, they found the accused persons inside the reserve forest within the limits of Kodumpuzha range and first accused engaged in rolling down the timber along the road. As the accused persons are known to them, they did not arrest them. Ext.P1 is the mahazar prepared by them. PW2 is the forest guard who verified the place of incident and made the endorsement on Exts.P1 and P1(a). PW4 is the Deputy Forest Range Crl.R.P.No.1407/2002 Page numbers Officer who investigated the case. I have gone through the evidence of PWs 1 to 4. I find no reason to disbelieve their evidence. Both the courts below have chosen to believe their evidence. I find no reason to come to a different conclusion. 8. Exts.P4 to P7 produced in this case are the confession statements recorded by PW3. PW4 testified that he issued notice to the revision petitioners and the first accused and that they appeared before him and gave such statement. The case of the accused before the trial court was that Exts.P4 to P7 were concocted by forest officials in a blank signed papers of the accused persons. Both the courts below have rejected the above contention. I find no reason to come to a different finding. 9. Counsel for the revision petitioners argued that PW3 testified that Exts.P4 to P7 are recorded on the spot, while PW4 would say that it was recorded in his presence and that therefore Exts.P4 to P7 are concocted by forest officials. Merely because of the said discrepancy in the evidence of PW3 and PW4, I am not inclined to brush aside Exts.P4 to P7. But this aspect was not questioned while Crl.R.P.No.1407/2002 Page numbers PW 2 or PW4 were in the box before the trial court. For all these reasons, I hold that both the courts below are justified in accepting he evidence of PWs 1 to 4 and coming to the conclusion that accused persons were found inside the forest and committed the offence punishable under 27(1)(e)(iv) of the Kerala Forest Act. 10. The next question is whether a charge under Section Sections 27(1)(e)(iii) of Kerala Forest Act will lie against the accused persons. Admittedly, there is no direct evidence to show that they have cut any trees from the forest. Therefore, I feel that charge under Section 27(1)(e)(iii) of Kerala Forest Act will not lie against the revision petitioners. Therefore, they are acquitted of the said charge. Point No.2 11. As regards the sentence, the trial court imposed a sentence of rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- each for the offence punishable under Section 27(1)(e)(iv) of Kerala Forest Act. The incident occurred during 1994. Further, the forest officials have compounded the offence as against the first accused. Taking into consideration all these aspects, I feel that a fine Crl.R.P.No.1407/2002 Page numbers of Rs. 5000/- each and imprisonment till the rising of court would meet the ends of justice. In the result, the revision petition is allowed in part. Conviction of the revision petitioners under Section 27(1)(e)(iv) of Kerala Forest Act is confirmed. They are found not guilty of the offence punishable under Section 27(1)(e)(iii) of Kerala Forest Act and are acquitted of the said charge. The sentence imposed by the trial court which is confirmed in appeal is modified to the effect that revision petitioners are sentenced to imprisonment till the rising of court and to pay a fine of Rs. 5,000/- each , in default, to undergo simple imprisonment for six months each. Their bail bonds are cancelled. They shall surrender before the trial court on or before 30-12-2009 to receive the sentence. Two month's time is granted for payment of fine. P.Q.BARKATH ALI JUDGE sv. Crl.R.P.No.1407/2002 Page numbers