IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 Crl.Rev.Pet.No. 396 of 2002() ----------------------------------------- CRA.51/1999 of SESSIONS COURT, THODUPUZHA CC.110/1996 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... REVN. PETITIONER: APPELLANT/ACCUSED --------------------------- 1. NARAYANAN CHETTIYAR, S/O.KUNJUKUTTAN, KUZHIYAMPLACKAL, THEKKANTHONY BHAGAM, KANJIKUZHY VILLAGE, THODUPUZHA TALUK. 2. PRASAD, S/O.CHELLAPPAN, THADIYAMPLACKAL, PAZHAYARIKANDOM BHAGAM, KANJIKUZHY VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA RESPONDENTS: RESPONDENT/COMPLAINANT ------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. FOREST RANGE OFFICER, THODUPUZHA, C.R.16/95. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP. 2708/2002 IN CRL.RP. NO.396/2002 DISMISSED 24.06.2008 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ P.S. TO JUDGE tss A.K. BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 396 of 2002-A - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2008 Order Petitioners were prosecuted by the Forest Range Officer, Thodupuzha for offences punishable under Section 27(1)(e)(iii)(iv) of the Kerala Forest Act (for short the Act) on the allegation that they had trespassed into Thekkanthoni area of Thodupuzha Forest Range on February 10, 1995 and cut and felled a standing venteak tree and a pali tree. It was further alleged that the two accused were intercepted with the sawn timber pieces of the above two trees inside the forest. The total loss sustained because of the above act of the accused, was assessed at Rs.2250/-. 2. The prosecution examined Pws.1 to 3 and marked Exts.P1 to P3 in the case. There was no oral or documentary evidence on the side of the defence. The learned Magistrate found that the prosecution had succeeded in proving the charge against the petitioners/accused. Accordingly they were convicted and sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs.1,000/-each under the above two counts. 3. In appeal the Sessions Court set aside the order of conviction and sentence imposed on the petitioners under Section 27(1)(e)(iii) of the Act. Crl.RP.396/02 2 However the conviction and sentence under the other count were confirmed. Hence this revision petition. 4. The short question that arises for consideration in this revision petition is whether the prosecution had succeeded in establishing its case that the accused had trespassed into the reserve forest and cut the trees, in order to attract the offences punishable under Section 27(e)(iii) of the Act. 5. Pws.1 and 2 were the two Forest Guards who had allegedly intercepted the petitioners with the contraband timber pieces in their possession. According to these witnesses they had seen the accused with the timber on their heads walking through the reserved forest while they were on beat duty. Pws. 1and 2 further stated that the stumps of the two trees were also found 20 meters away from where the accused were intercepted. Ext.P1 mahazar was prepared at the scene of occurrence. Pw.3 had submitted Form I report before the court after verification. Ext.P2 copy of a notification issued in the Travancore Government gazettee was pressed into service by the prosecution to show that the trees were cut from the reserve forest. But a perusal of the mahazar does not give any clue with regard to the place from where exactly the trees were cut. Ext.P2 notification is of the year 1902. Of course an erratum notice was issued in June 1927 clarifying that Thodupuzha taluk Karikode and Karimannoor Crl.RP.396/02 3 Pakuthies are also included in the notification. None of the prosecution witnesses had made any attempt to assert that the two trees were inside the reserve forest. 6. I am persuaded to disbelieve Pws.1 to 5 in this case for yet another reason. According to Pw.1 and 2 they had intercepted the accused on February 10, 1995. Pw.3 the Forester had visited the scene of occurrence and prepared the mahazar on February 12, 1995. But the report was filed before the court only on 16/2/1995. More importantly, the accused were never arrested though under Section 63, the Officers could have. There is no explanation from the side of the prosecution as to why the accused were not arrested and produced before the Court. 7. Having regard to the totality of the facts and circumstances, I am satisfied that the petitioners are entitled to claim the benefit of doubt. Therefore the order of conviction and sentence passed against the petitioner under Section 27(1)(e)(iii) is set aside. Crl.R.P is allowed. A.K. BASHEER Judge an.