IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 Crl.Rev.Pet.No. 1806 of 2005() ------------------------------ CRA.133/2004 of SESSIONS COURT, THODUPUZHA CC.120/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONERS: APPELLANTS/ACCUSED: ---------------------------------------- 1. KUNJU, S/O. JOSEPH, KALAPURACKAL VEEDU, KOIKKAKKUDY BHAGAM, MANNAMKANDAM VILLAGE. 2. RAJAN, S/O. NAGAN, CHINAPPA GIRIJAN COLONY, KOIKKAKKUDY BHAGAM, MANNAMKANDAM VILLAGE. 3. CHANDRAN, S/O. MADHAVAN, CHINNAPPA GIRIJAN COLONY, KOIKKAKKUDY BHAGAM, MANNAMKANDAM VILLAGE. BY ADV. SRI.C.M.TOMY SRI.MATHEW SKARIA RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------- 1. FOREST RANGE OFFICER, ADIMALY IN O.R.NO.51/97. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1806 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 30th March, 2009 ORDER The challenge in the revision is against the concurrent verdict of guilty rendered against the accused, three in number, for the offences under the Kerala Forest Act (hereinafter referred to as 'the Act'). The accused, all of them, were prosecuted for the offences punishable under Section 27(1)(e) (iii) and (iv) of the Act on a report filed by the Forest Range Officer, Adimali. The accused pleaded not guilty. The learned Magistrate, after trial, found the first accused guilty of both the offences and convicting him thereunder he was sentenced to undergo simple imprisonment for one year each and to pay a fine of Rs.1000/- each for the offences under Section 27(1)(e) (iii) and (iv) of the Act, directing him to undergo the substantive sentences concurrently. Accused 2 and 3 were found guilty of the offence under Section 27(1)(e) (iii) of the Act and on convicting them thereunder, each of them was sentenced to undergo simple imprisonment for one year and to pay fine of Rs.1000/-. They were acquitted of the offence under Section 27(1)(e) (iv) of the Act. In appeal jointly preferred by the revision petitioners, the learned Sessions Judge confirmed the conviction and upheld the sentence Crl.R.P.1806/05 - 2 - without any modification. Aggrieved by the conviction and sentence, the accused have preferred this revision. 2. The prosecution case, in short, is that a forest party found the accused, all of them together engaged in collecting sawed teakwood pieces from the reserve forest in Cheriyathoni wtihin the limits of Admali Range of Panamkutty forest station on 25.10.1997. Seeing the forest party, the accused, all of them, ran away and they could not be apprehended. Site inspection disclosed stumps of two teak wood trees, sawed timber pieces and a saw used for slicing the timber, which were all seized into custody. Timber pieces and weapons were taken into custody, preparing Ext.P1 mahazar. A report was prepared over the seizure of the teakwood pieces and detection of the forest offence implicating the accused, and it was filed before the Magistrate Court. After investigation, a final report was filed indicting the accused for the offences punishable under Section 27(1)(e) (iii) and (iv) of the Act. 3. The accused, entered appearance on summons and, pursuant thereto, after taking preliminary evidence, the accused were directed to answer the charges imputed, and all of them pleaded not guilty. Prosecution examined P.W.1, a forest guard and exhibited Crl.R.P.1806/05 - 3 - Exts.P1 to P3 to bring home the guilt of the accused. When questioned under Section 313 Cr.P.C. the accused maintained their innocence and no defence evidence was adduced. The learned Magistrate, after appreciating the materials produced, found the accused guilty of the offences imputed, as indicated earlier, and accordingly they were convicted and sentenced. Conviction and sentence imposed against them were upheld by the appellate court. 4. I heard the learned counsel for the revision petitioners/accused and also the learned Public Prosecutor. Learned counsel for the revision petitioners assailed the conviction contending that there is absolutely no legal evidence in the case to prove the guilt of any of the accused. Though five witnesses, all forest officials, were cited in the report to prove the case, not even the complainant was examined, but only a forest guard to sustain the prosecution case, submits the learned counsel. The delay in filing the report is also commented upon by the learned counsel to contend that after the detection of cutting down of valuable teakwood trees in the forest to escape from disciplinary proceedings a false case had been set up by the forest officials against the accused. Though the offences were alleged to have been committed as early as on 25.10.1997, the final Crl.R.P.1806/05 - 4 - report was filed before the court only on 25.2.2000 is also commented upon by the learned counsel contending that no worthmentioning explanation had been given by the prosecution for the long delay in completing the investigation over the case. Ext.P3 notification produced by the prosecution to prove that the offence has been committed inside the reserve forest area, according to the learned counsel, does not satisfy the requirements under Section 78 of the Act pointing out that it is only a photo copy and is signed by a lower level official of the Forest Department. Lastly, inviting my attention to the evidence of P.W.1, a forest guard, it is urged that implicit reliance is not permissible on his testimony to found a conviction against the accused for the offences imputed. So, in reversal of the conviction founded against the accused by the two courts, the learned counsel urged for acquitting them of the offences charged. On the other hand, learned Public Prosecutor contended that the materials produced in the case by the prosecution convincingly establish the guilt of the accused for the offences with which they were found guilty and convicted by the courts below and that no interference is called for by exercise of revisional jurisdiction. 5. I have perused the records of the case giving consideration Crl.R.P.1806/05 - 5 - to the submissions made by the learned counsel for the revision petitioners and the learned Public Prosecutor. Normally, in a revision, a finding on fact entered by the inferior courts is not liable to be interfered unless it is so perverse and is found not possible on the materials produced. Revisional jurisdiction is supervisory in character and it is intended to avoid failure of justice. Be that as it may, on perusal of the records, it is evident that other than the evidence of P.W.1, a forest guard, and the documentary materials produced, there is nothing more to prove the offences set up against the accused. So, the crucial question is whether the evidence of P.W.1, the forest guard, is convincing, reliable and trustworthy and, further, sufficient to found a conviction against the accused. It is interesting to note that P.W.1 in his evidence, at the fag end of his cross examination, has made an assertion that the three persons seen in the reserve forest collecting sawed teakwood pieces were the accused. His evidence show that the forest party saw the accused at a distance of 40 meters while they were engaged in collecting sawed teakwood. Once the perpetrators of the crime saw the forest party, it is the admitted case of the prosecution, all of them ran away and could not be apprehended. The evidence of P.W.1 does not inspire Crl.R.P.1806/05 - 6 - confidence to hold that the accused proceeded against were really the persons who were seen by the forest party though his version of detection of the forest offence is otherwise found acceptable. Prosecution has also no explanation why the complainant and other forest officials named in the report had not been examined in the case. As rightly contended by the learned counsel for the accused, the delay in filing Form I report, i.e., nearly 10 days after detection of the forest offence cannot be viewed lightly. Form II report was filed before the court three years after the detection of the offence, the investigation taking such long time for its completion. However, the prosecution has no case that any of the present accused had been apprehended, and got identified by any of the forest officials who detected the forest offence during such investigation. The materials collected over these three years other than what was collected at the time of filing of Form I report, it is seen, is the incorporation of names of some forest officials as witnesses and producing a notification that the place where the offences were committed was within the reserve forest area. True, the gravity of the offences under the Forest Act call for deterrent punishment, but when there is absolutely no evidence worthmentioning, it will be a miscarriage of justice to Crl.R.P.1806/05 - 7 - sustain a conviction founded by placing implicit reliance on the solitary evidence of forest guard, which on the face of it does not inspire confidence. His evidence in fixing the identity of the accused as the perpetrators of the forest offences imputed appears to be undoubtedful in the backdrop that the forest party saw the persons engaged collecting saw teakwoods at a distance of 40 meters away, i.e., inside a forest. The other contentions raised by the learned counsel to attack the conviction in the given facts need not be examined as I find that the conviction of the accused cannot be sustained as there is no legal evidence to support it. So much so, the conviction and sentence imposed against the accused are set aside and they are acquitted of the offences charged. Fine amount, if any, remitted by the accused shall be refunded. Revision is allowed. srd S.S. SATHEESACHANDRAN, JUDGE