IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 Crl.Rev.Pet.No. 1152 of 2001 CRA.211/1998 of SESSIONS COURT, THODUPUZHA CC.491/1995 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED: 1. SAJEEVAN, S/O RAGHAVAN, MADATHINKAL VEEDU, VANNAPPURAM VILLAGE THODUPUZHA TALUK 2. KARUNAKARAN S/O UNNI, KALARICKAL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA TALUK 3. VASU S/O NARAYANAN, VINACKAL VEEDU VANNAPPURAM VILLAGE, THODUPUZHA TALUK 4. THOMAS, S/O ULAHANNAN PUTHANPURAKAL VEEDU, - DO -, - DO - 5. KURIAN, S/O JOSEPH PUTHANPURAKAL VEEDU, - DO -, - DO - BY ADV. SRI.T.I.ABDUL SALAM SRI.P.CHANDY JOSEPH RESPONDENTS/COMPLAINANTS: 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM 2. FOREST RANGE OFFICER, THODUPUZHA BY PUBLIC PROSECUTOR SRI.AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2008, ALONG WITH CRL.R.C.NO.9 OF 2002, THE COURT ON 18/02/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February 2008 ORDER These two cases are being disposed of by this common judgment, since they arise from the same proceeding. 2. The revision petition is preferred by the accused, five in number, who have been concurrently found guilty, by the trial court as well as the appellate court, under Section 27(1)(e)(iv) of the Kerala Forest Act. Crl.R.C. has been registered suo-motu by this court to consider the legality and propriety of the order of the Sessions Court in appeal acquitting the accused under Section 27(1)(e) (iii) of the Act. 3. The prosecution case in brief was that on August 23, 1993, the accused (six in number) had trespassed into Machiyani area of Thodupuzha Reserve Forest and attempted to cut and remove two teak trees standing in the forest land. The specific allegation was that the accused were found to have cut down one teak tree and top portion of another. The cut logs and branches and the tools and other paraphernalia used for this purpose, were seized under a mahazar. The accused were Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 2 not either taken into custody or arrested, since on questioning them they had allegedly given their “correct identity”. They were however sent out of the forest area. 4. The prosecution examined PWs 1 and 2 and marked Exts.P1 to P3 and M.O.1 to M.O.3. PW1 who was working as the Forest Guard in that range during the relevant period, deposed before the court that he had seen two of the accused sawing the fallen tree while the other two were chopping off the branches. Two others were seen cutting the branches with a saw. The accused had trespassed into the reserve forest area and had indulged in the above illegal act. On questioning them, they gave their identity with address, He further stated that Ext.P1, mahazar was prepared at the spot. The value of the timber logs was assessed at Rs.4,500/- and the total loss sustained by the State was estimated to be Rs.6,500/-. He also stated that the area from where the accused had cut the trees came under Ext.P2 notification. Form-I report was prepared by him which was marked as Ext.P3. He also identified M.Os.1 to Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 3 3. In cross examination, this witness admitted that there was no reason for not arresting the accused. He believed the identity and address as stated by the accused. Significantly, this witness admitted that he had no prior acquaintance with any of the accused nor had he seen them before. He was seeing them for the first time on that date. He further admitted that he did not know what happened to Form-I notice, after he had entrusted it to the Range Officer. 5. PW2 was the Forester working in that range at the relevant point of time. He stated that he had visited the scene of occurrence and verified Ext.P1, mahazar and found the contents thereof to be correct. In cross examination, this witness stated that there would have been a corresponding entry with regard to the incident in the 'Beat' diary. He further stated that the diary would be available in the Range office. 6. Reference has been made to the depositions of the two witnesses who were examined on the side of the prosecution in detail, only to indicate that there is some force in the contention Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 4 raised by the learned counsel for the petitioners that there was absolutely no corroborative evidence to incriminate the petitioners in the alleged offences. As rightly pointed out by the learned counsel only PW1 was examined as occurrence witness. PW1 stated that he had gone along with other beat guards for duty on that day. No one else was examined. More importantly Ext.P1 was admittedly prepared by one Mohammed Basheer, who was stated to be the beat staff watcher. He had signed in Ext.P1, Mahazar. But curiously, he was not examined on the side of the prosecution. He would have been the most competent witness to speak about the alleged incident. 7. In this context, it may be noticed that the accused had a specific case that they were implicated in the case later without any basis and that they were totally innocent. It is also pertinent to note that the alleged incident had taken place on August 23 1993. The complaint is seen prepared on August 24, 1994. But the complaint was filed before the court only in November, 1995. There is absolutely no explanation for more Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 5 than two years' delay in filing the complaint. There is also nothing on record as to what transpired in between and also whether the accused had been questioned by any officer at any point of time or their identity had been ascertained or verified. The unexplained delay in filing the complaint, in my view, casts a shadow of doubt on the entire prosecution case especially since the version given by PW1 that he had let off the accused without taking them into custody or arresting them is hard to believe. According to this witness, he had believed the identity of the accused as disclosed by them when they were found inside the forest. Under normal circumstances, the accused ought to have been taken into custody with the contraband if they were found indulging in such an illegal activity. 8. Having regard to the entire facts and circumstances of the case, I am satisfied that the petitioners are entitled to get the benefit of doubt. Therefore, the order of conviction and sentence passed against the petitioners is set aside and they are acquitted. Crl.R.P. is allowed. In view of the order passed in Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 6 Criminal Revision Petition, no orders are warranted in Crl.R.C. Therefore, Crl.R.C. is closed. In the result, Crl.R.P. is allowed and the petitioners are acquitted. Crl.R.C. is closed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 7 A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.1152 OF 2001 & Crl.R.C.No.9 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 18th Feb. 2008