IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 4 of 2001(A) --------------------------- CRA.420/1998 of ADDL.SESSIONS COURT-II, KOZHIKODE CC.290/1991 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... REVN. PETITIONER: APPELLANT/ACCUSED --------------------- N.P.ASOKAN, S/O.KADUNGON, MALAVARATHIL THAMASAM, THARIPPAKUNNU, TINUR VILLAGE. BY ADV. SRI.SUNNY MATHEW RESPONDENT:RESPONDENT/COMPLAINANT --------------- THE FOREST RANGE OFFICER, KUTTIADY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.R.P No.4 of 2001 ------------------------------------- Dated this the 27th day of May, 2009 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution for offences punishable, inter alia, under Section 27(1)(g) of the Kerala Forest Act. Trial court had found the petitioner/accused guilty of the offence punishable under Section 27(2)(c) of the Act also. But the appellate court had set aside the conviction under Section 27(2)(c) of the Forest Act. The petitioner faces a sentence of R.I for a period of one year and to pay a fine of Rs.1,000/- and in default to undergo R.I for a period of 3 months. 2. The crux of the allegations against the petitioner is that he along with another was engaged in the act of sawing a tree which was felled in a reserve forest when PWs 1 and 2 were on routine patrol duty come across them at about 12 noon on 05.03.1987. PWs 1 and 2 allegedly attempted to apprehend the petitioner and the co-accused. But their attempt proved futile. They prepared Ext.P1 seizure mahazar which contains a narration of the sequence of events. They produced the same before PW3, their superior. He inspected the scene and verified Crl.R.P No.4 of 2001 2 the recitals in Ext.P1 mahazar and made Ext.P1(a) endorsement on the said mahazar on 06.03.1987. Enquiry was conducted by PW4, who filed complaint/charge sheet before the learned Magistrate. Cognizance was taken by the learned Magistrate. The accused denied the offence alleged against them. Thereupon the prosecution examined PWs 1 to 4 and proved Exts.P1, P1(a) and P2. Ext.P2 is the relevant notification to confirm that the forest within which the alleged act had taken place is a reserve forest. 3. The accused took up a defence of total denial. He did not adduce any defence evidence. 4. The courts below concurrently came to the conclusion that the prosecution has succeeded in establishing the allegations against the petitioner and that the said allegations when accepted establish an offence punishable under Section 27 (1)(g) of the Kerala Forest Act. Accordingly they proceeded to pass the impugned concurrent verdicts of guilty, conviction and sentence. 5. We have heard the learned counsel for the petitioner and the learned Public Prosecutor. The learned counsel for the petitioner assails the impugned order on two grounds. Crl.R.P No.4 of 2001 3 (i) The courts below erred in placing reliance on the oral evidence of PWs 1 and 2; (ii) The sentence imposed is at any rate excessive. 6. No other contentions are raised in this revision petition. The prosecution relied on the oral evidence of PWs 1 and 2. They are both forest guards. The prosecution relied on their evidence to support each other and to prove the allegations raised by the prosecution against the accused. The prosecution further relied on the contents of the contemporaneous Ext.P1 mahazar which substantially corroborate the oral evidence of PWs 1 and 2. The evidence of PW3, that Ext.P1 was produced before him by PWs 1 and 2 and that he had inspected the scene to verify facts and had confirmed the same, was also relied upon by the courts below to come to a conclusion in favour of the prosecution. 7. The learned counsel for the petitioner submits that the courts below should not have accepted and acted upon the uncorroborated oral evidence of PWs 1 and 2. They are both interested. They are forest officials. The offence had taken place in a forest which was in the charge of PWs 1 and 2. If PWs 1 and 2 are unable to point the accusing finger at some specified Crl.R.P No.4 of 2001 4 persons they were likely to be proceeded against by their superiors. They were hence under great compulsion to place the blame for the act of cutting the tree at the doors of someone and it is in these circumstances that the petitioner and the co- accused, who happened to be persons residing near the scene were chosen for false implication. The counsel argues that in these circumstances the oral evidence of PWs 1 and 2 may not be relied upon. 8. The counsel then contends that inter se contradiction are there in the evidence of PWs 1 and 2 and that there is nothing to enable the court to draw the inspiration for any part of the oral evidence of PWs 1 and 2. 9. The counsel first of all points out that while PW1 stated that he had written the mahazar in his hand, PW2 in his evidence claimed to have prepared it. This according to the counsel is a serious incongruity. The counsel then contends that the recitals in Ext.P1 would suggest that certain articles were recovered from the scene of the crime. None of those articles have been produced. The timber from the tree which was cut or any part thereof has not been produced before the court. The utensils and the articles for cooking food which are claimed to be Crl.R.P No.4 of 2001 5 available as per Ext.P1 have also not been produced before the court. Though Ext.P1 mahazar recites that those articles are seized, they have not seen the light of the day. These incongruities and contradictions in the light of the interest of PWs 1 and 2 must persuade this Court to throw overboard the evidence of PWs 1 and 2 or at least to concede to the petitioner the benefit of doubt. 10. I have anxiously considered the contentions of the learned counsel for the petitioner. It is true that PWs 1 and 2 are public officials charged with the duty of detecting offences and bringing offenders to book. In that view of the matter, they must certainly be interested bona fide in the successful prosecution of offenders. Every conscientious public official is bound and expected to have this interest. Such interest will not and cannot persuade a court to approach the evidence of such witness with any amount of undeserved doubt, suspicion and distrust. It is relevant and crucial that in the cross examination of PWs 1 and 2 there is not a whisper of a contention or even suggestion that PWs 1 and 2 or any other forest official had any axe to grind against the petitioner or co-accused or anyone in whom they are interested. Crl.R.P No.4 of 2001 6 11. It is true that the rocky stones which were kept for making a makeshift stove and the articles/utensils for cooking, which were found available in the forest though stated to be found in the forest, have not been produced before the court. The logs of timber have also not been produced. But I am of opinion that, that inadequacy is not of any crucial relevance. The rocky stones, articles and utensils are not shown to have any crucial nexus with the crime. It was interior forest and the omission to transport timber log of virtually insignificant value from the scene does not also persuade me to doubt or suspect the oral evidence of PWs 1 and 2. Even going by the version of the witnesses and the version in Ext.P1, the total loss suffered by the State is only in the range of Rs.200/-. The omission to produce such articles before court cannot in the circumstances of the case be sufficient to throw overboard the evidence of PWs 1 and 2 or to concede the benefit of doubt to the petitioner. 12. I am, in these circumstances, satisfied that the court below committed no error in accepting and acting upon the evidence of PWs 1 and 2. The verdict of guilty and conviction do not, in these circumstances, warrant any interference. Crl.R.P No.4 of 2001 7 13. Coming to the question of sentence, it is pointed out that at the relevant time the offence under Section 27(1)(g) of the Kerala Forest Act was punishable with imprisonment for a term which may extent to a period of 3 years and with fine which may extend to Rs.1,000/-. I find merit in the contention of the learned counsel for the appellant. The petitioner has been sentenced to undergo R.I for a period of one year and to pay a fine of Rs.1,000/-. Default sentence imposed is also R.I for a period of 3 months. There is no contention that revision petitioner is involved in any identical case earlier. Considering the nature of the offence, there was no necessity to impose such a deterrent substantive as well as default sentence, submits the learned counsel. I find merit in that contention. I take note of the long lapse of time and the date of the offence. I am satisfied in the facts and circumstances of the case that imposition of a sentence of S.I for a period of 45 days and to pay a fine coupled with a default sentence of S.I for a period of 15 days shall eminently meet the ends of justice. The appeal succeeds only to the above extent. Crl.R.P No.4 of 2001 8 14. In the result: a) This appeal is allowed in part; b) The verdict of guilty and conviction of the petitioner under Section 27(1) (g) of the Kerala Forest Act are upheld; c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner by the courts below, he is sentenced to undergo S.I for a period of 45 days and to pay a fine of Rs.1,000/- (Rupees One thousand only) and in default to undergo S.I for a period of 15 days. 15. The petitioner shall have time till 29.06.2009 to appear before the learned Magistrate to serve the modified sentence hereby imposed. He shall appear and his sureties shall produce him before the learned Magistrate on or before that date. (R.BASANT, JUDGE) rtr/-