IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 651 of 2002() ----------------------------- CRA.131/1995 of SESSIONS COURT, MANJERI CC.154/1994 of JUDL.MAGISTRATE OF FIRST CLASS-II (FOREST OFFENCES), MANJERI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED --------------------------------------- 1. HAROON RASHEED, S/O.KANAKKANTHODIKA ABDUL SALAM, KARULAI, ERNAD TALUK. 2. MUHAMMED, S/O.THOTTOLY MAMMEDEESSA, KARULAI, ERNAD TALUK. BY ADV. SRI.K.P.MUJEEB RESPONDENT(S): RESPONDENT/COMPLAINANT & STATE --------------------------------------------- 1. DEPUTY RANGER,NEDUMGAYAM FOREST STATION. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI K.J.MOHAMED ANZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. ------------------------------------------------------ CRL. R.P. 651 of 2002 ------------------------------------------------------ Dated: DECEMBER 8, 2009 ORDER The revision petitioners are accused 1 and 2 in Calendar Case No.154/1994 in Judicial First Class Magistrate II, Manjeri and appellants in Criminal Appeal No. 131/1995 in Sessions Court, Manjeri. They were convicted under Sections 27(1)(e)(iii) and (iv) of Kerala Forest (Amendment) Act and were sentenced to undergo Rigorous Imprisonment for one year each and also to pay a fine of Rs.1,000/- in default to undergo Simple Imprisonment for three months each under each Count. On appeal, by the accused persons, the lower appellate court confirmed the conviction and sentence. Accused persons have now 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, on May 26, 1993 at about 9 a.m., they were found trespassed into 1972 teak plantation at Kanengarapotty in Karimpuzha reserve forest and cut teak trees and attempted to remove two teak logs causing a loss of Rs.100/- to the Government and that they thereby committed offences punishable under Sections 27(1)(e)(iii) and (iv) of Kerala Forest (Amendment) Act. 3. Accused persons on appearance before the trial court pleaded not guilty to a charge under Sections 27(1)(e)(iii) and (iv) of Kerala Crl.R.P.651/02 2 Forest (Amendment) Act. PWs 1 to 3 were examined and Exts. P1 to P4 were marked on the side of the prosecution. On questioning under Section 313 Cr.P.C., accused persons denied the entire incident. PW1 was recalled and examined as DW1 on the side of accused. 4. The trial court on an appreciation of evidence, found the revision petitioners guilty of the offence punishable under Sections 27 (1)(e)(iii) and (iv) of Kerala Forest (Amendment) Act and convicted them and sentenced them as aforesaid, which is confirmed in appeal. Accused persons have now come up in revision challenging their conviction and sentence. 5. Heard the learned counsel for the revision petitioners and the learned Public Prosecutor. 6. The following points were raised for consideration. I. Whether the conviction and sentence of the revision petitioners by the trial court under Sections 27(1)(e)(iii) and (iv) of Kerala Forest Amendment Act which is confirmed in appeal can be sustained ? II. Whether the sentence imposed is excessive or unduly harsh ? Point No. I 7. PWs.1 to 3 were examined and Exts.P1 to P4 were marked on the side of the prosecution. P.W.1 is the then Forest Guard and Crl.R.P.651/02 3 PW.2 is the then Section Forester. Ext.P1 is the mahazar prepared by PW.1 and Ext.P2 is the order of sanction issued by the DFO, Nilambur to prosecute the accused. Ext.P3 is the relevant notification showing the place of the alleged occurrence as part of the reserve forest. Ext.P4 is the alleged confession statement made by the 1st accused to PW.3, the Deputy Range Officer. 8. PWs.1 and 2 testified in a convincing manner before the trial court that at about 9 a.m. on May 26, 1993 they found the accused persons carrying on two teak logs inside 1972 teak plantation in Karimpuzha reserve forest at Kanengarapotty and on seeing PWs.1 and 2 they ran away and that though PW.1 chased them, he was unable to apprehend the accused persons. They further testified that the accused persons are previously known to them and that on examining the premises they found recently cut teak stumps and the saw used to cut the trees. PW.1 prepared the mahazar Ext.P1 and registered the case. I have gone through the evidence of PWs.1 and 2. No serious discrepancies were brought out in their cross- examination to discredit their evidence. PW.3 the Deputy Range Officer, Nedungayam Forest Station verified Ext.P1 mahazar and found the facts stated to be true. He obtained special sanction Ext.P2 from the DFO, Nilambur and laid the charge before the trial court. 9. Counsel for the revision petitioners argued that PWs.1 and 2 Crl.R.P.651/02 4 did not see the accused persons cutting any trees and that therefore the accused persons could not be found guilty of the offences alleged against them. It is true that PWs.1 and 2 did not see the accused persons cutting the trees. But they found recently cut stumps of the trees nearby and the saw used for cutting the trees. Therefore the presumption is irresistible that it was the accused persons who cut those trees. All these apart, there is Ext.P4 confession statement of the 1st accused recorded by PW.3 wherein the 1st accused has admitted the cutting of trees from the forest. For all these reasons the trial court is perfectly justified in believing the evidence of PWs.1 and 2. 10. Counsel for the revision petitioners argued that Ext.P2 sanction order is invalid as the said sanction order does not show that the DFO had perused the records. There is no substance in the above contention. There is no provision in the Forest Act to obtain sanction before initiating prosecution. Therefore Ext.P2 is not very much relevant in this case. That being so, the above argument advanced by the counsel for the revision petitioner has only to be rejected. 11. It was next argued by the defence counsel that it is not true that the scene of incident is a reserve forest. There is no substance in the above contention. Ext.P3 is the relevant notification showing the place of alleged occurrence as part of the reserve forest. PW.1 when recalled and examined as DW.1 clearly stated the boundaries of Crl.R.P.651/02 5 the said forest. It shows that the scene of incident comes within the reserve forest notified in Ext.P3. 12. For all these reasons, I hold that the trial court has justified in believing with the evidence of PWs. 1 to 3 and coming to the conclusion that accused persons trespassed into the 1972 teak plantation which is a Reserve Forest and cut teak tree from there which is an offence punishable under Sections 27(1)(e)(iii) and (iv) of Kerala Forest (Amendment) Act. The conviction of the revision petitioners under Sections Sections 27(1)(e)(iii) and (iv) of Kerala Forest (Amendment) Act is therefore confirmed. Point No. II 13. As regards sentence, the trial court sentenced them is to undergo Rigorous Imprisonment for one year each and pay a fine of Rs. 1,000/- each and in default to undergo simple imprisonment for three months each under each account. The incident occurred in the year 1993. Further, the accused persons are coolie workers. Taking into consideration all these aspects, I feel that the substantive sentence imposed by the trial court can be reduced to 6 months Rigorous Imprisonment. In the result, the revision petition is allowed in part and conviction under Sections 27(1)(e)(iii) and (iv) of Kerala Forest (Amendment) Act are confirmed. Sentence is modified to the effect Crl.R.P.651/02 6 that the substantive sentence imposed is reduced to rigorous imprisonment for six months under each count. The sentence of fine imposed is maintained. The substantive sentences imposed are ordered to run concurrently. Their bail bonds are cancelled. They shall surrender before the trial court on or before January 15, 2010. P.Q. BARKATH ALI, JUDGE CRL.M.P.3985 of 2002 Dismissed. 8.12.2009 P.Q. BARKATH ALI, JUDGE kkms/mt