IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 Crl.Rev.Pet.No. 1572 of 2007() ------------------------------ CRA.229/2005 of SESSIONS COURT, KOLLAM CC.23/2000 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), PUNALUR .................... REVISION PETITIONER(S): APPELLANT NO.1/ ACCUSED NO.1: --------------------------------------------------------------------------------------------- JACOB @ CHACKO, S/O.ABRAHAM, 12 CENT, KATTUVALLIYIL VEEDU, THINKALKARIKKAKOM VILLAGE, PATHANAPURAM TALUK, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): RESPONDENT:COMPLAINANT: --------------------------------------------------------------------------- STATE OF KERALA REPRESENTED BY THE FOREST RANGE OFFICER, ANCHAL (O.R.NO.15/99) THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/10/2008 ALONG WITH CRRP NO. 2711 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 1572 OF 2007 AND CRL.R.P. NO. 2711OF 2007 ------------------------------------------ Dated this the 17th day of October, 2008 O R D E R Petitioner in Criminal Revision Petition 1572 of 2007 is the first accused and petitioners in Crl.R.P. 2711 of 2007 are accused 2 and 3 in C.C.23 of 2000 on the file of Judicial First Class Magistrate, Punalur. Third accused is the original fourth accused in the crime. As the third accused in the crime was absconding, only accused 1, 2 and 4 were tried by Judicial First Class Magistrate-II, Punalur. Prosecution case is that on 26.6.1999 PWs 1 to 4 and 9, the Forest Officers, while on routine beat duty reached Anakuzhi division of reserve forest and found that two Anjili trees were cut and there remained only their stumps and the top parts of the trees. Ext.P6 mahazar was prepared. After preparing Ext.P1 report in FormNo.1 the case was investigated. On investigation, getting information that portions of the trees cut were kept in the house of the first accused/petitioner in Cr.R.P.1572 of 2007, PW1 reached there, found the timber logs and arrested him and recorded Ext.P2 confession statement and thereafter seized the logs and CRRP1572/07 & 2711/07 2 registered crime 15 of 1999. On further investigation it was revealed that the other accused are also involved. On getting information that the other pieces of the trees were kept in the house of the second accused, PW1 reached there and prepared Ext.P8 mahazar and 16 logs of Anjili trees found therein were seized. Accused 3 and 4 surrendered before PW1 on 15.7.1999 and thereafter their confession statements were also recorded. PW10 visited the place of occurrence and prepared Ext.P9 mahazar. After completing the investigation the charge was laid. As the third accused was absconding only the other three accused were tried. They pleaded not guilty. Prosecution examined ten witnesses and marked nine exhibits. On the evidence the accused were questioned. They did not adduce any evidence. Learned Magistrate on the evidence found all the petitioners guilty. They were convicted and sentenced to simple imprisonment for one year and a fine of Rs.1,000/- and in default simple imprisonment for three months each for the offence under section 27 (1) (d) of Kerala Forest Act, and simple imprisonment for one year each and a fine of Rs.1,000/- and in default simple imprisonment for three months each for the offence under section 27 (1)(e)(iii) and under section 27(1)(e)(iv) of Kerala Forest Act. The substantive sentences were directed CRRP1572/07 & 2711/07 3 to be run concurrently. They challenged the conviction and sentence before Sessions Court, Kollam in Crl. Appeal 229 of 2005. 2. Learned counsel appearing for petitioners and learned Public Prosecutor were heard. 3. Learned counsel argued that case was investigated by the forest officials below the rank of Assistant Conservator of Forest and even under section 72 of Kerala Forest Act only officers not below the rank of Assistant Conservators of Forest can exercise the powers provided therein and it does not include the power of investigation and therefore the investigation was not legal and for that sole reason the conviction is to be set aside. The learned counsel then argued that evidence on record is insufficient to prove that the timber logs seized by PW1 under Exts.P8 and P9 mahazars relate to the timber trees cut from the forest and therefore based on the recovery petitioners cannot be convicted. Learned counsel also argued that the confession statement made by petitioners should not have been relied on by the Courts below and in the absence of conclusive evidence to prove that petitioners trespassed into the reserve forest or cut and removed the Anjili trees, conviction and sentence are not sustainable. Learned counsel also argued that Ext.P6 CRRP1572/07 & 2711/07 4 notification was not proved in accordance with law and there is no evidence to prove that it is a reserve forest as notified under section 4 of Kerala Forest Act and hence petitioners are entitled to an order of acquittal. 4. Learned Public Prosecutor pointed out that section 72 of Kerala Forest Act invest forest officers with powers mentioned therein and section 66 specifically empowers all forest officers as defined under section 2(c) of Kerala Forest Act to investigate any forest offence and collection of evidence and therefore PW10 is competent to collect the evidence and investigate the case and the investigation is legal and proper. Learned Public Prosecutor also argued that Ext.P6, copy of the notification, is attested as true copy by the Principal Chief Conservator of Forest, who is the Head of the Department and therefore notification issued under section 4 is proved by production of Ext.P6 and it is proved that the Anjili trees were cut from the reserve forest. Learned Public Prosecutor also pointed out that learned Magistrate and learned Sessions Judge on appreciation of evidence found the evidence of the forest officials credible and reliable and it established that the two Anjili trees were cut and parts of the trees cut were seized under Exts.P8 and P9 mahazars from the houses of accused 1 CRRP1572/07 & 2711/07 5 and 2 and therefore the conviction is perfectly legal. 5. The evidence of PWs 1 to 4 and 9 were relied on by the learned Magistrate and learned Sessions Judge. Evidence of PW1 shows that he was the Forest Range Officer during the relevant time and on 26.6.1999 he was on routine beat duty in Anakuzhy reserve forest. Evidence of PW2, the Forest Guard and PW9, another Forest Guard, establish that they were also with PW1 at that time. Their evidence establish that when they reached Anakuzhy reserve forest, they found stump portions of two Anjili trees and at the scene there were evidence to establish that the trees were cut recently and timber logs were transported from the forest. Ext.P1 mahazar was prepared. Though PWs 1, 2 and 9 were cross-examined, nothing was brought out to disbelieve their evidence on these facts. 6. The evidence of PW2 further establish that while investigating the case, first accused was arrested on 30.6.1999 getting information that first accused has stored logs of the Anjili trees cut from the forest, and when reached the house of the first accused, found 35 pieces of logs stored there and after preparing Ext.P8 mahazar they were seized. Evidence also establish that getting information that second accused was also involved they proceeded to the house of the second accused on CRRP1572/07 & 2711/07 6 27.7.1999 and the wooden logs kept at the house of the second accused were also seized under Ext.P9 mahazar. On the information gathered from accused 1 and 2 the other two accused were also arrested later when they surrendered on the information that they had helped the other accused to remove the timber logs from the forest. 7. Though learned counsel vehemently argued that Courts below should not have relied on the evidence of PWs 1,2 and 9, on going through their evidence and the findings of the Courts below, I do not find any infirmity in their evidence warranting interference in the acceptance of their version. The learned Magistrate who had the opportunity to see the witnesses and not their demeanour found their evidence credible and reliable. Learned Sessions Judge who reappreciated the evidence, accepted the same. Apart from the general challenge, nothing was pointed out to interfere with the appreciation of the evidence. Hence I do not find any reason to interfere with the appreciation of evidence by the Courts below. 8. The argument of the learned counsel is that though Ext.P6 copy of the notification was produced, it should not have been relied on as it is only a true copy when there is no evidence to prove that there is a notification under section 4 of the Kerala CRRP1572/07 & 2711/07 7 Forest Act and so the conviction is not legal. Ext.P6 though was not a gazetted copy of the notification, it is copy of the notification by the Principal Chief Conservator of Forest, who is the Head of the Department. He is competent to certify the copy as the true copy of the notification. Ext.P6 is admissible in evidence. Ext.P6 establish that it is a reserve forest. Evidence of PWs 1, 2 and 9 and Ext.P7 scene mahazar establish that two Anjili trees were cut from the reserve forest. 9. Though there is no eyewitness to prove that accused 1 and 2 cut the Anjili trees, from the fact that the timber logs were seized from houses of accused 1 and 2 as proved by evidence of PWs 2 and 9 and corroborated by Exts.P8 and P9, the contemporaneous mahazars prepared at that time establish that Anjili trees were cut from the forest by petitioners 1 and 2. Though learned counsel appearing for petitioner vehemently argued that there is no scientific evidence to prove that the timber logs seized under Exts.P8 and P9 are the timber logs which were cut and removed from the stumps of the Anjili trees cut from the forest, I do not find any reason to disbelieve the evidence of PWs 1, 2 and 9 on that aspect who are competent to depose the facts. It is pertinent to note that even at the time of questioning under section 313 of Code of Criminal Procedure, CRRP1572/07 & 2711/07 8 petitioners 1 and 2 have no case that the timber logs seized under Ext.P8 and P9 from their houses were either purchased by them or cut and removed from their own property. In such circumstances Courts below were justified in holding that those timber logs were the parts of the two Anjili trees cut from the reserve forest after committing trespass. In such circumstances conviction of the petitioners 1 and 2 for the offence under section 27(1) (d) and 27(1) (e) of Kerala Forest Act is perfectly legal and correct. 10. But the case is different as against the third accused, the original fourth accused. Even prosecution has no case that third accused trespassed into the forest and cut Anjili trees. Even as per Exts.P2 and P3 statements recorded from petitioners 1 and 2, case was only that they sought assistance of the other accused to remove the trees. There is no allegation that there was any common intention for the third accused either to trespass into the forest or to cut and remove any timber trees from the forest. There was no recovery from the house of the third petitioner. In such circumstances conviction of the third petitioner is not legal. It is possible that third petitioner assisted the other accused to remove the timber logs without knowing that they were cut from the forest. In any case he is CRRP1572/07 & 2711/07 9 entitled to get the benefit of doubt. In such circumstances conviction of the third petitioner is set aside. He is acquitted of the offences. 11. Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioners 1 and 2 only for the minimum sentence provided under the Forest Act. In such circumstances no interference with the sentence is warranted. Crl.R.P. 1572 of 2007 dismissed. Conviction and sentence as against first accused confirmed. Crl.R.P.2711 of 2007 is partly allowed. Conviction and sentence as against second accused confirmed. Conviction and sentence as against third accused set aside. Third accused is acquitted of the offences charged. Bail bond executed by third accused stands discharged. He is set at liberty. M. SASIDHARAN NAMBIAR, JUDGE Okb/- CRRP1572/07 & 2711/07 10