IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 Crl.Rev.Pet.No. 848 of 2001(A) ------------------------------------------- CRL.A.NO.115/1997 OF SESSIONS COURT, THODUPUZHA, CC.NO.30/1994 OF JUDL. MAGISTRATE OF FIRST CLASS-I, THODUPUZHA. .................... REVISION PETITIONERS/APPELLANTS 1 & 2/ ACCUSED 1 & 2: ----------------------------------------------------------------------------------------- 1. KUTTIYACHAN, S/O. ONACHAN, ATTANKULATHU, CHEENIKUZHY BHAGAM, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. 2. MANI, S/O. VELAYUDHAN, PULICKAL, PERINGASSERY, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. BY ADV. MR.SANTHEEP ANKARATH. RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. C.M. KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 848 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 3rd day of November, 2009 O R D E R Petitioners were prosecuted by the Forest Range Officer, Thodupuzha before the Judicial Magistrate of the First Class-I, Thodupuzha for offences punishable under sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act. By judgment dated July, 1997 in C.C. No.30 of 1994, the learned Magistrate found the petitioners guilty of the offences punishable under sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act, convicted them there under and sentenced them to undergo simple imprisonment for one year each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for three months each under section 27(1)(e)(iii) of the Kerala Forest Act and sentenced to undergo simple imprisonment for one year each under section 27(1)(e)(iv) of the Crl.R.P. 848/01 2 Kerala Forest Act. Against the above conviction and sentence, the accused filed Crl.A.No.115 of 1997 before the Sessions Court, Thodupuzha. The lower appellate court set aside their conviction and sentence under section 27(1)(e)(iii) of the Kerala Forest Act and confirmed their conviction and sentence under section 27(1)(e) (iv) of the Kerala Forest Act. The accused have 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 June 25, 1993 the accused trespassed into the reserve forest in teak plantation No.1937 of Veloor Teak Plantation in Thodupuzha Forest Range, felled six trees worth Rs.1,200/-, sliced it and attempted to remove it and thereby committed offences punishable under sections 27(1)(e)(iii) and (iv) of the Kerala Forest Act. 3. When the revision petitioners/accused appeared before the trial court, copies of documents relied on by the prosecution were served on them. PW1 was examined and Exts.P1 to P3 were Crl.R.P. 848/01 3 marked on the side of the prosecution. After hearing both sides, charge under section 27(1) (e) (iii) and (iv) of the Kerala Forest Act was framed against the accused, to which they pleaded not guilty. PW1 was recalled and further examined. PWs.2 and 3 were examined and Exts.P1 to P3 were marked. When they were questioned under section 313 Cr.P.C. by the trial court, they denied the entire incident. DWs.1 and 2 were examined and Exts.D1 to D3 were marked on the side of the accused. 4. The trial court on an appreciation of the evidence found the accused guilty of the offence punishable under section 27(1)(e) (iii) and (iv) of the Kerala Forest Act, convicted them there under and sentenced them as aforesaid. On appeal the learned Sessions Judge confirmed the conviction and sentence under section 27(1) (e)(iv) of the Kerala Forest Act and set aside the conviction and sentence under section 27(1)(e)(iii) of the Kerala Forest Act. Now the accused have come up in revision challenging their conviction and sentence. Crl.R.P. 848/01 4 5. Following points arise for consideration:- 1) Whether the conviction and sentence of the revision petitioners rendered by the trial court under sections 27(1)(e)(iv) of the Kerala Forest Act, which was confirmed in appeal by the appellate court, can be sustained? 2) Whether the sentence imposed on the revision petitioners is excessive or unduly harsh? 6. On the side of the prosecution PWs.1 to 3 were examined and Exts.P1 to P3 were marked. PWs.1 and 2 are the then Forest Watchers attached to Veloor Teak Plantation. They testified that while they were on beat duty on June 25, 1993 and when they reached in Teak Plantation No.1937, they found the accused persons carrying a timber piece each on their head and on questioning them, the accused admitted that the trees were cut from the plantation. Ext.P1 mahazar was prepared. Since the accused were previously known to them, the accused were not arrested. Ext.P2 is the notification showing the boundaries of the reserved forest. PW3 is the Section Forester who conducted the investigation. I have gone through the evidence of PWs.1 and 2. Crl.R.P. 848/01 5 There is nothing to suspect their credibility. The accused were caught red handed. I am of the view that the trial court as well as the lower appellate court is perfectly justified in accepting their evidence that on the relevant date the accused were found inside the forest. 7. The next question for consideration is whether the scene of occurrence is reserve forest. Ext.P2 notification was produced to show the entire Thodupuzha Range is forest. The learned counsel for the revision petitioners argued that Ext.P2 notification was issued in 1902 for a total extent of about 100 Sq. miles and that admittedly there are settlement areas besides Veloor Plantation and therefore the version of PWs.1 and 2 that accused having trespassed into the forest cannot be believed. It is true that in Ext.P2 there are some settlement areas. PWs.1 and 2 could not show the exact place of which the crime was committed. But accused persons were found inside the teak plantation which is reserve forest. Therefore, the contention of the learned counsel Crl.R.P. 848/01 6 cannot be accepted. Therefore, in my view the trial court as well as the lower appellate court is perfectly justified in coming to the conclusion that the accused persons have committed an offence punishable under section 27(1)(e)(iv) of the Kerala Forest Act. 8. As regards the sentence, the incident occurred in 1993. It is submitted by the learned counsel for the revision petitioners that the first respondent is laid up due to cancer. Taking into consideration all these aspects, I feel that a sentence of imprisonment till the rising of court and to pay fine of Rs.5,000/- each, in default to undergo imprisonment for two months each would meet the ends of justice. 9. In the result, the revision petition is allowed in part and the conviction of the revision petitioners under section 27(1)(e)(iv) of the Kerala Forest rendered by the trial court, which was confirmed in appeal is upheld. The sentence imposed against the revision petitioners is modified to the effect that they are sentenced to undergo imprisonment till the rising of court and to pay fine of Crl.R.P. 848/01 7 Rs.5,000/- each, in default to undergo imprisonment for two months each. One month’s time is granted for payment of fine. Their bail bonds are cancelled. The revision petitioners shall surrender before the trial court on or before 15-12-2009 to receive the sentence. P.Q.BARKATH ALI, JUDGE. mn. Crl.R.P. 848/01 8 P.Q.BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 848 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 3rd day of November, 2009