IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 Crl.Rev.Pet.No. 1350 of 2003() ------------------------------ CRA.42/1999 of ADDL. DISTRICT AND SESSIONS COURT,MANJERI CC.213/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II(FOREST OFFENCES), MANJERI .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------------------ MOHAMMED ALI, S/O. MOOTHEDATHU PARAMBIL ALAVI, MOOTHEDAM, EDAKKARA VILLAGE, MOOTHEDAM PANCHAYAT, ERANAD TALUK. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A. SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/06/2010, ALONG WITH CRRP NO. 1187 OF 2003 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.APPL.5684/2003 IN CRL.R.P.NO.1350/2003 30.6.2010 DISMISSED Sd/- M.SASIDHARAN NAMBIAR, JUDGE /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== CRL.R.P.No.1350/03 & 1187 OF 2003 =========================== Dated this the 30th day of June,2010 ORDER Petitioner in Crl.R.P.1350/2003 is the second accused and petitioner in Crl.R.P.1187/2003 is the first accused in C.C.213/1997. They were convicted and sentenced for the offence under section 27(i) (e)(iv) and 27(i)(e)(iii) of Forest Act. They challenged the conviction and sentence respectively in Crl.Appeal No.42/1999 and 56/1999 before Sessions Court, Manjeri. Learned Additional Sessions Judge on appreciation of the evidence confirmed the conviction and sentence and dismissed the appeals. Revisions are filed challenging the concurrent conviction and sentence. 2. Revision petitioners contended that Crl.R.P.No.1350 & 1187 of 2003 2 courts below failed to take note of the fact that there is no legal evidence to prove the offences alleged against the petitioners. It is contended that though Pws. 1 to 3 were examined, their evidence was not corroborated by any independent witness and their evidence was disbelieved by the learned Magistrate as against the third accused and the third accused was acquitted and in such circumstances based on the very same evidence, petitioners should not have been convicted. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. The argument of the learned counsel appearing for the petitioners is that the prosecution case if believed is that while on patrol duty, they found the petitioners inside the forest and on questioning them on the disclosure that the teak trees were cut by them they conducted a search in the house of the third accused and under Ext.P2 teak timber kept were seized from the Crl.R.P.No.1350 & 1187 of 2003 3 house of the third accused. But the learned Magistrate on the evidence disbelieved that case and acquitted the third accused. In such circumstances, evidence of Pws. 1 to 3 should not have been believed as against the petitioners. It is also argued that the case was foisted against the petitioners and inspite of the allegation that the teak tree was found being cut by the first accused with a chopper and the chopper was seized, it was not produced in court and in such circumstances, the evidence should not have been believed. It is finally argued that if the evidence is properly appreciated , petitioners cannot be convicted. 5. Learned Public Prosecutor submitted that for the failure to produce the chopper or the seized timber, the prosecution case cannot be thrown out and there is no reason to disbelieve the evidence of Pws.1 and 2 which is corroborated by Ext.P1 mahazar. Learned Public Prosecutor pointed out that the trial court and the first appellate Crl.R.P.No.1350 & 1187 of 2003 4 court appreciated the evidence of Pws. 1 to 3 in the proper perspective and there is no reason to interfere with the conviction. 6. Prosecution case is that Pws.1 and 2 the forest guards were on patrol duty on 13.7.1995. While inspecting 1979 teak plantation they heard the sound of cutting of a tree. Taking precaution not to get themselves detected,they reached the spot. They found the first accused cutting the head portion of the tree already felled and the second accused standing nearby. Pws. 1 and 2 apprehended accused 1 and 2 and under Ext.P1 mahazar seized the timber as well as the chopper. Ext.P1 mahazar the contemporaneous record corroborates the version of P.Ws. 1 and 2. Inspite of cross examination of Pws.1 and 2, nothing was brought out to disbelieve their evidence. Learned Magistrate and the learned Sessions Judge appreciated the evidence in the proper perspective and found their evidence trustworthy and reliable. In such circumstances, I find no reason to differ with the Crl.R.P.No.1350 & 1187 of 2003 5 findings arrived at by the courts below on the evidence of Pws. 1 and 2. Though learned counsel argued that for failure to produce the chopper seized, evidence of Pws.1 and 2 is to be disbelieved, I cannot agree. To believe the evidence of Pws.1 and 2 or not production of the chopper is not necessary. The question is whether in a trial of a forest offence, it is mandatory that the forest produce or the instrument used for committing the offence is to be produced before the court. 7. Though the Division Bench of this court in State of Kerala v. Ancy Philip (2006(1) KLT 699) took the view that non-production of the seized article is fatal to the prosecution that decision was reversed by the Supreme Court in State of Kerala v. Ancy Philip (2008(3)KLT 477). Their Lordships held that the finding of the Division Bench that only after physical production of timber before the Magistrate and after obtaining necessary orders, the forest produce could be confiscated Crl.R.P.No.1350 & 1187 of 2003 6 under section 61A is not correct and as per the provisions of law, prosecution has to produce only the relevant records showing the seizure and the officer who has seized the article has to satisfy that the offence has been committed by the accused. In such circumstances for non production of the chopper or the timber seized, the conviction cannot be interfered as sought for by the learned counsel appearing for the petitioners. 8. On a proper evaluation of the evidence, it is conclusively proved that Pws. 1 and 2, while on patrol duty in 1979 teak plantations found first accused cutting the head portion of the felled tree and the second accused standing nearby and they did so after trespassing into the forest. In Form 2 submitted before the court by PW3 it has been specifically stated that the chopper as well as timber seized under Ext.P1 were kept, at the office, for proceeding in accordance with the law evidently under section 61A of the Forest Act. Though PW1 the Excise Guard who has nothing to do Crl.R.P.No.1350 & 1187 of 2003 7 with the production of the seized articles or laying the report before the court was asked whether the Chopper was produced in court and he deposed that he is not aware of it. The accused did not question PW3 as to why the chopper was not produced. There was no case before the courts below that proceedings under section 61A of Forest Act was not initiated. In such circumstances, I find no reason whatsoever to interfere with the conviction for the offences under section 27(i)(e) (iii) and 27(i)(e)(iv) of the Kerala Forest Act. The conviction is perfectly legal. 9. Then the only question is regarding the sentence. Learned Magistrate has awarded only the minimum sentence provided for the offences. In such circumstances no interference is warranted in the sentence also. Revision Petition is dismissed. Petitioners are directed to appear before Judicial First Class Magistrate-II (Forest Offences), Manjeri on 30.7.2010. Learned Magistrate is directed to Crl.R.P.No.1350 & 1187 of 2003 8 execute the sentence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006