IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 22ND DAY OF DECEMBER 2011/1ST POUSHA 1933 CRRP.No. 906 of 2002 (A) --------------------------------- (AGAINST THE JUDGMENT DT:22.03.02 OF THE SESSIONS JUDGE, MANJERI, MADE IN CRL.APPEAL NO.126/95, FILED AGAINST THE JUDGMENT DT:31.07.95 OF J.F.C.M.II (FOREST OFFENCES), MANJERI, MADE IN C.C.NO.148/92) .......................................... REVISION PETITIONER(S)/APPELLANT/ACCUSED 1 & 2 : 1. MOOTHEDATH NAZAR, S/O. FAKEER MUHAMMED, P.O.KAKKADANPOYIL, AKAMPADAM VILLAGE, ERANADU TALUK, MALAPPURAM DIST. 2. MOOTHEDATH SIDDIQUE, S/O. FAKEER MUHAMMED, P.O. KAKKADANPOYIL, AKAMPADAM VILLAGE, ERANADU TALUK, MALAPPURAM DIST. BY ADVS.SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH SRI.N.BHASKARAN NAIR SRI.V.M.ABHILASH COMPLAINANT(S)/RESPONDENT : 1. STATE OF KERALA, REPRESENTED BY FOREST RANGE OFFICER EDAVANNA RANGE, EDAVANNA MALAPPURAM DIST., THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.N.SURESH, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMV P.S. GOPINATHAN, J. ---------------------------------------------------------- Crl.R.P.No.906 of 2002 ---------------------------------------------------------- Dated this the 22nd day of December, 2011 ORDER The revision petitioners are accused 1 and 2 in C.C.No.148/1992 on the file of the Judicial Magistrate of the First Class II (Forest Offences), Manjeri. The Forest Range Officer Edavanna in O.R.No.1/1989 prosecuted the revision petitioners along with others alleging offences under Section 27(2)(c) and 27 (1) (g) of Kerala Forest Act. After a full fledged trial, they were found guilty. Consequently, they were convicted and sentenced to rigorous imprisonment for one year and a fine of Rs.1,000/- each under Section 27(2)(c) and Section 27(1) (g) of the Forest Act. A default sentence of simple imprisonment for three months was also ordered for non payment of fine. The other accused except A6 were found not guilty and acquitted. Since A6 was absconding, case against A6 was split up. Assailing the above conviction and sentence, the revision petitioners moved Crl.A.No.126/1995. By the impugned judgment dated 22/3/2002, the learned Sessions Judge dismissed the appeal while confirming the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred. Crl.R.P.No.906 of 2002 2 2. The prosecution case in brief is that on 8/2/1989, PWs 1 and 2, two forest guards noticed that the revision petitioners along with other accused trespassed into vested forest at Thottappally reserve forest within the limits of Akampadam forest station, cut and removed various kinds of trees thereby causing damage to the tune of Rs.75,00/- to the State. 3. I have heard Adv.Shri.Vivek Joy on behalf of the revision petitioners and Shri.M.P.Madhavan Kutty, Special Govt. Pleader (Forest). Perused the judgment impugned and evidence on record. 4. The allegation of the prosecution that the revision petitioners along with others cut down trees is in fact admitted. The very case set up by them is that the property, from where the trees were cut down, were obtained to revision petitioners 1 and 2 by virtue of pattayam Nos. 7/89 and 8/89 respectively as per order in SMP Nos.244/1988 and 246/1988 on the file of the Land Tribunal, Manjeri pursuing which they had obtained pattayams, and not from the forest. Ext.D3 is the pattayam obtained in favour of the first revision petitioner and Ext.D4 is the copy of pattayam obtained in favour of the second revision petitioner and as such they are alleged to be in possession of property from where the trees were cut down. Crl.R.P.No.906 of 2002 3 Therefore, there was no trespass and that since the trees cut down were belonging to the petitioners, cutting of which requires no permission, no offence at all was committed by them. 5. The Courts below had meticulously analyzed the evidence adduced by the prosecution as well as by the revision petitioners and arrived at a conclusion that the property claimed by the revision petitioners as per the pattayams in their favour is not the property from where the trees were cut down and that the trees were cut down from the vested forest. PW4, the Forest Range Officer had proved Ext.P8 prosecution sanction, Ext.P9 notification and Ext.P10 Sketch. PW6 is the Surveyor who prepared Ext.P10. Referring to Ext.P9 and 10, PW6 would depose that the land from where the trees were cut down is part of the vested forest covered by Ext.P9 notification and that the Survey Number of the forest land is 1293. On the other hand, the case of the revision petitioners is that the property covered by pattayams are unsurveyed lands. The revision petitioners have no case that their land is in survey 1293. In support of the plea of title and possession, evidence of the then village officer as DW1 and the former village officer as DW 2 also were relied upon by the revision Crl.R.P.No.906 of 2002 4 petitioners. Ext.P6 series are two tax receipts relating to the alleged property, remitted for the year 1989-90 and 1990-91. DW2 claims to have issued possession certificate which were marked as Ext.D7, D8, D9 and 10 and D10(a). It is curious to note that in the possession certificates, DW2 had mentioned that as per Pattayam No.7/89 and 8/89, the revision petitioners had got 6 acres and 5 acres of lands respectively. There is no mention in his evidence or in the certificate that he had verified any revenue records before issuing the possession certificates or that as per the village records, the land covered by the above exhibits are in the possession or ownership of the revision petitioners. The omission to mention the ownership and possession with reference to the village records is very fatal. It is also seen that the possession certificates were issued for the purpose of availing loan from a bank. Since the original certificates are produced before Court, it is evident that the loan might not have been availed. There is also no evidence on record to come to a conclusion that the revision petitioners had been paying the taxes at any time, before and after Ext.D6 series. DW2 had also deposed that for issuing the certificates, he had gone to the property and satisfied that it is not forest land and that at the time of Crl.R.P.No.906 of 2002 5 inspection, the forest officials were present at his oral request. That evidence didn't inspire confidence. However, there is no mention in the evidence of DW2 that he had noticed the presence of any agricultural improvements effected by the revision petitioners. Yet another crucial aspect brought to my notice is that as on the date of the Criminal Appeal, the age of the revision petitioners are shown as 32 and 30 years respectively. If that be so, as on the date of offence, they would be aged 26 and 24 years respectively. If their age is calculated as on the date of commencement of Land Reforms Act, they would be 7 years and 5 years respectively. When the evidence of DW1 and 2 is analyzed in this background, the story that they were cultivating tenants as on the date of commencement of the Land Reforms Act itself is not believable. However, since the very specific defence is that of ownership and possession by them as per pattayams is over unsurveyed land, irrespective of the validity of the pattayam or the right as a cultivating tenant, they cannot escape from the prosecution because the very established case of the prosecution is that the the land from where the trees were cut down and removed is comprised Survey No.1293. In this view of the matter, I find that no Crl.R.P.No.906 of 2002 6 error, illegality or impropriety was committed by the Courts below in appreciating the evidence. The conviction under challenge is unassailable. 6. The learned counsel for the revision petitioners sought for leniency in sentence. Having due regard to the nature of the offence and nature of defence taken by the revision petitioners, I find that this is a case of mass trespass in the forest and cutting down of the forest trees. The revision petitioners deserve no leniency. Therefore, the sentence also requires no interference. In the result, the revision petition is dismissed as devoid of merits. Trial Court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE su