IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Crl.Rev.Pet.No. 169 of 2002() ----------------------------- CRA.73/1998 of SESSIONS COURT, THODUPUZHA CC.207/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: ---------------------------------------- 1. KRISHNANKUTTY, S/O. NARAYANAN, VAZHAYIL HOUSE, MAMALAKANDAM,KUTTAMPUZHA VILLAGE, DEVIKULAM TALUK. 2. SHAJI, S/O.PAPPACHAN, NADAYIL HOUSE, MAMALAKANDAM, KUTTAMPUZHA VILLAGE,DEVIKULAM TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT(S)/RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1016/2002 IN CRL.R.P.NO.169/2002 DISMISSED. 21.5.2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.R.P.NO.169 OF 2002 (B) ----------------------------------- Dated this the 21st day of May, 2009 O R D E R Revision petitioners are the accused, two in number, in C.C.No.207/1996 on the file of the Judicial First Class Magistrate Court, Adimali. They were prosecuted for the offence punishable under Section 27 of the Kerala Forest Act, on a report filed by the Forest Range Officer, Neriamangalam. Both of them pleaded not guilty. After trial, the learned Magistrate found them guilty of the offence. Convicting them of the offence, each of them was sentenced to undergo simple imprisonment for a period of one year and fine of Rs.1,000/- each with default term of simple imprisonment for a further period of two months. In appeal, the Sessions Judge confirmed the conviction and upheld the sentence without any modification. Aggrieved by the conviction concurrently found by both the courts below, the accused have preferred this revision. CRRP.169/02 2 2. The gist of the prosecution case is that the accused, both of them, trespassed upon a reserve forest at Elamplassery Bhagom, Neriamangalam Range within the Malayattoor Reserve, and cut down an anjili tree, causing a loss of Rs.6,000/- to the Government. Two forest guards attached to Forest Range Neriamangalam, examined as PWs.1 and 2, it is alleged, found the accused on the evening of 19.5.1993, cutting an anjili log with a saw at a spot inside the reserve forest. Stump of the tree, which was cut down, was detected a few metres away from that spot. A mahazar was prepared over the stump and also the log pieces in the presence of the accused and later a seizure report was prepared. A report was subsequently laid before the court indicting the accused of the offences punishable under Section 27(1) (e) (iii) and 27(1) (e) (iv) of the Kerala Forest Act. 3. The accused, on appearance, pleaded not guilty. Prosecution examined two forest guards, who detected the CRRP.169/02 3 offence as PWs.1 and 2, got marked Exts.P1 to P3 and identified MO1 to prove its case. The accused questioned under Section 313 of Cr.P.C. denied the prosecution evidence and contended that they had been falsely implicated. The first accused submitted that he had made a complaint against the forest officials for cutting down trees from the settlement area. Though such a defence was canvassed, no evidence was adduced in support thereof. As already stated, the trial Magistrate found the accused guilty of the offence imputed, and, conviction for the offence with the sentence imposed by the Magistrate was confirmed by the Sessions Judge in appeal. 4. I heard the learned counsel for the revision petitioners/accused and also the learned Public Prosecutor. Conviction of the accused is assailed by the learned counsel contending that there is no legal evidence to prove the guilt of any of the accused in respect of the forest offence imputed. Solely based on the evidence of the forest guards, PWs.1 and 2, the accused have been found guilty and a critical scrutiny of their evidence, according to their counsel, indicate that it is CRRP.169/02 4 unworthy of any credence. There is material contradiction in the evidence of PWs.1 and 2, the forest guards, but it was discarded by both the courts below and it has resulted in manifestation of injustice, submits the counsel. He, therefore, urged for reversal of the conviction and sentence imposed against the accused. 5. I have perused the records of the case giving consideration to the submissions of the counsel. True, in revision, a review of the evidence is permissible only if it is shown that the finding entered by the inferior courts is patently illegal or perverse in the sense that such a view could not have been taken on the materials produced. So much so, the challenges raised in the revision, impeaching the conviction and sentence concurrently found by the court below have to be examined within the limited scope of revisional jurisdiction. What is evident from the records is that a formal report, that is, a Forest Offence Seizure Report under Section 52 of the Kerala Forest Act, 1961, was filed before the Magistrate in respect of the forest offence, on CRRP.169/02 5 28.5.1993. It is to be noted that the forest offence involved in the case allegedly took place on 19.5.1993. Three years later, Form II report, Forest Offence Charge sheet, was laid before the court by the Forest Range Officer, Neriamangalam, indicting the accused of the offence under Section 27 (i) (e) (iii) and (iv) of the Kerala Forest Act. It is distressing to note that other than examining PWs.1 and2, two forest guards, who detected the offence and seized the timber logs, no material was placed nor any evidence let in to show what investigation was conducted by the Forest Range Officer in respect of the forest offence detected. The evidence of PWs.1 and 2 would show that 50 metres away from a settlement area, they found the accused engaged in cutting an anjali log with a saw (MO1), and also detected the stump of the cut down tree in the reserve forest. After preparing a mahazer in the presence of the accused, they were sent out of the reserve forest area, is the version of the forest guards. Evidently, the accused were not arrested nor any statement recorded from them. No explanation is offered why the accused were not apprehended on detection of the forest offence. PWs.1 and 2 CRRP.169/02 6 have not stated of any difficulty in arresting the accused and producing them before the forest officials. The accused having flatly denied the accusation imputed, in the given facts, prosecution case entirely depends upon the reliability and acceptability of the testimony of the forest guards, PWs.1 and 2. The evidence of both these witnesses would show that close to the spot of detection of the forest offence, a settlement area is situated. In fact, PW1 would state that the spot of occurrence is part of settlement area. When there is nothing in evidence other than the version of PWs.1 and 2, the forest guards, to show the complicity of the accused in the forest offence alleged at a spot close to a settlement area, it is unsafe to act upon their testimony when no possible explanation is offered by them for not arresting the accused and also the records indicating that no further enquiry over the offence detected was conducted by any superior forest official. The learned Magistrate, as seen from his judgment, accepted the prosecution case for the reason that the accused, who imputed malice on forest officials, failed to prove that defence and also that the evidence of PWs.1 and 2 'is CRRP.169/02 7 substantiated' by the fact that MO1 was recovered from the accused. Strangely enough, it is noticed, the evidence of PWs.1 and 2, the forest guards, which alone was available in the records, was not critically analysed and appreciated by the learned Magistrate. Version of the forest officials, PWs.1 and 2 as regards the detection of the forest offence appears to be improbable especially when no reason is shown why the accused were not apprehended. Failure of the accused to substantiate the defence projected, needless to point out, does not add credence to the prosecution case. Onus is always on the prosecution to prove its case and it never shifts. The Sessions Judge, it appears, also overlooked the circumstances involved that no material was produced by the prosecution as to what enquiry was conducted by any superior forest official after filing of Ext.P3 report before that court. In that backdrop, I find that placing implicit reliance on the evidence of PWs.1 and 2, the forest officials, to hold the accused guilty of the offence imputed, may not at all be justified. The accused, in the given facts, are entitled to the benefit of doubt. So much so, in reversal of the conviction and sentence CRRP.169/02 8 imposed against the accused, the accused are found not guilty and they are acquitted of the offence charged. Revision is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO.169 OF 2002 (B) --------------------------------------------------------- O R D E R --------------------------------------------------------- 21st May, 2009