IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Crl.Rev.Pet.No. 707 of 2001() ----------------------------- CRA.123/1997 of SESSIONS COURT, THODUPUZHA C.C.NO.98 OF 1994 OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS-I, THODUPUZHA .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED:- --------------------- 1. JOSE, S/O.PATHROSE, POOVATHINKAL HOUSE, CHEMPANKUZHIBAGHOM, NERIYAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 2. PRASAD, S/O.GOPALAN, KUNNATHU HOUSE, CHEMPANKUZHI BAGHOM, NERIYAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. 3, VIJAYAN, S/O. KUNJUMON, MUTTANCHERIL HOUSE, CHEMPANKUZHI BAGHOM, NERIYAMANGALAM VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.P.P.JACOB RESPONDENT(S): RESPONDENT/COMPLAINANT --------------- STATE OF KERALA, REPRESENTED BY THE FOREST RANGE OFFICER, MULLARINGADU, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SMT. REKHA C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.P. No.3368 of 2001 in Crl.R.P. No. 707 of 2001 Dismissed. 7-10-2009 Sd/- P.Q.Barkath Ali, Judge. P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 707 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 7th day of October, 2009 O R D E R The revision petitioners are accused 1 to 3 in C.C.No.98/1994 on the file of Judicial First Class Magistrate Court, Thodupuzha and appellant in Crl.Appeal No.123/1997 of Sessions Court, Thodupuzha. They were convicted for the offences punishable under sections 27 (1)(e)(iii) and 27(1) (e)(iv) of the Kerala Forest Act and sentenced to undergo simple imprisonment for one year under each count and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for two months under section 27(`1)(e)(iii) of the Kerala Forest Act. On appeal by the revision petitioners, their conviction under Section 27(1)(e)(iii) of the Kerala Forest Act was set aside and conviction under Section 27(1)(e)(iv) of the Kerala Forest Act was confirmed. Sentence imposed under Section 27(1)(e)(iv) of the Kerala Forest Act was confirmed by the Appellate Court. Accused 1 to 3 challenge their conviction and sentence in this revision. 2. The case of prosecution, as testified by PWs 1 to 3 before the trial court and as revealed from Ext.P1 mahazer, in brief, is this : On December 18, 1993 PWs 1 and 2 who are the then forest guards attached to Vellakayam beat were on beat duty. When they reached at Crl.R.P.707/2001 2 Inchathotty bhagam, they saw the three accused persons carrying two pieces of sawed teak timber. On questioning, the accused persons pointed out the stumps of teak trees about 100 metres west. They also pointed out the sawing platform and other sawed timber. The value of timber and fire wood would come to Rs. 4500/-. Ext.P1 mahazer was prepared from the spot. As accused persons were previously known to PWs 1 and 2, they were brought outside the forest and were released. PW1 registered the case against the accused persons. 3. When the accused persons appeared before the lower court copies of documents relied on by the prosecution were furnished to them. PW1, the then beat guard of Vellakayam beat was examined and Exts.P1 to P3 were marked . After hearing both sides, as the trial court was satisfied that a prima facie case has been made out against the accused persons, charges under Sections 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Foresh Act were framed and read over to them, to which they pleaded not guilty. Thereafter, PW1 was recalled and further cross examined and PWs 2 and 3 were also examined on the side of the prosecution. When questioned under Section 313 Cr.P.C., the accused persons denied the incriminating evidence against them. No defence evidence was adduced. Crl.R.P.707/2001 3 4. The trial court on an appreciation of evidence found the accused persons guilty of the offence punishable under Section 27(1)(e)(iii) and 27(1)(e)(iv) of the Kerala Forest Act and sentenced them to undergo simple imprisonment for one year under each count and also to pay a fine of Rs. 1000/-, in default, to undergo simple imprisonment for two months under section 27(1)e)(iii) of the Kerala Forest Act. The substantive sentences were ordered to run concurrently. On appeal by the revision petitioners, the lower appellate court found the revision petitioners not guilty of the offence punishable under Section 27(1)(e)(iii) of Kerala Forest Act and acquitted them from the said charge. But lower appellate court confirmed the conviction of the revision petitioners under Section 27(1)(e) (iv) of the Kerala Forest Act and maintained the sentence of simple imprisonment for one year. Now the accused persons have come up in revision challenging their conviction and sentence. 5. The following points arise for consideration:- 1) Whether the conviction and sentence of the revision petitioners under Section 27(1)(e)(iv) of the Kerala Forest Act by the trial court which is confirmed in appeal can be sustained ? 2) Whether the sentence imposed is excessive or unduly harsh ? 6. The case against the revision petitioners is that two days prior to Crl.R.P.707/2001 4 December 18, 1993 they trespassed into the reserve forest at Inchathotty bhagam coming under the Mullaringadu Forest Range, cut down teak tree, sliced it and attempted to remove the same, having a value of Rs.5,000/- and that thereby they committed offence punishable under section 27(1)(e)(iii) and (iv) of the Kerala Forest Act. The lower appellate court found the revision petitioners not guilty of the offence punishable under section 27(1) (e)(iii) of the Kerala Forest Act, but confirmed the conviction and sentence under section 27(1)(e)(iv) of the Kerala Forest Act. 7. To prove the charge against the revision petitioners, PWs.1 to 3 were examined on the side of the prosecution before the trial court. PWs. 1 and 2 are Forest Guards attached to the Mullaringadu Forest Range. They testified in terms of the prosecution case. PW3 is the Forest Range Officer who laid the charge. According to PWs.1 and 2, they found the revision petitioners carrying sawed timber pieces over their head inside the reserve forest and that since the revision petitioners were previously known to them, they were brought out side of the forest and were released. I have gone through the evidence of PWs.1 and 2 on this aspect. I find no suspicious inconsistencies or discrepancies in their evidence. It was not suggested during cross-examination that they have any previous enmity with the revision petitioners. Therefore, the trial court as well as the lower appellate Crl.R.P.707/2001 5 court is perfectly justified in accepting their evidence that on the relevant date they were found inside the forest at Inchathotty bhagam. 8. The learned counsel for the revision petitioners argued that the name “Inchathotty bhagam” is not mentioned in Ext.P2 notification declaring that this area is reserved forest and that no charge under section 27(1)(e)(iv) of the Kerala Forest Act will lie against the accused persons. In the notification Ext.P2 Mullaringadu Valley is also declared as reserve forest. PWs.1 and 2 testified that Inchathotty bhagam from where the offence was detected form part of the Mullaringadu Valley, which is a reserve forest. Therefore, the above contention of the counsel for the revision petitioners cannot be accepted. No other point is argued before me. Therefore, the conviction of the revision petitioners under section 27(1)(e) (iv) of the Kerala Forest Act for having trespassed into the reserve forest is confirmed. 9. As regards the sentence, the trial court imposed a sentence of simple imprisonment for one year each under section 27(1)(e)(iv) of the Kerala Forest Act which is confirmed by the lower appellate court. The incident occurred on December 18, 1993, about 16 years back. Taking into consideration the above fact and in the circumstances of the case, I feel that a sentence of fine of Rs.3,000/- each would meet the ends of justice. Crl.R.P.707/2001 6 10. In the result, the revision petition is allowed in part. Th conviction of the revision petitioners under section 27(1)(e)(iv) of the Kerala Forest Act by the trial court, which is confirmed in appeal by the lower appellate court is upheld. The sentence imposed against the revision petitioners is modified to the effect that they are sentenced to pay a fine of Rs.3,000/- each, in default to undergo simple imprisonment of two months each. One month's time is granted for payment of fine. P.Q. BARKATH ALI, JUDGE mn