IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.Rev.Pet.No. 456 of 2001 -------------------------------------------- CRA.30/1999 of ADDL.SESSIONS COURT, PARAVUR CC.824/1995 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... PETITIONERS/APPELLANT/ACCUSED: ------------------------------------------------------------ 1. MATHAI @ KUNJU S/O MATHAI, KARIPPADAN VEEDU PANIYELI KARA, KOMBANADU VILLAGE 2. VARKEY S/O VARKEY, KOONATHAN VEEDU PANIYELI KARA KOMBANADU VILLAGE BY ADV. SRI.S.KRISHNAKUMAR RESPONDENT/CLAIMANT: ----------------------------------------- STATE OF KERALA REP BY THE FOREST RANGE OFFICER KODANADU (O.R.3/92) OF MEKKAPPALA FOREST STATION REP BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA PUBLIC PROSECUTOR SRI.JIKKEN JACOB THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.456 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August 2009 ORDER Petitioners who have been concurrently found guilty under Section 27(1)(e)(iii) and (iv) of the Kerala Forest (Amendment) Act, 1993 by the trial court as well as the appellate court have filed this revision petition impugning the said concurrent order. Petitioners have been sentenced to undergo rigorous imprisonment for one year each under the two counts and also to pay a fine of Rs.1,000/- each with a default sentence of simple imprisonment for one month each. 2. The gravamen of the charge against the petitioners/accused is that they had trespassed into the teak plantation bearing No.1982 in Kottappara Reserve of Kodanadu Range and cut down 26 teak trees. They were caught red handed while trying to remove these teak poles by PW2 and his colleague Gopi. Both of them were working as Forest Beat Guards during December 1992 in the reserve forest referred to above. The allegation was that between 11 and 12 a.m. on December 14, 1992 while PW2 was doing beat duty in the teak plantation bearing No.1982 they found the two accused carrying some teak poles on their head. Accused No.1 had ten poles in the bunch carried by him in his head, while accused No.2 carried 8 of them. 8 other poles were also found nearby. On questioning the accused, they took PW2 and Gopi to the area from where Crl.R.P.No.456 OF 2001 :: 2 :: they had allegedly cut down the teak poles. Ext.P1 mahazar was prepared and later a complaint was filed against the two accused. 3. Prosecution examined PW1 and 2 and marked Exts.P1 to P3 on its side. DW1 was examined on the side of the defence. As mentioned earlier, the trial court found the petitioners guilty under the two counts referred to above and convicted and sentenced them. The said order of conviction and sentence was confirmed by the appellate court. 4. PW2 in his deposition stated that he had found the two accused inside the plantation carrying the teak poles on their head on December 14, 1992. The value of the poles was assessed at Rs.280/-. According to PW2, Ext.P1 mahazar was prepared at the scene of seizure of the contraband itself. 5. PW1 who was working as Forest Range Officer during 1994-95 in Kodanadu Range deposed that Ext.P3, Form - I report was prepared by his counterpart in 1992. The value of the teak poles was assessed at Rs.280/- and the total loss sustained by the Government was assessed at Rs.750. Ext.P1 mahazar and Ext.P2 notification were also marked through this witness. Admittedly, this witness had nothing to do with the detection/investigation of the crime though the complaint was filed by him in 1995 when he took over charge in that Range. Crl.R.P.No.456 OF 2001 :: 3 :: 6. It is pertinent to note that Sri.Gopi, the other beat guard who had allegedly accompanied PW2 on beat duty, was not examined before the court. Thus, the evidence of only PW2 was available as far as the detection of the offence was concerned. Stranger still no explanation was offered by the prosecution as to why the said Gopi was not examined. It is the admitted position that Ext.P1 mahazar was prepared by Sri.Gopi in his own hand. It is true that PW2 was a witness to Ext.P1. More interestingly PW2 did not have a case that the accused were arrested after detection of the crime. The complaint was filed three years after the incident. Till such time, the accused were never apprehended. There is no explanation as to why the accused were allowed to be at large during the three years in question. The endorsement on Ext.P1 mahazar will show that it was produced before the court only on March 27, 1995. But it is true that Ext.P3 form I report was sent to the court on the next day of the alleged incident. Anyhow, as rightly pointed out by Miss.Latha Prabhakar, the courts below was not justified in holding the petitioners guilty on the basis of the solitary testimony of PW2 who did not in any way substantiate the prosecution case in any manner known to law. There is considerable force in the above contention. The evidence of PW2 is not at all sufficient to hold the petitioners guilty. What he stated in his chief examination was only that he and Gopi had found the two accused with the teak poles Crl.R.P.No.456 OF 2001 :: 4 :: carried by them on their head and that he had put his signature in Ext.P1 mahazar prepared at the scene. He only stated that he knew the accused. Nothing more nothing less. The evidence of PW1 will not help the prosecution in any manner. 7. Thus, having regard to the entire facts and circumstances, I am not at all satisfied that any reliance can be placed on the solitary evidence of PW2 to hold the petitioner guilty, especially, when no explanation has come forth from the prosecution as to why the other witness who accompanied PW2 was not examined. Similarly, Ext.P2 notification will not also show that the accused had trespassed into the reserve forest. PW2 had no such case. What PW1 had stated as regard Ext.P2 notification was that it would show the area covered as reserve forest. The evidence of these two witnesses will not take us anywhere. In the above facts and circumstances, the order of conviction and sentence passed against the two petitioners is set aside. They are found not guilty and acquitted. Criminal R.P. is allowed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.456 OF 2001 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.456 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 14th August 2009