IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3259 of 2007()
1. ANANDAN K.S., S/O. SREEDHARAN,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/01/2009
O R D E R
M. SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO. 3259 OF 2007
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Dated this the 5th day of January, 2009
O R D E R
Revision petitioner is the accused in C.C.462 of 2004 on the
file of Judicial First Class Magistrate-II, (Forest Act Offences),
Manjeri. Revision petitioner was charged for the offence under
section 27(1)(e)(iv) of Kerala Forest Amendment Act, 1993, and
section 52 read with section 9(1) (2) of Wild Life Protection Act, 1972.
He was acquitted of the offence under section 9(1)(2)of Wild Life
Protection Act and was convicted and sentenced to undergo simple
imprisonment for one year and a fine of Rs.1,000/- and in default
simple imprisonment for one month for the offence under section 27
(1)(e)(iv) of the Forest Act. Petitioner challenged the conviction
before Sessions Court, Manjeri in Crl. Appeal 478 of 2005. Learned
Additional Sessions Judge on reappreciation of evidence confirmed the
conviction and sentence and dismissed the appeal. It is challenged in
the revision.
2. Learned counsel appearing for the revision petitioner and
the learned Public Prosecutor were heard.
3. The argument of the learned counsel appearing for the
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revision petitioner is that there is no evidence to prove that it was the
revision petitioner, who had escaped from the scene of occurrence, as
alleged by the prosecution and the identity of that person as the
revision petitioner was not established. It was also argued that Ext.P1
mahazar shows that the scene of occurrence is a road, used by the
public and therefore even if petitioner had walked along that road, it
is not an offence under section 27(1)(e)(iv) of the Forest Act. It is
therefore argued that the conviction is not sustainable. Learned
counsel finally submitted that in any case the sentence awarded is
excessive and revision petitioner should have been granted benefit of
Probation of Offenders Act.
4. Learned Public Prosecutor argued that Courts below
appreciated the evidence in the proper perspective and found that the
scene of occurrence is a reserve forest. It was pointed out that when
Ext.P3 notification was proved by P(3) notification published under
section 3(1) of Forest Act, proved by the evidence of PW4, that aspect
was not challenged in cross-examination and therefore it is proved
that revision petitioner trespassed into the forest. It was also argued
that though petitioner was acquitted for the offence under the Wild
Life Protection Act, his identity was established by the evidence of
PWs 1 and 2 as he was known to them even earlier and in such
circumstances conviction of the revision petitioner is perfectly legal.
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Learned Public Prosecutor also submitted that the sentence awarded
is the minimum sentence provided and petitioner is not entitled to the
benefit of Probation of Offenders Act.
5. PW4 was examined to prove Ext.P3, notification, published
under section 3(1) of the Kerala Forest Act. The fact that the scene of
occurrence is within the reserve forest declared under Ext.P3
notification was not challenged when PW4 was examined. The Courts
below were therefore fully justified in holding that it is a reserve
forest.
6. Though revision petitioner disputed the identity of the
revision petitioner, PWs 1 and 2 deposed that they have previous
acquaintance with the revision petitioner as he used to work in the
plantation. When questioned under section 313 of Code of Criminal
Procedure, it is the case of the revision petitioner also that he was
known to the forest officials. In such circumstances evidence of PWs
1 and 2 that they identified revision petitioner as the person who was
found inside the forest on 27.5.1993 at about 3 p.m. while patrolling
within the limits of Amarambalam Reserve forest accepted by the
Courts below is perfectly legal. The evidence establish that revision
petitioner had trespassed into the forest. The fact that revision
petitioner was acquitted for the offence under Wild Life Protection Act
was on account of the failure to establish that MO1 gun was
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serviceable or that it was used for the purpose of firing. But that does
not enable the revision petitioner to contend that he did not trespass
into the forest. Evidence of PWs 1 and 2 establish that though they
chased revision petitioner, he ran away and escaped from the scene.
But the fact that he was found at the place is conclusively proved by
the evidence of PWs 1 and 2.
7. Though based on Ext.P1 mahazar. where the road is
mentioned, it was argued that revision petitioner was not found inside
the forest but was walking through the public road. As rightly found
by the Courts below, evidence establish that it is not a public road but
a road inside the forest which leads only to the forest. In such
circumstances findings of the Courts below that prosecution
conclusively established that revision petitioner trespassed into the
forest and thereby committed an offence under section 27(1)(e)(iv) of
the Forest Act is perfectly legal.
8. Question then is whether revision petitioner is entitled to
the protection of Probation of Offenders Act and whether the sentence
awarded is excessive. Considering the nature of the offence, revision
petitioner is not entitled to the protection of Probation of Offenders
Act. Section 27(1)(e) provides for a sentence of imprisonment for a
term which shall not be less than one year but which may extend to
five years and fine which shall not be less than five thousand rupees
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but may extend to five thousand rupees. It is therefore clear that the
sentence awarded is the minimum sentence provided under the Act.
In such circumstances, I find no reason to interfere with the sentence
also.
Revision is dismissed. Judicial First Class Magistrate-II, Manjeri
is directed to execute the sentence.
M. SASIDHARAN NAMBIAR, JUDGE
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