IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1806 of 2005()
1. KUNJU, S/O. JOSEPH,
... Petitioner
2. RAJAN, S/O. NAGAN,
3. CHANDRAN, S/O. MADHAVAN,
Vs
1. FOREST RANGE OFFICER,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.M.TOMY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :30/03/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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Crl.R.P.No.1806 of 2005
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Dated: 30th March, 2009
ORDER
The challenge in the revision is against the concurrent verdict of
guilty rendered against the accused, three in number, for the
offences under the Kerala Forest Act (hereinafter referred to as ‘the
Act’). The accused, all of them, were prosecuted for the offences
punishable under Section 27(1)(e) (iii) and (iv) of the Act on a report
filed by the Forest Range Officer, Adimali. The accused pleaded not
guilty. The learned Magistrate, after trial, found the first accused
guilty of both the offences and convicting him thereunder he was
sentenced to undergo simple imprisonment for one year each and to
pay a fine of Rs.1000/- each for the offences under Section 27(1)(e)
(iii) and (iv) of the Act, directing him to undergo the substantive
sentences concurrently. Accused 2 and 3 were found guilty of the
offence under Section 27(1)(e) (iii) of the Act and on convicting them
thereunder, each of them was sentenced to undergo simple
imprisonment for one year and to pay fine of Rs.1000/-. They were
acquitted of the offence under Section 27(1)(e) (iv) of the Act. In
appeal jointly preferred by the revision petitioners, the learned
Sessions Judge confirmed the conviction and upheld the sentence
Crl.R.P.1806/05 – 2 –
without any modification. Aggrieved by the conviction and sentence,
the accused have preferred this revision.
2. The prosecution case, in short, is that a forest party found
the accused, all of them together engaged in collecting sawed
teakwood pieces from the reserve forest in Cheriyathoni wtihin the
limits of Admali Range of Panamkutty forest station on 25.10.1997.
Seeing the forest party, the accused, all of them, ran away and they
could not be apprehended. Site inspection disclosed stumps of two
teak wood trees, sawed timber pieces and a saw used for slicing the
timber, which were all seized into custody. Timber pieces and
weapons were taken into custody, preparing Ext.P1 mahazar. A
report was prepared over the seizure of the teakwood pieces and
detection of the forest offence implicating the accused, and it was
filed before the Magistrate Court. After investigation, a final report
was filed indicting the accused for the offences punishable under
Section 27(1)(e) (iii) and (iv) of the Act.
3. The accused, entered appearance on summons and,
pursuant thereto, after taking preliminary evidence, the accused were
directed to answer the charges imputed, and all of them pleaded not
guilty. Prosecution examined P.W.1, a forest guard and exhibited
Crl.R.P.1806/05 – 3 –
Exts.P1 to P3 to bring home the guilt of the accused. When
questioned under Section 313 Cr.P.C. the accused maintained their
innocence and no defence evidence was adduced. The learned
Magistrate, after appreciating the materials produced, found the
accused guilty of the offences imputed, as indicated earlier, and
accordingly they were convicted and sentenced. Conviction and
sentence imposed against them were upheld by the appellate court.
4. I heard the learned counsel for the revision
petitioners/accused and also the learned Public Prosecutor. Learned
counsel for the revision petitioners assailed the conviction contending
that there is absolutely no legal evidence in the case to prove the
guilt of any of the accused. Though five witnesses, all forest officials,
were cited in the report to prove the case, not even the complainant
was examined, but only a forest guard to sustain the prosecution
case, submits the learned counsel. The delay in filing the report is
also commented upon by the learned counsel to contend that after
the detection of cutting down of valuable teakwood trees in the forest
to escape from disciplinary proceedings a false case had been set up
by the forest officials against the accused. Though the offences were
alleged to have been committed as early as on 25.10.1997, the final
Crl.R.P.1806/05 – 4 –
report was filed before the court only on 25.2.2000 is also
commented upon by the learned counsel contending that no
worthmentioning explanation had been given by the prosecution for
the long delay in completing the investigation over the case. Ext.P3
notification produced by the prosecution to prove that the offence has
been committed inside the reserve forest area, according to the
learned counsel, does not satisfy the requirements under Section 78
of the Act pointing out that it is only a photo copy and is signed by a
lower level official of the Forest Department. Lastly, inviting my
attention to the evidence of P.W.1, a forest guard, it is urged that
implicit reliance is not permissible on his testimony to found a
conviction against the accused for the offences imputed. So, in
reversal of the conviction founded against the accused by the two
courts, the learned counsel urged for acquitting them of the offences
charged. On the other hand, learned Public Prosecutor contended that
the materials produced in the case by the prosecution convincingly
establish the guilt of the accused for the offences with which they
were found guilty and convicted by the courts below and that no
interference is called for by exercise of revisional jurisdiction.
5. I have perused the records of the case giving consideration
Crl.R.P.1806/05 – 5 –
to the submissions made by the learned counsel for the revision
petitioners and the learned Public Prosecutor. Normally, in a revision,
a finding on fact entered by the inferior courts is not liable to be
interfered unless it is so perverse and is found not possible on the
materials produced. Revisional jurisdiction is supervisory in character
and it is intended to avoid failure of justice. Be that as it may, on
perusal of the records, it is evident that other than the evidence of
P.W.1, a forest guard, and the documentary materials produced,
there is nothing more to prove the offences set up against the
accused. So, the crucial question is whether the evidence of P.W.1,
the forest guard, is convincing, reliable and trustworthy and, further,
sufficient to found a conviction against the accused. It is interesting
to note that P.W.1 in his evidence, at the fag end of his cross
examination, has made an assertion that the three persons seen in
the reserve forest collecting sawed teakwood pieces were the
accused. His evidence show that the forest party saw the accused at
a distance of 40 meters while they were engaged in collecting sawed
teakwood. Once the perpetrators of the crime saw the forest party, it
is the admitted case of the prosecution, all of them ran away and
could not be apprehended. The evidence of P.W.1 does not inspire
Crl.R.P.1806/05 – 6 –
confidence to hold that the accused proceeded against were really the
persons who were seen by the forest party though his version of
detection of the forest offence is otherwise found acceptable.
Prosecution has also no explanation why the complainant and other
forest officials named in the report had not been examined in the
case. As rightly contended by the learned counsel for the accused,
the delay in filing Form I report, i.e., nearly 10 days after detection
of the forest offence cannot be viewed lightly. Form II report was
filed before the court three years after the detection of the offence,
the investigation taking such long time for its completion. However,
the prosecution has no case that any of the present accused had been
apprehended, and got identified by any of the forest officials who
detected the forest offence during such investigation. The materials
collected over these three years other than what was collected at the
time of filing of Form I report, it is seen, is the incorporation of names
of some forest officials as witnesses and producing a notification that
the place where the offences were committed was within the reserve
forest area. True, the gravity of the offences under the Forest Act
call for deterrent punishment, but when there is absolutely no
evidence worthmentioning, it will be a miscarriage of justice to
Crl.R.P.1806/05 – 7 –
sustain a conviction founded by placing implicit reliance on the
solitary evidence of forest guard, which on the face of it does not
inspire confidence. His evidence in fixing the identity of the accused
as the perpetrators of the forest offences imputed appears to be
undoubtedful in the backdrop that the forest party saw the persons
engaged collecting saw teakwoods at a distance of 40 meters away,
i.e., inside a forest. The other contentions raised by the learned
counsel to attack the conviction in the given facts need not be
examined as I find that the conviction of the accused cannot be
sustained as there is no legal evidence to support it. So much so, the
conviction and sentence imposed against the accused are set aside
and they are acquitted of the offences charged. Fine amount, if any,
remitted by the accused shall be refunded.
Revision is allowed.
srd S.S. SATHEESACHANDRAN, JUDGE