Revision petitioner is the accused in C.C No.226/1999 on the file of the Judicial First Class Magistrate Court, Idukki involved in offences punishable under Section 27 (1)(e) (iv) of the Kerala Forest Act and Section 27(1)(e) (iii) of the Kerala Forest Act (for short 'the Act'). The conviction by the trial court was challenged in appeal without result before the learned Sessions Judge, Thodupuzha. Aggrieved by the conviction and sentence, the accused has preferred this criminal revision.
2. The averments in the complaint are as follows :
On 16-02-1995, the revision petitioner (first accused) along with the acquitted 2nd accused, trespassed into Kuyilimala bhagam reserve forest coming within the jurisdiction of the Vairamany Forest Station in Nagarampara Forest Range and cut down a teak tree. It is also alleged that after cutting down the teak tree, they attempted to slice it with a saw. PW1, who was doing beat duty detected the aforementioned offences committed by the accused persons. From the place of detection of the offence, only the revision petitioner could be apprehended, as the other accused escaped. Later, he was arrested and tried. The court below convicted the revision petitioner and acquitted the other accused.
2. Heard Sri.P.K.Yussuff Issuddin, the learned counsel for the revision petitioner and Sri.K.K.Rajeev, the learned Public Prosecutor for the State.
3. Learned counsel for the revision petitioner contended that the lower appellate court as well as the trial court committed grave errors in convicting the revision petitioner for the alleged offences. According to him, the evidence tendered by the prosecution is highly insufficient to find that the revision petitioner was involved in the alleged offences. That apart, there are glaring legal infirmities in the prosecution case.
4. It has to be borne in mind that in a criminal revision, this Court is called upon to determine the legality, correctness or propriety of the sentence or order passed by the lower court. It is also settled law that the revisional court shall not make itself a second appellate court. Therefore, if only it is satisfied that the appreciation of evidence caused miscarriage of justice, this Court can interfere in revision.
5. PW1 is the detecting officer. He was working as Forest Guard in Vairamany Forest Station on 16-02-1995. In chief examination, he stated that while he was on beat duty, he heard the sound emanating from a saw. He went to the place from where the sound originated and found two persons trying to slice a fallen teak tree. On seeing PW1, they escaped. It is the case of PW1 that he chased about 1 ½ kilometres and caught the revision petitioner. The other man in the meantime escaped. It is the testimony of PW1 in chief examination that the revision petitioner and the other accused were trying to cut and remove a portion from the bottom portion of the stump of the tree. PW1 further deposed that Ext.P1 mahazar was prepared and the material objects were recovered. Ext.P2 is the notification to prove that the teak tree cut and removed was standing in a reserve forest. Ext.P3 is the Form I showing the registration of the case.
6. This witness was searchingly cross examined by the learned defence counsel. He deposed in cross examination that he started his beat duty at about 8.00 am on that day. He travelled through various routes in the forest and reached at the place of offence at about 5.00 p.m. Learned counsel for the revision petitioner contended that he wilfully avoided questions relating to the previous acquaintance with the revision petitioner. The revision petitioner has a definite case that he was framed up in the case due to personal animosity nurtured by some forest officers against him and his family. This suggestion was strongly denied by PW1. Another improbability pointed out by the learned counsel for the revision petitioner is that the accused was about 23 years old at the time of detection. PW1 was about 46 years in 1997. According to him, the case that PW1 chased the revision petitioner for about 1 ½ kilometres and caught him cannot be believed. This argument cannot be readily accepted for the reason that there is no evidence before this Court to show that PW1 was physically infirm for any reason. Merely on the basis of age, the capacity of a person to run and chase a person cannot be determined. It is the contention raised by the learned counsel for the revision petitioner that only solitary testimony of PW1 is there to establish the prosecution case that the revision petitioner cut and removed teak tree from a reserve forest. It can be viewed from another angle that the incident happened deep in the forest. It may be idle to expect the presence of independent witness to prove such an offence. Therefore, the testimony of PW1 cannot be discarded because it is uncorroborated by other evidence.
7. PW2 is the Deputy Ranger in Vairamany Forest Station. According to his testimony, on 17-02-1995, that is on the next day of detection of the offence, he went for verification and prepared Ext.P1(a) verification certificate. PW1 arrested the revision petitioner and produced before PW2. Thereafter, as directed by the Range Officer, the first accused was produced before the court. Even though this witness was cross examined, I do not find any reason to discard his testimony as not creditworthy. PW's 1 and 2 support each other.
8. Exts.P1 to P3 are the documents relied on by the prosecution. Learned counsel for the revision petitioner contended that Ext.P1 mahazar cannot be believed for the reason that it could not have been possible for PW1 to prepare the mahazar and do all acts mentioned therein within a period of one hour. There is no material to accept this defence case, except the argument without any basis in the evidence. PW1 has specifically proved the recitals in Ext.P1. I do not find any reason to interfere with the finding of facts by the court below in a revision, especially in the absence of pointing out any illegality.
9. Learned counsel for the revision petitioner contended that non production of timber allegedly cut and removed by the revision petitioner is fatal to the prosecution case. Reliance on Sections 55 and 58 of the Act is also placed in the course of argument. Section 55 of the Act deals with confiscation proceedings after convicting the accused for the offence. The judgment passed by the court below shows that the learned Magistrate has passed directions to confiscate the saw (MO1) used for the offence. Merely for the reason that the log was not produced before the court at the time of trial, it cannot be stated that the testimony, otherwise acceptable, shall not be looked into in this case.
10. Learned counsel for the revision petitioner placed reliance on the testimony of DW's 1 and 2 to contend that the prosecution case is a false story. DW1 is the accused himself. Learned Public Prosecutor would argue that he himself has admitted the arrest on 16-02-1995 in connection with forest offence. But his version is that he was falsely implicated in this case. Learned Public Prosecutor further relies on the testimony of DW1 to argue that his own admission would show that he was involved in a forest case earlier. There is no explanation given by the accused in respect of that case. DW2 is a tribal, residing in the forest area and he was examined to show that the accused was arrested from a waiting shed and not from the place of detection. The versions of DW2 in cross and chief examination are incongruous to one another. The fact that the revision petitioner was involved in an offence under the Act is evident from the unimpeached testimony of PW's 1 and 2 and the materials produced, I find no illegality or impropriety in the matter of conviction.
11. Learned counsel for the revision petitioner contended that it is almost 20 years that the revision petitioner is entangled in this criminal prosecution. Therefore, he deserves to be treated leniently. It is also submitted that the petitioner is entitled to get the benefit of provisions of the Probation of Offenders Act, 1958. It is true that the said contention was not considered either by the trial court or by the first appellate court. Section 3 of the Probation of Offenders Act is not applicable to this Court as the penal provision charged in this case is punishable with an imprisonment up to five years. In respect of Section 4 of the Probation of Offenders Act, I am of the view that it presupposes a finding that in the case, including the nature of offence and that of the offender, it is expedient to release him on probation of good conduct. The case alleged against the revision petitioner and established by cogent evidence that he has committed a forest offence. The nature of offence alleged does not show that it is congenial in the public interest to treat it under Probation of offenders Act. That apart, he himself admitted as DW1 that he had involved in an offence. Section 4 of the Prevention of Offenders Act is also not applicable in this case.
12. The only illegality that could be seen in the matter of conviction is that the revision petitioner has been found guilty under Clause (iii) and (iv) of Section 27(1)(e) of the Act. This Court as per the decision in Mundamdra Kareem and Another
v. Deputy Ranger, Forest Station, Pothukal and Another (2014
(4) KHC 529) has taken the following view :
“ The term “trespass” used in sub-clause (iv) of the Section can only be for any other act or offence than those mentioned in sub- clause (iii) of the Section. Established rules of interpretation of Statutes like purposive and harmonious interpretations will take us to an irresistible conclusion that the term 'trespass' used in sub-clause (iv) of the Section may be for any purpose other than those mentioned in sub-clause (iii) above. It may even taken in a person's entry into a reserve forest without any intention to commit any offence. As the offences under sub-clause(iii) of the Section include an implied trespass, in the facts and circumstances of this case, the petitioners cannot be charged both under sub-clauses (iii) and (iv) of the Section. Reckoning the wording employed in the two limbs of the Section, I find no legal logic in implicating the petitioners under sub-clauses (iii) and (iv) of the Section separately in the facts of this case. Evidence in this case show that the conviction of the petitioners under Section 27(1)(e)(iv) of the Act is not legally sustainable.”
Therefore, I find that the conviction of the revision petitioner under clause (iv) of Section 27(1)(e) is not legally sustainable. That has to be set aside.
In the result, the revision petition is partly allowed. Conviction of the revision petitioner under Section 27(1)(e) (iii) of the Act is confirmed. Since the Act prescribes a minimum punishment of one year and the court has only allowed that sentence, I find no illegality in that matter. The conviction of the revision petitioner under Section 27(1)(e)(iv) of the Act is set aside.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, JUDGE.
//True copy// amk P.A to Judge