Criminal Revision Petition No. 3478 of 2008 · Kerala High Court · 2008

M. SASIDHARAN NAMBIAR, J.------------------------------------------ CRL.R.P. NO. 3478 OF 2008------------------------------------------Dated this the 29th day of October, 2008

O R D E R Petitioners are the accused in C.C. 12 of 2002 on the fileof Judicial First Class Magistrate-II (Forest Offences), Punalur. Prosecution case is that 5.7.2001 the three accused personstrespassed into the 1972 Teak Plantation within the reserveforest and removed the teak tree from the forest and convertedto furniture. PWs 2 and 3, the Forest Guards while on beat duty, found the petitioners removing the furniture and questionedthem and on the information furnished and as pointed out bythem, located the teak tree cut and seized the furniture afterpreparing Ext.P6 mahazar and thereafter prepared Ext.P5 FormI report and registered the case. After completing theinvestigation, charge was laid for the offence under section 27(1)(e)(iii) of Kerala Forest Act. Petitioners pleaded not guilty. Prosecution examined four witnesses and marked six exhibitsand identified material objects 1 and 2. The learned Magistrateon the evidence found the petitioners guilty and convicted andsentenced them to simple imprisonment for one year each and a CRRP 3478/082fine of Rs.1,000/- and in default simple imprisonment for onemonth. Petitioners challenged the conviction and sentencebefore Sessions Court, Kolllam in Crl. Appeal 5 of 2007. LeanedSessions Judge on reappreciation of evidence confirmed theconviction and dismissed the appeal. It is challenged in thisrevision.

Learned counsel appearing for petitioners wereheard.

The argument of the learned counsel is that Courtsbelow did not properly appreciate the evidence and there is noevidence to prove that petitioners cut the teak tree as alleged. It was argued that Ext.P4 notification was not properly provedand evidence of PW3 shows that the teak tree was not standingwithin the reserve forest area and evidence of PWs 1 to 3establish that petitioners are residing in the Settlement colonyadjacent to the reserve forest and on the evidence Courts belowshould not have found that petitioners trespassed into thereserve forest or cut the teak tree from 1972 Teak Plantationarea and therefore the conviction is not sustainable. Thelearned counsel also argued that though Exts.P1 to P3confession statements of the petitioners were marked, these CRRP 3478/083were not put to the petitioners at the time of questioning undersection 313 of Cr.P.C. and therefore based on them petitionerscannot be convicted and in any case benefit of doubt should havebeen granted to the petitioners especially when there is aminimum substantive sentence of simple imprisonment for oneyear.

On hearing the learned counsel and going throughthe judgments of the Courts below, I cannot agree with thesubmission of learned counsel that evidence was not properlyappreciated. Though relying on the evidence of PW3 it wasargued that PW3 deposed that the tree was not cut within thereserved forest, evidence of PW3 makes it absolutely clear thathe does not know the boundary of the reserve forest andtherefore based on the evidence of PW3, petitioners are notentitled to contend that the tree was not cut within the forestarea. Ext.P4 notification, the certified copy of the gazettenotification, establish that it is a reserve forest. Ext.P6, theseizure mahazar prepared by PW1, which is a contemporaneousrecord, establish that PWs 2 and 3 while on beat duty foundpetitioners carrying the teak log through the forest. Learnedcounsel argued that Ext.P6 mahazar shows that they were CRRP 3478/084carrying the logs on the boundary of the forest and therefore itcannot be found that petitioners were carrying teak logs throughthe reserve forest. What is stated in Ext.P6 mahazar is thattimber logs were being carried through the forest within theboundary of the reserve forest. It is not as canvassed by thelearned counsel. Though it was argued that there is noevidence to prove that the timber logs were cut from the forest, evidence of PWs 2 and 3 with Exts.P1 to P3 statementsconclusively establish that they found petitioners carrying thetimber logs through the forest.

Learned Magistrate and learned Sessions Judgeappreciated the evidence and rendered a factual finding that thepetitioners were found removing the teak timber logs throughthe forest.

Section 27 of Forest Act provides the penalty fortrespass or damage in Reserved Forests or acts prohibited insuch forests. Under sub section (1)(e)(iii), any person who cutsor fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, orstrips off the bark or leaves from or otherwise damages the sameis punishable with imprisonment for a term which shall not be CRRP 3478/085less than one year but may extend to five years and with finewhich shall not be less than one thousand rupees but mayextend to five thousand rupees. Therefore even if there is nodirect evidence to prove that it was the petitioners who cut theteak tree, evidence of PWs 2 and 3 corroborated by Ext.P6establish that they were found removing the timber logs of teaktree cut from the reserve forests. On the evidence prosecutionhas conclusively proved that petitioners committed the offenceunder section 27(1)(e)(iii) of Kerala Forest Act, 1961. Henceconviction of the petitioners for the offence under section 27(1)(e)(iii) is perfectly legal.

Then the only question is with regard to the sentence. Learned Magistrate sentenced petitioners for the minimumsentence provided under the section. Therefore there is noreason to interfere with the sentence also. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGEOkb/-