The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.76 of 2012 (In the matter of an application under Section 401 read with Section 397 of the Criminal Procedure Code, 1973) Jayadev Rana and others ……. Petitioners -Versus- State of Orissa ……. Opposite Party For the Petitioners : Mr. Jayadev Behera, Advocate
Legal Reasoning
the judgment of this Court in the case of Pathani Parida & another vs. Abhaya Kumar Jagdevmohapatra, reported in 2012 (Supp-II) OLR 469. 10. In such view of the matter, the present Criminal Revision in so far as the conviction is concerned is turned down. But instead of sentencing the petitioners to suffer imprisonment, this Court directs the petitioners to be released under Section 4 of the Probation of Offenders Act for a period of six months on their executing bond of Rs.5,000/- (Rupees Five Page 6 of 7 Thousand) each with one surety each for the like amount to appear and receive the sentence when called upon during such period and in the meantime, the petitioners shall keep peace and good behavior and they shall remain under the supervision of the concerned Probation Officer during the aforementioned period of six months.
Arguments
For the Opp. Party : Mr. B. K. Ragada, Additional Government Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 26.07.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. The present Criminal Revision filed under Sections 401 read with Section 397 of Cr.P.C. is directed against the judgment and order dated 16.11.2011 passed by the learned Sessions Judge, Nayagarh in Criminal Appeal No.25 of 2007, whereby the judgment of conviction and order of sentence dated 14.08.2007 passed by the learned J.M.F.C., Ranpur in 2(b) C.C. Case No.12 of 2001 has been confirmed. 2. Heard Mr. Jayadev Behera, learned counsel for the petitioner and B.K. Ragada, learned Additional Government Advocate for the State. 3. Bereft of the unnecessary detailed, the prosecution case in short is that on 02.08.2000 while P.W.2, the Forest Official along with one Laxmidhar Das, Forest Guard were in the Dhani Reserve Forest on patrolling duty discovered that the accused persons have cleaned two acres of forest land to put to use of that land for agricultural purpose. When they reached at the spot, they found even the accused persons engaged in cleaning the forest land, seen the forest personnel, they ran away from the spot by untying their bullocks from their plough. The forest officials have seized 25 bundles of half burnt pushes and prepared the seizure list and also prepared the offence report against the accused persons. On the strength of these materials, P.R. report was submitted and the prosecution was initiated against the petitioners. Page 2 of 7 4. The prosecution examined two witnesses and exhibited numerous documents. P.W.1 was the Forester, who had enquired into the matter basing on the offence report submitted to him, whereas P.W.2 was the Forest Guard who alleged to have detected the offence inside the forest and prepared the offence report against the accused persons. Although the petitioners have denied to have committed the offences but to substantiate their case they have examined themselves as D.Ws.1, 2 and 3. 5. The learned trial Court appreciated the oral as well as documentary evidence brought on record by the prosecution and arrive at a conclusion that the petitioners are found guilty of the offences punishable under Sections 27(i)(a)/27(i)(b) and 27(3)(c) of the Orissa Forest Act, 1972. Accordingly, the petitioners were sentenced to undergo one month imprisonment under Sections 27(i)(a) of the Orissa Forest Act, another one month imprisonment under Sections 27(i)(b) of the Orissa Forest Act and five months imprisonment under Sections 27(3)(c) of the Orissa Forest Act. All the sentences awarded against the petitioners were directed to run concurrently. Page 3 of 7 6. Being aggrieved and dissatisfied by the judgment of conviction and order of sentence dated 14.08.2007 passed by the learned J.M.F.C., Ranpur in 2(b) C.C. Case No.12 of 2001, the petitioners filed Criminal Appeal No.25 of 2007 before the Court of the learned Sessions Judge, Nayagarh. The Appellate Court vide its judgment dated 16.11.2011 upheld the conviction and sentence and returned the following findings:- <I have gone though the oral and documentary evidence on record. The forest guard, who detected the offence (PW2) has testified that he alongwith other forest guard while performing patrol duty in north Dahanai reserve forest, found that the accused persons had cleaned two acres of forest land for agricultural purpose. They have burnt bushes. He seized the bushes and prepared the seizure list, but accused persons refused to sign the seizure list. They went away from the spot after untying their bullocks from their ploughs. He kept the seized half burnt bushes in his zima by executing zimanama, Ext.6. He prepared the offence report, Ext.7. P.W.1 has testified corroborating the evidence of P.W.2 that on the basis of the offence report he visited the spot, investigated into the case, measured the entire encroached land and found paddy growth therein. He has filed and proved the notification. In cross-examination, he has stated that Dhani reserve forest was notified as such in the year 1966. Though the appellants have challenged that the seizure list is not original one, it is intact in the seizure list and marked Ext.5 without any objection. All the offence report, enquiry report and zimanama are the original document. However, the sport map prepared by the Forester and the notification filed by him are in the xerox process, but P.W.1 has testified corroborating the contents of the notification and spot map. In cross-examination, he has independently stated the notification number and date. Though the appellants have led no emphasis on their Page 4 of 7 evidence, their evidence is simply denial of the prosecution case and a reflection of their statement u/s. 313 Cr.P.C. On the other hand P.W.1 and P.W.2 have adduced their evidence corroborating their case at length. The contents of the exhibited documents further corroborate their evidence. Another witness was cited in the P.R. has not been examined, but he is also a forest guard who was performing patrol duty along with P.W.2 on the relevant date. He would have testified similar fact. So, non-examination of that witness does not affect the veracity of other two witnesses. In view of the oral and documentary evidence, as discussed above, findings of the learned Court below, the impugned findings of the Court seem to be reasonable, just and proper. Hence, I find no reason to interfere in the impugned judgment. Further the court has awarded minimum punishment, as prescribed under the law. Rather, he has not imposed fine, though the imposition of fine is mandatory along with the substantive terms of sentences u/s. 27(i)(a), 27(i)(b) and 27(3)(c) of the Orissa Forest Act. This Appellate Court does not want to interfere in the judgment or to enhance the punishment.= 7. The conduct of the petitioners are directly threatens the environment & ecology. Destruction of the forest is a serious offence in the prevailing circumstances. Therefore, no leniency should be shown to such offenders. Moreover, the findings of the Courts below are apt and just. There is no reason for this Court to interfere with the conviction recorded by the Courts below against the petitioners. Hence, the present Revision Petition fails in so far as the conviction is concerned. Page 5 of 7 8. At this stage, Mr. Behera, learned counsel for the petitioners contends that since the incident had taken place in the year 2000 and at that point in time, the petitioners were the senior citizens. At the time of filing the Revision Petition in the year 2012, the petitioner No.1 was 50 years whereas petitioner No.2 was 60 years and petitioner No.3 was 85 years old. Therefore, sending them to custody at this belated stage would be very harsh. 9. Regard being had to the age of the petitioners and the fact that the incident had taken place in the year 2000, I am of the considered view that all these petitioners are entitled to the benefit of the Probation of Offenders Act and the case of the petitioners are also covered by ratio of
Decision
11. The Criminal Revision is accordingly disposed of. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/Swarna, Sr. Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 29-Aug-2024 12:23:09 Page 7 of 7