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2012 DIGILAW 188 (KER)

Kunhali v. Forest Range Officer

2012-02-10

N.K.BALAKRISHNAN

body2012
Judgment : Accused nos. 1, 3 and 5, who were convicted by the Judicial First Class Magistrate-II, Thamarassery, for offences punishable under sections 27(1)(e)(iii) and (iv) of Kerala Forest Act, are the revision petitioners. The learned Magistrate sentenced them to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-and in default to undergo simple imprisonment for three months each for the offence under section 27(1)(e)(iii). They were further sentenced to undergo rigorous imprisonment for two years and to pay Rs.2,000/-each as fine for the offence under section 27(1)(e)(iv) of Kerala Forest Act. The conviction was confirmed by the learned Additional Sessions Judge, but the substantive sentence was reduced to rigorous imprisonment for one year. 2. The revision petitioners contend that the Courts below failed to note that the prosecution has failed to prove that any tree was cut or removed from any reserved forest or vested forest, since no notification was produced by the prosecution to prove those aspects. The courts below also failed to note that there is no legal evidence to hold that the revision petitioners were the persons engaged in the removal of the cut logs. The further fact that there is no acceptable evidence to show that timber logs seized by the forest officials were the timber logs cut from the rose wood trees and irul tree situated in a forest area, was also not properly considered by the courts below, submits the learned counsel. At the time of seizure of the timber logs also the revision petitioners were not present and so the conviction and sentence passed against them are liable to be set aside, the petitioners contend. 3. The learned Special Government Pleader for Forest would submit that each and every aspect was considered by the learned Magistrate so meticulously that the contention raised by the petitioners is bereft of any merit. Since that finding was confirmed by the learned Sessions Judge after further scrutiny, this Court cannot, sitting in revision, upset that concurrent finding. 4. The first point that has been urged by the learned counsel for the petitioners is that no notification was produced to show that the property from where the rose-wood trees and irul tree were cut and removed was a reserved forest. 4. The first point that has been urged by the learned counsel for the petitioners is that no notification was produced to show that the property from where the rose-wood trees and irul tree were cut and removed was a reserved forest. The consistent case of the prosecution is that the said property was part of vested forest comprised in VFC item no.133 of Peedikappara section in Thamarassery Forest Range. Exhibit P1 Mahazar proves that aspect. There is also evidence to show that the said forest is situated about 200 mtrs away from the orphanage building/”Yatheemkhana’. 5. Section 4 of the Kerala Act 26 of 1971 reads: “All private forests vested in the Government under sub-section (1) of Section 3 shall, so long as they remain vested in the Government, be deemed to be reserved forests constituted under the Kerala Forest Act, 1961 (4 of 1962), and the provisions of that Act shall, so far as may be, apply to such private forests.” By virtue of the provision contained in section 3 of Act 26/1971, there was statutory vesting of the private forest with the Government with effect from the appointed day i.e., 10.5.1971. Therefore, there is no requirement of a further notification to prove that it is a vested forest. The further fact that there was demarcation separating VFC item no.133 from the other properties by survey stones and Jundas as spoken to by the prosecution witnesses would negative the contention raised by the defence. That evidence was accepted by the Courts below. It is seen that the said finding was recorded by the two courts below based on acceptable legal evidence. The evidence given by PWs.1, 2 and 5, coupled with Exhibit P1, the observation mahazar, would clinch the issue that the property from where the trees were cut is part of vested forest/VFC item no.133, mentioned above. The non production of the notification contemplated under Rule 2-A (2) of Kerala Private Forest (Vesting and Assignment) Rules, 1978 is thus found to be inconsequential. 6. The non production of the notification contemplated under Rule 2-A (2) of Kerala Private Forest (Vesting and Assignment) Rules, 1978 is thus found to be inconsequential. 6. It was held by this Court in Range Officer vs. Aishumma (1978 K.L.T. 646) that: “S.4 of the Private Forests (Vesting and Assignment) Act, 1971 clearly states that all private forests vested in the Government under sub-section (1) of S.3 shall, so long as they remain vested in the Government, be deemed to be reserved forests constituted under the Kerala Forest, Act 1961 (Act 4 of 1962) and the provisions of that Act shall, so far as may be, apply to such private forests. Therefore, in the light of the deeming provision in S.4 of Act 26 of 1971 there is no necessity for the issue of a notification under S.19 of the Kerala Forest Act (Act 4 of 1962) in respect of a private forest vested in the Government under sub-section (1) of S.3 of Act 26 of 1971 to constitute the same as a reserved forest, so long as it remained vested in Government.” 7. The other argument canvassed by the learned counsel for the petitioner is that no notification was issued under section 6(1) of Kerala Act 26 of 1971 and so there is no legal evidence to show that the property, from where the trees were alleged to have been cut, was part of vested forests. The evidence given by PWs 2 and 5, the official witnesses, would clearly show that the trees were cut from the property which was demarcated as VFC item no.133 of Peedikappara section. 8. The learned Special Government Pleader for Forest would submit that the accused person did not contend that VFC item no.133 was not a vested forest nor was there any contention that any property which falls within that VFC item was a property held by any of the accused persons. No claim was made by any of the accused before the Forest Tribunal that they have right over any portion of that property. The contention raised by the petitioners is that there is no evidence to show that the land in question was a vested forest. 9. According to the learned counsel for the petitioners the property should have been surveyed, measured and demarcated and jundas put to hold that it is a Vested Forest or Reserved Forest. The contention raised by the petitioners is that there is no evidence to show that the land in question was a vested forest. 9. According to the learned counsel for the petitioners the property should have been surveyed, measured and demarcated and jundas put to hold that it is a Vested Forest or Reserved Forest. The evidence given by PWs 2 and 5 would clearly show that there was clear demarcation to show the boundary of the vested forest from the private land. Survey stones and jundas put up by the Forest Officials were also seen there. Therefore, the argument advanced on behalf of the petitioners is found to be fallacious, besides being factually incorrect. 10. It was held by a Division Bench of this Court in Ranga Sesha Hills (P) Ltd. Vs. State of Kerala (1991 (2) K.L.T. 49) that: “By virtue of sub-section (1) of S.3 of the Act, vesting takes place, by operation of law on 10th May 1971. No provision in the Act postpones the vesting to any day subsequent to the appointed day. Issuance of notification is something which must follow ordinarily the demarcation of boundaries. S.6(1) indicates that demarcation of boundaries is the duty of custodian who has to perform it “as soon as may be after the appointed day”. It is therefore futile to contend that vesting is postponed till the custodian of vested forests demarcates the boundaries and issues notification after providing for exemption of such lands as may attract sub-sections (2) or (3) of S.3.” Therefore, the argument advanced by the learned counsel for the petitioners that the prosecution must fail for non production of the notification issued under the Kerala Forest Act and under the Kerala Private Forests (Vesting and Assignment) Act, 1971, must fall to the ground. 11. The main thrust of the argument advanced by the learned counsel for the petitioners is that though PWs 2 and 5 claim to have seen stumps of rose-wood trees and irul tree having been cut from the VFC item mentioned above, they did not care to see the track indicating the removal of the cut logs by dragging or rolling down the hill. It is contended by the defence that the forest officials used to conduct beet duty everyday and so they could have seen the trees being cut by the trespassers but they did not make any effort to find out the persons who cut and removed the trees on 7.11.1999 nor did they try to find on 7.1.1999 itself as to the place to which those cut logs were taken or removed. It will not be possible for the forest guards to see every nook and corner of a large forest everyday. The evidence would show that PWs 1 and 2, the forest guards who found the stumps of six rose-wood trees and one irul tree having been cut, prepared Exhibit P1 mahazar and thereafter they reported the matter to their superior officers, based on which PW 5, the Forester, went to the scene, verified the same and made his observation on Exhibit P1. That portion was separately marked as Exhibit P1(a). The facts mentioned in Exhibit P1 were verified and found to be correct as endorsed by PW 5. 12. It was observed by the court below that there is evidence to show that at the relevant time there used to be occasional rain in the afternoon and it was not possible for the tracks to remain intact to be seen by them. Even if it is stated that there was latches on the part of the forest officials in not inspecting the scene on 7.11.1999, that will not in any way affect the credibility of the evidence recording the observation made by them in Exhibit P1 and P1(a). Those are not matters which render the finding entered by the two courts below unacceptable. 13. PWs 1, 5 and 5 could not see marks of sawing and pulling down at the scene of offence nor could they see foot marks at the scene of offence, evidently because there used to be occasional rains. It was stated by PW 5 that they could discern how the timber logs happened to reach the rubber estate. The rubber estate was seen to be down the hill. It was also found to be a rocky terrain. It was stated by PW 5 that the timber logs were seen hidden or concealed in the gap or space between the rocks lest it should be noticed by others easily. The rubber estate was seen to be down the hill. It was also found to be a rocky terrain. It was stated by PW 5 that the timber logs were seen hidden or concealed in the gap or space between the rocks lest it should be noticed by others easily. That, according to the prosecution, was the reason why on 7.11.1999, PWs 1 and 2 could not see the concealment of those logs. Since the barks of the trees were seen got peeled off or abraded at some places, PW 5 and his officials could conclude that those timber logs were brought down the hill by rolling it down along the rocky surface. 14. It was sworn by PW5 that it was a secret information he received that helped him to find the actual place of concealment and for the discovery of the cut logs. As the timber logs were seen between rocks and since those logs were discovered on 11.11.1999 only by conducting search of that area, it would lend credibility to the case of the prosecution. There was no case for the accused as to why those timber were concealed and hidden between the rocks. There was no case for them that those trees were cut from their own property. In these circumstances, the fact that on 7.11.1999 PWs 1 and 2 could not see the timber logs having been concealed at any particular place cannot in any way affect the acceptability of the prosecution case. 15. It was also argued by the learned counsel for the appellants that since there is no evidence to show that these appellants were actually seen in the forest area cutting or removing the timber logs, they cannot be mulcted with the criminal liability. The evidence given by PWs 1 and 2 is clear, cogent and convincing that the place of occurrence; namely, the forest area where from the trees were cut, was 200 metres away from the boundary of the rubber estate which was separated by survey stones and forest jundas. That evidence inspired confidence in the minds of two courts below. Those facts obtained corroboration from Exhibit P1-the spot mahazar. It was further corroborated by Exhibits P5 and P7 the confession statements of petitioners 1 and 3 (Accused nos. 1 and 5). 16. That evidence inspired confidence in the minds of two courts below. Those facts obtained corroboration from Exhibit P1-the spot mahazar. It was further corroborated by Exhibits P5 and P7 the confession statements of petitioners 1 and 3 (Accused nos. 1 and 5). 16. The evidence given by PWs 2 and 5 gets corroboration from Exhibit P3, the mahazar which was prepared by PW5, the Section Forester, who compared the cut portions from the cut ends of the trees which were cut and removed and also from the cut portion of the timber logs which were seen hidden. On a perusal of those timber logs and stumps it could be ensured that those timber logs were cut and removed from the trees situated in the VFC item No:133. 17. It was argued by the learned counsel for the petitioners that Exhibit P3 mahazar does not mention the annual rings indicating the age of the trees so as correlate the rings of those stumps and that of the logs discovered from the concealed place. Though no description or narration as to the annual rings are seen mentioned in Exhibit P3 mahazar, it could be seen that they had actually compared the cut logs with the stumps and could reasonably infer that those logs were cut and removed from the trees which existed in that VFC item. 18. An offence can be proved not only by direct evidence but also by circumstantial evidence. The circumstances mentioned above would lead to the inevitable conclusion that the timber logs were cut from those trees which existed in VFC item no.133 and they were cut into logs and removed by rolling it down and kept it concealed in the gap of the rocks. 19. A1, A2, A4 and A5 were arrested and their statements were recorded by PW3, the Forest Range Officer. It was argued by the learned counsel for the appellant that the statements of A1 and A5 were not recorded by the Conservator or the Assistant Conservator of Forest and that they were not warned against giving such statements and as such those statements cannot be admitted in evidence. This submission is resisted by Sri Madavankutty, the learned Special Government Pleader (Forest). 20. It is pointed out that the Kerala Forest Act does not say that the confession statement of the accused should be recorded only by the Assistant Conservator of Forest. This submission is resisted by Sri Madavankutty, the learned Special Government Pleader (Forest). 20. It is pointed out that the Kerala Forest Act does not say that the confession statement of the accused should be recorded only by the Assistant Conservator of Forest. Section 72 deals with certain powers invested on a Forest Officer not below the rank of an Assistant Conservator of Forests. Section 72(d) deals with the power to hold inquiries into the forest offences. Section 72(d) says that in the course of inquiries the Assistant Conservator of Forest can receive and record evidence and can issue search warrants which may be executed in the manner provided by the Code of Criminal Procedure. That section also empowers the Assistant Conservator of Forest to accept compensation for forest offences under section 68. 21. The learned Special Government Pleader would submit that recording of a confession is different from conducting inquiry as contemplated under section 72(d) of the Forest Act. The petitioners contend that the Forest Range Officer is not a Forest Officer mentioned in Section 72 (d) and as such the confession made to a Forest Range Officer is not inadmissible. It is submitted by Sri. Madhavankutty, the learned Special Government Pleader for Forest, that the recording of evidence mentioned in Section 72 (d) is the recording of evidence of the witnesses and not the confession of the accused and therefore, the contention that since the confession statements were recorded by the Forest Range Officer and not by the Assistant Conservator of forest those statements are inadmissible, must also fall to the ground. 22. The word ‘evidence’ occurring in Section 72(d) has reference to the statements of the witnesses and not to the statement of the person alleged to have committed an offence. As such the confession statements given by the accused persons to the Forest Range Officer are admissible in evidence. 23. It is then argued by the learned counsel for the appellant that Exhibits P5 and P7 cannot be treated as confession statements. I cannot agree with that submission. There is clear and unambiguous admission amounting to confession that those persons who gave the statements had confessed that they had cut the trees mentioned earlier and the cut timber logs were removed by them to the rubber estate down the hill. I cannot agree with that submission. There is clear and unambiguous admission amounting to confession that those persons who gave the statements had confessed that they had cut the trees mentioned earlier and the cut timber logs were removed by them to the rubber estate down the hill. The contention that those statements were given only for the purpose of enabling the Forest Officer to compound the offence is found to be untenable. 24. The other point that has been canvassed is whether those confession statements can be made admissible in evidence as against the 3rd accused (2nd petitioner herein). The confession statement of A3 was not recorded by the Forest Range Officer. The confession by a co-accused can not be treated as substantive evidence but can be used to lend assurance to other evidence against the accused. Under section 30 of the Evidence Act a confession of an accused is relevant and admissible against a co-accused if both are jointly facing trial for the same offence. Admittedly A3 was facing trial along with A1 and A5 whose confession statements were marked as Exhibits P5 and P7. Those confession statements can be used against A3 but only for the limited purpose of corroboration of other evidence. 25. The requirements of Section 30 of Evidence Act are that there should be more persons than one being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons, if proved, the Court may take into consideration such confession as against such other persons as well as against the maker. 26. It is also submitted by the learned Special Government Pleader that at no point of time, A1 and A5 had made any complaint to any authority stating that their statements were obtained illegally or by threat, undue influence or coercion. They did not file any statement retracting the confession. Therefore, what remains is the un-retracted confession of A1 and A5. Those statements inculpates the persons who gave the statement and also shows the complicity of A3 in the commission of the crime. 27. The maker of the statement has made an inculpatory statement against himself and also against the co-accused and all those accused were jointly tried for the same offence. Those statements inculpates the persons who gave the statement and also shows the complicity of A3 in the commission of the crime. 27. The maker of the statement has made an inculpatory statement against himself and also against the co-accused and all those accused were jointly tried for the same offence. The third condition that the confession made by one of the accused should inculpate himself as well as the co-accused is fully satisfied in this case. Since all the three conditions are fully satisfied in this case the contention that the confession statement made by A2 and A5 cannot be used against A3 is found to be bereft of any merit. As stated earlier those statements were not retracted by them at any time. The contention that those statements were not properly recorded does not gain ground. 28. The only surviving contention that remains for consideration is whether there is proof regarding complicity of these petitioners in the commission of the crime. The evidence tendered by PWs 2 and 5 would show that the accused were known to them even before the incident and they had actually seen the accused removing the timber logs by rolling it down. The fact that those accused could not be apprehended as they could flee from being apprehended is no reason to say that the prosecution could not establish the fact that the appellants were seen removing the timber logs. Exhibits P5 and P7, the confession statements were requested to be considered only to corroborate other acceptable evidence adduced by the prosecution. Since there is other evidence also to show the complicity of A3 the confession of the co-accused A1 and A5, can certainly be made use of against A3 also. Therefore, the learned Magistrate was perfectly justified in relying upon those confession statements against the petitioners to fortify the prosecution case. 29. Sri. Madhavankutty, learned Special Government Pleader for Forest would also bank upon Section 69 of the Kerala Forest Act, which reads: “When, in any proceedings taken under this Act, or in consequence of anything done under this Act, a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State Government, as the case may be, until the contrary is proved.” 30. ‘Forest produce’ is defined in Section 2(f) of the Act as ‘Forest produce’ includes – the following whether found in, or brought from, a forest or not, that is to say – timber, charcoal, wood-oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood. (The remaining part is omitted as not necessary for this case). 31. As the timber logs were of rosewood, it is not even necessary for the prosecution to prove whether those timber logs were brought from a forest; because the word ‘or not’ succeeding the word ‘forest’ would make it clear that even if the timber logs of rosewood were found outside the forest, still the presumption under section 69 of the Act would apply that it is the property of the Central or State Government, as the case may be, until the contrary is proved. Section 69 provides for a statutory presumption that the forest produce belongs to Government and casts the burden on the person proceeding to establish the contrary. Presumption under section 69 of the Act could not be rebutted by the defence. In fact, there is no case for the accused that it was cut and removed from any other property or that they possessed those timber logs under any lawful authority. 32. The fact that these rosewood trees were cut and removed from VFC item no.133 has already been found to be true. The timber logs were found to be of the rosewood trees felled from that VFC item. Therefore, the circumstances clinchingly establish that the seized timber logs were of the aforesaid rosewood trees cut from VFC item no.133. 33. Any person who cuts or fells any trees from a reserved forest, which by the deeming provision contained in Section 4 of Act 26 of 1971, takes in a vested forest, would attract the offence punishable under section 27(1)(e)(iii). Since those trees could have been removed only by trespassing into that VFC item and since the accused has no case to the contrary, it has to be found that the charge under section 27(1)(e)(iv) also stood proved. Hence conviction is confirmed. 34. The substantive sentence awarded by the learned Magistrate was reduced by the learned Sessions Judge to rigorous imprisonment for one year, which is the minimum prescribed for the offence under section 27(1) of the Act. The fine imposed on them is only Rs.2,000/- each. Hence conviction is confirmed. 34. The substantive sentence awarded by the learned Magistrate was reduced by the learned Sessions Judge to rigorous imprisonment for one year, which is the minimum prescribed for the offence under section 27(1) of the Act. The fine imposed on them is only Rs.2,000/- each. As such no interference is called for regarding the sentence as well. 35. In the result this Criminal R.P. is dismissed confirming the conviction and sentence passed against the petitioner. The learned Magistrate will proceed to execute the sentence forthwith.