Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1468 (KER)

HAMZA, S/O. AHAMMED HAJI v. STATE OF KERALA

2017-12-01

P.UBAID

body2017
ORDER The revision petitioners herein are the two accused in C.C.No.148/1999 of the Judicial First Class Magistrate Court - II (Forest offences), Manjeri. They faced prosecution under Sections 27(1)(e)(IV) and (III) of the Kerala Forest Act (for short, 'the Act') on the allegation that on 31.5.1998, they trespassed into the Government forest within the Nellikuthu Forest Station, cut two trees and attempted to remove the timber pieces. Before they could transport it, they were caught by two forest guards of the Forest Station. They took the timber pieces into custody as per a mahazar, and the accused were released from the spot for the reason that they are local residents, and they are familiar to the forest officials. The detection of the offence was immediately reported to court by one of the forest guards, and during enquiry, the statements of the two accused were recorded by the Deputy Forest Range Officer. After investigation, final report was submitted before the court against the two accused. They pleaded not guilty to the charge framed against them by the learned Magistrate. 2. The prosecution examined five witnesses, and proved Exts.P1 to P9 documents in the trial court. The MO1 series weapons allegedly used by the accused at the forest were also identified during trial. The accused denied the incriminating circumstances, when examined under Section 313 Cr.P.C. They did not adduce any oral evidence, but Ext.D1 was marked on their side. 3. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, they were sentenced to undergo rigorous imprisonment for one year each, and to pay fine of Rs. 1,000/- each under Sections 27(1)(e)(IV) and (III) of the Act, by judgment dated 8.1.2003. Aggrieved by the judgment of conviction, the accused approached the Court of Session, Manjeri with Crl.A.No.42/2003. In appeal, the learned Sessions Judge, Manjeri confirmed the conviction and sentence, and accordingly, dismissed the appeal by judgment dated 17.12.2003. Now, they are before this Court in revision, challenging the legality and propriety of the conviction and sentence. 4. The illegality argued by the revision petitioners in this matter is that the statements of the accused were recorded by the Deputy Forest Range Officer, and these statements were wrongly accepted in evidence by the court. On factual aspects also, arguments were made by the learned counsel. 5. 4. The illegality argued by the revision petitioners in this matter is that the statements of the accused were recorded by the Deputy Forest Range Officer, and these statements were wrongly accepted in evidence by the court. On factual aspects also, arguments were made by the learned counsel. 5. Of course, as regards the Exts.P3 and P4 statements, I accept the contention raised by the defence that these statements were recorded by an incompetent forest officer. The authorities competent to record statements as part of enquiry into forest offences will have to be appointed by notification by the Government under Section 72 of the Act. Anybody not below the rank of Conservator of Forest can be so appointed by the Government. In 1966, the Government issued a notification appointing certain categories of forest officials as persons competent to record statements under Section 72 of the Act. These categories do not include Forest Range officer, or Deputy Forest Range Officer. So it can be found that the Exts.P3 and P4 statements were recorded by an incompetent forest officer, and these statements were wrongly admitted in evidence by the trial court. 6. Now the question is whether the offence is proved otherwise. PW1 and PW2 are the forest guards, who detected the offence. Exts.P1 and P2 are the reports submitted to court under Section 52(2) of the Act. Of course, there is no necessity of two reports. What is provided under Section 52(2) of the Act is that the person, who detected the offence shall submit a report in writing to the court. Such a report is Ext.P1. So, the other report submitted by the Deputy Forest Range Officer need not be accepted. It is curious to note that the Ext.P1 report submitted under Section 52(2) of the Act contains the signature of the accused. There is no explanation for this. The mahazar shows that the accused were released at the spot of detection itself. If so, it requires explanation how they happened to sign in the report under Section 52(2) of the Act. This aspect makes the case suspicious. The benefit of this doubt and the infirmity discussed above must go to the accused. In the result, this revision petition is allowed. The revision petitioners are found not guilty of the offences under Sections 27(1)(e)(IV) and (III) of the Kerala Forest Act, and they are acquitted of those offences in revision. This aspect makes the case suspicious. The benefit of this doubt and the infirmity discussed above must go to the accused. In the result, this revision petition is allowed. The revision petitioners are found not guilty of the offences under Sections 27(1)(e)(IV) and (III) of the Kerala Forest Act, and they are acquitted of those offences in revision. Accordingly, the conviction and sentence against the revision petitioners in C.C.No.148/1999 of the trial court, confirmed in Crl.A.No.42/2003 by the Court of Session will stand set aside, and the revision petitioners will stand released from prosecution.