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2018 DIGILAW 378 (KER)

Joonus v. State of Kerala

2018-05-23

P.UBAID

body2018
ORDER : The revision petitioners herein are the accused Nos.1 and 3 in C.C.No.625 of 1998 of the Judicial First Class Magistrate’s Court, Ranny. They faced prosecution in the court below on the allegation that on 17.12.1997, they trespassed into the Government Reserve Forest within the Goodrical Forest Range, cut a “kalmanikkam” tree, and attempted to remove the logs. The prosecution case is that they were intercepted by a team of forest guards, they were arrested by them, and the logs were taken into custody along with a sword seen at the place of detection. After investigation, the Forest Range Officer submitted complaint against three accused. The second accused remained absent throughout the trial, and so the case against them was split up and re-filed. 2. The accused Nos.1 and 3 faced trial before the learned Magistrate. They pleaded not guilty to the charge framed against them under Ss.27(i)(e)(iii) and 27(i)(e)(iv) of the Kerala Forest Act. The prosecution examined four witnesses, and proved Exts.P1 to P3 documents in the trial court. The MO1 weapon was also identified during trial. Both the accused denied the incriminating circumstances, when examined under S.313 Cr.P.C. They did not adduce any evidence in defence. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, they were sentenced to undergo simple imprisonment for one year each, and to pay a fine of Rs.1,000/- each under the two sections. They were also directed to pay a compensation of Rs.500/- each. 3. Aggrieved by the judgment of conviction dated 29.11.2000, the accused approached the Court of Session, Pathanamthitta with Crl.Appeal No.238 of 2000. In appeal, the learned Additional Sessions Judge, Adhoc-II, Pathanamthitta confirmed the conviction and sentence, and accordingly dismissed the appeal. Now they are before this Court in revision, challenging the legality and propriety of the conviction and sentence. 4. On hearing both sides, and on a perusal of the materials, I find that the revision petitioners are entitled for acquittal on the legal ground that there is no proper notification in this case as meant and required under S.19 of the Kerala Forest Act. PW1 to PW3 are the Forest Guards who detected the offence. They claim to have arrested the accused at the Government Forest, and seized the MO1 sword. They did not specifically say from whose possession the MO1 sword was seized. PW1 to PW3 are the Forest Guards who detected the offence. They claim to have arrested the accused at the Government Forest, and seized the MO1 sword. They did not specifically say from whose possession the MO1 sword was seized. The two accused were also not properly and clearly identified during trial. Practically, the evidence of the witnesses is only against the accused Nos.1 and 3, and not against any specific person identified during trial. 5. This Court has well settled the legal position, that for a prosecution under S.27 of the Kerala Forest Act as regards a Reserve Forest the prosecution will have to produce the Government notification issued by the Government under S.19 of the Kerala Forest Act. Ext.P3 is said to be the copy of the said notification. On an examination, I find that it is the copy of a true copy certified by the Chief Conservator of Forest (Protection) but, he was not examined to prove the notification. It is pertinent to note that this true copy is again certified as true copy by the Deputy Forest Range Officer. Thus practically, Ext.P3 is only the copy of a true copy of the notification certified by the Chief Conservator of Forest. The prosecution did not examine the Chief Conservator of Forest or the Deputy Forest Range Officer to prove the notification. In the absence of proper evidence proving the notification Ext.P3 cannot be accepted by the Court as a legal notification as required under S.19 of the Kerala Forest Act. On this legal ground itself, the accused are entitled for acquittal. In the result, this Revision Petition is allowed. The revision petitioners herein are not found guilty of the offences under Ss.27(i)(e)(iii) and 27(i)(e)(iv) of the Kerala Forest Act, and they are acquitted of those offences in revision. Accordingly, the conviction and the sentence against them in C.C.No.625 of 1998 of the Judicial First Class Magistrate’s Court, Ranny, confirmed in appeal by the Court of Session, Pathanamthitta in Crl.Appeal No.238 of 2000 will stand set aside, and the revision petitioners will stand released from prosecution.