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2019 DIGILAW 86 (KER)

Ismail S/o Muhammed Meeran v. State Of Kerala

2019-01-24

MARY JOSEPH

body2019
ORDER : Revision petitioners are accused Nos. 1 to 3 in Crl.Appeal No.110/2000 on the files of the Additional District and Sessions Court (Adhoc) I, Pathanamthitta. (for short 'the appellate court'). 2. All of them were found guilty by Judicial First Class Magistrate Court II, Pathanamthitta (for short 'the trial court') for offences punishable under Section 27(1)(c), (iii) and(iv) of Kerala Forest Act (for short 'the Act') and convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/and in default, to undergo simple imprisonment for one month. The appellate court dismissed Crl.Appeal No.110/2000 filed by the aggrieved accused and thereby confirmed the finding of guilt of them for the offences and the order of conviction and sentence imposed by the trial court. Aggrieved by that the accused are now before this Court in the captioned revision seeking to set it aside. 3. A conspectus of the facts involved in the case being essential for arriving at a just decision in the revision petition is discussed hereinbelow. The case was originated based on a complaint lodged by the Deputy Ranger, Forest Station, Karipanthodu alleging commission of offences as aforesaid. The allegation in the complaint was that while the Forest Ranger alongwith his companion Foresters were on beat duty, they found the appellants moving through the reserve forest carrying bundle wooden logs of teak on their shoulders. They were intercepted and on questioning, told that wooden logs were cut from the trees standing in the Reserve Forest. The wooden logs were seized but they were not arrested. Occurrence Report was prepared in Form No.I and sent to the court. Investigation commenced and when concluded, Final Report in Form No.II was laid before trial court. 4. Cognizance was taken after examining the complainant and his witnesses and on perusal of the materials available. Process was issued to the accused and on their appearance, particulars of the offense alleged were read over to each of them. They pleaded not guilty and trial was held. 5. On the side of the prosecution, witnesses were examined as Pws 1 to 4 and documents were marked as Exts. P1 to P3. On closure of the evidence of the prosecution, each of the accused were questioned under Section 313(1)(b) Cr.PC with reference to the incriminating circumstances, which have been brought on record in evidence by the prosecution. 5. On the side of the prosecution, witnesses were examined as Pws 1 to 4 and documents were marked as Exts. P1 to P3. On closure of the evidence of the prosecution, each of the accused were questioned under Section 313(1)(b) Cr.PC with reference to the incriminating circumstances, which have been brought on record in evidence by the prosecution. The questions put were denied by the accused in toto. Grounds having not been made out to record an order of acquittal, the accused were called upon to enter on their defence. A document was produced and marked in evidence as Ext.D1 by them. 6. On appreciation of the entire evidence on record the Magistrate found all the accused guilty of the offences for which they were charged and convicted and sentenced them to undergo punishment as aforesaid. Aggrieved thereby, the accused has approached this Court. 7. Sri.Jiby C George, the learned counsel for the revision petitioners attacked the impugned judgment for reasons, four in numbers. According to him, the trial court has relied on the oral evidence tendered by PWs 1 to 4 to reach the finding of guilt against the accused, to convict them and impose punishment. According to him, PWs 1 and 2 are the main witnesses, who had tendered oral evidence during trial and it is clear from their versions that the production of Form No.I was delayed. PW1 has stated that as produced before the court on 13.04.1993 whereas PW4 has stated it as produced on 13.07.1993. According to the learned counsel whatever be the actual date of production, there was delay and cogent explanation for that is not forthcoming from the prosecution. 8. Secondly, it was contended by the learned counsel that though the prosecution has a case that the timber logs had been seized, PW4 has stated during examination that those were left at the forest itself. PW4, has also gone to the extent of stating that, the timber has not been seen by him during the course of investigation. It is contended by the learned counsel that PW4 being the investigating officer must have taken efforts to see and examine the timber during the course of his investigation and in the absence of any effort in that regard from PW4, investigation held by him cannot be said to be true and proper. 9. It is contended by the learned counsel that PW4 being the investigating officer must have taken efforts to see and examine the timber during the course of his investigation and in the absence of any effort in that regard from PW4, investigation held by him cannot be said to be true and proper. 9. Thirdly, it was contended by the learned counsel that the Gazette Notification, produced and marked in the case as Ext.P3 was only an attested printed copy of the original and is inadmissible in evidence. According to him, the trial court ought not to have relied on it to find that the alleged act was occurred in a reserve forest. The trial court is highly unjustified in holding on the basis of Ext.P3 that the wooden logs detected by the forest officials in the course of transportation were cut from trees stand in the reserve forest. Form No.II was also evidenced as reached at the trial court late by about two years after the detection of the offence. According to him, the incident was detected on 26.03.1993 and Form No.I was evidenced as reached before the court in the year 1993 whereas Form No.II report reached the Court only on 25.08.1995. The contention of the learned Counsel was that PW4 had taken much time to complete the investigation and file Form No.II before the Court, but a cogent explanation is not furnished by him for the inordinate delay occurred. It is concluded that the grounds projected as above are sufficient to reverse the judgment under challenge. 10. Per contra, Sri.Ravikrishnan, the learned Public Prosecutor has contended that a certified copy of the Notification as such is admissible in evidence and he relied on STATE OF KERALA V. ADICHAN SASI (1975 KHC 136) to rest of his contention. According to him, Ext.P3 being certified copy of the Notification published in the year 1897, is admissible in evidence and the contentions raised by the learned counsel for the revision petitioners on the contrary will not hold merits and are only liable to be discarded. According to him, Ext.P3 being certified copy of the Notification published in the year 1897, is admissible in evidence and the contentions raised by the learned counsel for the revision petitioners on the contrary will not hold merits and are only liable to be discarded. Regarding the argument secondly raised, it was contended by the learned Public Prosecutor that the inconsistencies in the versions of PWs 1 and 4 regarding the date of forwarding of Form Nos.I and II before the Court, did not have much relevance and that cannot be taken as a reason to hold that the trial is vitiated. With regard to the non-production of the contraband before the court, the contention of the learned Public Prosecutor was that the seizure and production of the timber logs was not made mandatory by any of the provisions of the Act. According to him Form No.II reached the court only on 25.08.1995 and reasonable explanation was not furnished by PW4. 11. In view of the rival contentions advanced by the respective counsel, this Court had perused the impugned judgment and other materials to see whether the evidence on record have been appreciated by the trial court in the correct perspective, or whether the finding of guilt arrived by it suffers for want of evidence or insufficient evidence. During examination, PW1 has deposed that Form No.I and Mahazar were produced before the Court on 13.04.1993. Whereas PW4 has stated that those were produced before the Court on 13.07.1993. As rightly contended by the learned Counsel for the revision petitioner, there is discrepancy in the versions of PWs 1 and 4 regarding the date on which Form Nos.I and II were produced before the trial court. As rightly pointed out by the learned Public Prosecutor, the discrepancy on the dates of production of Form Nos.I and II is of no relevance and being immaterial are to be discarded. Whichever be the date, this Court finds that the production of those was delayed. Therefore, it is pertinent to see whether PW1 or PW4 had furnished any cogent explanation for the delay while they were examined before the court. A scrutiny of the oral evidence tendered by them would reveal that either of them had failed to state anything about that. 12. Therefore, it is pertinent to see whether PW1 or PW4 had furnished any cogent explanation for the delay while they were examined before the court. A scrutiny of the oral evidence tendered by them would reveal that either of them had failed to state anything about that. 12. Though it was stated by PW1 and was also mentioned in Ext.P2 document that the timbers found carried by the petitioners had been seized, PW4 has stated while tendering oral evidence that those were not seized but were left at the forest itself. PW2's version also corroborates with that. PW4 was the Investigating Officer in the case on hand. During cross examination, he has gone to the extent of stating that the timbers in the case on hand were verified by him. But during examination he had categorically stated that he had never gone to the scene of occurrence during the course of investigation. Therefore, as rightly putforth by the learned Counsel for the revision petitioners, the investigation held by PW4 is vitiated for impropriety . 13. Ext.P3 is the certified copy of the Notification marked in evidence to establish that the trees allegedly cut were standing in the Reserve Forest. Ext.P3 is nothing but certified copy of a Notification published in the Official Gazette of the year 1897 and attested by the Chief Conservator of Forests. Certified copy of a Notification published in the Official Gazette is a copy of the public document and the examination of the signatory to it is unwarranted for the document to be admissible in evidence. This view is also fortified by the dictum in ADICHAN's case supra. Therefore, the contention taken by the learned Counsel for the revision petitioners on inadmissibility of the notification deserves to be discarded and this court do so. 14. A scrutiny of the documentary evidence on record disclose that Form No.II was prepared on 23.08.1995 but, reached the court only on 25.08.1995. A period of two years was taken for conclusion of investigation, preparation of final report and filing of it before the court. Valid and cogent explanation for the delay occurred is not forthcoming from PW4, the Investigating Officer in the case on hand. Therefore, the inordinate delay occurred in concluding the investigation and filing of Form No.II is undoubtedly prejudicial to the appellants. 15. Valid and cogent explanation for the delay occurred is not forthcoming from PW4, the Investigating Officer in the case on hand. Therefore, the inordinate delay occurred in concluding the investigation and filing of Form No.II is undoubtedly prejudicial to the appellants. 15. For the reasons as stated above, the judgment under challenge suffers and is liable to be set aside. In the result, the revision petition is allowed. The judgment of Judicial First Class Magistrate's Court II, Pathanamthitta in C.C.No.354/1995, which was confirmed by judgment of the Additional District and Sessions Court (Adhoc) I, Pathanamthitta in Crl.Appeal No.110/2000 is reversed. The revision petitioners are set at liberty forthwith after cancellation of bail bond executed by them.