Kerala High Court
Binu Sam George vs State Of Kerala on 30 November, 2012
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
FRIDAY, THE 30TH DAY OF NOVEMBER 2012/9TH AGRAHAYANA 1934
Crl.Rev.Pet.No. 577 of 2006 ( )
-------------------------------
(CRA.181/2004 OF ADDITIONAL DISTRICT COURT (ADHOC-I), THODUPUZHA
CC.110/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, THODUPUZHA)
REVISION PETITIONER//APPELLANT/2ND ACCUSED:
------------------------------------------
BINU SAM GEORGE
S/O.SAMUEL, AGED 26 YEARS, VAZHAJANICKAL HOUSE
ELAPPILLY BHAGOM, ELAPPILLY VILLAGE
THODUPUZHA TALUK.
BY ADVS.SRI.C.A.CHACKO
SMT.C.M.CHARISMA
SRI.N.A.SHAFEEK
RESPONDENT/RESPONDENT/COMPLAINANT:
---------------------------------
STATE OF KERALA
REPRESENTING FOREST RANGE OFFICER, THODUPUZHA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY ADV. SRI.M.P.MADHAVAN KUTTY SPL.GP (FORESTS)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 30-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
SCL.
N.K. BALAKRISHNAN, J.
------------------------------------------
Crl. R.P. No: 577 of 2006
------------------------------------------
Dated this the 30th day of November, 2012
O R D E R
Petitioner was concurrently held guilty, convicted and sentenced for offence punishable under Sec.27(1) e (iii) of Kerala Forest Act. This revision petition is directed against the said conviction and sentence.
2. The case of the prosecution is that on 20.7.2000 at about 6.00 a.m., PWs.1 and 2, the forest officials were on patrol duty. While so, when they reached near the property of one Joseph, they found seven persons engaged in rolling a wooden log through the property of that Joseph. On seeing the forest officials, they took to their heels. The forest officials chased and apprehended the petitioner who was shown in the report as the 2nd accused. A2 was arrested. His confession statement (Ext.P4) was recorded. The round saw which was used to cut the tree was seized. Crl.R.P. No: 577/2006 -2- Hence, alleging the offence as aforesaid, the complaint was filed by the Forest Range Officer.
3. Before the court below PW1 and PW2 were examined and Exts.P1 to P4 were marked. The saw which is described as 'cross-cut saw' found at the place of occurrence and seized by the forest officials was marked as M.O.1. The learned Magistrate found that the area from where the rose wood log was seen being rolled was not the reserve forest. But, as the tree, cut and removed, was rose wood tree the accused were found guilty of the offence as mentioned above and convicted them. The appellate court dismissed the appeal confirming the conviction and sentence passed against the petitioner.
4. The learned counsel for the revision petitioner submits that it is not a case where the rose wood tree was cut from a reserve forest. Admittedly, even as per the mahazar, the rose wood tree was cut from the property of Crl.R.P. No: 577/2006 -3- one Joseph. The relevant portion of the mahazar (Ext.P1) would show that one dead rose wood tree had fallen. It was from that tree, the logs were cut and sized. The description of the logs are seen mentioned. The saw used for cutting and sizing the tree was marked as M.O.1. Ext.P4, according to the prosecution, is the confession statement so given by the petitioner. The learned counsel submits that there is nothing in Ext.P4 to show that the accused had made any confession to the effect that he had cut or removed any tree from a reserve forest.
5. Ext.P2 is the notification pertaining to reserve No.8, Thodupuzha. Learned counsel submits that there is no case for the prosecution that the rose wood tree which had fallen down was situated within the four boundaries of the reserve forest mentioned in Ext.P2. That apart, in the light of the observation contained in Ext.P1 mahazar and in the light of the evidence given by P.Ws.1 and 2, it cannot be Crl.R.P. No: 577/2006 -4- said that the rose wood tree was cut from a reserve forest but only from the property of one Joseph. Therefore, according to the learned counsel for the petitioner, it cannot be said that the petitioner committed the offence under Sec.27(1) e (iii) of the Act.
6. The learned Special Government Pleader (Forest) submits that on going through the mahazar and the reports filed by the Forest Range Officer, it appears that the occupied land, namely, the land in the possession of Joseph mentioned therein, is situated within the reserve forest mentioned in the complaint. But whether the patta was issued in respect of that land in favour of Joseph, the occupant, was not specifically mentioned. The Kerala Land Assignment (Regularisation of Occupations of Forest Lands prior to 1.1.1977) Special Rules, 1993 issued thereunder have been referred to by Sri.Madhavankutty, the Special Government Pleader (Forest).
Crl.R.P. No: 577/2006 -5-
7. Rule 3, mentioned above, states that the lands under the Rules may be assigned on registry for purpose of personal cultivation or for house sites or for shop sites. Rule 5 says that the land sought for assignment under the Rules should have been under occupation prior to 1.1.1977 by the assignee or his predecessor/successor-in- interest.
8. Clause 7 of the Schedule of Land appended to Form No.4 deals with the number of forest trees and category of each tree which has to be specified. Therefore, in view of clause 7 of the schedule of land, it would make it clear that if such a teak tree is cut and removed, it may attract the offence under the Kerala Forest Act because teak tree is a tree specifically mentioned in clause 7, mentioned supra. But in the mahazar or in the complaint it has not been specifically stated that it is by virtue of the aforesaid provision the act of the accused attracts the offence under section 27(1) e (iii). It is a case where a rose wood tree Crl.R.P. No: 577/2006 -6- was cut and removed. The prosecuting agency should have been very serious in the matter. If as a matter of fact it was omitted to be stated in Form No.2 report, either an additional report could have been filed or at least these facts could have been addressed before the trial court and other registers or records could have been summoned before the court to see that the offenders under the Forest Act are dealt with properly. But that was not done. Therefore, the conviction and sentence passed against this petitioner cannot be sustained.
9. In the result, this Criminal Revision Petition is allowed. The conviction and sentence passed against the petitioner are set aside. He is acquitted of the offence and is set at liberty.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jvt/jjj