Venu (Ist Accused in CC 142/2001 of JFMC II, Punalur) and Vijayan (3rd Accused in CC 142/2001 of JFMC II, Punalur) vs State of Kerala

Justice N.K. Balakrishnan

The 1st and 3rd accused who were concurrently held guilty, convicted and sentenced for the offences under Secs. 27(1)(e)(iii), (iv) and (v) of Kerala Forest Act are the revision petitioners. They were sentenced to S.I. for one year and a fine of Rs. 1,000/- each for the three offences as mentioned above. This revision petition is directed against the said conviction and sentence. The case of the prosecution is that on 11.3.1999 while PWs.2 and 4, the Forest Guards were on beat duty in Vettunirappu area in Thenmala section in Ariyancavu reserve forest these petitioners were found rolling a piece of timber, which on examination was found to be a sliced teak wood. Those three persons were apprehended. When questioned they disclosed as to the place from where the Crl.R.P. No. 1725 of 2006 teak wood tree was cut. It was found to be about 20 metres away from the place where petitioners were found rolling the sliced timber. It was ascertained that four such timer logs were cut from one teak wood tree. The other three pieces were found at the place from where the cut tree stood. The saw which was used to cut and remove the tree and slice the logs was not seized. The three accused persons were produced before the Forest Range Officer. Their statements were stated to have been recorded by PW2. The complaint was filed by the Forest Range Officer. The procedure for warrant case otherwise than on a police report was followed.

PW1 to PW4 were examined and Exts.P1 to P6 were marked. The wife of one accused was examined as DW1. The learned Magistrate found that the area, where the accused were found rolling the teak wood log and also the area from where the teak wood was cut, was part of the reserve forest covered by Ext.P1 notification. The Crl.R.P. No. 1725 of 2006 observations made by PW2 and PW4 in Ext.P2 mahazar were also relied upon by the learned Magistrate to hold that the teak wood tree was cut from the reserve forest and that the cut tree was sliced into four pieces. After re-appreciation of the evidence, the appellate court confirmed the conviction and sentence passed by the trial court.

Sri. Siju Kamalasanan, the learned counsel appearing for the revision petitioners has vehemently argued that Ext. P1 notification was of the year 1901 and that the portions of the land covered by that notification were assigned to different persons and so, it cannot be said that the entire areas covered by that notification were still with the Forest Department. The accused have no case that they were granted assignment of the land from where the tree was cut. If so, the presumption should be that the area covered by Ext.P1 was still with the Forest Department, or at any rate, the area in question mentioned in Ext.P2 mahazar was part of the reserve forest. Therefore, that Crl.R.P. No. 1725 of 2006 contention raised by the learned counsel cannot be accepted.

The other point that has been pressed in service is that the Forest Range Officer who was stated to have conducted the investigation/enquiry into the matter was not examined. PW1, the successor officer who also conducted part of the investigation in this case has given evidence regarding the filing of Form-I report, the mahazar etc. His evidence would show that he also had conducted investigation in this matter. Therefore, the non-examination of the predecessor of PW1 is not of any help to the accused since the evidence regarding detection of the offence was given by PWs.2 and 4.

It is also argued by the learned counsel that the girth or circumference of the log of the lower most portion of the teak tree did not conform to the circumference of the stump noted in the mahazar and there is a difference of 30cms. It was stated by PW4 that no other log was missing. Crl.R.P. No. 1725 of 2006 Hence, according to the learned counsel, the difference in the circumference will show that the log allegedly being rolled by the petitioners was the log cut and removed from the stump found by PWs.2 and 4 allegedly as shown by the accused. But, no question was put to PW2 regarding those aspects. Not only that there would be difference in the circumference of the log which was being removed or rolled down. The possibility of barks having been lost or removed also cannot be ruled out. Any way the fact remains that one piece of the teak wood tree was rolled down by the accused and that piece was removed from the stump which was within the reserve forest. Therefore, the contention to the contrary cannot be sustained. The fact that the saw with which the tree was cut or sized into logs was not seized also cannot come to the help of the accused to say that the finding entered by the court below is unsustainable.

Since the accused persons were found rolling down the teak wood log inside the reserve forest the Crl.R.P. No. 1725 of 2006 presumption under Sec. 69 of the Forest Act would also be available to the prosecution.

Since the accused persons were found inside the forest it can be found that they have trespassed into the reserve forest which would attract the offence u/s 27(1)(e)(iv). Since the teak wood log was proved to be the one having been cut and removed from a teak tree situated in that reserve forest the offence under Sec. 27(1)(e)(iii) also stands established. The prosecution wanted to rely upon possession of the teak wood log, a forest produce, to attract the offence under Sec. 27(1)(e)(v). It is in respect of the very same act, the petitioners were found guilty u/s 27(1)(e)(iii). Therefore, I find that the conviction and sentence passed against the petitioners for the offence u/s 27(1)(e)(v) is to be set aside. Since the sentence awarded by the courts below for the two other offences mentioned earlier was the minimum sentence prescribed under the Statute, no Crl.R.P. No. 1725 of 2006 interference is required with regard to the sentence as well.

In the result this Crl.R.P. is disposed of as stated below:-

The conviction and sentence passed against the appellants for the offence u/s 27(1)(e)(v) are set aside. The conviction and sentence passed against them for the offences under Sections 27(1)(e)(iii) and (iv) are confirmed.