Prosecution must conclusively prove unlawful entry into a reserve forest with appropriate evidence; reliance on improper evidence invalidates conviction.

O R D E R

The concurrent findings of the Judicial First Class Magistrate Court-II, (Forest Offences), Punalur, and the Additional Sessions Court-III, Kollam, in C.C.No. 651/2005 & Crl.A.No.458/2010,respectively, convicting and sentencing the petitioner for the commission of offences under Sections 27 (1)(d), 27(1) (e)(iv) & 27(1) (e)(v) of the Kerala Forest Act, 1961 (in short, ‘Act’) are under challenge in this revision petition filed by the second accused in the said case.

2. The prosecution case is that the petitioner, along with the first accused, unlawfully entered in the reserve forest coming under Marthandakara reserve and illegally collected sand from Marthandankara Thodu and thereby committed the aforesaid offences. The forest staff of Urukunnu Beat are said to have detected the offence on 08.09.2005.

3. In the trial before the learned Magistrate, five witnesses were examined from the part of the prosecution as PW1 to PW5, and six documents were brought on record as Exts P1 to P6. Two material objects were identified as MO1 & MO2. The accused did not choose to adduce any defence evidence. Relying on the aforesaid evidence adduced by the prosecution, the learned Magistrate came to the finding that the petitioner committed the offences punishable under Sections 27 (1)(d), 27(1) (e)(iv) & 27(1) (e)(v) of the Act. Though the petitioner challenged the aforesaid verdict before the Appellate Court, the learned Additional Sessions Judge, Kollam, who considered the appeal, declined to interfere with the findings of the learned Magistrate. Accordingly the appeal was dismissed, confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the courts below, the petitioner is here before this Court with this revision petition.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. The primary requirement to be fulfilled for a successful prosecution for the offences alleged in this case is that the prosecution has to show that the petitioner had unlawfully entered into an area which has been notified as reserve forest under Section 19 of the Act, and removed sand which could be termed as a forest produce. Thus, the production of the certified copy of the relevant gazette notification showing that the place of occurrence comes under reserve forest is the basic requirement which the prosecution is bound to establish. As far as the present case is concerned, Ext P6 is the document relied on by the prosecution for fulfilling the above requirement. However, it could be seen that the aforesaid document is not the certified copy of the gazette. Instead, a printed copy of a document titled ‘The Travancore Government Gazette’ with an endorsement as ‘extract from gazette in the bottom most portion’ has been produced and marked as Ext P6. Though there is a signature found in that document above the seal of the Principal Chief Conservator of Forest, there is no endorsement made thereunder that it is the certified copy of the gazette concerned. It is not possible to accept the aforesaid document as the certified copy of the required gazette notification to show that the place of occurrence came under reserve forest.

6. It is also pertinent to note that as per the averments in Ext P1 mahazer, the petitioner and the other accused are said to have collected sand from Marthandakara Thodu, which separates Marthandankara Reserve Forest and oil palm plantation. It is not possible to discern from the above mahazar as to whether the petitioner and the other accused are alleged to have collected sand from the shore of that