Kerala High Court
Hidayath vs State Of Kerala on 19 June, 2025
Crl. R.P.No. 874 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.REV.PET NO. 874 OF 2016
AGAINST THE ORDER/JUDGMENT DATED 19.08.2013 IN Crl.A NO.247 OF 2010
OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM ARISING OUT OF THE
ORDER/JUDGMENT DATED 25.05.2010 IN CC NO.127 OF 2008 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II(FOREST OFFENCES),PUNALUR
REVISION PETITIONERS:
HIDAYATH
AGED 50 YEARS
AGED 50, S/O.MOOSA RAWTHER, HILAL MANZIL, EDAMON
VILLAGE, PATHANAPURAM THALUK, KOLLAM DISTRICT.
BY ADVS.
SRI.R.SURAJ KUMAR
SMT.V.BEENA
SMT.V.DEEPA
SRI.P.P.FAISAL
SRI.M.KISHORKUMAR
SRI.SUNIL J.CHAKKALACKAL
SMT.N.G.SINDHU
SRI.SAJITH C.GEORGE
RESPONDENTS:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
SMT. MAYA.M.N (PP)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl. R.P.No. 874 of 2016
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P.V. BALAKRISHNAN., J.
---------------------------------
Crl. R.P.No. 874 of 2016
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Dated this the 19th day of June, 2025
JUDGMENT
The revision petitioner is the accused in C.C. No.
127/2008 on the files of the Judicial First Class Magistrate
Court-II (Forest Offences), Punalur. He stood trial for
committing the offences punishable under Section 27(1)(d)
and 27(1)(e)(iv) & (v) of the Kerala Forest Act and Section 2(2)
of the Forest (Conservation) Act, 1980, and was convicted and
sentenced thereunder. The accused challenged the afore
conviction and sentence by filing Crl.A. No. 247/2010 before
the Sessions Court, Kollam. The Additional Sessions Court
(Adhoc) II, Kollam, as per judgment dated 19.08.2013,
dismissed the appeal.
2. The prosecution case is that on 16.01.2008 at
about 3p.m., the accused trespassed into Ayiranalloor Reserve
Forest and collected river sand from the Kallada River at
Arupathuparakkadavu, causing a loss of Rs.350/- to the
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Government.
3. In the trial court, from the side of the prosecution,
PW1 to PW3 were examined, and Exts. P1 to P4 documents
and MO1 were marked. When examined under Section 313
Cr.P.C., the accused denied all incriminating circumstances
appearing against him in evidence and contended that he is
innocent. Even though an opportunity was granted to adduce
evidence, no evidence was adduced from the side of the
accused. The trial court, on an appreciation of the evidence on
record, found the accused guilty of committing the offences
punishable under Section 27(1)(d), 27(1)(e)(iv) and 27(1)(e)(v)
of the Kerala Forest Act and Section 2(2) of the Forest
(Conservation) Act, 1980. The accused was sentenced to
undergo simple imprisonment for a period of one year and to
pay a fine of Rs.1,000/- under Section 27(1)(d), simple
imprisonment for a period of one year and to pay a fine of
Rs.1,000/- under Section 27(1)(e)(iv) and simple imprisonment
for a period of one year and to pay a fine of Rs.1,000/- under
Section 27(1)(e)(v), all with a default clause. He was also
sentenced to undergo simple imprisonment for a period of 15
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days under Section 2(2) of the Forest (Conservation) Act. As
stated earlier, the appeal preferred by the accused as Crl. A.
No.247/2010 ended in dismissal from the hands of the
Appellate Court.
4. Heard the learned counsel for the revision petitioner
and the learned public prosecutor.
5. The learned counsel for the revision petitioner
submitted that both the trial court and the appellate court
have not appreciated the evidence in a proper perspective and
has arrived at a wrong conclusion of guilt against the accused.
He submitted that apart from the evidence of PW1, no other
witnesses have been examined to prove the offence, and the
reliance placed upon the alleged Ext.P3 confession statement
is illegal. He argued that Ext.P3 confession statement is
recorded by a Forest Range Officer, and as per Section 72 of
the Forest Act, the statement recorded by him cannot be used
for any other purpose. He further submitted that PW1 has not
properly identified the accused and the sentences imposed by
the courts below are disproportionate to the offences.
6. Per contra, the learned Public Prosecutor supported
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the impugned judgments and contended that there are no
grounds to interfere with them. He argued that the evidence of
PW1 regarding the detection of the offence is credible and
cogent and is also supported by Ext.P3, the confession given
by the accused. She further submitted that the accused was
not arrested since he was a known person in that area and he
was arrested later, after summoning him to the office.
7. The prosecution case is that while PW1, along with
one M. Rajesh (CW2), were conducting beat duty, they had
found the accused collecting sand from the Kallada River in a
rubber basket. Since CW2 Rajesh was not alive at the time of
trial, the prosecution could examine only PW1 to prove the
incident. It is true that PW1 has given evidence to the effect
that he has seen the accused collecting sand in MO1 rubber
basket from the Kallada river. But it is very pertinent to note
that PW1 has not identified the accused in the dock, as the
person whom he had allegedly witnessed collecting sand from
the river. His evidence reveals that even though he had
spoken elaborately about the accused as a person well known
to him and as a person residing nearby, during the trial he had
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not identified him in the dock. The trial court also did not make
any endeavor to get the accused identified through PW1. It is a
settled law that identification of an accused in the court is the
substantive evidence which the court must rely upon to find
the person guilty. As held by the apex court in Tukesh Singh
v. State of Chhattisgarh [2025 KHC 6479], the
identification of the accused in court by an eyewitnesses is of
utmost importance and failure to identify the accused in court
as the person seen committing the crime is fatal to the
prosecution's case as it fails to establish beyond reasonable
doubt that the accused present in court is the same person
who committed the alleged offences. In the present case, in
the absence of substantive evidence, identifying the accused
in the dock by PW1 as the person involved in the crime, I am
of the view that the prosecution cannot succeed in getting a
conviction against the accused. Both the trial court and the
appellate court have missed this point while appreciating the
evidence and reaching their respective conclusions.
8. In the light of the afore discussions, the irresistible
conclusion is that this revision petition is only to be allowed,
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thereby setting aside the conviction and sentence passed
against the revision petitioner/accused.
In the result, this Crl. R.P. is allowed as follows:
The conviction and sentence passed against the
revision petitioner/accused in C.C. No. 127/2008 by the Judicial
First Class Magistrate Court-II (Forest Offences), Punalur, and
as confirmed in Crl. A. No. 247/2010 by the Additional Sessions
Court (Adhoc) II, Kollam, are set aside, and the revision
petitioner/accused is set at liberty.
Sd/-
P.V. BALAKRISHNAN
JUDGE
sjb/19.06.2025
