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In Re: Yeshwant Monu Dodamani and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1962CriLJ832
AppellantIn Re: Yeshwant Monu Dodamani and ors.
Excerpt:
.....delay in making this application and therefore, unless the delay is condoned the application for bringing the legal representatives on record cannot be entertained. liberty given to make an application for condonation. - in our opinion, the term 'found in' actually refers to things growing in a forest like timber trees, fuel trees, fruits, flowers etc. ' 7. we are therefore clearly of opinion that the learned judge misdirected himself by simply accepting the oral evidence of the witnesses giving their impressions of the effect of rules, without himself looking into the rules and satisfying himself that the accused before him in fact have been shown to have committed an offence. if the learned judge thought that the evidence of these witnesses was not reliable for the purpose of..........four carts containing red earth in front of the forest naka at banadur in dharwar district. the forest guards taking the view that the red earth that was being conveyed was a forest produce, thought that the conveyance of the red earth required the persona to take what are called transit passes under the relevant rules. on being questioned by the guards, accused 1 to 3 replied that they had no passes, whereupon the forest guards attached the carts along with the earth in them and released only the bullocks with which the accused returned to the village, leaving the carts in possession of the forest guards.the further case of the prosecution is that late in the evening that day at about 6 p.m. the first three accused in the company of 20 or 25 other villagers (including accused 4 to.....
Judgment:

A. Narayana Pai, J.

1. The appellants were accused 1 to 3 in Sessions Case No. 36 of 1958 on the file of the Sessions Judge, Dharwar Accused 4 to 10 therein were acquitted.

2. These accused were tried under a charge for offences falling under two principal heads : (1) Disobedience of Rule 66 framed under Section 41 of the Indian Forests Act (2) offences punishable under Sections 147, 148, 448, 353, 395 and 149 of the Indian Penal Code.

3. The bare facts of the case are that on the forenoon of the 9th of October 1957 the first three accused and one Shamraj since deceased, were seen driving four carts containing red earth in front of the forest Naka at Banadur in Dharwar District. The Forest Guards taking the view that the red earth that was being conveyed was a forest produce, thought that the conveyance of the red earth required the persona to take what are called transit passes under the relevant rules. On being questioned by the guards, accused 1 to 3 replied that they had no passes, whereupon the Forest Guards attached the carts along with the earth in them and released only the bullocks with which the accused returned to the village, leaving the carts in possession of the Forest Guards.

The further case of the prosecution is that late in the evening that day at about 6 p.m. the first three accused in the company of 20 or 25 other villagers (including accused 4 to 10) came to the Naka with the intention of forcibly recapturing the attached carta and did actually succeed in getting away with the carts. One of the carts is said to have fallen into a gutter while being driven.

4. In holding the first three accused guilty of the contravention of the rules made Under the Forest Act, the learned Sessions Judge while accepting the case of the accused that the earth which was being conveyed had not been removed from any forest area but from a private malki land, took the view-viz.,

It is evident that for transporting even surface soil of private land, a transit pass is necessary when it has to be transported through the Government forest.

That the earth was taken from a private malki land was admitted even by the forest officers deposing in favour of the prosecution. It has been elicited from the Forester Rayappa the very first witness for the prosecution, that even in the panchanama the place from where the earth was brought is written as S. No. 124 and that the Ranger by looking into a map stated that it was a malki land and not a Government land. This fact is not disputed even in the appeal before us. For the view stated by the learned Judge m the sentence extracted above We are unable to see any basis except what has been deposed to by P.W. 1, the Forester, who states it as his opinion that-

Transit pass is necessary if minor forest produce is to be removed from the forest areas or in case it belongs to private persons, if the produce is to be removed through forest area, a transit pass is necessary.

5. Rule 66 referred to by the learned Judge {which both sides agree is Rule 66 framed by the Government of Bombay under Section 41 of the Act) states:

No forest-produce shall be moved into, or from, or within any district of the State of Bombay, except as hereinafter provided; without a pass from some officer or person duly authorised by or under these rules to issue such pass, or otherwise than in accordance with the conditions of such pass or by any route or to any destination, other than the route or destination specified in such pass.

Then, there is a proviso to the rule which refers to certain exemptions and special cases. It is nowhere stated in that rule that a transit pass is necessary even in respect of articles or goods which are removed from private property unless those goods fall within the definition of forest-produce. The term 'forest-produce' is defined in Clause 4 of Section 2 of the Forest Act, which, reads as follows:

forest produce includes-

(a) the following whether found in, or brought from, a forest or not, that is to say : Timber, charcoal, caoutchous, catechu, wood-oil resin, natural varnish, bark, tac, mahua flowers, mahua seeds (kuth) and myrabolams, and

(b) the following when found in, or brought from a forest, that is to say-

(i) trees and leaves, flowers and fruits, and all other parts or produce not hereinbefore mentioned, of trees,

(ii) plants not being trees (including grass, creepers, reeds, and moss), and all parts or produce of such plants.

(iii) wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax, and all other parts or produce of animal and

(iv) peat, surface soil, rock, and minerals (including limestone, laterite mineral oils and all products of mines or quarries);

It will be noticed that this definition divides 'forest-produce' into two categories. The first comprises items listed in Clause (a) which are forest produce found in or brought from a forest or not; the second comprises items listed in Clause (b) which become forest produce only when found in or brought from a forest. Surface soil is included under the second category. It can therefore be forest produce only if it is found in or brought from a forest.

6. On a plain reading of these expressions 'found in' or 'brought from', there can hardly be any doubt that both of them indicate the forest to be the source or original depository of the forest produce in question. The learned Government Pleader has very strenuously contended that the expression 'found in' a forest merely means 'come across' or 'discovered' in a forest irrespective of the fact whether the article or goods so discovered were originally sourced or deposited or grown in a forest or some other place which is not a forest. All that is necessary, according to the learned Government Pleader, is that somebody (meaning apparently a forest officer or a forest guard or other person acting under the authority of the Act or Rules) finds or discovers these goods within, the area of a forest Same argument, however, is not available nor is it pressed with, reference to other expression 'brought from' a forest. It is conceded that the expression 'brought from' a forest certainly excludes the idea of a thing being brought from outside the forest but taken through it. It is, however, contended that if an article so brought from outside the forest is 'found' i.e., discovered by somebody within a forest, it would come within the definition. We find it difficult to accept this argument which places extreme strain both on the language and upon logic. The expression at the commencement of Clause (b) of Section 2(4) should be compared with the expression at the commencement of Clause (a) of Section 2(4). The articles listed under Clause (a) become forest-produce by virtue of their own nature, whether they are found in a 'forest or not, or brought from a forest or not. On the other hand, the articles listed under Clause (b) become forest-produce, not by virtue of their nature alone, but by virtue of the fact that they are found in or brought from a forest. The term 'found in' a forest does not necessarily, in our opinion, require an actual discovery of those items by a living person before those items can become forest-produce.

In our opinion, the term 'found in' actually refers to things growing in a forest like timber trees, fuel trees, fruits, flowers etc. or mineral deposits or stones existing in the forest. The distinctive feature is either the existence or the growth or deposit within the area of a forest and not their discovery by some living person. The idea underlying the expression 'brought from' is equally emphatic of the source of the thing so brought being within the area of a forest. The conveyance or transport involved in the idea of a thing being brought undoubtedly has its beginning in the forest by virtue of the use of the expression 'from.'

7. We are therefore clearly of opinion that the learned Judge misdirected himself by simply accepting the oral evidence of the witnesses giving their impressions of the effect of rules, without himself looking into the rules and satisfying himself that the accused before him in fact have been shown to have committed an offence. The conviction of the appellants, therefore, for the alleged contravention of Bombay Rule 66 framed under Section 41 of the Indian Forests Act, has to be and is hereby set aside and with it the sentence imposed on them in. respect of it. The appellants are acquitted of that offence.

8. Regarding the incident of the evening, the evidence which is material is that of four witnesses, viz., P.W. 3 Couskhan, P.W. 4 Usmabeg, P.W. 5 Ramappa & P.W. 7 Rajasab. P.Ws. 5 & 7 are Forest Guards. P.Ws. 3 & 4 are not in the employ of the Government in the Forest Department but those who had business or other connections or dealings with the Forest Department, P.Ws. 3 and 4 do not implicate any accused by name. They merely state that a large body of persons came into the Naka compound in that evening and forcibly removed the attached carts. P. W. 3 gives the number to be 20 or 25 while P.W. 4 states it to be 15 to 20.

9. According to P.W. 5, the accused and some others came to the Naka at about 5 or 5-30 p.m. and entered inside the compound. He further states), without specifically naming any accused, that all these persons started yoking the carts and when he tried to obstruct them on the ground that the carts had been attached, accused 5 and 8 caught hold of him and that when another Forest Guard P.W. 7 intervened, he too was caught. According to this witness his shirt was torn and Rajasab's shirt was not torn but was smeared with cart-grease. P.W. 7 gives some more details, According to him, when he returned to the Naka from the jungle at about 5 P.M. some elders from Tatvangi, viz., Somaningappa, Somalingappa, Fattesa and Jiva, came to him to request the release of the attached carts. When this discussion was going on^ according to this witness, accused 1 to 3 and another started to take away the carts. When P.W. 5 tried to obstruct them, they assaulted him (without naming who the assailants of P.W. 5 were) and when he (P.W. 7) intervened, accused 4 and 10 caught hold of him.

10. The learned trial Judge, did not place any reliance upon their evidence in so far as it purported to implicate the accused Nos. 4, 5, 8 and 10. Among other reasons, he states that these witnesses did toot name these accused specifically at the earliest opportunity when they made the first report to their superior officers in which they named only the first three accused. Put when he came to discuss their evidence as against accused 1 to 3, the learned Judge was prepared to place what he describes as implicit belief in the evidence of these witnesses.

In our opinion, these observations are contradictory and destructive of each other; If the learned Judge thought that the evidence of these witnesses was not reliable for the purpose of convicting the accused particularly named by them, one fails to understand how the learned Judge could rely upon the evidence of P.W. 5 for convicting accused 1 to 3 whom he does not name at all and to whom he does not attribute any particular conduct. There is another aspect of the matter which the learned Judge has overlooked, i.e., the discussion between P. W. 7 and the elders spoken to by him. According to P.W. 7, it was when his attention was diverted by these elders pleading with him for the release of the carts that accused 1 to 3 started yoking the carts to take them away. Even he, when he refers to assault being made upon him, imputes no violence or violent act to the first three accused persona.

11. In the light of this evidence, the question is whether there was any basis for the learned Judge's conclusion that these accused persona in the company of others had gone with the intention of using force for getting back their carts. If the incident of the evening ccrni1-menced with a discussion or a pleading by the village elders for getting the carts released, the more reasonable view to take, in our opinion, is that the elders on behalf of the accused were trying to persuade the forest guards either that the attachment of the carts carrying private property was not legal or that in any event, the circumstances of the case did not justify such a drastic action as attaching the carts with their contents. If as, there could hardly be any ground for imputing any illegal object to the accused persons.

12. We are, therefore, of the opinion that there is no clear or firm basis for holding either that these accused by themselves or in the company of several others constituted themselves into an unlawful assembly or that they were acting with any common object which was unlawful.

13. There can, however, be no doubt that the carts were removed in the evening from the possession of the Forest Guards. As the carts were those that belonged to the first three accused, it is not unreasonable to hold that they were interested in getting them back and they were the persons who actually took them. Though we are not prepared to believe that they used violence or force in doing so, there can hardly be any doubt that at the time they removed, them, the cants were in the actual possession of the Forest Guards (whether their post-session was or was not lawful) and the accused removed them without the consent of the Forest Guards. They can, therefore, be held to be guilty only of a technical offence of theft and nothing more. Their convictions for other of, fences by the learned Judge are set aside.

14. Even when he took the view that these accused had used violence, the learned Judge felt that a sentence of three months' rigorous imprisonment was sufficient. For this technical offence of theft especially in the light of our finding that the attachment was illegal, one Week's simple imprisonment is, in our opinion, adequate. The appellants have been on bail, and before they were released on bail, they had undergone imprisonment for a period of 13 days, which means that they have already suffered imprisonment for a longer period. Their bail bonds will, therefore, stand cancelled.

15. Subject to the above modifications, the appeal stands dismissed.

16. Although in our opinion it is not necessary to say so, the learned Counsel for the appellants wants us to direct that the order for disposal of the property made by the trial Court, viz., the return of carts and bullocks to the accused will stand and that the security bond taken from the accused persons in respect of that should stand cancelled. We direct accordingly.


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