G.K. Misra, J.
1. Of the six accused persons three were acquitted. Bula Sahu (appellant 3) has been convicted under Section 333, I P C. and sentenced to rigorous imprisonment for three years and to pay a fine of Rs 100 in default to undergo R. I. for a term of six months. Nakula (appellant 1) and Narasingha Parida (appellant 2) have been convicted under Section 332, I. P. C. and each has been sentenced to rigorous imprisonment for three months. Prosecution case is as follows: In the early morning of 22-9-63 Abdul Manan (P.W.. 1), the Forest Guard of Kothagada Beat, went to Sulia Reserve Forest in the ex-State of Ranpur on patrol duty in his uniform in the company of Hari Fora (P.W.. 2) and Antara Sahu (P.W.. 8). At Bankanalia Khula inside the reserved Forest, the 6 accused persons were tying into bundles pieces of wood already cut by them from that very place. P.W.. 1 seized the 6 Katuris (M Os. I, to I e). They saw the trees which had been cut, the accused were asked to carry the nine bundles of fire-wood in 3 Bhara and 3 head-loads. All of them came to a place called Bhartia Amba within the Demarcated Protected Forest. The seizure list (Ext. 1) both in respect of the bundles of fire-wood and the Kataris was prepared at that spot. The accused refused to sign the seizure list. P.Ws. 2 and 3 attested it. P.W. 1 heard some sound of human voice from a distance and asked P.Ws. 2 and 3 to go and see why the people had come inside the jungle. When P.Ws. 2 and 3 went to some distance, Bula Sahu gave a blow with the Rollabadi (M. O. II) belonging to P.W. 1 on the back of his head. P.W. 1 cried out. Bula gave a second blow on the left side forehead of P.W.. 1. When he was going to give the 3rd blow on the fore-head, P.W. 1 tried to prevent it with his left palm. The blow fell on the fore and middle fingers of the left hand injuring the fingers. He gave another blow on the right side of the head Nakula Barik and Narasingha Parida assaulted P.W. 1 on the back with two wooden sticks. P.W. 1 fell down unconscious. On seeing P.Ws. 2 and 3 coming back the accused fled away P.Ws. 2 and 3 pursued them for some distance without any success to catch them The appellants advanced a plea of complete denial. They denied going inside the forest and assaulting P.W. 1 The learned Sessions Judge on a thorough discussion of the evidence accepted the prosecution version to be true.
2. Mr. Asok Das, though did not concede, did not seriously assail the findings of assault by the appellants as narrated by the prosecution. The evidence is also beyond reproach. P.Ws. 2 and 3 testify how P.W. 1 was mercilessly attacked. Nothing substantial has been urged to discard their evidence. The evidence of the Doctor (P.W. 7) fully corroborates the prosecution version. The following injuries were found by him on the body of P.W..I:
1. Lacerated wound 4' X 1/2' X bone deep on the forehead.
2. Lacerated wound 21/2' X 1/2' X bone deep on the occipital bone right side.
3. Lacerated wound 2' X 1/2' X bone deep on the left side of the lamdao.
4. Tip of left middle finger 1st phalenx was hanging with skin. The bone portion was crushed and the injury at the base was lacerated.
5. Lacerated wound 1/4' X 1/4' X /6' on the lateral side of the left index finger.
6. Bruise 5' X 11/2' on the left side of the back beginning from the superior border of the right scapula towards the inferior angle of the left scapula.
7. Abrasion 11/2' X 1' on the left shoulder 2' below the left acromium process.
8. Abrasion 1/2' X 1/2' on the root of the back of the neck.
I am satisfied that P.W.. 1's evidence regarding the assault on him by the appellants is fully corroborated by the evidence of the Doctor and P.Ws. 2 and 3.
3. There is no difference in the ingredients in Sections 332 and 333, I P C. excepting the elements of hurt and grievous hurt. Section 332 lays down:--
'Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine. or with both.'
Prosecution has proved that appellant 3 caused grievous hurt and that appellants 1 and 2 caused hurt. There is no dispute that the Forest Guard (P.W. 1) to whom hurt was caused was a public servant. He was in his uniform which was clearly brought out to the notice of the accused that he was a public servant. The only question for consideration is whether the appellants caused hurt to P.W.. 1 in the discharge of his duty as such public servant. If the prosecution succeeds in proving this element, there is no dispute that the hurt was caused with the intent to prevent P.W. 1 from discharging his duty as such public servant.
4. Mr. Das contends that the prosecution has failed to prove that the fire-wood removed by the accused was from a Government forest and that it could not be removed without permit and. as such, the accused did not voluntarily cause hurt to P.W. 1 in the discharge of his duty as such public servant. This contention requires careful consideration. Prosecution case was that Sulia forest from where the fire-wood was removed was a Reserved Forest (see the evidence of P.Ws. 1 to 3). The notification has not been produced to prove that it was a Reserved Forest. It is however not necessary to find out if it is a reserved forest or not. Under Section 20A(4) of the Indian Forest Act (Orissa Amendment) forests recognised in the merged territories as Khesra Forests, village forests or protected forests, or forests other than reserved forests, by whatever name designated or locally known, shall be deemed to be protected forests within the meaning of this Act and provisions of Sub-sections (2) and (3) shall mutatis mutandis apply. The defence has no positive case to wherefrom the Firewood was removed and ft does not even claim that it was from Khesra forest. But from the cross-examination of the prosecution witnesses it appears that the defence suggestion was that the fire-wood was removed from Khesra forest. P.W. 3 in cross-examination answered-
I did not state to the forester that all the accused were led to spot inside the Khesra forest adjoining the Sulia Forest (Reserved). Every year I take fuel from Khesra 4 or B times on permit. I can show those permits. It is not a fact that permits are not necessary to bring fire-wood from Khesra forests.
P.W. 6 similarly answered in cross-examination:-- Khesra forest does not adjoin the Sulia Reserve Forest. There is the D. P F. (Demarcated Protected Forests) in between the Reserve Forest and the Khesra forest, . . ........ People can take fire-wood from Khesra forest on permits. They cannot take fire-wood without permit even from Khesra forest.
It would thus appear that though the defence has no positive case as to where from the fire-wood was removed, in view of their denial that they never removed firewood, there was suggestion in cross-examination that the removal was from Khesra forest Even assuming that the removal was from Khesra Forest, it shall be deemed to be protected forest of the Government by virtue of Section 20-A. Sub-section (4). Rule 4 of the Orissa Timber and other Forest Produce Transit Rules, 1958, deals with transit permits. Under this rule, all forest produce in transit by road, rail or water shall be covered by a permit hereinafter called the 'transit permit' to be issued free of cost Under Rule 4 (b), transit permit shall be required to cover transit of forest produce in the case of removal of timber of the species Sal, Kendu, Jamu, Asan, Karla, Mahula. Rule 2, Clause (1), Sub-clause (c) defines 'timber' which includes timber brought from privately owned land and all other classes of timber as defined in the Act except firewood up to one head load. Under Rule 2 (1) (b), 'fire-wood' means wood which is unfit for any purpose other than fuel. Though firewood upto one head load is thus excluded from the definition of timber. It requires transit permit for removal if it includes reserved species like Sal, Asan, Jamu etc. Rule 4, Clause (f) also prescribes that for the transport of fire wood and timbers bearing Forest Department's hammer mark whose removal is covered by depot permit, no transit permit is necessary. Admittedly the firewood in bundles did not bear Forest Department's hammer mark and its removal was not covered by depot permit. Such fire-wood cannot therefore, he removed without permit.
Seizure list (Ext. 1) shows that Sal, Kendu, Jamu, Asam, Karla and Mohula were in the bundles of fire-wood. P.W.s. 1 to 3 deposed that the bundles included these reserved species. The Forester (P.W. 6) also supported their version. The accused were therefore, not entitled to remove those reserved species from the protected forest without permit.
Rule 16 of the Orissa Forest Manual, prescribes the duties of forest Guards. Sub-rule (c) lays down that Beat Guards are responsible for the protection of the forests of their beats. It is their duty to prevent damage being done and to forthwith apprehend the offender who does the damage.
5. From the aforesaid discussion it is manifest that in apprehending the accused persons and in seizing the bundles of fire wood P.W. 1 was discharging his duties as a Forest Guard. The accused therefore committed offences under Sections 332 and 333. I P C.
6. Mr. Das urged that the appellants had right of private defence of property and person. It is noteworthy that no such plea was taken in their statements under Section 342, Cr. P C. nor was it raised in argument before the learned Sessions Judge. Even if such a plea had not been specifically taken, it is open to the accused to advance such a plea from the prosecution evidence itself, if it is tenable. Under Section 105, Evidence Act, the burden of proving the evidence of circumstances bringing the case within the general exceptions lies on the accused, and the Court shall presume the absence of such circumstances The burden of proof on an accused is, however, not so onerous as it is on the prosecution. Prosecution must prove Ihe offence beyond reasonable doubt, while the onus on the accused is as in a Civil Proceeding. If the accused succeeds in proving that the probabilities of the case are greater on his, side, the burden stands discharged though it is not established beyond reasonable doubt. In a case where positive assertions of facts are to be made, the defence case definitely becomes weaker when the plea taken is a complete denial.
7. Section 99, I. P. C. lays down that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. There are no materials on record to indicate that P.W.. 1 did any act which reasonably caused apprehension of death or grievous hurt to the accused. P. W. 1 acted in good faith in discharge of his duties as a public servant. Against his act there is no right of private defence of property or person. All the sections dealing with the right of private defence of person or property are subject to the restrictions mentioned in Section 99. Not only the plea of right of private defence was not taken at all, but there are no materials from which even a semblance of such a plea could be advanced.
8. The appeal has no merit and is accordingly dismissed.