Sundara Aiyar, J.
1. In this case the accused has been convicted of an offence under rules 8 and 15 framed under Section 26, Madras Forest Act, V of 1882. The charge runs in these terms: 'You are charged with having committed an offence under rules 8 and 15, framed under Section 26 of Act V. of 1882, in having got the accused Nos, 3 to 6 to cut without license a Neradu tree worth about Rs. 60 in the Vanka Poramboke Survey No. 162 of Noulakallu village about the month of April 1911.'
2. Although the charge mentions Rule 8, it does not state clearly that the Vanka Poramboke Survery No. 162, in which the Neradu tree is said to have stood, was a reserved forest,' or 'reserved land'. And, apparently, there is no evidence on record to show that the place in question was 'reserved land,' Without such evidence, a conviction under Rule 8 could not be supported.
3. The learned Public Prosecutor contends that, on the facts found, the accused would be guilty of an offence under Rule 9.
4. That depends on whether the accused had any right to cut the tree in question under Rule 7. The accused, no doubt, pleaded that the tree was not cut in the place in question and that it belonged to some one else. But if the fact of its having been cut at the Venka be true, it might be open to the accused to say that it was required by him for an agricultural or domestic purpose. 1 think it would not be safe to convict the accused, on the facts as they stand, of an offence under Rule 9,
5. I think, in the circumstances, the proper course would be to set aside the conviction and to direct a re-trial for an offence under Rule 8 or Rule 9 at the option of the prosecution. If the charge be framed under Rule 8, it must clearly state that the place where the tree was cut was reserved land'. The fine, if paid, must be refunded.