K.V. Gopalakrishnan Nair, J.
1. This is a criminal revision against the conviction and sentence of the petitioners by the Addl. District Magistrate at Badrawah which were confirmed on appeal by the Sessions Judge at Jammu.
2. The offence charged falls under Section 6 of the Forest Act, 1987. The relevant portion of this section is as under:
Any person who in a demarcated forest fells any tree shall be punished with imprisonment of either description for a term which may extend to on(c) month or with fine not exceeding one hundred rupees, or with both, in addition to such compenvicting for damage done to the forest as the convicting court may direct to be paid.
3. The forest authorities launched a prosecution against the petitioners on the allegation that they felled three Deodar trees in a demarcated forest in Bhadrawah. The cutting of the trees has-been proved beyond possible doubt. That the frees cut did not belong to the petitioners also-appears to be fairly clear. But the main argument of the learned Counsel for the petitioners is that no offence under Section 6 of the Forest Act was established by the prosecution, because there is not even a shred of evidence on the record to indicate that the trees were cut from a demarcated forest. In spite of the utter absence of such important and material evidence the Addl. District Magistrate convicted and sentenced the petitioners to pay a. fine of Rs. 75/- and the Sessions Judge at Jammu confirmed the conviction and the sentence.
4. I am unable to see how the conviction of the petitioners can be sustained in the absence of any evidence whatsoever that the trees were cut from a demarcated forest, A 'demarcated forest' is. defined in Section 2 of the Forest Act as under:
demarcated forest' means forest land or waste land under the control of the Forest Department. of which the boundaries have already been demarcated by means of pillars of stone or masonry or by any other conspicuous mark, or which may hereafter be constituted a demarcated forest under Section 3.
5. It is common ground that the forest from which the trees are alleged to have been cut was-not constituted a demarcated forest under Section 3-We have, therefore, only to confine our attention to whether the forest was under the control of the Forest Department and whether the boundaries had been demarcated by means of pillars of stone or masonry or any other conspicuous mark. As I already indicated there is not even an iota of evidence to show that the boundaries of this forest had1 been demarcated by means of stone pillars or masonry work or any other conspicuous mark.
It follows therefore that the prosecution has not been able to show that the trees were cut from a demarcated forest. The result is that no offence falling under Section 6 of the Forest Act can be said to be committed in the present case. If so, no conviction or sentence can be imposed upon the petitioners. This obvious position seems to have escaped the attention not only of the persons responsible for the prosecution but also of the two courts below. This has caused avoidable expenditure of public money and waste of judicial time, not to speak of harassment to the petitioners in a sense.
6. The learned Advocate General attempted to get over this sorry situation by pressing upon me the request that I should allow him to lead additional evidence to prove that the trees were cut from a demarcated forest, as defined in Section 2 of the Act. In support of this request he cited an authority of a single judge of the Patna High Court reported in Akhtar Hussain v. Emperor AIR 1925 Pat 526.
No doubt certain general observations of a wholesome character have been made in that judgment, but when we approach it for the purpose of harnessing it for use in the present case, we find that it is all too unhelpful. Macpherson J. in that case was considering the propriety of allowing additional evidence in view of the provisions of Section 428 of the Criminal P.C. in a case where certain connecting links had been omitted to be established on the side of the prosecution.
That surely was not a case where no offence whatever was disclosed on the evidence adduced by the prosecution. Even when substantial and satisfactory proof has been adduced on the side of the prosecution to make out the offence charged and to bring home the guilt to the accused person, there might still be certain minor lacunae tending to create some manner of doubt in the mind of the court. Such doubt could easily be cleared by adducing some further evidence of a more or less minor nature.
That would be a matter of merely establishing minor connecting links in the otherwise impregnable edifice of the prosecution case. But when the vary ingredients of the offence are absent, when there is absolutely no foundation for the prosecution to go upon, when, in other words, the prosecution becomes plainly untenable for want of an offence to disclose, the question is not merely one of forging certain connecting links or elucidating certain details but of not having any right or justification to prosecute. To such case the ruling in AIR 1925 Pat 526 Supra cannot apply.
7. In the instant case, the evidence on the side of the prosecution does not disclose the offence charged. If additional evidence, as desired by the Advocate General, is allowed to be adduced in this case, we would be allowing in truth and effect a fresh prosecution to be launched after remedying the defects and supplying the deficiencies which beset the present prosecution. This certainly would nob be just or fair to the accused person: and to adopt such a course in the broad name of justice under Section 428 of the Criminal P.C. appears to my mind to be undesirable. In this view of the matter I am altogether unable to accord permission to the learned Advocate General to adduce fresh oral and documentary evidence in support of the prosecution to show that the trees were cut from a demarcated forest.
8. As I already stated, on the evidence as it stands, no offence has been made out by the prosecution. In the result, the petitioners are entitled to acquittal. This revision is therefore allowed and the fine, if paid, is directed to be refunded.