Oral Judgment:
1. Heard Shri N.B.Jawade, A.P.P. for the appellant/ State and Shri Shashikant Borkar, advocate for the respondents. Respondent No.7 is reported to be dead.
2. The appellant has challenged the judgment passed by the learned Magistrate acquitting the respondents of the offence punishable under Section 21(1)(b), (e) and (f) of the Indian Forest Act, 1927.
3. The case of the prosecution is:-
In the night between 31st December, 1994 and 1st January, 1995 at about 11.00 p.m., Mahendra Shukla, Forest Guard who was on patrolling duty in forest near Khapri village heard noise of cutting of tree. Shri Mahendra Shukla and some persons, who were also on patrolling duty, noticed that two persons had gone on motor cycle in the direction from where noise of cutting of tree was coming. After some time, they saw that the motorcycle and a tractor came from the direction from which the noise was coming, Shri Mahendra Shukla stopped motor cycle and the tractor with trolley and it was found that logs of teak wood and two iron saws, one crowbar were lying in the trolley and the accused No.1 Pralhad was on the driver seat, accused No.8 Arunkumar was driving the motorcycle and other accused were sitting in the trolley and the tractor. Niyaz Ahmed, Forest Officer came to the spot after receiving information and the accused persons were asked to produce Pass, however, they could not produce it. The seizure panchnama was prepared. Offence came to be registered and charge-sheet came to be filed before the learned Magistrate. The charges were framed. The accused did not accept the guilt and claimed to be tried. The learned Magistrate conducted the trial and by the impugned judgment recorded that the prosecution failed to prove that the accused Nos.1 to 7 illegally removed the teak wood by cutting from reserved forest area and that the prosecution has failed to prove that the accused were carrying the teak wood without any Pass or Permit from the Reserved Forest area.
4. The State of Maharashtra, being aggrieved by the judgment, filed this appeal.
5. Shri N.B.Jawade, learned A.P.P. submitted that the findings recorded by the learned Magistrate are unsustainable. It is submitted that the learned Magistrate has acquitted the accused on the erroneous consideration that the logs of teak wood found in the trolley did not match with the size of the stumps of trees, as recorded in the panchnama. It is submitted that the learned Magistrate has recorded that the diameter of the stumps was 214 cms. and the logs of wood were 146 cms, 103 cms, 90 cms, 170 cms. and 125 cms in diameter. It is pointed out from the seizure panchnama (Exh.16) that there were 10 logs of teak wood and one of the log was 215 cms in diameter.
Shri N.B.Jawade, A.P.P. has further submitted that the prosecution has established that the tractor with trolley was seized on the road coming through reserved forest area, that 10 logs of teak wood were seized and that the accused were not having Pass or Permit. The learned A.P.P. has further submitted that the accused have failed to explain the custody of 10 logs of the teak wood and their presence in the reserved forest area at midnight. It is submitted that the accused have committed the offence under Section 26(1)(d),(e) and (f) of the Indian Forest Act, 1927 and are liable for punishment. It is prayed that the judgment passed by the learned Magistrate be set aside and the accused be convicted.
6. Shri Shashikant Borkar, learned advocate for the respondents has submitted that the findings recorded by the learned Magistrate that the prosecution has failed to establish that the accused Nos.1 to 7 have illegally removed teak wood by cutting it from reserved forest area is based on proper appreciation of the evidence on record. The learned advocate for the respondents has pointed out from the cross-examination of Shri Mahendra Kumar Shukla (P.W.No.1) that there is a pathway from Compartment No.257 to reach village Khapri and to village Malkapur and therefore, it cannot be said that the accused had entered the reserve forest area with intention of committing offence, as alleged by the prosecution. It is argued that according to the deposition of Mahendra Shukla (P.W. No.1) he was present near the spot after hearing the noise of cutting of trees for about more than two hours and it is not explained as to why he and his associates did not go to the spot from where the noise was coming. It is argued that the prosecution has failed to bring home the guilt beyond doubt and therefore, the judgment passed by the learned Magistrate acquitting the accused need not be interfered with.
It is submitted that there is nothing against the respondent Nos.9 and 10 and the only allegation against the respondent No.8 is that he had gone from pathway on the motorcycle. It is prayed that the appeal be dismissed.
7. Shri N.B.Jawade, learned A.P.P. has conceded that there is no material against the respondent Nos.9 and 10.
8. After considering the evidence on record, I find that the conclusions of the learned Magistrate that the prosecution has failed to establish that the respondent Nos.1 to 8 illegally removed the teak wood by cutting it from the reserved forest area, are unsustainable. The accused were charged of committing offence under Section 26(1)(d), (e) and (f) of the Indian Forest Act, 1927.
9. Section 26(1)(d) of the Indian Forest Act, 1927 lays down that any person who has trespassed in the reserved forest, will be committing an offence. Similarly, as per Section 26(1)(e) of the Indian Forest Act, 1927 the person commits an offence if he causes any damage by cutting any timber in reserved forest. As per Section 26(1)(f) of the Indian Forest Act, a person commits an offence if he is responsible for felling any tree in reserved forest.
The prosecution has brought on record sufficient evidence to show that the respondent Nos.1 to 8 came out of the reserved forest area along with the tractor and trolley and there were five logs of teak wood and 2 iron saws and one crowbar in the trolley. The prosecution has brought evidence on record to show that five logs of teak wood were found at the spot from where the trees were cut and stumps of trees were found. There is no explanation by the respondent Nos.1 to 8 about their presence in the reserved forest area at midnight. The respondent Nos.1 to 8 have not been able to justify the possession of the teak wood.
After considering the evidence and other material on record, I am of the view that a finding has to be recorded that the respondent Nos.1 to 8 have committed offence punishable under Section 26(1)(d), (e) and (f) of the Indian Forest Act, 1927.
The incident is of 1st January, 1995. In these circumstances, in my view, it would not be appropriate to impose sentence of imprisonment on the respondent Nos.1 to 6 and 8. Instead, it would be appropriate to direct the respondent Nos.1 to 6 and 8 to pay fine of Rs.500/- each within one month and in addition to pay compensation.
10. However, the prosecution has not been able to bring any material on record to show that the respondent Nos.9 and 10 were not involved in commission of the offence. It appears that the respondent No.10 has been implicated as he is owner of the tractor and the trolley. But as no overtact is attributed to the respondent Nos.9 and 10, it cannot be said that they are involved in commission of the offence.
The damage caused by felling of trees is irreparable and it cannot be quantified. However, according to the prosecution, the logs of teak wood, seized from the accused, were worth Rs.12,607/- at the relevant time. This figure can be kept in mind while assessing the amount of compensation payable by the accused.
11. Hence, the following order:
i) The appeal is partly allowed.
ii) The judgment dated 22nd April, 1999 passed by Joint Civil Judge Junior Division and Judicial Magistrate First Class, Sakoli in Summary Criminal Case No.1677 of 1995 is modified.
iii) The acquittal of the respondent Nos.9 and 10 is maintained.
iv) The respondent Nos.1 to 6 and 8 are convicted for offence under Section 26(1)(d), (e) and (f) of the Indian Forest Act, 1927 and are directed to pay fine of Rs.500/- each within two months.
v) In addition to the amount of fine, the respondent Nos.1 to 6 and 8 shall pay compensation for damage done to the forest and shall deposit Rs.5,000/- each with the Range Forest Officer, Arjuni Morgaon within two months.
vi) If the amount of fine and /or compensation is not deposited by the respondents within two months, the defaulter shall undergo simple imprisonment for one month.
The appeal is disposed in the above terms.