State Of Maharashtra vs Shri Pralhad Raghuji Sonwane & 9 ...
2016 Latest Caselaw 1500 Bom

     Judgment                                        1                               apeal207.99.odt




                                                                                  
                   
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR.




                                                         
                            CRIMINAL APPEAL NO.207  OF 1999




                                                        
     State of Maharashtra, 




                                          
     through Range Forest Officer, 
     Pratapgarh, Forest Department, 
                             
     Arjuni (Mor). 

                                                                              ....  APPEAL.
                            
                                      //  VERSUS //

     1. Shri Pralhad Raghuji Sonwane,
        Aged about 26 years, 
      


     2. Shalikram S/o. Baliram Kumbhre,
   



        Aged about 32 years, 

     3. Lankesh S/o. Shionath Badole,
        Aged about 33 years, 





     4. Shamrao S/o. Shiodas Uikey,
        Aged about 36 years,

     5. Sanjay S/o. Maniram Meshram,





        Aged about 18 years,

     6. Santosh S/o. Sitaram Meshram,
        Aged about 28 years,   

     7. Mahadeo S/o. Dewaji Bhandari,
        Aged about 50 years,

     8. Arjun S/o. Shionanarayan Paliwal,
        Aged about 22 years,  



    ::: Uploaded on - 27/04/2016                         ::: Downloaded on - 29/07/2016 22:08:38 :::
      Judgment                                          2                               apeal207.99.odt




                                                                                    
     9. Ramesh S/o. Amarchand Paliwal,
        Aged about 42 years,




                                                           
     10. Shionarayan Amarchandji Paliwal,
         Aged about ____ years,




                                                          
          All R/o. Arjuni-Morgaon, Tah. Arjuni (Mor),
          District : Gondia.   
                                                       .... RESPONDENTS
                                                                     . 
      ______________________________________________________________




                                            
     Shri N.B.Jawade, Advocate for Appellant.  
     Shri Shashikant Borkar, Advocate for Respondents.  
                             
     ______________________________________________________________
                            
                                  CORAM : Z.A.HAQ, J.

DATED : APRIL 13, 2016.

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 :-

Judgment 3 apeal207.99.odt

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

Judgment 4 apeal207.99.odt

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

Judgment 5 apeal207.99.odt

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

Judgment 6 apeal207.99.odt

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.

Judgment 7 apeal207.99.odt

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

Judgment 8 apeal207.99.odt

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.

      Judgment                                            9                               apeal207.99.odt




                                                                                      
      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.

JUDGE RRaut..