Sri Darcharam Reang vs The State Of Tripura
2021 Latest Caselaw 153 Tri

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                          HIGH COURT OF TRIPURA
                                AGARTALA
                              Crl. Rev. P No.85/2017
1.     Sri Darcharam Reang,
2.    Sri Joyram Reang,
Both are sons of Sri Sargamohan Reang,
Resident of Brupara, Kanchanpur,
North Tripura.

                                                           ............... Petitioner(s).

                                             Versus
The State of Tripura,
(To be represented by the Public Prosecutor,
Hon‟ble High Court of Tripura, Agartala,
West Tripura).

                                                         ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Petitioner(s) : Mr. P. Roy Barman, Advocate.

For Respondent(s) : Mr. S. Ghosh, Addl. Public Prosecutor.

       Date of hearing                   :     22nd January, 2021.

       Date of Judgment & Order :              10th February, 2021.

       Whether fit for reporting         :    NO.


                              JUDGMENT AND ORDER

[1]            The        petitioners   have     challenged    the   judgment    dated

15.11.2017 delivered by the Sessions Judge, North Tripura, Dharmanagar

in Criminal Appeal No. 05 of 2017 affirming the judgment and order of

conviction and sentence dated 07.08.2017 under Section 26 (e) and (f) of

the Indian Forest Act, 1927 (hereinafter referred to as "the Forest Act")

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delivered by the Judicial Magistrate, First Class, Kanchanpur, North

Tripura in Case No.CR(FA) 01 of 2016.

[2] The facts of the case, in brief, are as follows:

Sri Famkima Darlong (PW-1), Forester, submitted offence

report No.05/FPU-16/Kanchanpur dated 27.09.2016 in the Court of the

Sub-Divisional Judicial Magistrate at kanchanpur on 28.09.2016 alleging,

inter alia, that while he was patrolling in the area called Brupara in

Kanchanpur along with his accompanying forest staff on 12.09.2016 at

around 4 PM, he saw that a large number of Teak trees in the teak

plantation of Uricherra under Tripura JICA project were girdled by axe

above the ground level. The forest patrolling party led by informant came

across 50 of such girdled teak trees in the area, a list of which was

prepared by them containing the description of the trees. None of the

offenders could be spotted. Sources were engaged to trace them out. On

26.09.2016 at about 8 „O‟ Clock in the morning, informant (PW-1)

received a telephonic information from the President of Uricherra Joint

Forest Management Committee (JMFC) namely, Sri Uttam Kr. Reang (PW-

5) who was in charge of the management of the teak plantation. He

informed the informant (PW-1) that the petitioners along with one Kirit

Ch. Reang were engaged in girdling the standing teak trees at Uricherra.

The informant immediately arrived at the spot along with his

accompanying staff and spotted the three accused including the two

petitioners committing the offence but before they were caught by the

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forest patrolling party, they started running. The members of the

patrolling party also ran behind them but all of them escaped through the

jungle. While leaving, they left behind one axe. The axe was seized by

the patrolling party vide seizure list dated 26.09.2016 (Exbt.1). It has

been alleged that the intention of the offenders was to clear the forest by

removing the teak trees for occupying the forest land for the purpose of

dwelling. Allegedly by their act, they caused huge loss to the State

Government and committed offence punishable under Section 26(e) and

(f) of the Forest Act.

[3] The Sub-Divisional Judicial Magistrate, Kanchanpur received

the offence report and vide his order dated 03.10.2016 in case No.

CR(F/A) 01/2016 took cognizance of offence punishable under Sections

26(e) and (f) of the Forest Act.

[4] At the commencement of trial, the particulars of the offence

were stated to the three accused including the two petitioners in terms of

Section 251 of the Code of Criminal Procedure, 1973 (Cr.P.C hereunder).

Each of them pleaded not guilty and claimed trial.

[5] During trial, nine witnesses were examined on behalf of the

prosecution and two documents (Exbt.1 and Exbt. 2)were produced to

establish the prosecution case. After the recording of prosecution

evidence was over, three accused were examined separately under

Section 313 Cr. PC and their replies were recorded by the learned trial

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Court. All pleded innocence and claimed that the charges were foisted on

them.

[6] On appreciation of evidence, the learned trial Court convicted

the three accused of the case including the two petitioners for having

committed offence punishable under Section 26 (e) and (f) of the Forest

Act. Having observed that convict namely Kirit Ch. Reang was a disabled

person, learned trial Court released him on probation of good conduct

under Section 4 of the Probation of Offenders Act, 1958 on his executing

a bond before the Probation Officer. The other two convicts namely,

Darcharam Reang and Joyram Reang, petitioners herein, were heard on

the question of sentence and thereafter they were sentenced to S.I for

one month.

[7] The aggrieved petitioners challenged the judgment of their

conviction and sentence in appeal in the Court of the Sessions Judge,

North Tripura, Dharmanagar. The learned appellate Court having found

no infirmity in the judgment of the trial court affirmed the judgment by

upholding the conviction and sentence of the petitioners as well as the

order releasing the other accused on probation of good conduct. Hence

this criminal revision petition by the two convict petitioners.

[8] Heard Mr. P. Roy Barman, learned counsel appearing for the

petitioners as well as Mr. S. Ghosh, learned Addl. Public Prosecutor

representing the State respondents.

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[9] Appearing for the petitioner Mr. Roy Barman, learned counsel

argues that prosecution led no evidence to establish that the place of

occurrence was a reserved forest. According to Mr. Roy Barman, learned

counsel, the teak trees which were allegedly girdled belonged to JICA

project and the plantation centre from where the girdled trees were

allegedly recovered was not within reserved forest and as such Section 26

(e) and (f) of the Forest Act do not apply to this case. It is also argued

by Mr. Roy Barman learned counsel that there is no evidence that any of

the petitioners was found girdling the trees and as such their conviction

under Section 26(e) and (f) of the Forest Act is liable to be set aside.

Finally, it is argued by Mr. Roy Barman, learned counsel that for

arguments sake, even if it is conceived that the accused were girdling

teak trees, they cannot be held guilty under Section 26(e) and (f) of the

Forest Act, unless it is proved by documentary evidence that the place

where they were spotted was a notified reserved forest. According to

learned counsel, prosecution having failed to establish the fact that the

place of occurrence was a notified reserved forest, their conviction and

sentence is not sustainable.

[10] Mr. S. Ghosh, learned Additional Public Prosecutor on the

other hand has argued that the convict petitioners were caught red-

handed by the forest patrolling party while they were committing the

offence and prosecution has led sufficient corroborative, consistent and

trustworthy evidence in support of their involvement in the offence. It is

submitted by Mr. Ghosh, learned Additional Public Prosecutor that the

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concurrent findings of the Courts below do not call for any interference in

revision and therefore, learned counsel urges for dismissal of the revision

petition.

[11] As noted, prosecution has examined as many as 9 witnesses

in this case. Among them PW-1 is Famkima Darlong who stated at the

trial that on the date of occurrence, he was posted as a Forester at

Kanchanpur. On 12.09.2016 while he was patrolling in the area called

Brupara along with his accompanying staff he saw that a large number of

teak trees were girdled above the ground level in the plantation centre at

Uricherra under JICA project. The patrolling party carried out a search in

the area and found 50 of such girdled teak trees. PW-1 then made a a list

of those trees containing the description of each of the trees. However,

none of the accused was found at that time. On 26.09.2016 Uttam Reang

(PW-5) who was the President of Joint Forest Management Centre (JMFC)

under the JICA project informed the PW that the petitioners were further

girdling teak trees at the plantation centre. The PW along with his staff

rushed to there. Seeing them, the three accused ran away leaving one

axe behind them. The patrolling party led by the PW then searched the

area and seized the axe left by the accused persons vide seizure list

marked as Exbt.1. It was further stated by the PW that the intention of

the accused was to occupy the forest land by clearing the forest for the

purpose of dwelling. The PW further stated that as a result of the offence,

loss to the tune of Rs.1,50,000/- was caused to the Government.

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[12] In his cross-examination, the PW stated that the place where

the occurrence took place belonged to forest department. He also stated

that when the patrolling party arrived there, the three accused were

engaged in girdling the teak trees.

[13] PW-2, Sri Ujiram Reang, a Forest Protection Officer, simply

stated that PW-1 seized an axe from the place of occurrence in his

presence. The PW did not say anything about the involvement of the

accused persons.

[14] PW-3, Ramkrishna Reang gave similar evidence. He simply

supported the seizure of the axe (Exbt. MO-1) in his presence. He also

did not give any evidence in support of the involvement of the accused

petitioners in the alleged evidence.

[15] PW-4, Sri Shyamal Kr. Debnath, a Forest Plantation Officer,

did not also give any evidence supporting the involvement of the accused

persons in the offence alleged against them. He simply stated that the

axe (Exbt.MO-1) was seized by PW-1 in his presence.

[16] PW-5, Sri Uttam Kumar Reang stated that he informed PW-1

over telephone that the petitioners and the other accused of this case

namely Kirit Ch. Reang were engaged in girdling of standing teak trees in

the teak tree plantation centre at Uricherra. Pursuant to his information

PW-1, accompanied by the forest staff, arrived there. But all the accused

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persons fled before they were apprehended. In his cross-examination he

denied that he falsely implicated the accused persons in the case.

[17] PW-6, Sri Kalyan Kumar Reang stated that he actually

informed PW-5 that the accused persons were seen girdling the standing

teak trees at the plantation centre. Thereafter PW-5 informed PW-1 and

pursuant to the information received from the PW-5, PW-1, the Forest

Officer arrived at the spot with his staff but the accused persons fled

before they were apprehended. In his cross-examination PW-6 denied

that he falsely implicated the accused persons in this case.

[18] PW-7, Sri Chaitanya Reang is a seizure witness who stated

that the axe (Exbt.MO-1) was seized in his presence. He gave no

evidence with regard to involvement of the accused petitioners.

[19] PW-8, Rabi Rai Reang and PW-9, Smt. Gomati Reang gave

same evidence. They stated that the axe (Exbt. M.O1) was seized in their

presence. They had no idea about the involvement of the accused

persons in the alleged evidence.

[20] The judgment of the trial Court demonstrates that the learned

trial Judge having relied on the evidence of PW-1, PW-5 and PW-6

believed the prosecution case with regard to involvement of the accused

persons in the alleged offence and found them guilty and convicted and

sentenced them. The relevant extract of his judgment is as under:

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"19. From the evidence of P.W.1, it manifestly becomes clear that in the older tree plantation of Uricherra JMFC's under JICA Project near road side at Bru para there had been griddle by an axe on the ground level on a large scale of standing 50 nos teak trees . This was first revealed to him on 12.09.2019 during his patrolling at 04.00 p.m.. An enumeration list was prepared in the presence of witnesses but the same was not proved by the prosecution.

20. But on 26.09.2016 one Sri Kalyan Kumar Reang (PW-6) informed to Sri Uttam Kumar Reang (PW5) who in tune informed to P.W.1 over mobile phone that accused persons were engaged in the task of griddle of standing teak trees at P.O.. On the basis of that information P.W.1 along with his staff (P.W.2, P.W.3 & P.W.4) accompanied with PW5 & PW6 went to P.O at around 08.30 a.m and eye-witnessed that all the accused persons were engaged in the task of griddle in the standing teak trees above ground level by an axe. Though they proceed toward the accused persons to apprehend them but failed as the accused flee away by seeing P.W.1 along with others.

Thereafter, the axe which was used in the task of griddle of standing teak trees was seized by P.W.1 in presence PW2 to PW9 and the axe has also been identified by P.W2.3.4 as Exbt. M.o.1.

21. In the above scenario, it becomes crystal clear that P.W.6 witnessed first the incident and thereafter P.W.1 along with all the rest PWs eye-witnessed the incident. In this type of shut and clear case nothing further remains to be proved. The seizure was also made in accordance with the provision of Sec. 52(1) of IFA, 1927, which was proved by PW1 as Exbt.1 along with his signature as Exbt.1(i). Moreover, there is nothing evident on record to cast doubt about the veracity of any witnesses. PW-1 performed his official act and section 114 (e) of Indian Evidence Act authorizes the court to presume that judicial and official acts have been regularly performed.

22. It is vehemently argued by Ld. Defence counsel that there is a lacking on the part of PW1 that, he has not seized the forest produce in respect of which Forest Offence is committed. Firstly, procedural infirmities cannot discard the offence committed by accused persons. Moreover, in the given case the forest produce is standing teak trees which cannot be seized unless and until they have been cut down. Though an enumeration list of those standing trees were made, but the same was not being proved. But this lapse of prosecution is not fetal in the sense that a lapse on the part of prosecution cannot flow down a case where everything is proved.

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23. Considering the evidence on record and also after hearing the arguments of both the sides, I hold that the prosecution side has become able to prove the case beyond the shadow of all reasonable doubts and hence the present case is decided in favour of the prosecution and against defence.

24. In the result, the accused persons namely, Sri Dharcharm Reang, Sri Joyram Reang and Sri Kirit Chandra Reang are convicted under Section 26(e) (f) of the Indian Forest Act, 1927."

[21] The learned Sessions Judge by the impugned judgment

accepted the findings of the trial Court and up held the conviction and

sentence of the petitioners without any modification. The relevant extract

of the judgment of the learned appellate Court is as follows:

"[6] PW2,3,4,7,8 and 9 are all seizure witnesses in respect of seizure of axe and they have duly proved their signatures in the seizure list and also identified the seized axe as exhibit-MO-1. So, seizure of axe from the place of occurrence is also proved.

[7] PW-5, Uttam Kr. Reang admitted the fact that on 26.09.2016 he gave information to the FPO in charge of Kanchanpur over mobile that the accused persons namely /Sri Darcharam Reang, Sri Joyram Reang and Sri Kirit Chandra Reang were engaged in the task of griddling of standing teak trees at Uriche4rra JFMC under JICA project . He also confirmed the action of PW-1 saying that accordingly on that date itself, FPO in charge of Kanchanpur (PW-

1) along with his staffs went to the place and saw the accused persons in the task of griddle of standing teak trees. But before apprehending them the accused persons fled way. He also supported the fact of seizure. During cross examination defence suggested that he deposed falsely and no such incident took place and also suggested that the deposed falsely and no such incident took place and also suggested that without anything about the contents of seizure he signed over the same. But defence did not deny the evidence of the witness that he informed the complainant over telephone naming the accused persons that they are engaged in the task of griddle of standing trees. The tuning of evidence of PW-5 shows that he had also seen the accused

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persons while cutting the trees and accordingly gave the information to the complainant. So, evidence of PW-1 was in toto corroborated by PW-5.

[8] PW-6, Kalyan Kr. Reang also deposed in the same tune of PW-5. The only difference is that he stated that on 26.09.2016 he informed the President of Jricherra JFMC and accordingly PW-6 informed the FPO. He stated that information was that the accused persons namely Sri Darcharam Reang, Sri Joyram Reang and Sri Kirit Ch. Reang were engaged in the task of griddling teak trees of Uricherra JFMC under JICA project. He also supported further action of the complainant and the seizure and during cross examination similar cross was made by the defence as was made to PW-5. From the evidence of the defence it is not clear whether complainant, PW-5 and PW-6 had got any kind of enmity with the accused persons so that they could depose falsely against them. The tuning of PW-6 also shows that he also had seen the accused persons cutting standing teak trees at Uricherra JFMC. I do not find any ground to disbelieve the evidence of PW 1 which is duly corroborated by PW5 and PW6 and also find that there is no error in the findings of Ld. Trial court."

[22] The petitioners have challenged the impugned judgment

mainly on two grounds. One of those grounds is that none of the

petitioners was seen committing the offence and the other ground is that

the place from where the girdled teak trees were seized is not a notified

reserved forest.

[23] Section 3 of the Forest Act empowers the State Government

to constitute a reserve forest and Section 4 of the Forest Act provides

that whenever it has been decided to constitute any land as reserved

forest, the State Government shall issue a notification in the official

gazette. Therefore, there is merit in the contention of Mr. Roy Barman,

learned counsel that no forest can be termed as a reserved forest unless

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notification has been issued by the Government in this regard. The

petitioners have been charged with offence punishable under Section

26(e) and (f) of the Forest Act which reads as follows:

"26. Acts prohibited in such forests.--(1) Any person who--

(a) makes any fresh clearing prohibited by section 5, or (a) makes any fresh clearing prohibited by section 5, or"

(b) sets fire to a reserved forest, or, in contravention of any rules made by the 1[State Government] in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;" or who, in a reserved forest--

(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf;

(d) trespasses or pastures cattle, or permits cattle to trespass;

(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;

(f) fells, girdles, lops, or burns any tree or strips off the bark or leaves from, or otherwise damages, the same;

(g) quarries stone, burns lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;

(h) clears or breaks up any land for cultivation or any other purpose;

(i) in contravention of any rules made in this behalf by the 1[State Government] hunts, shoots, fishes, poisons water or sets traps or snares; or

(j) in any area in which the Elephants' Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made,

(j) in any area in which the Elephants' Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made,"

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shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.

(2) Nothing in this section shall be deemed to prohibit--

(a) any act done by permission in writing of the Forest-officer, or under any rule made by the 1[State Government]; or

(b) the exercise of any right continued under clause

(c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.

(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the 1[State Government] may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion thereof the exercise of all rights of pasture or to forest-produce shall be suspended for such period as it thinks fit." [Emphasis supplied]

[24] Section 25 of the Forest Act empowers the State Government

to stop ways and water-courses in reserved forest and Section 26 of the

Act prohibits certain acts in "such forest". Obviously, "such forest"

appearing in the head note of Section 26 denotes reserved forest.

Apparently, there is no proof that the place from where the girdled teak

trees were recovered belonged to a reserved forest .

[25] Apart from such legal embargo, prosecution evidence does

not also support the involvement of the petitioners in the alleged offence.

On the first day when the informant (PW-1) discovered the girdled teak

trees at the place of occurrence none of the petitioners was found there.

Even no link of them with the said offence could be discovered. On the

other day when the informant proceeded to the place of occurrence on

the basis of an information received from PW-5 along with 9 other forest

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staff, he could not apprehend the petitioners. According to him seeing

them the petitioners fled. The story is not believable because one of the

accused namely, Kirit Ch. Reang was a completely disabled person. It was

not possible for him to girdle a tree or to run away from the place of

occurrence. The trial Court also released him on probation of good

conduct on the ground of his disability. Moreover, PW-5 on whose

information PW-1 went to the place of occurrence did not see the

petitioners committing the offence. Because PW-6 has categorically stated

that he informed PW-5 about the involvement of the petitioners in the

alleged offence and the PW-5 in turn passed over the information to the

informant. In view of such evidence involvement of the petitioners in the

alleged offence appears to be quite doubtful. Evidently, one of the

accused Kirit Ch. Reang was a disabled person and considering his

disability the trial Court released him on probation of good conduct

instead of sentencing him to any punishment at once. Admittdly, accused

Kirit Ch. Reang was unable to axe a tree or run. But the allegation against

him is that he was found axing teak trees and after seeing PW-1 he

managed to run away from the place of occurrence and the forest

patrolling party comprising of 10 members failed to catch the disabled

accused. The evidence of PW-1 does not stand to reason.

[26] In view of what is discussed above, this Court is of the view

that the impugned judgment whereby conviction and sentence of the

petitioners was up held is liable to be set aside.

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[27] Resultantly, the impugned judgment is set aside and the

criminal revision petition stands allowed. Send back the LCR.

JUDGE

Dipankar

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