Nemichand Rajendia Singh vs State

Shivdayal, J.—Nemichand Appellant has been convicted under Sections 333 and 526 of the penal Code, and sentenced to five years rigorous imprisonment on each count; the sentences to run concurrently.

On the morning of April 23, 1961, when Raghibir Singh, Forest Guard (P.W. 2), was on his normal beat duty in Samnapur range, accompanied by two Forest Warchers, he heard some noise as though timber was being cut Raghubir Singh and the Watchers proceeded towards that spot from where the noise was coming. They saw that the Appellant and one Bhura were engaged in chopping wood. Raghubir Singh asked them to Surrender their axes. Bhura complied but Nemichand refused. A scuffle ensued between Raghubir Singh and Nemichand, when Raghubir Singh wanted to snatch the axe from Nemichand''s hand. Eventually, Nemichand succeeded in snatching the axe and he dealt three blows to the Forest Guard, which caused injuries on the right hand, right heel and left thin. This was the prosecution case. Bhura was prosecuted but he was discharged. The trial Judge has disbelieved the injuries on the head and the heel. As regard, the left shin, the tibia was found fractured. Nemichand pleaded alibi and produced three witnesses as also record of Kotwari Book of village Sunderdehi. The defence has deen disbelieved.

The first and vital question in this appeal is whether Raghubir Singh was acting in the discharge of his duties, when he endeavoured to snatch the axe from Nemichand. If not, offence u/s 333 is not constituted. Shri Rajendrasingh lays stress on Section 52 of the Forest Act and contends that unless it is proved that the accused was committing a forest offence, the Forest Guard had no authority to snatch the axe from his hand, and since there is no notification declaring this forest as a Reserved Forest or a Protected Forest, no offence u/s 26, 32 or 33 was constituted inasmuch as in either case a notification is required. Shri Dube, learned Counsel appearing for the State, relies on Section 41(b) of the Forest Act and Rule 92 of the Rules made thereunder. The argument is that no forest produce could be removed inside or from a Government forest without a ''pass'' which must be produced when required by a Forest Officer, and since in this case the accused had no such past he was committing a forest offence.

In my opinion, these questions need not be gone into for the purposes of this case. It is quite clear from Section 3 of the M.P. Abolition of Proprietary Rights Act No. I of 195), which came into force on March 31, 1951, that the proprietary rights in all lands have vested in the State. For that reason this is a Government forest. It cannot be doubted that a Forest Guard has by virtue of his office the right to protect the property of the Government. Applying the general law, the Forest Guard and the watchers had the right of private defense in respect of Government property. As to this, the learned Counsel fur the Appellant maintains that the only right which the Forest Guard had was to seize the timber which was being cut, but he had no right to seize the axe from the hands of the accused. In my opinion, the act of seizing of the axe from the hands of the accused was only to prevent him from cutting Government timber. That right could be exercised by the Forest Guard u/s 104 of the Penal Code. It commenced when a reasonable apprehension of danger to the property commenced and it continued as long as the offender continued in the commission of criminal trespass or mischief (Section 105 of the Penal Code). The act of the accused in cutting timber belonging to the Government amounted to mischief and his continuance to remain there was a criminal trespass. Seizing an axe in such circumstances cannot be said to be in excess of what was necessary.

Apart from that, it is not possible not to hold that the Forest Guard was acting in good faith under colour of his office when he was endeavoring to protect forest property so that even if his attempt to snatch the axe from the hands of the accused may not be Strictly justifiable by law, the accused had no right of private defense, (Per Section 99 of the Penal Code).

In that view of the matter there is no substance in the law points raised for the Appellant.

Learned Counsel has taken me through the prosecution evidence. There is nothing to disbelieve Raghubir Singh (P.W. 2) the Forest Guard and Chhekodi (P.W. 3). It is idly established that Raghubir Singh wanted the accused and Bhura to refrain from cutting forest wood. Bhura acceded to the request but Nemichand did not. Further there is no doubt that Nemichand gave at least one blow on the leg of Raghubir Singh, which caused fracture of the tibia bone. The judgment of the Additional Sessions Judge is well reasoned and the entire evidence has been fully marshaled. I have not the slightest doubt in my mind that the prosecution story is truthful. It is a different matter that the blow on the head and that one on the heel satisfactorily proved, they being minor injuries, but on that basis; it cannot be said that the accused has been falsely roped in. I am satisfied that the guilt has fully brought home to the Appellant. The conviction under both the offences must, therefore, be maintained.

It was then urged that the accused had established his plea of alibi that he was in another village about 14 to 16 miles away and three witnesses were produced to support that story. Reliance was also place on an entry in the Kotwari Bonk (Ex. P.11). This point has been elaborately dealt with by the learned trial Judge and I do not think it necessary re-travel those premises. Suffice to mention that according to the statement of Lachman (P. W. 10), who is the son of the Kotwar, he had not seen the accused in the village but on the basis of information received from one Pritam Master the entry had been made. The entry in the Kotwari Book is, therefore, useless. Moreover, it was not an impossibility that the accused could be both at Sunderdehi and the place of the occurrence on the same day. There is no evidence to prove that on the morning of that day, at about 9, the accused was at Sunderdehi.

As regards sentence, however, I find that five years, rigorous imprisonment is unduly severe, and in my opinion the ends of justice would be met if the sentence is reduced to three years, rigorous imprisonment.

The appeal is partly allowed. The convictions under Sections 333 and 376 of the Penal Code are both maintained, but the sentences are reduced to three years, rigorous imprisonment on each count. The sentences Shall run concurrently. The Appellant who is on bail must surrender for serving the remaining sentence. His bail bonds are cancelled.