Rathinam vs State by Forest Range Officer, Vazhapadi, Salem District

V. Kanagaraj, J.—This Criminal Revision Case is directed against the judgment dated 3.6.1997 made in C.A. No. 167 of 1995 by the

Court of I Additional Sessions Judge cum Chief Judicial Magistrate, Salem thereby confirming the judgment dated 7.9.1995 made in C.C. No.

1034 of 1994 by the Special Judicial Magistrate, (Sandalwood Offences), Salem, convicting the revision Petitioner for the offences held proved

against him u/s 21(d)(e)(f) of the Tamil Nadu Forest Act, 1882 r/w Rule 3 of the Tamil Nadu Sandalwood Transit Rules and sentencing him to

undergo R.I for two years and to pay a fine of Rs. 10,000/- in default to undergo R.I. for a further term of three months.

The charge as framed against the Petitioner/accused in the case of the prosecution registered by the Respondent/Forest Range Officer,

Vazhapadi, as per his O.R. No. 26/94 is that on 16.2.1994 at 8 p.m. the revision Petitioner, with intent to smuggle the Sandalwood, trespassed

into Kaliakoil, Kudhimaduvu Beat reserve forest, in an illegal manner, collected and heaped in a bush, 70 sandalwood logs weighing 500 kgs., and

12 bundles of sandalwood chips, all worth Rs. 1,00,000/- (Rupees one lakh only) and thus kept them ready for being smuggled when he was

caught red-handed by the Respondent and the case was registered for offences punishable u/s 21(d)(e)(f) and 35 and 36(a) and (e) of the Tamil

Nadu Forest Act, 1882.

During trial, the prosecution which is burdened with proof of the said charge beyond reasonable doubts, has examined two witnesses for oral

evidence namely. PW1 the Forest Range Officer Vazhapadi and P.W.2, the Forest Guard in charge of Chekkadipatti beat and would mark 7

documents as Exs.P. 1 to P.7. Ex.P1 being the mahazar dated 16.2.1994; Ex.P2 being the confession statement of the revision Petitioner dated

16.2.1994; Ex.P3 being the H. From dated 16.2.1994; Ex.P4 being Form-95 dated 16.2.1994; Ex.P5 being the A Form dated 30.6.1994; and

Ex.P6 being the rough sketch dated 30.6.1994. Besides these, the prosecution would also exhibit three items of articles as Material Objects viz.,

MO1 series being the sandalwood logs numbering 70; MO2 series being the 12 bundles containing sandalwood chips; MO3 series being the

coconut ropes numbering 24. On the part of the revision Petitioner/accused, one Kaliappan has been examined as the sole defence witness i.e.

DW1 with no documents marked as exhibits.

The trial court, appreciating these evidence placed on record, in the manner as it has done, would ultimately arrive at the conclusion to convict

the revision Petitioner, further sentencing him to undergo the above punishment mentioned supra. On an Appeal by the Petitioner, the Appellate

Court would confirm the conviction and sentence, as a result of which the revision Petitioner has come forward to file the above revision case on

grounds such as (1) that the courts below have erred in convicting the Petitioner on the interested and discrepant testimony; (1) that the courts

below ought to have seen that the rough sketch was prepared belatedly after a lapse of 4 1/2 months from the date of alleged offence; (iii) that the

prosecution has thoroughly failed to prove the scene of occurrence, wherein no occurrence has taken place at all and the case registered against

the Petitioner is imaginary (iv) that the courts below have failed to see that Ex.P1 mahazar and Ex.P2 confession statement of the accused which

have been prepared with the help of torch lights which fact none of the exhibits speak to this effect, nor any torch light marked as Material object;

(v) that the lower courts have failed to see that as per evidence, six persons have formed the raiding party, but quite contrarily. Ex.P.1 confession

statement dated 16.2.1994 and Ex.P5 ''A'' Form dated 30.6.1994 have been signed by 8 persons, which are said to have been prepared at the

scene of occurrence. The non-filing of columns 5 and 6 in Ex.P3 ''H'' Form throws the case of the prosecution to very many doubts (vi) that there

was no proper sanction for prosecution and the ''C'' Form was not filed before the trial court; (vii) that there is no independent corroboration of the

interested testimony and both the courts below have erred in accepting false evidence of the prosecution and rejecting the version of the defence

witness.

During arguments, the learned Counsel appearing for the revision Petitioner would emphasize what he has pleaded as grounds of revision and

make a particular mention of the peculiarity that has crept in this case that is the complainant himself acting as the Investigating Officer, which

cannot be done in law and would say that at this score itself, the entire trial gets vitiated. In support of the above contention, the learned Counsel

would cite a judgment delivered in Megha Singh Vs. State of Haryana, wherein in para 4 it is held:

We have also noted another disturbing feature in this case. PW.3 Siri Chand, head Constable arrested the accused and on search being conducted

by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the

case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the

complainant in the case but he carried on with the investigation and examined witnesses u/s 161 Code of Criminal Procedure. Such practice to say

the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.

In the aforesaid facts and circumstances, we allow this appeal and set aside the conviction and sentence passed against the Appellant.

The next judgment cited by the learned Counsel for the revision Petitioner is one delivered in State by Public Prosecutor v. Chelladurai reported

in 1986 L.W.(Crl.) 39 which is also a similar forest case wherein having let in evidence to the effect that with the help of a torch light they were

able to identify the accused, the prosecution, failed to produce the said torch light before the Court as a Material Object as a result of which that

case ended in acquittal of the accused therein. The relevant portion in para 9 of the judgment is extracted hereunder.

The prosecution witnesses have deposed that in the light shed by the torch light, they were able to identify the accused 3 to 6 who were standing at

a distance of about 25 feet from them. The lower court which had the benefit of seeing P.Ws. 1 and 2 in the box had disbelieved them when they

asserted that they can identify accused 3 to 6 in the inadequate light that is said to have been shed by the torch light which they were having. The

said torch light is not produced as material object before the lower court. Therefore, by exercising the discretion judicially, the lower court had

entertained doubt in its mind and had given the benefit of that doubt in favour of the accused and acquitted them. In the circumstances, this Court

does not find any ground for reversing the judgment of acquittal of the accused/Respondents herein. The acquittal of the accused/Respondents

herein is hereby confirmed.

In reply, the learned Government Advocate (on the Criminal Side) besides submitting the written arguments in a nutshell, would also argue that

the non-production of the torch light used by the forest officials in the present case will not vitiate the prosecution case since the accused was

apprehended on the spot. He would cite a judgment in B. Subba Rao v. Public Prosecutor, High Court of AP. reported in 1998 SCC (Crl) 171

wherein it is generally held that the non-seizure of the material object in no way affected the case of the prosecution. The relevant portion in para

11 of the above judgment is as follows:

As regards the comment of the trial court that the non-seizure of the hurricane lamp from the office of PW4 materially affected the prosecution

case, we can only say that the same is baseless. Undoubtedly, at the material time PW4 was engaged in issuing copies of voters lists and caste

certificates and if by then, darkness had set in, it can be legitimately inferred (leaving aside the positive evidence of PW4 in this regard) that mere

would be some source of light to enable him to perform his job. In that context, it was immaterial whether the police seized the hurricane lamp,

which according to PW4 was burning inside the office as it was not electrified.

The next important point argued by the learned Government Advocate (on the criminal side) is Section 56-D of the Tamil Nadu Forest Act,

which presumes that any person who is accused of an offence under the Forest Act in respect of any timber, until the contrary is proved, that such

person has committed the offence. The learned Counsel would say that this presumption is attracted in this case the revision Petitioner has not

proved the contrary'' and hence he is presumed to have committed the offence. In support of this ground, the learned Counsel would also cite a

judgment in N. Sabir Hussain and Ors. v. Forest Range Officer, Dokra reported in 1969 MLJ (Crl) 168 wherein Section 56 of the Andhra

Pradesh Forest Act which presumes the forest-produce to be the property of the Central or State Government until the contrary is proved has

been clarified. Hence, I extract the relevant Section and the explanation offered by the court since Section 56-D of the Tamil Nadu Forest Act and

Section 56 of the Andhra Pradesh Act are similar in construction besides being couched in similar language and with the same meaning:

Section 56: When, in any proceedings taken under this Act, or in consequence of anything done under this Act, a question arises as to whether any

forest-produce is the property'' of the Central or State Government, such produce shall be presumed to be the property of the Central or State

Government until the contrary is proved.

As per the provisions of Section 56 of the Andhra Pradesh Forest Act. there is a presumption in favour of the State, in any proceedings under the

Forest Act or in consequence of anything done under the Forest Act that the forest produce is the property'' of the Central of State Government.

The presumption no doubt is a rebuttable presumption and the person, who claims that the property does not belong to the Central or State

Government, has. by independent evidence, to establish the same and prove that it belongs to him. In the instant case, the M.Os. 1 to 394 which

have been seized by P.Ws. 1 to 3 in the presence of P.Ws.5 and 5 are presumed to be forest produce belonging to the State, until the contrary is

proved.

For the next and important ground raised by the revision/Petitioner/accused that the complainant cannot be the Investigating Officer, and if so.

the entire case registered by the prosecution gets vitiated, the learned Government Advocate (on the criminal side) would contend that in the

present case, the complainant can be the Investigating Officer; that the forest officer is not a police officer and since the forest officer who is the

complainant, arrested the accused from a reserve forest area, which itself is an offence u/s 21 of the Tamil Nadu Forest Act; that as per Section 51

of the Tamil Nadu Forest Act. the forest officer has to cause the arrest of a person involved in a forest offence without a warrant; that on

completion of investigation, the forest officer files a complaint in Form A before the concerned Court and no prejudice is caused to the accused

when the complaint is filed by the Forest Officer unlike in a police investigated case.

At this juncture, the learned Government Advocate (on the criminal side) would further contend that the case cited by the other side in Megha

Singh Vs. State of Haryana, ) is not applicable to the case in hand, since the forest officer is not a police officer and he cannot submit a report u/s

173(2) Code of Criminal Procedure and, therefore, the above judgment cited by the Petitioner''s counsel would apply only to the case where

investigation is done by the police officers and not to the cases submitted by the forest officials.

In order to show that a forest officer is not a police office and the confession made before the forest officer is admissible in evidence, the

learned Government Advocate (on the criminal side) would cite two judgments one delivered in E.C. Richard v. Forest Range Officer reported in

AIR 1958 Mad 31 wherein it is held that ""Forest Officers are not conferred powers of an officer incharge of a police station, they cannot by any

means be considered to be officers under the Code of Criminal Procedure and Section 25 of the Evidence Act cannot apply to them. Therefore,

the statement made to the Forest Range Officer is admissible in evidence. The second judgment delivered in Forest Range Officer, Chungathara II

Range Vs. Aboobacker and Another, , wherein it is held that the testimony in appreciation of evidence of the Forest Range Officer can be relived

on without corroboration.

For the proposition that the complainant being the first informant cannot be the Investigating Officer, the learned Counsel would cite the

following decisions, the first one delivered in Thamizharasan and Anr. v. State by Inspector of Police reported in 1991 L.W. (Crl.) 191 wherein a

Single Judge of this Court has held that there is no prohibition for a police officer in the cadre of Inspect of Police to lay First Information and

investigate the case himself and file a final report u/s 173(2) Code of Criminal Procedure. The relevant portion of the judgment is extracted

hereunder:

It cannot be stated that the Officer in charge of a police station, who records the first information cannot at all investigate a case. If it is the intention

of the Code that such an Officer should not at all investigate, the case, it could have been expressly stated so; but instead what has been stated is,

he had been empowered to take investigation.

Though the phraseologies ''first information'' as well as ''first informant'' were not defined in the Code, yet the word ''information'' had been used in

various provisions of the Code.

The next judgment delivered in Aiyyakannu Petitioner 2nd Accused reported in 1991 L.W. (Crl.) 534 it is held u/s 173(2) Code of Criminal

Procedure:

Regarding the information relating to the Commission of a cognizable offence at or near the Police Station, or in the presence of a Station Officer,

there is no legal prohibition for such officer to lay first information and investigate the case himself and to file a final report.

The next judgment supplied by the Government Advocate, is delivered in K. Thangavel v. State by Inspector of Police CBCID reported in 1991 1

L.W. (Cri.) 63 (sic) wherein it is held that merely because PW13 registered the F.I.R. and conducted investigation upto a particular stage, he

cannot be said to be unfair and partial. Subsequent portion of investigation having been conducted by PW.4 who filed charge sheet also this aspect

may not cause any dent in the genuineness of Investigation in the absence of motive or prejudice.

The next judgment cited by the learned Government Advocate is delivered in Bhagwan Singh Vs. The State of Rajasthan, wherein it is held

that the complainant cannot be the Investigating Officer in the following terms:

Investigation by a Head Constable who was himself the person, to whom bribe was alleged to have been offered and who lodged the F.I.R. as

informant or complainant. This was an infirmity which was bound to reflect on the credibility of the prosecution case. Yet another case cited by the

learned Government Advocate is delivered in Assistant Collector of Customs and Another Vs. L.R. Malwani and Another, which is a case initiated

on a private complaint, wherein it is held that Section 173 Code of Criminal Procedure cannot be attracted.

The next judgment delivered in Romesh Chandra Mehta Vs. State of West Bengal, is to the effect that the Customs Officer is not a Police

Officer relating to the admissibility of statements recorded by a Customs Officer. The last judgment cited by the prosecution is one delivered in

Balkishan A. Devidayal v. State of Maharashtra reported in 1981 S.C.C. (Crl) 62 wherein it is held:

Railway Protection Officers are not police officers and within the meaning Section 25 of Evidence Act or Section 162 of the Code. Position

customs or excise officers also not different in this regard. Hence confessional or incriminating statement recorded by such officer u/s 9 of 1966

Act in the course of the inquiry cannot be excluded from evidence.

Citing the above judgments, the learned Government Advocate (on the criminal side) would contend that the above case has been concurrently

decided by the trial court and the Appellate court and since mere is no room for this revision court to interfere with and would ultimately pray for

dismissing the above criminal revision case.

The case of the prosecution is that on 16.2.1994, on reliable information, the Respondent organised a raid into Kaliakoil, Kudhimaduvu Beat

reserve forest, accompanied by PW2 who is the Forest Guard and 4 others who are all forest officials of different jurisdiction and with the help of

the torch lights that they took along with them, they found the seized sandalwood logs and chips heaped in a bush and also found the accused

nearby, and they caught hold of the accused, and on interrogation, he confessed to the crime of having collected the sandalwood items and kept

them ready for being smuggled.

Then, on the spot, with the help of the torch light, they prepared Ex.P1 Mahazar and recorded the confession statement of the accused in

Ex.P.2. They also prepared Ex.P3 Form ''H'', Ex.P.4, Form- 95, all on one and the same day within two hours. Thereafter, they came to the

Forest Range Office for weighing the sandalwood logs and chips and putting the necessary entries into Form-H prepared the other Form-A in

Ex.P.5 on 30.6.1995 and also Ex.P.6 rough sketch on 30.6.1995. They registered the case against the Petitioner/accused for offences punishable

u/s 21(d)(e)(f) and 35 & 36(a)(e) of the Tamil Nadu Forest Act, 1882.

The prosecution whose burden it is to prove the above case put up by them with such standard of proof beyond reasonable doubts, has

examined two witnesses, viz., the Forest Range Officer concerned as P.W. 1 and the Forest Guard as PW2. During the course of their

examination, six documents have been marked as Exs.P.1 to P.6, the descriptions of which are given supra. Besides these, three material objects

have also been marked as MOs. 1 to 3 which are nothing but the sandalwood logs, sandalwood chips and coir ropes. The trial court in its

appreciation of evidence placed on record, has ultimately concluded to convict the accused and sentence him as aforementioned. On Appeal, the

conviction and sentence having come to be confirmed, the accused has now come before this Court with the above revision on ground as

discussed here before.

Though normally the revisional court may not interfere with the factual findings arrived at by the courts below, since perversity in the

appreciation of evidence by the courts below is looming large in the given circumstances of the case, a peep into the facts and circumstances has

become inevitable in this case. As per the first ground of the revision Petitioner on the face of it, no doubt, only interested testimony has been

adduced by the two witnesses examined on the part of the prosecution, in the sense that PW1 is the Forest Range Officer, who is not only the

complainant, but also one who registered the case and investigated the matter and filed the final report and PW2 is none but his own Forest Guard

of Chekkadipatti Beat. Needless to mention that they have rendered interested testimony, in the above case. But it is the argument of the

prosecution side that their evidence must be accepted despite the fact that it lacks corroboration by uninterested independent testimony. It may be

true in a case wherein the case is registered and investigated and charge sheeted in the natural way without leaving room for doubting the fidelity of

the investigating machinery is concerned the evidence adduced only by interested witnesses can form the basis of conviction. But here is a case in

which the complainant is the investigating officer and one who filed the final report. Moreover, the spot wherein the occurrence is alleged to have

taken place, the detection of the crime, the arrest of the accused, the coming into being of the vital exhibits such as, Exs.P.1, P.2 and P.6 in the

manner in which they are alleged to have surfaced, since lead to many suspicious to be entertained, a more detailed discussion into the facts,

circumstance and the position of law is felt necessary.

For instance, the first part of the charge is that on 16.2.1994, at 8 p.m. the revision Petitioner trespassed into the reserve forest, collected and

heaped the sandalwood and kept them ready for being smuggled when he was caught red-handed thereby becoming punishable under the relevant

sections of the Tamil Nadu Forest Act. From out of this charge, evidence is let in only for having detected the heaped sandalwood logs and chips

and for causing the arrest of the accused at the spot through PWs. 1 and 2 admittedly the interested witnesses to the case of the prosecution. But

main questions go unanswered regarding the collection of the sandalwood logs and chips, the time of collection from which sandalwood trees they

got cut, whether it was by one or many persons, since cutting and removing operation would involve more than one and to have kept them ready at

the spot. Just for the simple reason that the forest officials have come forward to allege that they caused the arrest of the accused at the spot,

where the seizure were kept heaped, all these events that preceded the detection of the crime go absolutely bereft of evidence and the prosecution

would only leave these facts for presumption.

All above questions cannot be attributed to this accused unless positive evidence comes forth from proper and reliable sources. In order to

cover up these vital lacuna of the case of prosecution, they would entirely rely upon Ex.P2 confession statement said to have been given voluntarily

by the accused on the spot and got reduced into writing by PW2. Barring this piece of evidence, I can say that the prosecution case goes

absolutely smack of any evidence for these questions raised above since it is their definite case that even PWs. 1 and 2 accompanied by 4 others,

arrived at the spot only around 8 p.m. on 16.2.1994 and hence admittedly they did not have any knowledge of what had happened regarding the

accumulation of the sandalwood at the spot herein they are alleged to have been found.

Even for the evidence adduced on the part of PWs. 1 and 2 pertaining to the subsequent events that are said to have occurred after detection

of the crime at 8 p.m. that day, such as causing the arrest of the accused, recording his confession, preparing Ex.P1 and other relevant documents,

the learned Government Advocate would greatly rely upon the admissibility of the statement recorded by forest officials unlike in the case of the

police officials where there is a bar treated by law without understanding that admissibility in evidence is not proof. As per the arguments of the

learned Government Advocate, it sounds very much that even a statement recorded by a forest official gets admitted in evidence, it should be

taken as the proof, which is only an illusion or inertia created in the mind of the learned Government Advocate, but it cannot on any manner take

the place of proof or establishment of the fact in evidence After admission of the materials placed on record, the contents of the said document or

the veracity of the oral evidence adduced as to be testified with the standard of proof expected in law withstanding the test of cross-examination

and further weighing the same with the defence evidence adduced contra to the contents of the documents or the oral evidence.

On the part of the defence, besides denying the very occurrence as narrated by the prosecution regarding the time, place and in the manner

alleged, the accused would also examine a witness on his as DW1, thereby not only stoutly denying the arrest of the accused on the spot, but

giving a different version of the accused having been taken into custody by the Respondent/forest officials that is from his residence that night and

later when DW1, who is the neighbour of the accused approached the Forest Range Officer in order to know as to what happened to the

accused, he was informed of a forest case having been registered against him. This version of DW1 excepting for a formal suggestion denying the

same goes unchallenged. At this juncture, it is relevant to note that when a stand different from the version of the prosecution is taken on the part of

the accused be if the arrest or any other, event, no doubt the burden of proof of that version of the accused falls on the accused. This version of the

accused is in the form of alibi thereby denying the very presence of the accused at the spot in the Reserve Forest, but having been secured from his

residence on the same night from his residence being witnessed by DW1. In such event when the burden gets shifted to the shoulders of the

accused what is the standard of proof that is expected from the accused is essential to consider. Law is settled that it is not the same standard of

proof beyond reasonable doubts that is cast on the prosecution since initially the accused is presumed innocent but only preponderance of

probability as it is required for the proof of a civil dispute. With the unchallenged evidence of DW1 which is plain and telling it should be admitted

that the accused has proved his version to the expectations of law thus demolishing the very arrest of the accused at the time place and the manner

alleged wherein the entire case of the prosecution falls to the ground.

The next legal point that is to be considered is that u/s 56-D of the Tamil Nadu Forest Act, any one accused of having committed an offence in

respect of any scheduled timber, until the contrary is proved, it is presumed that such person has committed the offence. This presumption is

nothing but a rebuttable presumption. It is illusory to entertain the thought that once such presumption is prescribed by law even at the outset, the

accused is presumed guilty and it is entirely his burden to cast off the presumption by sufficient evidence that he is not guilty and that the

prosecution can simply watch the proceedings as a silent spectator. First of all, it should be understood at what stage, this presumption of law

would surface, so as to fix the burden on the accused to prove that he has not committed the offence. Even where such presumptions are

prescribed, the basic principle that the prosecution has to prove its case beyond reasonable doubts does not in any manner gets discharged since

as in every other case, the case in which scheduled timber gets involved at the outset the accused is presumed guilty. Hence the initial burden that

the prosecution has to prove its case beyond reasonable doubts persists and only when it is preliminarily established that there exists a strong and

concrete case for the prosecution against the accused, the accused can be burdened to cast off the presumption contemplated by law against him.

Hence, in the instance case, it is paramount to basically assess whether the prosecution has preliminarily proved its case to the extent warranted by

law. so as to invoke the presumption contemplated u/s 56-D of the Tamil Nadu Forest Act.

The Government Advocate (on the criminal side) would greatly rely upon certain decided cases wherein it has been held that the confessional

statements recorded by the forest officials are admissible in evidence. Regarding this proposition, as already answered supra absolutely no doubt

need be entertained pertaining to the admissibility of the confession statement of the accused recorded by the forest officials It is only, a confession

recorded by or in the custody or presence of the police officer is inadmissible u/s 25 or 26 of the Evidence Act unless for the purpose of Section

27 of the Evidence Act, wherein that part of confession recorded by the police officer is leading to the recovery of the weapons used for the

offence, which becomes admissible in evidence. The statement of any person recorded by a police officer if it leads to the cause of the death of

that person, it would serve as dying declaration u/s 32(1) of the Evidence Act and becomes admissible in evidence. Hence, it is clear that excepting

for the above two purposes mentioned, the Code of Criminal Procedure bars only a police officer from recording of the confession statement

rendering it inadmissible in evidence, but not any other officer, such as the Customs Officers. Railway Officers or Forest Officers and hence the

decisions cited by the learned Government Advocate (on the criminal side) are unwarranted, since this proposition is well settled. Therefore, so far

as this question is concerned, it is held that absolutely there is no bar created by law regarding the admissibility of the statements recorded by the

Forest Officials, during the course of investigation in a forest offence.

But, at the same time, it is totally wrong or absurd to think that any confession statement alleged to have been recorded by a forest officer

should be accepted as infallible or conclusive, since the validity of such a statement recorded by the forest officer is open for being tested by the

defence regarding the coming into being of the statement, its veracity, validity and applicability of the same to the facts and circumstances encircling

the whole case.

So far as the case in hand is concerned, it is the clear cut evidence of DW1, viz., Kaliappan of Kurichi Vazhapadi, that he is the neighbour of

the accused; that roughly about 1 1/2 years back, when he was lying on the drying yard of his house, at about 10 p.m. hearing some noise, he got

up and he witnessed the scene of the forest officials belonging to Vazhapadi Range stating that there had been complaints against the accused and

since he had to be interrogated fully, they took him along with them, that later, when he went to Vazhapadi Range Office and enquired about the

accused, they informed him that they have registered the case against him. In the cross-examination, excepting for a formal suggestion that ''what he

stated was a lie and nothing of that sort happened'', the prosecution was not able to fish out anything constructive subjecting the said witness to

effective cross-examination and this evidence would cut at the root of the prosecution case regarding the very presence of the accused at the spot

of the reserve forest alleged in the case and the manner in which he got arrested and the sandalwood seized and the exhibits marked were

prepared on the spot. etc.

On the part of the defence, it would be pointed out that the rough sketch which should have been prepared on the spot had been prepared on

30.6.1995 at a highly belated stage whereas the occurrence is said to have taken place on 16.2.1994. If really Exs.P.1, P.2 and P.3 have all been

prepared on the spot by the forest officials, they would have also prepared Ex.P.6 rough sketch at one and the same time. The manner in which

this exhibit has been prepared after 4 1/2 months of the alleged occurrence would itself belie the contention of the Respondent that the occurrence

of that sort ever took place much less at the time, place and in the manner alleged. This contention cannot so easily be brushed aside especially

when the prosecution is silent to offer any explanation.

The next contention of the defence is that it is the version of the prosecution that vital documents such as, Exs.P.1 and P.2 have been prepared

with the help of the torch lights and that the accused and the seized sandalwood have also been identified only with the help of the torch lights as it

is projected in the evidence of P.Ws. 1 and 2 that all the six forest officials were equipped with the torch lights with the help of which, during night

hours, they were able to carry out the entire operation and registration of the case. But, no torch light, not even one from among those said to have

been used for the detection of the offence or to identify the accused or to locate the sandalwood or to prepare Exs.P.1 and P.2 on the spot, has

been produced before the Court, thus marking them as material objects for proper consideration of the same in evidence.

According to the defence, it is a serious lacuna or flaw that had occurred in the case. Citing the judgment reported in 1986 L.W. (Crl) 39

(supra), the defence would claim that as decided in this case giving benefit of doubt to the accused, in the case in hand also, the judicial discretion

shall be exercised and the benefit of doubt shall be extended to the accused in this regard, since a serious doubt regarding the very case registered

in the manner alleged falls under doubtful circumstances which are not cleared by the prosecution.

In answer to this, the judgment cited by the prosecution reported in 1998 S.C.C. (Cri) 171 (supra) is not the answer for the above judgment

cited by the defence, since here, adhering the facts, it came to be proved that at the material time. P.W.4 was engaged in issuing copies of voters''

lists and caste certificates and unless there had been some source of light, he would not have been able to perform his job and that there was other

source of light and on such facts revealed in evidence, the Court has arrived at the conclusion that the non-production of the hurricane lamp would

not cause serious damage to the case and hence, this case is not applicable to the facts of the present case in hand.

The next vital ground of attack by the revision Petitioner is that Ex.P.1 confession statement dated 16.2.1994 said to have been prepared at

the spot which has been signed by 8 persons, whereas, it is the definite case of the prosecution that the raiding party consisted of only six persons

and, therefore, it would go to show that this vital document was not prepared at the place, time and in the manner alleged. On a perusal of the

evidence of P.Ws. especially in the cross-examination of P.W.1 it is his clear cut evidence that the raiding party consisted of only six forest officials

and none else, nor does he say other person or individual mingled with them later on. It is also stated that Ex.P.1 confession statement had been

prepared on 16.2.1994 that is on the date of detection of the crime. Had it been really prepared on the spot, it could have been signed only by six

persons. But on a perusal of the document, it is glaringly seen that besides the signature of the accused, there are 7 other signatures and the coming

into play of one more signature which has not even been attempted to be explained by the prosecution, there is room to think that this vital

document had not been prepared at the place, time and in the manner alleged.

All the above aspects if studied in comparison with the evidence of D.W. 1. which stands almost unchallenged, the Court could easily infer that

regarding the arrest of the accused and the above case coming to be registered against him, there is a big lacuna, which has not at all been

attempted to be made up or explained by the prosecution. Hence, only an adverse inference against the case of the prosecution could be drawn in

so far as the case of the prosecution stands at this stage.

The next important point argued on the part of the defence is that the complainant himself cannot act as the Investigating Officer of his own

case and the same cannot be done in law. This contention is supported by the judgment reported in Megha Singh Vs. State of Haryana, wherein it

is clearly held that ""complainant should not have proceeded with the investigation of the case; that he was not only me complainant in the case, but

also carried on with the investigation and examined witnesses u/s 161 Code of Criminal Procedure. Such practice to say the least, should not be

resorted to so that there may not be any occasion to suspect fair and impartial investigation"". This telling judgment of the Apex Court leaves no

room to entertain any other thought and hence this proposition of law has to be accepted in toto.

The attempts made on the part of the learned Government Advocate to justify the stand that the complainant herein is not a Police Officer, so

as to become incapable of recording the confession statement, since mere is a bar created under Sections 25 and 26 of the Evidence Act. which is

confined only to a Police Officer and not to a forest official and further that since the prosecuting officials themselves caused the arrest of the

accused, the statements have to be recorded by him thus doing part of the investigation etc.

In support of the above contention, the judgment of the Apex Court cited by the other side is inapplicable to the case in hand, since they have

been arrived at adhering the facts of those cases. It is held that a complainant himself cannot be the Investigating Officer in the case initiated by

himself. Such of the acts assumed and adopted by the Investigating Officers, since being opposed to fair and impartial investigation, they are

hereby discredited. Hence, at this score also, the prosecution falls to save its head.

From the above discussions held, this Court is able to see that the judgments of the Courts below suffer from patent errors of law and

perversity in approach, in their decisions arrived at. No proper or valid discussions have been held in the context of the position of law, nor a valid

conclusion-arrived at and hence they become liable to be set aside and they are accordingly set aside. In these circumstances of the case, no other

conclusion man to extend the benefit of doubts in favour of the accused could be arrived at and the same is ordered accordingly.

It is, further hereby held that the prosecution has failed to prove its case registered against the Petitioner/accused in O.R. No. 26/94 on the file

of the Forest Range Officer, Vazhapadi, Salem District to the expectations of law i.e. with proof beyond reasonable doubts.

In result, the above Criminal Revision Case succeeds. The judgment dated 3.6.1997 made in C.A. No. 167 of 1995 by the Court of I

Additional Sessions Judge-cum-Chief Judicial Magistrate, Salem thereby confirming the conviction and sentence ordered as per the judgment

dated 7.9.1995 made in C.C. No. 1034 of 1994 by the Special Judicial Magistrate (Sandalwood offences) Salem is hereby set aside.

The revision Petitioner/accused is set at liberty forthwith.

Surety bonds, it any, executed by the revision Petitioner/accused shall stand cancelled.

Fine amount paid by the Petitioner/accused is ordered to be refunded to him.