State by the Public Prosecutor, Madras vs Asartah and others

Ratnavel Pandian, J.—This is an appeal filed by the State against the judgment passed by the learned District Magistrate (J), Tirunelveli, in C.A. No. 17 of 1974, acquitting the Respondents-accused 1 to 3, after setting aside the judgment of the learned Sub Magistrate, Nanguneri, in C.C. No. 698 of 1973, wherein the accused were each convicted of offences under Ss.21(d), 21(f) and 21(h) of the Tamil Nadu Forest Act and sentenced to pay a fine of Rs. 50/- in default to suffer rigorous imprisonment for four weeks on each count.

The prosecution case was briefly as follows: Accused No. 1 is the Superintendent of one Kudamadi Estate belonging to Dr. Mathias of Nagercoil and accused No. 2 is a watchman thereof. On 9th July 1973, P. Ws. 1 and 2 (Forest guards) and two other Forest guards were watching for poachers. At about 1 p.m. that day, they heard a gun-shot and proceeded to that place and saw accused 1 to 3 removing a dead Sambur, which was killed by gun shot from a place inside the Reserve Forest at Vallioor beat to Kudamadi Estate. Accused 1 was having a gun in his hand and he threatened to shoot if the Forest officials entered the Kudamadi Estate, 1 here-fore, the Forest guards vent to P.W. 4, the Forestor, end gave the complaint Ex-P-1. P.W. 4 then proceeded to the scene along with a party of Forest officials including P. Ws. 1 and 2 and saw accused 3 riding a cycle (M.O.1) at Chermadevi(sic) to (sic) near a place called Uppukondanpothai. A gunny bag (M.O. 2) was tied to the earner of M.O.I. M Order 2 contained about 10 k.gs. of sambur meat. P.W. 4 seized M. Os. 1 and 2 and the sambur meat under Ex. P. 3, and banded over the sambur meat to P.W.3, the Village Munsif, and received Ex. P-2 receipt, from him. The said meat was then sold in auction and Ex.P-4 is the auction receipt. Accused 3 gave a confession Ex. P-5 before P.W. 4, stating that he was carrying the sambur meat to be delivered at the residence of the aforementioned Dr. Mathias, the owner of Kudamadi Estate, as per the instructions of accused 1. Then P.W. 4 and his party visited the scene of occurrence and Ex. P-6 is the report prepared by P.W. 4. Thereafter, a complaint was laid before the Court by the Forest Department. When examined u/s 342, Crl. P.C. the accused denied the allegations levelled against them. No defence witness was examined by them. Disbelieving the defence case and believing the evidence adduced on the side of the prosecution, the learned trial Magistrate found the accused guilty of the offences with which they were charged and convicted them thereunder and sentenced them as aforesaid. On appeal, the learned District Magistrate (J) set aside the convictions and sentences and acquitted all the accused. Aggrieved by the order of acquittal, the State represented by the Public Prosecutor has preferred this appeal, on the following grounds:

(1) The lower appellate Court after accepting the eviction of P. Ws.1 and 2 in toto and holding that there (P. Ws. 1 and (2) evidence clearly shows that the Appellants (accused 1 to 3) removed the carcass of the sambur from the Reserve Forest to the private estate" and'''' their evidence further shows that the first Appellant (1st Respondent-lit accused(sic) was armed with the gun at that time and that clearly shows that he shot the sambur", has completely erred in acquitting the Respondent-accused.

(2) The lower appellate Court has failed to appreciate that all the ingredients for offences punishable under Sections 21(d) 21(f) and 21 ih(sic) of the Tamil Nadu Forest Act have bean clearly established and therefore the case as against these Respondents has been clearly proved.

(3) The observation of the lower Court that "the possibility that the animal was shot inside the private forest and that the animal an(sic) into the Reserve Forest before it died there, is not excluded" is am(sic) to the fasts proved and alroumstauses(sic) appearing in this case.

(4) The lower appellate Court has failed to take into consideration Ex.P-5, the statement of Respondents 3 to P.W. 4 on the date of the occurrence, and has erred in holding that what was seized from accused 3 is not proved to be a venison, despite the evidence of P. Ws. 2 and 4, who are experienced officers in this Forest Department, to the effect that the meat seized from accused 3 is that of a sambur.

Coming to the first point, it is the evidence of P. Ws. 1 and 2 that on 9th July 1973, at about 1 p.m. they heard a gun shot and proceeded to that place and saw these three persons removing a dead sambur which was killed by gun shot, from a place inside the Reserve Forest at Vallioor beat to Kudamadi Estate. At that time, the first Respondent was having a gun in his hand and he threatened P. Ws.1 and 2 and the other Forest guards who accompanied them, from entering the Kudamadi Estate. Thereupon, they went to P.W.4, the Forestor, and laid Ex P-1, the complaint. P.W.4 collected a party of Forest officials Including P. Ws. 1 and 2 and proceeded to the scene. They saw the third Respondent riding a cycle at Chermadevi to Panagudi Road near a place called Uppukondanpothai. They seized M.O.1, the cycle, and M O.2. the gunny bag, which contained ten kgs. of venison. These properties were seized under Ex. P-3 and the vanison was banded over to P.W.3, the village Munsif of Mahiladi. Ex.P-2 is the receipt issued by P.W.3 for the receipt of the venison. Immediately, the venison was sold in auction and Ex. P-4 is the auction receipt. The third Respondent gave a confessional statement before P.W.4 under Ex:P-5, stating that be was carrying sambur meat to be delivered at the residence of Dr. Mathias, the owner of Kudamadi Estate, as per the instructions of the first Respondent. P.W.4 then visited the scene with the party and prepared Ex. P-6. It is true that these witnesses do not claim to have seen the actual shooting. But, P.W.2, would state that the place inside the Reserve Forest wherein the careass of the animal was lying, was at a distance of about one chain equivalent to 66'' from the border of the private forest. It is Hue that the learned District Magistrate has accepted the evidence of P. Ws. 1 and 2, in paragraph 7 and thus given a finding that the first Respondent shot the tambur. This finding is based on a presumption drawn from the evidence of these two witnesses that the first Respondent was armed with the gun at the time when they saw these Respondents. In this appeal, nothing has been brought to my notice by the learned Counsel appearing for the Respondents, to discredit the evidence of P. Ws. 1 and 2. Therefore, I hold that the finding of the lower appellate Court that the evidence of P. Ws.1 and 2 is acceptable, cannot be challenged. Then, the question is whether the order of the lower Court in acquitting the Respondents is justified on the face of the above finding .Prima facie, the acceptance of the evidence of P. Ws 1 and 2 should ordinarily lead to the conviction of the Respondents. But, in the instant case, the question whether the acquittal of the Respondents is justified or not can be decided only after a discussion of the other points.

Coming to point No. 2, basing on the observation made by the learned District Magistrate that "mere entering a forest to retrieve the animal which was shot elsewhere, has not been shown to me as amounting to a trespass", it is contended by the learned Counsel appealing for the Respondents that the offence as contemplated u/s 21(d) of the Forest Act has not been established. Further, be contends that the sambur which, according to the defence, was shot inside the private forest, cannot be said to be a forest produce, as contemplated u/s 21(f). Finally, he would urge that since the prosecution has failed to prove the case for an offence punishable under Ss.21(d) and 21(f), the other charge u/s 21(b) also fails.

As regards the offence of trespass, Section 21(d) of the Act reads that any person who trespasses or pastures cattle or permits cattle to trespass shall be punishable. Now, I shall deal with the meaning of the word "trespass" as contemplated under this section, as it is not defined in the Act. In the legal parlance, a trespass to land may be a "civil trespass", a "criminal trespass" or an "unlawful trespass". A trespass may be a civil trespass, a mere encroachment or an unauthorised entry without amounting to criminal trespass. But, a civil trespass becomes criminal if the entry is forcible.

The word "trespass" is defined in Halsbury''s Laws of England, as follows:

Trespass is a wrongful act, done in disturbance of the possession of property of another, or against the person of another, against his will." Further, it states:

To amount to a trespass, an act must be voluntary; but an act may be a trespass, although it is committed by mistake or without malice. A person it guilty of a trespass if be acts voluntarily, knowing the nature and quality of his act, even though he does tot know the act to be wrongful.

(Vide: Volume 38, 3rd Edition page 734) (1194-1195).

In the original draft of the I. P.C., the framers gave the definition of the word "trespass" in Section 418, which can thus:

Whoever exercises any dominion over any property, not having a legal right, independent of the consent of any other party to exercise such dominion, and not having the consent, express or implied, of any party legally entitled to give a consent which would authorise the exercise of such dominion, is said to "trespass".

Having thus settled the meaning of the word "trespass", the bill then proceeded to define "criminal trespass" and ultimately Section 441 was introduced in the Penal Code. The definition of "trespass" was, however, considered too wide and even unnecessary for purposes of a criminal Court. Therefore, the two definitions were, consequently, consolidated into the present definition u/s 441, which takes an intermediate place between the words "ties-pass" and "forcible entry" of English law. Section 441 defines the offence of criminal trespass. In order to constitute criminal trespass under this Section, there must be

(a) unlawful entry into or upon property in possession of another, or

(b) unlawfully remaining there.

with intent, in either care,

(a) to commit an offence, or

(b) to intimidate, insult or annoy the person in possession of the property.

On the other band, the word "trespass" appearing in Section 297, I.P.C., relates to trespass to any place of worship, sepulchre, burial ground, etc., with the intention or knowledge of committing a sacrilegious act and such a trespass is made punishable. Thus, from a comparative study of these two sections, it can be seen that the word "trespass" used in S. 297, I.P.C., has not got the special significance that is attached to the word "criminal trespass "appearing in S. 441. Apart from the abovementioned two sections the I.P.C., deals with "house trespass" as per Sections 442 and 443. Thus, generally speaking, under the Indian Penal Cede, a trespass to be punishable should be followed by an intent to commit an offence or a sacrilegious act. If the above ingredients are not present, a more trespass is not punishable under the Indian Penal Code.

But, some special enactments make penal provisions for an unlawful trespass, even when the above ingredients contemplated under the Indian Penal Code, are not satisfied. For example, we find that u/s 122 of the Indian Railways Act, if any person unlawfully enters upon a railway, he shall be punished. Thus, it can be seen that only the following two things are essential to bring a person within S. 122 of the Railways Act, viz., (1) that the place of entry must be a railway as defined under that Act, and (2) that the entry should be unlawful in its inception. The word "unlawful" is introduced in the Railways Act, because the Railways admit the entry of persons on their obtaining permission, express or implied, and they are entitled to exclude the public from the premises of the Railway if they have not obtained any such permission. But coming to the Forest Act, it does not contemplate either a criminal trespass as defined in S 441, I.P.C., or a trespass as contemplated u/s 297, I.P.C. Nor does is mention about any "unlawful trespass" as provided for in S. 122 of the Indian Railways Act. What S. 21(d) of the Forest Act says is that not only trespassers but also those who permit cattle to trespass shall be punishable. In other words, a mere trespass is per se punishable, unless there is consent or permission. The entry into a reserve forest is thus prohibited by the Forest Act, Therefore if one trespasses into the reserve forest even without having in mind any intention of committing an offence, he is made punishable since the prohibited entry by itself becomes unlawful. In short if one trespasses into a reserve forest, he is committing an offence punishable u/s 21(d) of the Forest Act, unless the said act is saved by the latter part of S. 21. Moreover, if the word "trespass" used in S. 21(d) is understood in the sense used in Section 441, I.P.C., or in any other sense than in the manner I have mentioned above, that section will carry no meaning and will become nugatory. Therefore, the word "trespass" used in the Forest Act, particularly in S. 21(d), has to be interpreted in the wider sense as given in the definition in Halabury''s Laws of England, mentioned supra.

The Shorter Oxford English Dictionary gives the meaning of the word "trespass," when used as a verb, thus.

(intransitively) to commit a transgression or offence; to offend; to sin. 2. (transitively) to transgress, violate (a law etc.), to offend against wrong, violate (a person). 3. (law) (intransitively) to commit a trespass see Trespass sb. 2. (The meaning of ''trespass'' in sb. 2 in the dictionary is any violation or transgression of the law; (specifically) one not amounting to treason, felony, or misprision of either) (specifically); to enter unlawfully on the land of another, or on that which is the property of another...4 fig. To Make an improper or uninvited inroad on a person''s time, attention, patience etc.) to intrude on or upon the rights or domain of; to encroach on, infringe.

Thus, the word "trespass" under the Tamil Nadu Forest Act is used in the sense of "any transgression or entry unlawfully on the land of another or on the property of another, or an uninvited entry or intrusion upon the domain of another". If the word is so understood, It would mean that even a mere uninvited entry or intrusion into the Reserve Forest would by itself become punishable u/s 21(d). From the foregoing discussion. I hold that the finding of the lower appellate court that a mere entry into the forest does not amount to a trespass, is not correct. Therefore, the prosecution in this case has proved beyond reasonable doubt that the Respondents have committed an offence punishable u/s 21(d).

Then, coming to S. 21(f), it makes the removal of any forest produce an offence under than Section. A ''forest produce'' is defined in S. 2 of the Act, as inclusive of "skins, tusks, bones, horns''"...etc, when found in or brought from a forest. Thus, it is only an inclusive definition. Therefore, the sambur''s meat, when found in or brought from the reserve forest, is a forest produce P. Ws.1. and 2 have deposed that they saw these Respondents and three others removing the carcasi(sic) to the aforementioned private estate. The lower appellate Court has accepted their evidence and found that the Respondents removed the carcass of a sambur from the reserve forest to a private estate after it was shot dead. Therefore, I find that the Respondents have removed a forest produce from the reserve forest and thus committed an offence punishable u/s 21(f) of the Forest Act.

Coining to S. 21(h), the Section reads as follows:

Any person who..., in contravention of any rules made by the Provincial Government, hunts, shoots, fishes, Poisons water and sets traps or scares, shall ...be punished....

It is not disputed that at the relevant time of the occurrence, hunting of any animal in the aforementioned Government Reserve Forest was prohibited by a notification. It is not the case of the Respondents that they shot the animal within their private estate, and thereupon, it ran into the reserve forest and fell down dead. Neither the Respondents have taken that plea in their S. 342 statement, nor has any suggestion been made by the prosecution witnesses in the cross-examination, to the effect that the sambur was only shot in the Private forest end therefore, when there is no evidence worth mentioning on this aspect, we cannot conjecture or suspect that there could have been a possibility that the animal was shot inside the private forest end then it ran into the reserve forest end fail down dead. For the above discussion, I hold that the Respondents have committed an offence punishable u/s 21(h) also.

At this juncture, I may point out that the last part of S. 21 reads as follows:

Nothing in this section shall be deemed to prohibit (a) any act done in accordance with any rule made by the Government or with the permission in writing of the District Forest Officer or of an officer authorised by him to grant such permission or b) the exercise of any right continued u/s 12 or created by grant or contract in the manner described in S. 18:

Provided that this section shall not be held to interfere with such working of the forest as may be ordered by the District Forest Officer.

Thus, it can be seen, as I have already mentioned, that the acts mentioned in the various clauses of Section 21 will not be punishable if the said acts are done in accordance with any rule made by the Government or with the permission of the Authorities, or based on any right continued u/s 12 or created by grant or contract u/s 18. In the instant case, apparently there is no permission granted by any officer to the Respondents, nor have they acted in accordance with any rule made by the Government or under any right.

At this juncture, it would be useful to discuss point No. 4, viz., as to whether what was seized from Respondent No. 3 is version or not. P. Ws. 1, 2 and 4 have cogently stated that what was seized from Respondent No 3 was venison (sic) P.W. 4, the Section Forester, says that by his wide experience he could say that it was venison which was re zed(sic) and mentioned in Exs. P-2 and P-3. Ex. P-4 is the auction receipt dated 9th July, 1973 prepared by P.W. 3, which also describes the meat as Sambur meat, weighing 10 Kgs. Ex. P.5 is the confessional statement given by the third Respondent before P.W. 4, which has been attested by P.W. 3, and others. In Ex. P. 5, the third Respondent has admitted that be was carrying the sambur meat (venison), thereby admitting that what was seized from him was only the sambur meat, a venison. It is well-settled that such a statement to the Forest Officer is admissible in evidence Richard v. The Forest Range Officer A.I.R.1958 Mad 31.

Normally, a sambur is only a forest cattle, and consequently its meat is a forest produce. Therefore, I hold that all the ingredients for the offences punishable u/s 21, Cls. (d), (f) and (h), of the Forest Act, have been clearly established.

Coming to point No. 3, I may point out that the observation of the lower court that the possibility that the animal was shot inside the private forest and that it ran into the reserve forest before it died there, is not excluded is without any basis and, as I have already mentioned, is only a conjecture which is unwarranted in view of the fact that the Respondents have not taken such a plea. Therefore. I find that the said observation is against fact! and is baseless.

Lastly, Mr. Thambi put forth a hesitant argument that though P. Ws. 1 and 2 have given evidence that there were three more assailants besides these Respondents, carrying the carcass from the reserve forest to the private estate, paragraph 3 of the complaint would read as if there were only these three accused, and therefore there is an inconsistency between the evidence and the allegation in the complaint as to the cumber of assailants .In my view, this is not a material defect affecting the case of the prosecution .As the names of the other three persons were not known to these witnesses, probably that have omitted to mention in the complaint about the said other assailants, and therefore this contention has no merit.

In the result, I find that Respondents 1 to 3 have committed the offences punishable u/s 21, Cls. (d), (f) and (b), of the Tamil Nadu Forest Act, Therefore, the order of the lower appellate court, reversing the order of the trial Court end acquitting these Respondents, is not correct end is therefore set aside. Accordingly, the Respondents'' are each convicted u/s 21, Cls, (d), (f) and (b), of the Tamil Nadu Forest Act.

Coming to the question of sentence, as the offences in this case have been committed in the year 1973, and as all the Respondents are first offenders, I direct that the Respondents be released u/s 4(1) P O. Act, on each of them entering into a bond for a sum of Rs. 500/- with one surety for a like sum, to appear and receive sentence when called upon during a period of one year and in the meantime to keep peace and be of good behaviour, the bond to be executed to the satisfaction of the Judicial II Class Magistrate, Nanguneri.

The appeal is accordingly allowed.