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2016 DIGILAW 101 (TRI)

Rangini Debnath v. State of Tripura

2016-04-07

S.TALAPATRA

body2016
ORDER : Heard Mr. M. Kar Bhowmik, learned senior counsel assisted by Mr. R. R. Dutta, learned counsel appearing for the petitioners as well as Mr. R. C. Debnath, learned Addl. PP appearing for the State. 2. This is a petition under Section 397 read with Section 401 of the Cr.P.C. questioning the judgment and order dated 17.07.2013 delivered in Criminal Appeal No.11 of 2013 by the Additional Sessions Judge, North Tripura, Dharmanagar whereby the judgment and order dated 24.05.2013 delivered in CR Case No.282 of 2010 (Forest) by the Judicial Magistrate, 1st Class, Dharmanagar, North Tripura was affirmed. The appeal being Criminal Appeal No.11 of 2013 was dismissed without any interference by the judgment and order dated 24.05.2013. 3. The genesis of the prosecution is rooted in the complaint filed by one Chitta Ranjan Debnath, In-Charge, Divisional Forest Protection Party, (FPP, in short), in the Court of the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura which was received by the Court on 09.11.2010 under Section 52 A of the Indian Forest Act, 1927 against the petitioners, namely Sri Rangini Debnath and Sri Radha Kanta Debnath. In the said complaint, it has been alleged that on 06.09.2010 at about 3 p.m. while the complainant, namely Chitta Ranjan Debnath was conducting usual patrol, they registered some sounds of felling tree in the Rowa Sanctuary. Immediately, they rushed to that place. The accused persons fled away from that place realising their movement. The complainant and the other members of the Divisional Forest Protection Party chased them but they could not apprehend them. The complainant has claimed that he could recognise the petitioners. After that failed chase, they returned to that place where the petitioners were illegally felling various trees, namely kaimalla, kathakoi, owal etc. They prepared the seizure list in presence of the witnesses. 4. In the complaint, it has been stated that the place falls within Rowa Reserved Forest and it was a natural plantation under Mouja-Rowa, Khatian No.5/43, Plot No.4645. The said Rowa Reserved Forest was notified on 06.12.2003 under Notification No.F.617/Land/For/2003/P1/23,464. The said notification was published in the Tripura Gazette dated 07.02.2004. According to the complaint, as filed by Sri Chitta Ranjan Debnath, PW-1, the value of those illegally felled trees would be approximately Rs.30,000/. He urged the Court to punish the petitioners under Section 26(1)(f) and 40 of the Indian Forest Act, 1927. 5. The said notification was published in the Tripura Gazette dated 07.02.2004. According to the complaint, as filed by Sri Chitta Ranjan Debnath, PW-1, the value of those illegally felled trees would be approximately Rs.30,000/. He urged the Court to punish the petitioners under Section 26(1)(f) and 40 of the Indian Forest Act, 1927. 5. Based thereon, after taking the cognizance the inquiry started and the substance of accusation was read to the petitioners in the due course. Both the petitioners denied the accusation and claimed to face the trial. Thereafter, to substantiate the accusation, three witnesses, namely Chitta Ranjan Debnath (PW-1) Pradip Dhar (PW-2) and Manoranjan Debnath (PW-3) were examined and some documents were admitted in the evidence such as, the seizure list, Exbt.5, the handsketch map of Rowa Sheet No.1, C.S. Plot No.226/4645, Khatian No.5/43(Exbt.2), the Gazette Notification dated 07.02.2004 showing the Rowa Wild Sanctuary under the Khatian No.5/43. The said Gazette Notification has been admitted and marked as Exbt.4. Thereafter, the petitioners were examined under Section 313 of the Cr.P.C. when they repeated their plea of innocence but they did not adduce any evidence in their defence. 6. On appreciation of the evidence, the trial court has observed that the prosecution has proved the accusation beyond reasonable doubt that both the accused persons, Rangini Debnath and Radhkanta Debnath, were engaged in illegally felling of trees in the Rowa Sanctuary which is a protected area. So, both the accused persons were convicted under Section 26(1)(f) of the Indian Forest Act, 1927 and sentenced in consequence thereof. 7. The said judgment of conviction dated 24.05.2013 delivered in CR 282/2010 (Forest) was challenged in the criminal appeal being Criminal Appeal No.11 of 2013 in the Court of the Addl. Sessions Judge, North Tripura, Dharmanagar. By the impugned judgment dated 17.07.2013, the Addl. Sessions Judge dismissed the appeal holding that there is no material infirmity in the judgment of the trial court and as such, the petitioners have been rightly convicted under Section 26(1)(f) of Indian Forest Act. 8. Mr. Kar Bhowmik, learned senior counsel appearing for the petitioners has drawn notice of this court firstly towards the content of the statement of accusation under Section 251 of the Cr.P.C. which was read over to the petitioners. 8. Mr. Kar Bhowmik, learned senior counsel appearing for the petitioners has drawn notice of this court firstly towards the content of the statement of accusation under Section 251 of the Cr.P.C. which was read over to the petitioners. For purpose of reference, the entire text of statement of accusation as recorded under Section 251 of the Cr.P.C. is reproduced hereunder: “The allegation of the complainant is that on 06.09.10 at around 3 pm in the afternoon he along with his staffs were performing duty at Rowa Sanctuary and when they were performing the said duty at that time they heard the sound of felling of trees and on arriving at the spot they saw that both of you were engaged in cutting of valuable trees in the said sanctuary and on seeing the complainant and his staffs both of you fled away from the spot. The complainant also alleges that both of you has illegally entered the said sanctuary and without any valid documents you have cut 14 valuable trees of the said sanctuary and so both of you thereby has committed an offence punishable U/S 26(1)(f) of India Forest Act, 1927 and within my cognizance.” 9. This has been emphatically referred by Mr. Kar Bhowmik, learned senior counsel for purpose of advancing two aspects that the allegation of felling down trees has been made in relation to the wild life sanctuary, not in relation to any protected forest under the Indian Forest Act, 1927 as Mr. Kar Bhowmik, learned senior counsel has further dilated, contending that unless the offence of felling down of the trees occurs illegally within those specified forests under the Indian Forest Act, 1927, there cannot be any violation under Section 26(1)(f) of the Indian Forest Act, 1927 which reads as under: “Acts prohibited in such forests. (1) Any person who............................ (f) fells, girdles, lops, or burns any tree or strips off the bark or leaves from, or otherwise damages, the same;” 10. Mr. Kar Bhowmik, learned senior counsel has categorically submitted that the prohibition in respect of the forest as described under Chapter 2 and Chapter 3 of the Indian Forest Act, 1927, not about any wild life sanctuary which has been defined under Section 3(26) of the Wild Life Protection Act, 1972. Mr. Kar Bhowmik, learned senior counsel has categorically submitted that the prohibition in respect of the forest as described under Chapter 2 and Chapter 3 of the Indian Forest Act, 1927, not about any wild life sanctuary which has been defined under Section 3(26) of the Wild Life Protection Act, 1972. Section 3(26) of the Wild Life Protection At, 1972 defines the sanctuary in the following manner: “3(26) Sanctuary means an area declared as a sanctuary by notification under the provisions of Chapter 4 of this Act and shall also include the deemed sanctuary under Section 4 and Section 66. Chapter 4 of the wild life Protection Act, 1972 deals with the protected areas sanctuaries and how to declare certain areas as the protected areas under Section 18 of the Wild Life Protection Act, 1972. Section 18 provides that the State Government may, by notification, declare its intention to constitute any area other than an area comprised within any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural or zoological significance, for the purpose of protecting, propagating or developing wild life or its environment.” 11. Under Section 27 of the Wild Life Protection Act, 1972, restriction on entry in the sanctuary has been imposed. Mr. Kar Bhowmik, learned senior counsel has further submitted that the trees which were seized by the complainant and the other members of the Divisional Forest Protection Party cannot be treated as the valuable trees for their very nature and as such, the petitioners cannot be accused of committing any offence punishable under Section 26(1)(f) of the Indian Forest Act, 1927. Finally, Mr. Kar Bhowmik, learned senior counsel has raised that identification of the petitioners are shrouded by serious doubt and virtually there is no identification of any legal worth available in the evidence and as such the conviction as returned by the trial court and affirmed by the appellate court, is liable to be interfered with and set aside. 12. From the other side, Mr. R. C. Debnath, learned Addl. 12. From the other side, Mr. R. C. Debnath, learned Addl. PP appearing for the State has strenuously argued that when the PWs.1, 2 and 3 were examined, the accused persons were absent from the proceeding and they were represented under Section 317 of the Cr.P.C. As such, the accused persons cannot take advantage of their own absence in the proceeding denying the opportunity to the witnesses to identify them in the dock inasmuch as both the complainant (PW-1) and PWs.2 and 3 in their statements, made in the trial, have categorically stated they had recognised the petitioners when they were fleeing from the place of occurrence and at the first instance, they had recorded the petitioners’ name in the complaint on the very day itself. Mr. Debnath, learned Addl. PP has further submitted that the contention of Mr. Kar Bhowmik, learned senior counsel as to the nature of forest is of no substance inasmuch as from Exbt.2 and Exbt.4, it has been clearly demonstrated that by way of notification under Section 20 of Indian Forest Act some lands of Mouja-Rowa has been declared reserved forest subject to approval of the Central Government under the Forest Conservation Act, 1980. The plot number as referred in the complaint appears under the said notification and as such, the said plea may not be accepted by this court. 13. Having regard to the rival contentions, as raised by this court, it would be apposite, though this court is in seisin of a revisional application, to make a brief survey of the evidence on record to lay the prospective of the challenge. PW-1, Chitta Ranjan Debnath lodged the complaint. He has stated in the trial that on 06.09.2010 when he was posted as PNS, DFPV as the Forester-In-Charge, he lodged the complaint against the petitioners. On that very day at about 3 pm he was on duty on Rowa Sanctuary at Panisagar along with his staffs namely Bikash Das, Pradip Dhar, Manoranjan Debbarma, Bimal Debnath et al. They were doing their mobile duty. On hearing the sound of felling trees, they rushed to the SouthWestern side of the Rowa Sanctuary and when they proceeded towards the source of the sound, they saw “2 persons cutting the trees & on seeing us both the a/ps fled away. The 2 persons fled away. They were doing their mobile duty. On hearing the sound of felling trees, they rushed to the SouthWestern side of the Rowa Sanctuary and when they proceeded towards the source of the sound, they saw “2 persons cutting the trees & on seeing us both the a/ps fled away. The 2 persons fled away. The 2 persons were cutting the trees with the saw & on seeing us, they fled with the cutting weapons. We identified the 2 persons who were involved in the cutting of trees. They were Rangini Debnath & Radha Kanta Debnath. They fled in the south direction. We chased them but we could not catch them & after the incident we searched the P/O & found 14 trees in a uprooted condition being cut due to illegal felling of trees. The trees which were found due to illegal felling were valuable trees & the market value of the trees may be approximately of Rs.30,000/. On that date, we took the measurement of the cut down tress & prepared the seizure list. I have prepared the seizure list. This is the said seizure list prepared by me bearing my signature in the presence of the witnesses. The said seizure list is marked as Exbt.1 (as a whole)”. He has further stated that the place of occurrence is the protected area prescribed by the Government of Tripura, Forest Department. He had prepared the hand sketch map showing the alleged PO in the protected area of the Government of Tripura. He has also identified the complaint which was filed under Section 52-A of the Indian Forest Act, 1927 and also the notification as published in the Tripura Gazette as Exbt.-4. Nothing could be elicited by way of cross-examination from PW-1. PW-2, Pradip Dhar, who was the member of the PNS, DFPV, almost replicated the same story except that he signed the seizure list as the witness and he identified the seizure list as Exbt.1/2. PW-3, Manoranjan Debbarma, a member of the said DFPV has stated that they were with PW-1 for patrol and on hearing the felling sound, they rushed and they could recognise the petitioners who fled away from the place of occurrence at their sight but they could seize the felled trees. 14. Mr. Kar Bhowmik, learned senior counsel, did not challenge the seizure of the trees as the defence case was of a complete denial. 14. Mr. Kar Bhowmik, learned senior counsel, did not challenge the seizure of the trees as the defence case was of a complete denial. The petitioners questioned the very institution of this proceeding. The two points, required to be appreciated by the court, are (1) whether the Rowa Wild Life Sanctuary is a reserved forest or it is simply a ‘wild life sanctuary’ within the meaning of Section 3(26) of the Wild Life Protection Act, 1972 and (2) whether the petitioners have been identified as the offenders who felled those seized trees. This court would take up the second point first inasmuch as if this court is satisfied that the identification of the petitioners as the offenders to whom the substance of accusation was read is shrouded by serious doubt, then response to the point No.1 would be mere academic. The source of identification of the petitioners are the statements made by the PWs.1, 2 and 3 that they could recognise the petitioners but in the trial it is the admitted position neither PWs.1, 2 and 3 identified the petitioners in the dock to establish that whom they saw cutting or felling down the trees illegally were the petitioners, accused in the said complaint case. For this purpose, we may again turn to the statement of PW-1. What he has stated in his deposition recorded in the trial is that “If the a/ps could be present before this Court I could have identified them”. In this regard, he has stated that he had seen the accused persons from a distance of 10/15 hands while chasing them. Similarly, PW-2 has stated in the trial that if both the a/ps would be present that day he could have identified them. The same and identical statement has been made by PW-3 by stating that if the a/ps would be present before the trial court, he could have identified them. 15. From the records it appears that by the order dated 02.02.2013 and 04.02.2013, when the statements of PWs were recorded by the trial court, the petitioners were represented by their counsel as they were not present in the proceeding. Making a further search, this court has come across to their applications dated 02.03.2013 and 04.02.2013. Contents of those applications are exactly identical. Making a further search, this court has come across to their applications dated 02.03.2013 and 04.02.2013. Contents of those applications are exactly identical. In those applications, simply it has been stated that for their illness, the petitioners could not appear in the proceeding and as such they should be allowed to be represented by their counsel. Such prayer was allowed by the said orders dated 02.02.2013 and 04.02.2013 without ensuring their attendance in the trial for purpose of identification inasmuch as the identification was never established in any other manner. Nowhere the accused persons admitted that they were cutting down or felling down the trees illegally, rather in the cross-examination they have completely denied their involvement with the alleged crime. Section 317 of the Cr.P.C. is a well-structured provision of law and nothing has been left to create confusion in understanding its purport. For purpose of reference, Section 317 of the Cr.P.C. is reproduced hereunder: “317. Provision for inquiries and trial being held in the absence of accused in certain cases. (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with him attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.” [Emphasis added] 16. While passing the orders dated 02.02.2013 and 04.02.2013, the Trial Judge did not consider the aspects of identification of the accused, as would substantively be required inasmuch as the accused did nowhere in the proceeding had admitted their involvement with the said occurrence nor did they undertake by the petition filed under Section 317 of the Cr.P.C. that if their attendance is exempted and they are allowed to be represented by the counsel, they would not dispute their identity for purpose of their involvement in the said occurrence. In such context, it was the duty of the Trial Judge to direct the attendance of the accused persons before PWs were examined or when the PWs.1, 2 and 3 had categorically stated that if the accused persons were present in the proceeding, they would have identified them, the Magistrate was under duty to recall them under Section 311 of the Cr.P.C. But the Magistrate did neither discharge any such duty for the interest of justice nor did the prosecution insist on attendance of the petitioners before PWs were examined. Nor even urged for recall as stated. But for this, the identity of the petitioners as the offenders cannot be held established beyond reasonable doubt. A person who had the fleeing sight inside a forest, cannot be relied unless otherwise their identification is established in the trial by substantive piece of evidence. The oral statement of identification by any person cannot be relied for purpose of identifying the accused persons, unless they are physically identified in the trial on disclosing the materials of acquaintance. 17. Accordingly, this court considers the point No.1 as to the nature of the Rowa forest has become redundant, however for a passing reference, it can be said that the documents which were placed to established that the Rowa is a reserved forest are not the complete documents by themselves, because the notification as placed as Exbt.4 was subject to concurrence by the Government of India and such concurrence, if ever allowed, is not available with the evidence. That apart, it has been clearly defined in the Wild Life Protection Act, 1972 that any part of reserved forest cannot be declared as the wild life sanctuary for the very purpose that the management of the reserved forest and the wild life sanctuary are dealt in accordance with their respective procedure. 18. That apart, it has been clearly defined in the Wild Life Protection Act, 1972 that any part of reserved forest cannot be declared as the wild life sanctuary for the very purpose that the management of the reserved forest and the wild life sanctuary are dealt in accordance with their respective procedure. 18. Having held so, this court is inclined to interfere with the impugned judgment and accordingly the same is set aside. The petitioners are acquitted from the substance of accusation on benefit of doubt. In the result, this petition stands allowed. The sureties are discharged from their respective obligations. Send down the LCRs forthwith.