Subhendu Samanta, J
1. The Petitioners were convicted for the offence punishable under Section 447, 379 read with 34 of IPC and Section 20(c)(viii) of A.P.Forest Act, 1967 (for brevity the Forest Act) by the learned Trail Court. Against the order of conviction, they preferred an Appeal before learned Appellate Court. The learned Appellate Court dismissed the Appeal and confirmed the order of conviction. Hence this Criminal Revision.
2. Learned counsel for the Petitioners raised a single legal point before this Court challenging the order of conviction. It is the case of the Petitioners that the prosecution has not produced any Gazette Notification regarding the area of scene of crime is a Reserved Forest Area. Thus, the order of conviction is not sustainable.
3. The prosecution case in brief is that on 01.05.2012, the Sub-Inspector of Police, Paderu, received credible information about the trespassing of some persons with iron implements for digging the land near Kodugudla Village. Immediately, the Police party with the VRO proceeded to the Village, when they reached near hill behind the Village, they noticed some persons near polythene covers tent, digging the land for semi coloured precious stones in the Reserved Forest Area by using iron implements like hammers, iron crow bars, to collect coloured stones. On seeing the Police, the persons tried to abscond and immediately the Police personnel apprehended them.
4. During the trial, 3 witnesses were examined, 3 documents were marked and some material objects including the iron materials, coloured stones and tent were marked as M.O.Nos. 1 to 12. Admittedly, no Forest Officials were examined and no Notification was placed before learned Trial Court. During the evidence of PW-1, one document Ex.P2 was marked, which is a location map and certificate obtained from the Divisional Forest Officer, Paderu, showing that the scene of offence declared as Reserved Forest Area. Admittedly, there is no cross examination by the defence challenging the said document being Ex.P2.
5. Learned Trial Court, on the basis of Ex.P2 has hold that the Accused persons are digging earth for colour stones from the Reserved Forest Area and held that the Petitioners are found guilty; same issue was raised at the time of Appeal. Learned Appellate Court is of the opinion that as the Accused did not dispute the genuineness and veracity of Ex.P2 i.e Certificate issued by Divisional Forest Officer, Paderu and also not denied that the scene of offence is not declared as Reserved Forest Area. The prosecution has justifiably proved the fact that the scene of offence is within Reserved Forest Area.
6. Learned counsel for the Petitioners submits that the conviction recorded by learned Trial Court as well as Appellate Court is not tenable as the prosecution has prime duty to place the notification to show that scene of offence is declared as Reserved Forest Area. Without such notification, the conviction under the Forest Act is not maintainable. In support of his contention, he cited decision of High Court of Madras in Murugesan v. State of Tamilnadu Crl.R.C (MD) 577 of 2016 , dated 23.03.2023, wherein learned Single Judge held as follows:
15. Admittedly, in this case, the respondent has failed to produce any notification regarding scene of crime is Reserved Forest Area. Therefore, prosecution has failed to prove the case beyond doubt and the benefit of doubt goes in favour of the petitioner herein.
7. Learned counsel for the Petitioners also cited decision of Honble Apex Court in Union of India v. Abdul Jalil and Others AIR 1965 Supreme Court 147 = 1964 (8) SCR 158, wherein Honble Court has acquitted the Accused, who was found guilty, contravention of Section 26(1)(a) of the Indian Forest Act, 1927.
8. Learned Assistant Public Prosecutor submits that learned Trial Court has not committed any error. He further submits that the certificate and location map was marked as Ex.P2, which was issued by Divisional Forest Officer. Though, the Divisional Forest Officer was not examined, but the location map as well as the Certificate has justifiably proved that the scene of offence is within the Reserved Forest Area. He further submits that there is no challenge by the defence regarding Ex.P2. He further submits that Honble Appellate Court has observed on the same point that since it was not challenged before learned Trial Court, the accused persons cannot having no right over it to challenge the same in the appeal stage. He further submits that the order passed by learned Single Judge of Madras High Court is of different perspective and it is not applicable to the facts of this case.
9. Heard learned counsel appearing on behalf of the parties. I perused the observation of learned Trial Court as well as learned Appellate Court.
10. It appears that learned Trial Court is on the basis of Ex.P2 hold that the scene of offence is within Reserved Forest Area. Admittedly, there are no notification placed to show that the scene of offence is within the Andhra Pradesh and Telangana Reserved Forest Area. Ex.P2 is the location map and certificate issued by the Divisional Forest Officer, no challenge has made before learned Courts below regarding the validity and veracity of Ex.P2. Before Appellate Court, the same was challenged. The Appellate Court has opined that it has no jurisdiction.
11. Let to consider how for the notification is relevant to declare the place i.e scene of offence to be a Reserved Forest Area or whether Ex.P2 is sufficient document to hold that the scene of offence is within Reserved Forest Area.
12. Learned Single Judge of Madras High Court, while deciding a Criminal Case before him has hold that the notification is must to prove that scene of crime is within the Reserved Forest Area. In the case before learned Madras High Court, there are other factors to be considered. The prosecution case alleged that they have recovered 18 Sandalwood logs from the Petitioner and also recovered axe and knife, but they are not produced before learned Trial Court and no notification/ document was placed to show that the scene of offence is within the Reserved Forest Area. Learned Single Judge of Madras High Court has held that on the basis of confessional statement of the Accused while they are in custody conviction is not maintainable. In deciding such issue, learned Madras High Court has also hold that notification regarding the scene of offence was within the Reserved Forest Area was not placed.
13. The issue before Honble Apex Court in Abdul Jalils case (supra) was that whether Tripura Forest Act, under which notification fixing the boundaries of the forest are issued is a protected forest under the Indian Forest Act or not? In deciding such issue, the Honble Apex Court hold that unless and until that there is a specific notification under Forest Act of Tripura State that it is a protected Forest, no conviction is maintainable. The issue before this Court is totally separate to the facts as referred by learned counsel for the Petitioners.
14. Admittedly, no notifications were placed before learned Trial Court, Ex.P2 was placed and marked. In my view, Ex.P2 which was issued by Divisional Forest Officer, who is an Officer designated under Section 4 of the Forest Act. Ex.P2 has more specifically pointed out that the scene of offence is within the Reserved Forest Area. Admittedly, the Accused raised no objection in exhibiting such document. In Indian Law, the Accused person enjoys the luxury of silence during criminal trial. All onus is upon prosecution to prove the crime against the Accused beyond all reasonable doubt. Furthermore, it is a trait law that a person may keep silence until and unless there is a duty to speak. In the present case, when the document i.e Ex.P2 was place before learned Trial Court, the defence should have raised an objection, i.e there was a duty for the defence to raise objection with regard to Ex.P2. When there is a duty to speak, such duty was not adhere to by keeping silence it can be presumed that the defendant has nothing to utter against such document. In my view at this stage as well as at the stage of Appeal, the document being Ex.P2 cannot be challenged. Moreover, the document Ex.P2 is a definite document, issued by competent authority which pin pointed the scene of crime within the Reserved Forest Area. I find no justification to disbelieve Ex.P2 at this stage. Merely by not placing the notification, entire case of prosecution cannot be said to be failed. Under the above observation I find no merit in the instant Criminal Revision.
15. Accordingly, the instant Criminal Revision Case is dismissed as devoid of merit. The order of suspension of sentence passed by this Court during pendency of the instant Criminal Revision Case is hereby revoked. The Petitioners are directed to appear before the learned Trial Court within three (3) weeks from the date of passing of this order to serve out the remaining portion of sentence, failing which, learned Trial Court shall issue Non-Bailable Warrant against the present Petitioners to comply the order. Since the Petitioners are not present before this Court, let a copy of this order be served upon the learned Trial Court for ready reference.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
