NEMCHAND Vs. STATE OF M.P.

JUDGEMENT

(1.) NEMICHAND appellant has been convicted under Sections 333 and 326 of the Penal Code, and sentenced to five years' rigorous imprisonment on each count; the sentences to run concurrently.

(2.) ON the morning of April 23, 1961, when Raghubir Singh, Forest Guard (P. W. 2), was on his normal beat duty in Samnapur range, accompanied by two Forest Watchers, 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 tnem 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 shin. 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 regards, 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 been disbelieved.

(3.) 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 1951, 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 defence in respect of Government property. As to this, the learned counsel for 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 under Section 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.