(1.) This appeal under Rule 21 of the Rules for the Administration of Justice and Police in the Naga Hills District, 1937 is directed against the order of conviction and sentence on the appellants dated 128.1980 passed by the Additional Deputy Commissioner, Peren Sub-Division, Kohima District in G.R. Case No. 14{80 under sections 447/ 427 of Indian Penal Code. On 145.1980 a complaint was lodged in the Court of Extra Assistant Commissioner, Jalukie by the Forest Beat Officer, Jalukie, Nagaland against the appellants to the effect that the four appellants trespassed into the protected reserve, destroyed the forest products and started cultivation of their own. It is the case of the prosecution that as per agreement between. Tribal Council authority and the Government of Nagaland in 1969 the forest department took over the Tribal Council Protected forest, Jalukie within a defined boundary roughly measuring about 7 (seven) sq. miles. Thereafter, the forest department cleared the jungles and planted coffee sapling, mixed plantation and crop plantations, etc: The case of the prosecution is that these four appellants trespassed into the said land and damaged the crops and coffee plantation and started cultivation of their own. On receipt of the complaint the learned Magistrate, on taking cognizance of the offence under sec. ions 447/ 427 of the Indian Penal Code, issued process upon the appellants to stand their trial. On appearance of the appellants, the learned Magistrate framed charges against all the accused under sections 447/427, Indian Penal Code. However, it was noted in the order sheet dated 2.8.1980 that when the charges were explained to the accused-appellants they pleaded guilty. Yet, the learned Magistrate proceeded with the trial, summoned the witnesses, examined them and also examined the accused and recorded their statements under section 313, Criminal Procedure Code. In course of trial as many as four witnesses were examined and after bearing and at the close of the trial, the learned Magistrate having found the appellants guilty under sections 447/427, Indian Penal Code, convicted them under the aforesaid provisions of law and sentenced them to suffer rigorous imprisonment for two years on both the counts. This is how the appeal has been preferred in this Court. The appellants have challenged the legality and propriety of the impugned Judgment and Order of conviction and sentence inflicted on them by the learned Magistrate.
(2.) I have heard the learned counsel for the appellants as well as the learned Public Prosecutor, Nagaland and behalf of the respondent. My attention has been drawn to the impugned Judgment and order dated 12.8.1980 by the learned Counsel for the appellants. In that context it is submitted that the learned trial court did not consider the evidence on record not the facts as revealed from the evidence of P. w. 4 but in one sentence disposed of the case holding the accused persons guilty under sections 447/427, Indian Penal Code. The learned counsel for the appellants has also drawn my attention to the fact that the copies of the impugned judgment and order which were furnished to the appellants are different from that of the order as recorded in the case records dated 12.8.1980 in respect of which an affidavit has also been filed by the appellants stating the aforesaid fact. I have perused the copy of the judgment and order which is stated to be furnished to the accused-appellants and armed as Annexure-2 to this petition. I have myself noticed the discrepancy of both the orders. In this context I would like to say that while the accused persons are entitled to free copy of the judgment it is expected that correct copy of the judgment should be furnished to the accused. But in this case the copy which was furnished to the accused was not a true and correct copy as it appears from the impugned judgment and order dated 12.8.1980, as recorded in the order sheet maintained by the Court.
(3.) Let me enter into the merit of the case. The prosecution examined the Beat Officer, Forest, Shri H.K. Randa, as P.W. 1. In his deposition he has stated that: As per agreement between the Tribal Council authority and the Government of Nagaland in 1969, the forest department\ took over the Tribal Council protected forest Jalukie. He has further stated that the forest department developed the protected forest by clearing jungles and planting coffee sapling and mixed plantation. He has further stated that in January, 1980 some people from Jalukie town encroached the land, caused damage by cutting valuable trees, one also destroyed the virgin forest. In his evidence he has further stated that even now the accused persons are cultivating the encroached land for their own use. In his evidence, though he has deposed about the agreement between the Tribal Council authority and the Government of Nagaland in respect of the land but that was not proved nor the boundary was explained by the P.W. 1 in respect of which the alleged offence was committed by the accused. P.W. 2, Shri M.I. Bora was the Administrative Officer. He has given only a general idea that the forest department was managing the said forest since 1969 immediately after the agreement was executed. He has further stated that some Tribal people were encouraged to encroach the forest land by some neighbouring people. On going through the evidence of P.W. 2, it does not appear that his evidence anyway could be of any help to the prosecution to prove the guilt beyond all reasonable doubt against the appellants. P.W. 3 was the Investigating Officer. He has only stated that he investigated the case, arrested the accused and that he found the accused persons in dock were cultivating their own kheti after they destroyed the forest. It is very difficult to ascertain as to whelher the accused had committed any offence in respect of the protected forest area. The important witness No. P.W. 4, who was examined by the prosecution is Ex-Gaon Burah of Jalukie village. He has stated in his evidence that the land was given to the Government for establishment of Jalukie town but not for the reserve forest. He has also stated that he gave the land to the accused for cultivation. In cross-examination he stated that he was not aware of any agreement and he did not explain the contents of such agreement. He bas admitted that he had allowed the accused to cultivate the land for their own cultivation. P.W. 4 has supported the case of the accused. The accused persons in their examination under section 313, Criminal Procedure Code have stated that they had been cultivating the land as allowed to do so by P.W. 4 and while they were cultivating the land they were apprehended by police.