BARIKRAO BHADDOO KUNBI Vs. EMPEROR

JUDGEMENT

(1.) THE applicant, Barikrao stands convicted under Sections 26(f) and 63(c), Forest Act. On 2nd July 1940 he entered into a contract with the forest department under which he had a right of cutting trees in some isolated clear felling areas in coupe No. VI in Dabka Felling Series in Dabka Range, and certain trees in the improvement areas surrounded by them in the same coupe. The trees in the improvement area were not to be cut unless they were hammer-marked with a certain device, but the trees in the felling area could be cut with the exception of (i) mango, harra and kullu trees, (ii) trees bearing a ring of geru or coal-tar at breast height, and (iii) trees in areas especially demarcated for exclusion by trees bearing a band of coal-tar at breast height and a cross-mark. The trees thus forming the boundary bore an arrow mark, showing on which side trees could be cut. Although the evidence is silent on the question whether these trees to demarcate a boundary in fact separated two portions of a clear felling area, or in fact only separated the clear-felling areas from the improvement areas, it is obvious that these trees marked to denote a boundary could not be cut, and that beyond them nothing could be cut unless it was hammer-marked, or unless the boundary of the next permissible felling area similarly demarcated was reached and passed. Now, it has been found as a fact that the contractor cut or had got cut by his agents some trees which were marked with a band of coal-tar and a hammer-mark and in respect of these trees he has been convicted under Section 63(c). Section 68, Forest Act, is as follows: 63. Whoever, with intent to cause damage or injury to the public or to any person or to cause wrongful gain as defined in the Indian Penal Code-

(2.) IT has also been found as a fact that he cut some trees which were not hammer-marked beyond this boundary in the improvement area. In respect of these, he has been convicted under Section 26(f), Forest Act. On the questions of fact two points are argued. It is said that the entries in the marking books are not relevant under Section 35, Evidence Act, for the reason that no rule or statute has been produced showing that it was the duty of the forest officials to make these entries. A perusal of Section 36 shows that in the case of Government servants it is sufficient that the record should be made by the official in an official register in the course of his duty. Now, the Forest Manual shows that before a contract is given to a contractor, every effort should be made by the forest officials that the contractor should have full opportunity to know which trees he is going to purchase. For this reason a preliminary notice of auction is given and a later one, and it is obvious that in a properly given contract the trees are marked before the contractor either obtains the contract or starts work. The contractor has only a limited time in which to extract the timber, and it is obvious that if the trees are not marked before the contract he may lose valuable time during which it is to be decided which trees fall under the contract and which do not. It stands to reason that marking is of little use unless a record is made and kept and it is in the light of these general observations that the evidence showing that these marking books are official records should be considered.

(3.) THE next point raised is that the boundary trees cut down were not a boundary mark of a forest within the meaning of Section 63(c). Although penal statutes are to be construed strictly, beneficial construction to promote the object of an Act is not excluded and a genus may include a species whether or not that species was in direct contemplation of the Legislature, and I consider that the expression 'boundary marks of a forest' should be taken to include boundary marks within forest placed to separate what may be felled from what may not. Then it is suggested that because the trial Court convicted on the charge of removing hammer-marks in the area outside the demarcated felling area, while the first appellate Court acquitted on this charge, the accused may be guilty of having merely removed hammer-marks instead of having cut trees which were not hammer-marked. No doubt there is evidence of one hammer-mark being destroyed of doubtful reliability, and no doubt it is possible that some hammer-marks were destroyed in order to prevent detection of the illegal cutting as a whole, but it would be absurd to suppose that all the trees cut in the improvement area were rightly cut being hammer-marked, and the marks removed for no possible reason. It is urged that the fines are too heavy, but it has not been shown that they are not proportioned to the means of the offender. The application is dismissed.