Wilbsrt v. Newman
1969Present: de Kretser, 3.
It. T. WILBERT and 3 others, Appellants, and NEWMAN(Police Sergeant), Respondent
S. C. 219-222/69—M. C. GaUe, 56705
Forest Ordinance [Cap. 451)—Sections 3 and 20 (2)—Breach of Rule 7 (2) of ForestRules No. 2 of 1966—Offence of felling trees is distinct from that of causingtrees to be felled—Effect of duplicity of charge—Criminal Procedure Code,as. 178, 425—Burden of proof.
In a prosecution for a breach of Bole 7 (1) of the forest Rules No. 2 of 1066framed under section 20 (1) of the Forest Ordinance—
Held, (i) that “ felling treee ” is an offence distinct from “ causing trees tobe felledThe two offences, therefore, should be tried separately.
DE KRETSER, J.— Wilbert v. Newman
However, a charge which is bad for duplicity is not necessarily fatal to theconviction if it has not caused prejudice to the accused and is curable undersection 426 of the Criminal Procedure Code.
(ii) that the burden of proving that the forest in whioh the offence is allegedto have been committed is “ not included in a reserved or village forest ” lieson the accused.
A.PPEALS from a judgment of the Magistrate’s Court, Galle.
K. Liyanage, for the accused-appellants.
Shibly Aziz, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 18, 1969. de Kbetser, J.-—
The Accused in this Case were convicted by the Additional Magistrateof Galle of an offence against Rule 7(1) of the Rules framed under Section20 (1) of the Forest Act Cap. 451 of the Legislative Enactments 1 Theywere sentenced to 2 years Rigorous Imprisonment each and they haveappealed.
The Magistrate has contented himself with taking over the Charge onwhich he tried and convicted the Accused from the amended Plaintfiled by the Police on 1.10.68. That Charge alleged that what they haddone was “ to fell or cause to be felled 7 trees of Domba, Hora, Keenawithout a valid permit ” from the Kottawa Kombala proposed CrownForest Reserve … and cause damage to the value of Rs. 250.
It should have been apparent to the Magistrate, if he had made theslightest study of the Charge, that “ to fell trees ” is an offence distinctfrom “ causing trees to be felled”. I presume that he is aware thatSection 178 of the Criminal Procedure Code enacts that “ for everydistinct offence of which any person is accused there shall be a separateCharge and every such Charge shall be tried separately.
It appears therefore that the submission of Counsel that the Chargeas framed is bad for duplicity is well-founded.
I do not set aside the conviction for that reason only because it hasbeen pointed out as far back as 1923 in the Case of Police Sergeant,-Lindula v. Stewart1 that the defect is not necessarily fatal to the convictionand may be cured under Section .425 of the Criminal Procedure Codeif the Accused have not been prejudiced.
There is the evidence of the Inspector that he found the first andsecond Accused on the top of a tree in the act of cutting the large branchesand the third and fourth Accused sawing a tree that had been alreadyfelled while in the near vicinity were other trees that had been felled.The men had no permit .
1 (1923) 25. N. L. R. 166.
DE KRETSER, J.—Wilbert v. Newman
The evidence of the Forest 'Officers establishes that the felling hadtaken place in a forest which stands on Crown property which is not aReserved Forest in tgrms of Section 3 of the Forest Act. The fact thatthere is a proposal to make it such has added some confusion to the matterwhich probably led to the original Plaint alleging that when Accusedfelled these trees they had committed an offence in a reserved forest.
Section 20 (1) of the Forest Act under which Rule 7 (1) is framed dealswith any Forest “ not included in a Reserved or Village ForestIt has been held in the Full Bench Case The Mudaliyar, PitigalkoraieNorth v. Kiribanda1 that in a Prosecution under this Section or the Rulesmade under it the burden of proving that the forest in whioh the offenceis alleged to have been committed is “ not included in a Reserved orVillage Forest ” lies on the Accused.
As Grenier A.J. said in that Case “ if he can produce a permit, orif he can show the land is his private property, there will be an end to theprosecution. Such positive proof is directly in his path to adduce, and heought to be made to adduce it'instead of calling upon the Prosecution toestablish a negative. ”
In the instant Case the Accused have made no effort to discharge theburden od them. The Evidence of the Forest Officers shows that it isnot a Reserved Forest in terms of Section 3. In my opinion the evidenceis overwhelming that these Accused have felled trees in a forest without apermit and are therefore guilty of an offence under Rule 7 (1) of the ForestRules No. 2 of 1966 which the prosecuting officer should note is thecorrect way of citing them.
The Charge as set out that the trees that were cut were Domba, Hora,and Keena while the only evidence of the species of tree is that two atleast of them were described with some hesitation by the Inspector astl Godapora ”. The species of the trees is, fortunately for the prosecution,irrelevant to a Charge under this Rule. In my opinion there was noprejudice caused to the Accused at the Trial by the allegation madein the alternative that they had caused the trees to be felled.<
I affirm the conviction of the Accused on the Charge that they hadfelled these trees without a Permit and so committed an offence underRule 7 (1) of the Forest Rules No. 2 of 1966 framed under section 20 (1)punishable under Section 21. While the Law demands a Jail Sentencefor this offence no reason is given by the Magistrate as to why he thoughtthe maximum term of the imprisonment chould be imposed. At thehearing of the Appeal it was submitted that the Grama Sevaka hadrecommended the issue of a Permit and that it was in anticipation ofits issue that felling had commenced. That submission remained asubmission. It appears to me that a. Sentence of 3 months wouldbe adequate punishment for the offenoe these Accused have committed.
The Appeal is dismissed subject to this variation in Sentenoe.
Appeal dismissed subject to a variation in sentence.
1 (1909) 12 N. L. S. 304.
R. T. WILBERT and 3 others, Appellants, and NEWMAN (Police Sergant), Respondent