The main legal point established in the judgment is the interpretation of the legal provisions under the Indian Forests Act and the Indian Penal Code, and the requirement for clear evidence to establish guilt.

A. NARAYANA PAI, J.

( 1 ) THE appellants were accused 1 to 3 in Sessions Case No. 36 of 1958 on the file of the Sessions judge, Dharwar Accused 4 to 10 therein were acquitted.

( 2 ) THESE accused were tried under a charge for offences falling under two principal heads : (1)Disobedience of Rule 66 framed under Section 41 of the Indian Forests Act (2) offences punishable under Sections 147, 148, 448, 353, 395 and 149 of the Indian Penal Code.

( 3 ) THE bare facts of the case are that on the forenoon of the 9th of October 1957 the first three accused and one Shamraj since deceased, were seen driving four carts containing red earth in front of the forest Naka at Banadur in Dharwar District. The Forest Guards taking the view that the red earth that was being conveyed was a forest produce, thought that the conveyance of the red earth required the persona to take what are called transit passes under the relevant rules. On being questioned by the guards, accused 1 to 3 replied that they had no passes, whereupon the forest Guards attached the carts along with the earth in them and released only the bullocks with which the accused returned to the village, leaving the carts in possession of the Forest Guards. The further case of the prosecution is that late in the evening that day at about 6 p. m. the first three accused in the company of 20 or 25 other villagers (including accused 4 to 10) came to the Naka with the intention of forcibly recapturing the attached carta and did actually succeed in getting away with the carts. One of the carts is said to have fallen into a gutter while being driven.

( 4 ) IN holding the first three accused guilty of the contravention of the rules made Under the forest Act, the learned Sessions Judge while accepting the case of the accused that the earth which was being conveyed had not been removed from any forest area but from a private malki land, took the view-viz. , It is evident that for transporting even surface soil of private land, a transit pass is necessary when it has to be transported through the Government forest. That the earth was taken from a private malki land was admitted even by the forest officers deposing in favour of the prosecution. It has been elicited from the Forester Rayappa the very first witness for the prosecution, that even in the panchanama the place from where the earth was brought is written as S. No. 124 and that the Ranger by looking into a map stated that it was a maiki land and not a Government land. This fact is not disputed even in the appeal before us. For the view stated by the learned Judge m the sentence extracted above We are unable to see any basis except what has been deposed to by P. W. 1, the Forester, who states it as his opinion that- Transit pass is necessary if minor forest produce is to be removed from the forest areas or in case it belongs to private persons, if the produce is to be removed through forest area, a transit pass is necessary.

( 5 ) RULE 66 referred to by the learned Judge {which both sides agree is Rule 66 framed by the government of Bombay under Section 41 of the Act) states:

No forest-produce shall be moved into, or from, or within any district of the State of Bombay, except as hereinafter provided; without a pass from some officer or person duly authorised by or under these rules to issue such pass, or otherwise than in accordance with the conditions of such pass or by any route or to any destination, other than the route or destination specified in such pass.

Then, there is a proviso to the rule which refers to certain exemptions and special cases. It is nowhere stated in that rule that a transit pass is necessary even in respect of articles or goods which are removed from private property unless those goods fall within the definition of forest-produce. The term 'forest-produce' is defined in Clause 4 of Section 2 of the Forest Act, which, reads as follows:

forest produce includes (a) the following whether found in, or brought fro

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