IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 73 of 2002. Judgement reserved on: 10.3.2009. Date of decision: 13.3.2009. State of H.P. ….. Appellant. Vs. SantRam …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Addl. Advocate General. For the Respondent : Mr. Ramesh Sharma, Advocate vice Mr. N.K.Thaur, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement, dated 23.7.2001 passed by learned Chief Judicial Magistrate, District Kinnaur in Criminal Case No. 27/2 of 2000 acquitting the respondent for offence punishable under Sections 434, 447 IPC and Section 33 of the Indian Forest Act. 2. The prosecution case, in brief, is that on 9.9.1999 PW 4 was patrolling forest, Goli, where he noticed that forest land had been covered by stone wall by one Jew Dass. On that date, he found four land marks intact on the forest land. He again visited the spot on 16.9.1999 on the suspicion that government land had been encroached, he found that three land marks from the spot were Whether the reporters of the local papers may be allowed to see the Judgment? …2… removed. On inquiry, it was found that respondent had removed the aforesaid land marks, a damage report was prepared and the matter was reported to the police. It was found during investigation that the aforesaid land marks were removed by the respondent. On completion of investigation, challan was presented in the court. The respondent was charged for having committed offence under Sections 434, 447 IPC and Section 33 of the Indian Forest Act. The respondent denied the charge. The prosecution has examined nine witnesses and produced some documents. The respondent was examined under Section 313 Cr.P.C., and he denied the prosecution case. The learned Chief Judicial Magistrate acquitted the respondent, hence this appeal. 3. I have heard Mr. A.K. Bansal, learned Additional Advocate General on behalf of the appellant and Mr. Ramesh Sharma, Advocate appearing on behalf of the respondent and have gone through the record. The learned Addl. Advocate General has submitted that learned Chief Judicial Magistrate has erred in acquitting the respondent. The prosecution has proved the case against the respondent beyond reasonable doubt by leading oral and documentary evidence. The learned Chief Judicial Magistrate has not properly appreciated the evidence on record. The learned counsel appearing on behalf of the respondent has supported the impugned judgement and prayed for dismissal of the appeal. 4. PW 1 Devinder Singh, Tehsildar has stated that he had demarcated private land comprised in khasra Nos. 124, 126, 127 and government land comprised in khasra No. 21 and prepared …3… demarcation report Ex. PW 1/A. It was found that on the land comprised in khasra No. 124 Jew Dass by erecting a well had encroached 12 meters land from khasra No. 21. The land comprised in khasra No. 21 is DPF. PW 2 Ram Dass has stated that he had been working as sweeper since 1972 in Forest Department. On 9.9.1999, he was with forest guard Bholu Ram and he accompanied him to forest, Goli Kanda. On that day, he found a stone wall beyond three burjis (fixed point) on the land. On 16.9.1999, they again visited the spot and found that three burjis were removed. He has stated that he does not know who had removed those burjis. The guard did not prepare any damage report in his presence. 5. PW 3 Brij Lal, ASI has presented the challan. PW 4 Rajinder Singh (wrongly numbered as PW 3) has stated that in the year 1999, Tehsildar had given the demarcation. There were burjis on the spot. Sant Ram had covered the land by constructing a fence. He had not seen anybody erecting the stone wall. He has stated that Sant Ram is in service. PW 5 Bhola Ram Forest Guard (wrongly numbered as PW 4) has stated that they were patrolling on 9.9.1999, Ram Dass and Om Parkash were with them. They had seen one stone wall in DPF Goli, which was erected beyond burjis, Sant Ram told that burjis had been wrongly constructed on his land. He again visited the spot on 16.9.1999 and found that three burjis which were on the spot were removed. He came to know from the people that burjis were removed by Sant Ram. PW 4/A is the copy of damage report. He brought these facts to the notice of B.O., Kalpa. In demarcation the wall was found in DPF Goli. In cross examination, …4… he has stated that in damage report he had named Jew Dass. He has stated that during demarcation Jew Dass was not present. 6. PW 6 Kapoor Chand (wrongly numbered as PW 5) has stated that Sant Ram is working as Peon in Tehsil Kalpa. The burjis were fixed by forest department. On 9.9.1999 Bhola Ram, Guard had called him and found that by erecting stone wall Sant Ram had encroached government land of DPF Goli. On 16.9.1999, he again visited the spot and found that three burjis were not on the spot. In cross examination, he has stated that his land is at a distance of 3-4 Kilometers from the land of Sant Ram. He had not seen Sant Ram erecting the wall. PW 7 Uday Singh Negi, B.O. (wrongly numbered as PW 6) has stated that on 9.9.1999, Beat Guard Bholu Ram had told him that Jew Dass had encroached DPF Goli by erecting a stone wall. On 16.9.1999, he found that some burjis were removed by Sant Ram. On 18.9.1999, he submitted an application Ex. PW 6/A. In cross examination, he has stated that he was not present at the time of demarcation. He has stated that with the disputed land is the land of father of Sant Ram. PW 8 Om Parkash (wrongly numbered as PW 7) has stated that on 9.9.1999 he had accompanied forest guard in connection with T.D., and visited DPF Goli and found that a stone wall beyond three burjis in the aforesaid forest. He again visited the spot on 16.9.1999 and found that those burjis were removed. He has stated that Sant Ram was not on the spot. PW 9 Amar Chand (wrongly mentioned as PW 8) is the investigating officer, who proved FIR Ex. PW 8/A. He has also placed on record notification of DPF Goli Ex. PW 8/B. …5… 7. Ex. PW 4/A is the damage report in which Jew Dass has been named for the commission of the offence. The respondent is the son of Jew Dass. It has come on record that respondent is working as Peon in Tehsil Kalpa. Ex. PW 1/A is the demarcation report. In this demarcation report, it has been stated that demarcation was conducted in presence of Sant Ram etc. In the demarcation report, there is nothing to show that before carrying out the demarcation any notice was given to the adjacent owners of the land. PW 1 Devinder Singh, Tehsildar has stated that Jew Dass is the owner of khasra No. 124, but there is nothing in the report Ex. PW 1/A that Jew Dass was present at the time of demarcation or any notice of demarcation was given to him. There are certain insertions apparently with different hand writing in the demarcation report, but who carried out those insertions that has not been explained by PW 1. The statement of right holder Jew Dass was not recorded nor the statement of Sant Ram was separately recorded at the time of demarcation. Therefore, it is not safe to place reliance on demarcation report Ex. PW 1/A. No prosecution witness has specifically stated that stone wall was erected by Sant Ram in his presence and burjis (fixed points) in DPF Goli were removed by Sant Ram in his presence. The learned Chief Judicial Magistrate has rightly appreciated the material on record. The view taken by the learned Chief Judicial Magistrate while acquitting the respondent emerges from the evidence on record. The prosecution has miserably failed to prove the case against the respondent. …6… 8. No case for interference is made out. There is no merit in the appeal, which is dismissed. The bail bonds are discharged. March 13, 2009. ( Kuldip Singh ) (Hem) Judge.