IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 265/2001 Reserved on: 4.8.2008 Decided on: 20.8.2008 State of Himachal Pradesh. …Appellant. Versus Mangal Singh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. Rajinder Dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. For the Respondents Mr. Romesh Verma, Advocate for respondents No.3 to 5. None for respondents No. 1 and 2. Rajiv Sharma, J. The respondents were prosecuted in Corruption Case No. 19-S/7 of 1994 in the Court of Special Judge (Forests) Shimla under sections 379,420 and 120-B of the Indian Penal Code, Sections 41 and 42 of the Indian Forest Act, 1927 and section 5 (2) of the Prevention of Corruption Act, 1947. They were acquitted by the learned Special Judge (Forests) on 10.11.2000. The present appeal has been filed by the State against the judgment dated 10.11.2000. The brief facts necessary for the adjudication of this appeal are that on the basis of D.O. letter No. Ft.-22-265/79 (s) dated 1st May, 1983 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 written by Sh. V.K. Sharma, the-then Conservator of Forests, Himachal Pradesh, an FIR No. 19/84 dated 27.8.1983 was recorded in Police Station Enforcement, South Zone, Shimla. The mater was investigated and the challan was put up in the Court. The prosecution in order to prove its case has examined as many as 32 witnesses besides placing reliance on documents. The respondents were examined under section 313 of the Code of Criminal Procedure Two issues are involved in this appeal i.e. (i) whether the accused persons entered into criminal conspiracy and in pursuance to such conspiracy, respondent No.1 and his agent respondent No.2 had illicitly cut/felled 155 trees of deodar, 25 trees of kail and 26 trees of rai/fur from compartment Nos. 4A, 4B and 5 Chhajpur forest and committed theft of timber of these trees and thereby floated 3261 nags of deodar in excess of a launching list vide which respondent No.1 was allowed to float in Ghal and 2837 nags of deodar having ‘IH’ khudan mark and HS&Co. property mark from launching point at Rumnoo Khud to Snail via Anti and (ii) whether respondents No. 3 to 5 in pursuance to the criminal conspiracy had issued false certificates upon progress reports and launching lists that no timber of illicit origin and of TD was mixed or floated in Ghal and have made false reports that there was no illicit felling of trees in compartment No. 4A, 4B and 5 of Chhajpur forest as a result of which respondents No. 3 to 5 in connivance with respondents No.1 and 2 by corrupt and illegal means and by abusing their position as public servants obtained pecuniary advantage for themselves and to their co-accused to the extent of Rs. 5,62,563.25 and loss to the State of Himachal Pradesh. The trial court on the basis of the evidence led by the prosecution acquitted the respondents on 10.11.2000. 3 Mr. Rajinder Dogra, Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 10.11.2000 is not sustainable in the eyes of law. Mr. Romesh Verma, Advocate appearing on behalf of the respondents has supported the judgment dated 10.11.2000. I have heard the learned counsel for the parties and perused the record carefully. The prosecution has relied upon the statement of PW-10 and the documents proved by him in his evidence. These documents are Ex.PW- 10/A to Ex.PW-10/H. The general abstract is Ex.PW-10/A and marking lists are Ex.PW-10/B to Ex.PW-10/H. These lists were prepared by PW-10 in the year 1978. It is on the basis of these documents that respondent No.1 had purchased lot No. 16/79-81. Respondent No.1 is a forest lessee. On the basis of auction sale of various lots on 3rd and 4th October, 1979 held at Poanta Sahib, respondent No.1 purchased lot No. 16/79-81 of 200 trees of deodar, 235 trees of kail, 204 trees of rai and 70 trees of tosh, total 709 trees of the standing volume of 1106.04 cms for consideration of Rs. 4,51,000/- against the up set approved price of Rs. 2,70,000/-. The security was deposited by respondent No.1. The auction sale was approved by the State Government and the approval was conveyed by the Under Secretary (Forests) to the then Chief Conservator of Forests vide letter Ex.PW-13/C dated 2.11.1979. An agreement was entered into between the parties vide Ex.PW-1/A for the purpose of felling of marked trees, conversion and extraction of timber etc. The prosecution has placed heavy reliance on progress report Ex.PW-7/J ending 30th June, 1982 which shows balance of 114 trees. Ex.PW-7/K is the progress report ending 31st July, 1982. The prosecution has also produced in evidence statement of converted timber Ex.PW-7/N. 4 According to these documents, 2837 scants of deodar (6819.15 cft.) 2367 scants of kail (6279.19 cft.) and 4911 scants of rai/tosh (8619.87 cft.) total 10115 scants (21718.21 cft.) were signed by respondent No.3 and verified by respondent No.4. The prosecution has also produced damage report No. 15/83-84 dated 20.4.1983. The prosecution has also placed on record application Ex.PW-1/B dated 15.3.1983, which was allegedly made by respondent No.2 to the Divisional Forest Officer, Rohru for permission to float timber under lot No. 16/79-81 from Rumnoo Khud bridge to Snail (U.P.). The case of the prosecution in nutshell is that on the basis of this report, the then Divisional Forest Officer, Rohru accorded timber floating permission vide Ex.PW-1/G-1 (Ex.PW-1/G) dated 28.4.1982 subject to terms and conditions stipulated therein. The prosecution besides relying upon these reports has also relied upon letters Ex.PW-30/A (Ex.PW-30/B), Ex.PW-30/C, Ex.PW-1/H and Ex.PW-30/D. These letters have been placed on record to prove that there were some complaints of illicit floating of timber by respondent No.1. The matter was looked into by the Department. The matter was again directed to be investigated at the instance of the Conservator of Forests, who asked the Divisional Forest Officer, Rohru to depute some staff for checking. The Divisional Forest Officer, Rohru vide letter Ex.PW-1/C dated 11.5.1983 called for the explanation of Range Officer, Jubbal (respondent No.5) on account of variation found in the reports. The Divisional Forest Officer, Rohru asked the Range Officer, Jubbal to keep proper watch and depute Gorkha Chowkidars and entire timber be stacked and vide letter Ex.PW-1/M, the Divisional Forest Officer, Rohru demanded payment of Rs. 4,51,000/- from respondent No.1. The respondent No.1 was also directed to complete the floating process at the earliest on the basis of various communications exchanged between the forest department and him. 5 The prosecution in order to prove the fact that respondent No.1 floated deodar scants in excess than allowed as per the launching list has examined PW-12 Sh. Lachhi Ram, the-then Range Officer, Tharoch, Tehsil Chopal, District Shimla. He has stated that he was deputed for sorting of timber of respondent No.1 and M/s Devki Nand Devi Ram, which was coming from Rumnoo Anti Khud alongwith PW-15 Hira Lal and Prabh Dayal. He has further deposed that as and when the timber came floating, it was stacked species-wise/ size-wise and was numbered. The timber of both the firms M/s Devki Nand Devi Ram and M/s Mangal Singh was separated on the basis of the Khudan mark and property mark. Sh. Budh Ram was deputed for stacking. He has proved general abstract of stacking Ex.PW-1/A-20 of timber counted species-wise/size-wise lying at Anti pertaining to respondent No.1 with khudan mark ‘IH’ and property mark ‘HS&Co., dated 16.8.1983. As per this abstract 5403 nags of deodar, 1343 nags of kail and 2081 nags of rai totalling 8827 nags were found stacked at Anti. He has proved in evidence general abstract of timber species/size-wise lying at Anti sorted out from Ghal of M/s Devki Nand Devi Ram and M/s Mangal Singh. It was found having double mark ‘DD’ and ‘IH’ Ex.PW-1/A-21 dated 16.8.1983. According to the abstract Ex.PW-1/A-21, 20 nags of deodar, 6 nags of kail and 1628 nags of rai totalling 1654 were found lying at Anti. He had also proved list of timber stacked at Anti without having any property or Khudan mark Ex. PW-1/A- 22. According to general abstract Ex.PW-1/A-22 200 nags of deodar, 5 nags of kail and 1336 nags of rai total 1541 nags were found lying at Anti. He has also proved statement regarding difference of timber Ex.PW-1/A- 15 and original of which is Ex.PW-12/A. The note book Ex.PW-12/B starting from 164 page to 183. As per these documents and Ex.PW-2/A, respondent No.1 was allowed to float 2837 nags of deodar, but 5403 nags 6 of deodar were found at Anti and in this way respondent No.1 was found to have floated 2566 nags in excess. He was allowed to float 2367 nags of kail whereas at Anti 1343 nags of kail allegedly belonging to respondent No.1 were found at Anti and in this way he had floated 1024 nags in less quantity. It is further evident from Ex.PW-12/A that as per launching list, respondent No.1 was allowed to float 4911, nags, but 2081 nags were found at Anti and in this way, respondent No.1 floated 2830 nags of fai/fur in less quantity. He has also proved list Ex.PW-12/C of respondent No.1 of timber stacked at Anti having Khudan mark ‘IH’ and property mark ‘HS&Co. He has also proved list of timber stacked at Anti without having any property or Khudan mark Ex.PW-12/D. He has proved species-wise entries of timber of having ‘IH’ mark entered at pages 14 and 15 of register Ex.P-3 and also entries on pages 6 to 16. He has proved pages 2 and 3 of register Ex.P-2 as Ex.PW-12/E and the entries Ex.PW-12/F in register Ex.P-4 and also entries Ex.PW-12/C-1 and C-2 of register Ex.P-3. He proved document Ex.PW-12/H vide which he had reported to the Divisional Forest Officer that counting of timber was complete. He also proved Ex.PW-12/J progress report and documents Ex.PW-12/K, Ex.PW- 12/L to Ex.PW-12/N. PW-15 Sh. Hira Lal has also proved the documents as noticed above. The prosecution has relied upon the statement of PW- 25 Sh. Mangat Ram, the-then Deputy Ranger deputed in the department of Enforcement. He has stated that the timber was taken into possession as per list Ex.PW-25/B and the same was handed on sapurdari vide sapurdari memo Ex.PW-25/A. It is clear from the list of timber Ex.PW- 25/B that 5686 total nags of deodar of different sizes were handed over to Narain Singh having ‘IH’ Khudan mark and ‘HS&Co. property mark. He has also stated that the timber having double mark i.e. ‘DD’ property mark and ‘IH’ Khudan mark mentioned in the list Ex.PW-25/D was taken into 7 possession and handed over on sapurdari vide sapurdari memo Ex.PW- 25/C to Narain Singh. He has also produced in evidence timber list Ex.PW-25/E of stacked and seized timber at Anti bearing no hammer number and Khudan mark, Ex.PW-25/E. He has further deposed that he had calculated the volume of the timber of the aforesaid list vide document Ex.PW-25/F and prepared detail of excess timber of respondent No.1. He has produced Ex.PW-25/G showing the details of total timber launched and seized on the spot at Anti by Enforcement Department and subsequently auctioned by Himachal Pradesh Forest Corporation. He has deposed that as per launching list, 2837 nags of deodar, 12367 nags of kail and 4911 nags of rai/fur were allowed to be launched or floated but 4249 nags of deodar, 840 nags of kail and 856 nags of fai/fur were found in excess. What emerges from the statements of PW-12, PW-15 and PW-25 cumulatively and documents is that on 16.8.1983, 5403 nags of deodar, 1343 nags of kail and 2081 nags of rai/fur total 8827 nags with not clear cut Khudan mark ‘IH’ and property mark ‘HS&Co. as per Ex.PW-1/20 were found at Anti and 20 nags of deodar, 6 nags of kail and 1628 nags of rai total 1654 nags were found lying at Anti having double mark ‘DD’ and ‘IH’ . As per Ex.PW-21/A, 200 nags of deodar, 5 nags of kail and 1336 nags of rai total 1541 nags were found without any Khudan mark. However, as per Ex.PW-25/A to Ex.PW-25/F dated 25.5.1984, 3261 nags in all of deodar were found in excess to the nags which were allowed to be floated. The further case of the prosecution was that respondents No.1 and 2 in pursuance to the criminal conspiracy with respondents No.3 to 5 illicitly cut trees as mentioned hereinabove from compartments No. 4-A, 4- B and 5 of Chhajpur forest and excess timber found at Anti and other places was the result of such illicit felling. To prove this, the prosuection 8 had examined Sh. Salig Ram (PW-20). PW-20 Sh. Salig Ram has proved in evidence spot map of compartment No.4-A Ex. PW-20/H-1, spot map of compartment No. 4-B Ex.PW-20/H-2 and spot map of compartment No.5 Chhajpur Forest Ex.PW-20/H-3. He has deposed that he inspected these compartments on 13.11.1983 to 16.11.1983. He prepared the lists of illicitly cut trees compartment-wise. He has proved list Ex.PW-20/A, which is a statement showing the details of trees illicitly felled in DPF Chhajpur. As per Ex.PW-20/A, 84 trees of deodar and 21 trees of kail shown to have been found cut illicitly from compartment No.4-A, 66 trees of deodar, 2 trees of kail, 11 trees of rai and 14 trees of fur were found to have been cut illicitly from compartment No. 4-B, whereas 5 trees of deodar, 2 trees of kail and one tree of rai was found to have been illicitly cut from compartment No.5 Chhajpur forest totalling 206 trees had been shown to be illicitly felled from these compartments. He has proved date-wise lists of illicitly cut trees Ex.PW-20/B and his report Ex.PW-20/C. In his report Ex.PW-20/C, PW-20 Sh. Salig Ram has reported that under lot No. 16/79- 81 dated 4.10.1979, 709 trees were auctioned in favour of respondent No.1 for auction money of Rs. 4,51,000/- from compartment No.4-B. Out of these trees, 200 trees of deodar, 235 trees of kail, 204 trees of rai and 70 trees of tosh of the volume of 1106.14 cubic meters were auctioned in favour of respondent No.1. He has also stated in his report that during the inspection of compartment No.4-A, 4-B and 5, many stumps of illicitly felled trees were found. He has also reported that 34 trees which were marked under lot No. 16/79-81 in favour of respondent No.1 were found felled on the spot and were not lifted because those were in rotten condition. The stumps of these trees were marked with hammer No. 9/1978-79, Rohru. As per report Ex.PW-20/C, total 206 trees were found cut from compartment No. 4-A, 4-B and 5 Chhajpur Forest. According to 9 the valuation report Ex.PW-27/A, the value of illicitly felled trees has been assessed at Rs. 5,62,563.25 paise on the basis of the scheduled rate approved by the Government as per Ex.PW-7/O. PW-20 Sh. Salig Ram has also produced stump counting register Ex.PW-20/F and file of lot No. 16 Ex.PW-20/F-1. PW-25 Sh. Mangat Ram has deposed that he alongwith PW-20, PW-32, PW-1 and Sansar Dass checked compartment Nos. 4-A, 4-B and 5 Chhajpur Forest. According to him, the stumps were counted. The lists Ex.PW-20/A and Ex.PW-20/B were prepared date- wise, which were signed by PW-20. According to him in these lists, the trees mentioned were felled and were not bearing any hammer of any type. PW-26 H.R. Arya has stated that on checking, 21 trees of deodar and one tree of kail were found having been illicitly cut from compartment No.4-B and two stumps of illicit felling were found in compartment No.5. According to him, 24 trees were detected to be felled in total as per Ex.PW-20/B. The Investigating Officer PW-32, Sh. P.P. Sethi has also deposed that on inspection, documents Ex.PW-20/B to Ex.PW-20/D were prepared. According to him, 155 trees of deodar, 25 trees of kail and 26 trees of rai were found to have been illicitly cut and felled. PW-1 Vishal Singh has deposed that the area in which the illicit felling was found had been leased out to respondent No.1. The case of the prosecution is primarily based on Khudan and property marks of respondent No.1 firm found on excess nags of deodar at Anti. According to the prosecution at least 2566 nags were found in excess at Anti and there were clear cut Khudan and property marks of respondent No.1. It is evident from Ex.PW- 1/A-20 dated 16.8.1983 that 5403 nags were found at Anti whereas respondent No.1 was allowed to float 2837 nags of deodar. It is mentioned in Ex.PW-1/A-20 that Khudan mark and property mark of respondent No.1 were not clear and by having no clear cut Khudan mark 10 ‘IH’ and property mark HS&Co., it could not be held that excess timber was having Khudan mark and property mark of respondent No.1. This aspect has not been explained by the prosecution. The prosecution has not explained as to how the number of nags of deodar increased from 5403 nags to 5686 nags from 16.8.1983 to 24.5.1984. The prosecution has further failed to prove how the Khudan mark and property mark of respondent No.1 which were not clear on 16.8.1983 became visible and clear on 24.5.1984 when the document Ex.PW-25/B was prepared. PW-1 Sh. Vishal Singh has deposed that he did not remember what property and Khudan/hammer marks were found on the timber which was found stacked at Anti. He then deposed that timber, which was found stacked at Anti Khud found the property mark of both the firms i.e. M/s Mangal Singh and M/s Devki Nand Devi Ram. PW-12 Sh. Lachhi Ram in his cross- examination has stated that property and Khudan marks were not visible. PW-15 Sh. Hira Lal has stated that list prepared at launching point was not shown to him in the Court. It was necessary for the prosecution to prove that excess nags of deodar were having ‘IH’ Khudan Mark and HS&Co. property mark. The prosecution has also tried to prove that excess nags were floated by stating that respondents had illicitly cut/felled trees from compartment Nos. 4-A, 4-B and 5 Chhajpur Forest. PW-1 has stated that some stumps were found missing. PW-4 Khushi Ram and PW-5 Balak Ram have not supported the case of the prosecution. PW-20 Sh. Salig Ram has stated that all the stumps were found to have been felled within two years and stumps were on the ground level but he has failed to show his expertise in judging the age of the stumps of the trees. Similarly, the prosecution could not prove the photographs taken by PW-21 Sh. Jaram Singh mark PW-21/A-1 to PW-21/A-54. The prosecution has failed to 11 produce their negatives. PW-25 Sh. Mangat Ram has deposed that he visited the spot alongwith PW-1, PW-34, PW-5, PW-20, PW-26 and PW-30. He has stated that the stumps were above the ground level being the height of 6 feet to 2 feet. In his cross-examination, he has deposed that he did not identify the age of the stumps. The prosecution has examined PW-26 Sh. H.R. Arya to establish the age of the stumps. He has stated that he visited the spot on 10th and 11th November, 1983. He has deposed that on 12.11.1983 he reached compartments 4-B and 5 Chhajpur forest at about 12.30 noon. He has given the age of the stumps on the basis of his 31 years experience in service. He has admitted that field book which was prepared by him has not been shown to him in the Court. The trial court has rightly drawn adverse inference for not producing the field book prepared by PW-26. There is no direct evidence to establish that illicit felling has taken place in the above noted compartments of Chhajpur forest. The prosecution had to prove that the illicit felling took place after the posting of respondents No.3 to 5. Respondent No.3 was transferred from Landal Beat to Chhajpur Beat of Jubbal Range on 21.5.1981. Respondent No.4 was deputed on special duty as Deputy Ranger in Kastha Block of forest on 23.1.1982. Respondent No.5 was transferred from special duty at Dodra Kawar under Forest Division, Rohru to Range Officer Jubbal on 11.10.1982. Consequently, no criminal liability can be fastened upon the accused. It was for the prosecution to prove that before the postings of respondents No.3 to 5, the stumps of illicit trees were in existence. Respondent No.2 was appointed as an agent to carry out the work of lot No. 16/79-81. There is nothing on record to prove that respondent No.2 was accepted as an agent by respondent No.1. The prosecution could not prove that Ex.PW-1/B was filed by respondent No.2. The prosecution has further 12 relied upon the progress report as discussed hereinabove Ex.PW-7/J, PW-7/K, PW-7/M and PW-7/N. The prosecution has led no evidence that at launching point near Rumnoo Khud at any point of time, respondent No.1 had collected timber of illicit origin for floating or the same was in the knowledge of the respondents No.3 to 5. after their postings. The prosecution could not prove who was responsible for tampering with Ex.PW-7/K. In view of the aforementioned reasoning and discussion, the prosecution has failed to prove that excess deodar nags at Anti were found. The prosecution has failed to prove that illicit felling took place in compartment Nos. 4-A, 4-B and 5 Chhajpur Forest. The prosecution has also failed to prove that there was any conspiracy. The trial court on the basis of the correct appreciation of the evidence led by the prosecution, has rightly acquitted the respondents. Consequently, there is no merit in this appeal and the same is dismissed. The bail/surety bonds of the respondents are discharged. August 20, 2008 (Rajiv Sharma ), J. *awasthi*