IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 505 of 2000. Judgment reserved on: 1.3.2008 Date of decision: 4.3.3008. State of Himachal Pradesh ……...Appellant Vs. Swaran Singh and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No. For the Appellant : Mr. A. K. Bansal, Addl. Advocate General. For the Respondent : Mr. Sanjay Dutt Vasudeva, Advocate. Kuldip Singh, Judge. This appeal has been filed against the judgment dated 30.8.1999 passed by learned Addl. Chief Judicial Magistrate, Nurpur in Criminal Case No.75-II/9 acquitting the respondents under Sections 41, 42 of the Indian Forest Act and Section 379 IPC. 2. The prosecution case in brief is that forest officials on 12.6.1996 were on Naka at Bhadroya, they intercepted a Canter bearing registration No.HP-38-2676 at about 12.30 A.M. which was being driven by respondent No.3. The other respondents were sitting in the canter. On search 19 logs of khair wood were found in the Whether the reporters of the local papers may be allowed to see the Judgment?yes …2… canter, the respondents could not produce any valid permit for transporting the logs, they confessed that they had cut the trees from the reserved forest, Damtal. The matter was reported to the police, canter along with logs were taken into possession by the police. The respondent No.2 while in custody made a disclosure statement and got recovered 6 logs of khair wood from bushes. FIR Ex.PW-1/A came to be registered at Police Station, Nurpur. During investigation the police got demarcation of the reserved forest from the kanungo from where the respondents allegedly cut the trees . After completion of investigation, challan was filed against the respondents and notice of accusation under Sections 41,42 of the Indian Forest Act and Section 379 IPC was put to them to which they pleaded not guilty and claimed trial. The prosecution examined in all 13 witnesses to prove the case. The respondents were examined under Section 313 Cr.P.C., they pleaded their innocence but led no evidence in defence. The learned Addl. Chief Judicial Magistrate acquitted the respondents, as noticed above, hence this appeal by the State. 3. I have heard Mr. A.K. Bansal, learned Addl. Advocate General for the State and Mr. Sanjay Dutt Vasudeva, learned counsel for the respondents and gone through the record. It has been submitted by learned Addl. Advocate General that learned Addl. Chief Judicial Magistrate has erred in acquitting the respondents. The prosecution has proved the case against respondents beyond reasonable doubt . The Court below has not properly appreciated the material on record. The inference drawn by learned Addl. Chief …3… Judicial Magistrate from the proved material on record for acquitting the respondent is wrong. The learned counsel for the respondents has supported the impugned judgment and has submitted that prosecution has miserably failed to bring home the charge. The learned Addl. Chief Judicial Magistrate after properly appreciating the evidence has rightly acquitted the respondents and prosecution has miserably failed to make out any case for interference. 4. PW-1 Budhi Singh has stated that in the year 1996 he was posted as B.O. at Badroya. On 11/12.6 1996, they had placed Naka at Bhadroya. At about 12.30 during night a canter bearing registration No.38-2676 came which was stopped at Naka and on checking 19 khair wood logs were found in the canter. On enquiry the persons sitting in the canter disclosed their names Kuldip driver, Rachhpal Singh and Swaran Singh. They confessed that they had cut the trees from Damtal forest . In the morning they took the canter to DFO at Nurpur, before that FIR was lodged. The police recovered one saw Ex.P-1 and sickle Ex.P-2 vide Ex.PW-1/A. The respondents got recovered 6-7 more khair wood logs from the bushes and to this effect recovery memo Ex.PW-1/B was prepared. This witness was declared hostile and was cross-examined by the prosecution. He has stated that he had given report Ex.PW-1/C in writing to the department. In cross-examination on behalf of the accused he has stated that the place of Naka was shown to the police but no spot map of that place was prepared by the police. He has stated that he does not know the length, thickness of the logs which were …4… recovered. He was not shown any log at the time of his statement in the Court. He has denied that due to mechanical defect the canter was in stationary condition. He has admitted that govt. notification declaring the forest as reserved forest has not been displayed at any place. The report Ex.PW-1/C was submitted on 12.6.1996. 5. PW-2 Jagdish Sharma has stated that in the year 1996 he was posted as Range Officer. On 11.12.1996 during night Naka was put at Bhadroya. Naka party consisted of he himself, Budhi Singh Dy. Range Officer, Magar Singh forest guard, Bagwan Dass, forest guard and Keshav Dass. Canter bearing registration No.HP- 38-2676 came from Damtal at about 12.30 night which was stopped, during search 19 khair wood logs of different sizes were found in the canter. The respondents were in the canter. In cross-examination he has stated that the logs which were recovered have not been shown to him in the Court at the time of his statement. PW-3 Keshav Dass has stated that on 11/12.6.1996 a Naka was put on link road, Bhadroya, at about 12.30 night a canter No.HP-38-2676 came, it was stopped and 19 logs of khair were found in the canter along with three persons namely Rachhpal Singh, Swaran Singh and Kuldip Singh. Damage report Ex.PW-3/A was prepared which bears his signature. PW-4 Magar Singh has stated that in the year 1996 he was posted as forest guard in Damtal beat. On 11/12.6.1996 they had put up a Naka, at about 12.30 night from Damtal side a Sawraj Majda bearing registration No.38-2676 came which was stopped by giving signal, 19 khair wood logs were found in the canter. The …5… respondents were found in the canter. The logs were of different sizes. Logs Ex.P-1 and Ex.P-2 are from those 19 logs. Rachhpal accused made a disclosure statement that he had concealed 6 khair wood logs in bushes in the jungle which were recovered vide recovery memo Ex.PW-1/B which bears his signature, accused Rachhpal also signed at point-D. Ex.P-1 is from 19 logs and Ex.P-2 is from 6 logs. The damage report Ex.PW-3/A was prepared and signed by him. In cross examination he has stated that 6 logs of khair were recovered at a distance of 1-1/2 to 2 K.M. from the place of Naka. In his beat about 18/19 khair trees were cut which should have two trucks load. The logs Ex.P-1 and Ex.P-2 are from 19 logs which were kept at DFO office. The 6 logs which were recovered were kept at Bhadroya forest office in his spurdari. He has not brought any one log out of 6 logs. On Ex.P-1 and Ex.P-2 there is no identification mark and such type of logs are easily available. He has stated that in his beat no notification has been displayed regarding the reserved forest. 6. PW-5 Gurdial Singh has stated that he joined the investigation and police in his presence took into possession canter No.HP-38-2676 along with 19 khair wood logs vide recovery memo Ex.PW-4/A which bears his and Magar Singh signatures as witnesses. PW-6. Pritam Chand has stated that in the year 1996 he was posted in Nurpur range. On 12.6.1996 at about 12 noon, forest guards Magar Singh and Gurdiyal Singh came along with police. He checked canter bearing registration No,.HP-38-2676 which was parked in the range compound and found 19 khair logs of different …6… sizes in the canter, memo Ex.PW-4/A was prepared. PW-7 Ram Chand Patwari has stated that he accompanied kanungo Jagat Ram in Damtal forest at the time of the demarcation. He prepared demarcation report Ex.PW-7/A. In cross-examination he has stated that report Ex.PW-7/A was prepared and signed by him. PW-8 Tarsem Lal did not support the prosecution and was declared hostile. In his cross-examination nothing was extracted which is favourable to the prosecution. PW-9 Krishan Uppal is a formal witness regarding photo copy of notification mark X. PW-10 Jagat Ram Kanungo has stated that on 12.7.1996 in presence of other persons named by him he conducted the demarcation of Damtal reserved forest from where khair trees were cut. The demarcation report Ex.PW-7/A was dictated to Patwari, Ex.PW-7/A is signed by him. In cross- examination he has stated that Ex.PW-10/A Aks Sajra and Ex.PW- 10/B jamabandi were not prepared by him, but said that these are verified by him. He has stated that for carrying out the demarcation he has not taken the Aks Musabi. He did not take any jamabandi from the Patwari. He cannot tell from which tatima he carried out the demarcation. He could not tell why he has not written the report himself. PW-11 Harbant Singh Inspector has stated that on the basis of application Ex.PW-1/C FIR Ex.PW-11/A was registered which is signed by him,. He handed over the investigation to HC Ashok Kumar. PW-12 ASI Dhandev has stated that in the year 1996 he was posted at Police Station, Nurpur. He prepared the challan and filed in the Court. PW-13 HC Ashok Kumar is the Investigating Officer. The …7… respondents were examined under Section 313 Cr.P.C. and they have denied the prosecution case. 7. PWs 1 to 6 have stated that on 12.6.1996 at 12.30 night 19 khair wood logs were recovered from canter bearing registration No.HP-38-2676 at naka at Bhadroya. Six khair wood logs were recovered vide recovery memo Ex.PW-1/B on the basis of disclosure statement made by Rachhpal Singh which were recovered at a distance of 1 ½ to 2 K.M. from the place of naka as stated by PW-4 Magar Singh. The prosecution witnesses have not given the size of 19 khair wood logs recovered at naka. PW-4 Magar Singh has stated that logs Ex.P-1 and Ex.P-2 are from 19 logs. He has also stated that Ex.P-1 log is from 19 logs and Ex.P-2 log is from 6 logs. It has also come in the evidence that Ex.P-1 and Ex.P-2 logs bear no identification mark and such type of logs are easily available. Thus, 19 logs which were allegedly recovered at naka and 6 logs which were allegedly recovered on the basis of disclosure statement of accused Rachhpal Singh have not been connected with the commission of offence. PW-1 has stated that he submitted the report dated 15.6.1996 Ex.PW-1/C to his department. In Ex.PW-1/C, it has been stated that raid was conducted by Jagdish Chander Sharma R.O. etc. and the accused were found indulging in illicit felling of khair trees from reserved forests R.12.N-Damtal and U-56-Damtal at about 12.30 A.M. on 12.6.1996. The canter bearing registration No.HP-38- 2676 loaded with 7 to 8 quintals khair wood was apprehended and standing in the above forest under the supervision …8… of the staff. In Ex.PW-1/C, there is no mention of naka at Bhadroya, the prosecution has changed the story and instead of raid the case of naka has been put forward in the Court. The prosecution witnesses have stated in the Court that during naka19 khair wood logs were recovered from the canter whereas in Ex.PW-1/C there is no mention of any number of logs in the canter, rather it has been stated that 7 to 8 quintals of khair wood was apprehended and the canter was standing in the forest. In Ex.PW-1/C, it has not been stated that canter was found carrying khair logs. The prosecution has changed the place of offence from reserved forest to Naka at Bhadroya. Even if, it is assumed that the canter was found loaded with some wood in it as per Ex.PW-1/C in that case also mere recovery of wood from a stationary canter in a forest in itself will not constitute an offence in as much as in Ex.PW-1/C, it has not been stated that accused were found transporting 7 to 8 quintals khair wood in the canter, nor it has been stated in Ex.PW-1/C that the accused were apprehended while transporting khair wood. On the contrary, it has been stated in Ex.PW-1/C that the persons who are indulging in illicit felling of khair trees have been apprehended. The prosecution has completely changed the story later on. The prosecution story unfolded in the Court is not believable in view of Ex.PW-1/C which is earlier in time. 8. It has come on record that the area of reserved forest from where the khair trees were allegedly cut was demarcated but PW-10 Jagat Ram Kanungo has completely demolished the demarcation. He has stated that for carrying out demarcation he was …9… not carrying any Aks Musabi and he cannot tell from which tatima he carried out the demarcation. PW-7 Ram Chand Patwari has stated that he prepared the demarcation report Ex.PW-7/A . PW-10 Jagat Ram, Kanungo has stated that demarcation report Ex.PW-7/A was dictated by him to the Patwari. Therefore, demarcation report Ex.PW-7/A has not been proved. In absence of demarcation, it has not been proved that khair wood logs were removed from the reserved forest. 9. The learned Addl. Chief Judicial Magistrate has rightly appreciated the material on record and has drawn proper inference from the material produced by the prosecution. The prosecution has failed to prove the case against the respondents beyond reasonable doubt. No case for interference has been made out, accordingly appeal dismissed. Bail bonds furnished by the respondents are discharged. ( Kuldip Singh ) Judge. March 4, 2008 (sks)