IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.690 of 2002 Decided on: March 28, 2011 State of H.P. Appellant. Versus Rajinder Singh and others Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?yes1 For the Appellant(s): Mr. P.M. Negi, Deputy Advocate General. For the Respondent(s): Mr. N.K. Sood, Mr. Satyen Vaidya and Mr. Malay Kaushal, Advocates. Surjit Singh, Judge (oral) In this appeal by the State, judgment dated 29.4.2002 of learned Special Judge (Forests), Shimla, whereby respondents Rajinder Singh and others have been acquitted of charge, under Sections 379, 420, 467, 468, 471 read with Section 12—B IPC, Section 5(2) of the Prevention of Corruption Act, Sections 41/42 of Indian Forest Act and Penal Provisions of H.P. Taxation on Certain Goods Carried by Road Act, 1976, is assailed. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Case of the prosecution is that when Enforcement Staff of South Zone Shimla was investigating a case, registered vide FIR No.19/84, it was detected that against 742 scants of Kail, permitted to be exported vide permit No.11/81-82 dated 5.4.1981, 909 scants had been exported from Railway Station, Shoghi, through RRs Exts. PW4/A, PW4/B, PW4/C PW4/D and Ext. PW6/A. Therefore, a separate case was registered, vide FIR Ext. PW1/C. 3. Investigation of the case revealed that respondents Rajinder Singh and Narain Singh, who had formed a partnership firm, named and styled as Rajinder Singh Narain Singh, submitted 17 applications, in the names of different land owners of villages Sundli, Deora and Labrot, falling in the area of Forest Division Rohroo, to Range Officer, Jubal, seeking demarcation of the lands of those 17 persons, as described in the applications, with a view to felling Kail trees, standing on those lands. Alongwith those applications, affidavits of the land owners and agreements executed by them in favour of respondents No.1 and 2, were also submitted. Those applications were forwarded by respondent Ram Lal (now dead), who was working as Range Officer and his colleague Kagu Ram, to Divisional Forest Officer, whose name was S.R Masson and …3… who too is no more. He (DFO S.R Masson) sent back the applications to Range Officer Ram Lal (deceased) and Kagu Ram, with a direction that trees on the land, described in the applications, be marked, after obtaining demarcation from the revenue officials. Accordingly, demarcation was given by one Mast Ram, Field Kanungo, who is now dead and respondent Chet Ram, also a Field Kanungo. On the basis of demarcation given by them, trees standing on the land, pointed out to be private land, as described in the applications, were marked by respondent Ram Lal (now dead) and his colleague Kagu Ram. Lists of those trees were prepared. Certificates were appended on those lists by respondent Ram Lal, his colleague Kagu Ram, respondent Chet Ram, Filed Kanungo and his deceased colleague Mast Ram that no tree had been marked on government land and all the trees stood on the lands mentioned in the applications. 4. Aforesaid lists of marked trees were submitted by respondent Ram Lal and his colleague Kagu Ram to Divisional Forest Officer, Rohroo, who required the Tehsildar and the ACF to verify if the trees had rightly been marked on private land. Respondent S.R. Masson, Tehsildar and respondent D.N. Machhan, ACF, reported that they had done 10% random checking and noticed that only 2 out of …4… 121 trees, included in the list, had been marked on the boundary and permission could be granted in respect of 119 trees, excluding 2 trees, which stood on the boundary. Divisional Forest Officer, Rohroo, then passed felling orders, thereby authorizing respondents Rajinder Singh and Narain Singh to fell the trees, indicated in the marking lists. 5. Respondents Rajinder Singh and Narain Singh sold the trees to respondent Om Parkash, who got them felled and converted into timber and then made an application to DFO, Rohroo, through respondent Ram Lal, for grant of permission to export the extracted timber. 6. Respondents Bhup Ram and Inder Sigh, working as Deputy Ranger and Forest Guard, respectively, certified that timber included in the lists, submitted by respondent Om Parkash, had been extracted from the marked trees and no tree had been felled on government land or private land, other than the land, on which marking had taken place. DFO then issued two permits, authorizing export of timber by respondent Om Parkash. Permits bore Nos. 11/81-82 and 163/81-82. Against permit No.11/81-82, 742 scants were permitted to be exported. Against the other permit, i.e. permit No. 163/81-82, 910 scants, having 1853.29 cft. volume, were to be exported. …5… 7. Respondent No.3 Om Parkash did not have registered property and Khudan marks and, therefore, he could not have been permitted to export any timber. Respondent Ram Parkash, who was working as Camp Clerk in the office of DFO, Rohroo those days, ignoring this vital fact, in his report submitted to the DFO, recommended the issue of export permit in favour of respondent Om Parkash. 8. Investigating Agency got the entire private land, included in 17 applications, re-demarcated from PW-11 Jagan Nath, Naib Tehsildar. On the basis of demarcation given by this witness, stumps/trees were counted. The net result of such demarcation and counting of stumps/trees was that only 39 trees had been felled on private land, described in the aforesaid applications, and 178 trees had been felled on government land, adjoining different pieces of land, included in those applications. Some marked trees were found standing on a few pieces of private land, described in the aforesaid applications. 9. Also, it came to notice during investigation that in the year 1977, a piece of land had been allotted to respondents Vinay Kumar and Ravi Kumar, under Nautor Rules and in the report of Field Revenue Staff, on the basis of which Nautor was granted, it was mentioned that there stood no tree on the land that was applied for. Khasra …6… number of land that was allotted to the aforesaid two respondents was 4704. Application, seeking permission to fell the trees, was moved in the year 1979 or say, after two years of Nautor grant. Fourteen trees were shown to have been marked on this land in the lists, which were submitted by respondent Ram Lal and his colleague Kagu Ram. 10. It was also revealed in the course of investigation that respondent Jia Lal, who is father of respondent Rajinder Singh, had given a piece of his land, bearing Khasra No.4765, in exchange, to PW-10 Jagdish Chand, but there was an application by said respondent Jia Lal also, for marking of trees on land bearing Khasra No.4765 of which he had ceased to be the owner, on account of its having been given in exchange to PW-10 Jagdish Chand. PW-10 Jagdish Chand had planted an orchard on this land and thus there could not have been any question of timber trees standing on that land. However, seven trees were shown to have been marked on the said land. 11. Further, it came to light that against 742 scants, permitted to be exported vide permit No.11/811-82 (Ext.PW2/C-82), 909 scants had been exported, vide RRs Exts. PW4/A, Ext. PW4/B, Ext.PW4/C, Ext. PW4/D and Ext. PW6/A. Hari Kishan (deceased), the then Station Master, …7… Railway Station, Shoghi, facilitated the export of excess timber. 12. Investigation also revealed that some of the applications/affidavits/agreements submitted on behalf of 17 private land owners, did not bear the signatures of the persons, by whom the same purported to be signed. Those agreements/affidavits had been attested by respondent No. Mohinder Singh, who was Pardhan of the Panchayat at that time. 13. Investigating Agency, in view of the aforesaid facts and circumstances, came to the conclusion that the respondents had hatched a criminal conspiracy, to fell trees from government land, in the guise of felling trees on private land, and in pursuance of that conspiracy, felled 178 trees from government land/government forest and also exported more timber than permitted to be exported against permit No.11/81-82, Ext. PW23/C-82. Respondents were challaned accordingly. 14. After supplying the copies of the Challan and the documents filed therewith to the respondents and hearing learned Public Prosecutor and learned defence counsel, trial Court felt that a prima-facie case was made out against all the respondents, under the aforesaid penal provisions of …8… law. They were charged accordingly. They pleaded not guilty. So, they were put on trial. 15. Prosecution examined a large number of witnesses, besides relying upon several documents to substantiate the charge. Respondents denied that they had hatched any conspiracy or any crime of the kind, alleged by the prosecution, had been committed. 16. Learned trial Court concluded that case of the prosecution did not stand established, beyond reasonable doubt and consequently, acquitted the respondents. Hence, this appeal by the State. 17. We have heard leaned Deputy Advocate General, representing the State and learned counsel for the respondents and perused the record. 18. Series of allegations against the respondents start with the accusation that some of the agreements/affidavits, submitted with the applications of private land owners, were forged. Prosecution examined three of the seventeen land owners, on whose behalf applications had been moved. They are PW-17 Devki Nand, PW-18 Balwant Singh and PW-32 Nand Lal. None of them denied his signature on the applications or the affidavits or the agreements, submitted with the applications. Also, the expert opinion obtained by the prosecution from PW-69 S.K. …9… Sexena, Assistant Examiner of Questioned Documents, does not prove the allegation. The witness expressed his inability to give any definite opinion as to the genuineness of the signatures. 19. Next allegation is that there could not have been any trees, standing on land bearing Khasra No.4704, which had been allotted to respondents Vinay Kumar and Ravi Kumar under Nautor Rules, only two years before the making of the application for marking and felling the trees, because in the report, which was submitted by the revenue officials, in the course of proceedings for grant of Nautor, revenue field staff had reported that no trees stood on the land. 20. It is true that the report that was submitted at the time, when grant of Nautor was sought, stated that there stood no tree on the land applied for by the two respondents, but the Patwari, who gave the report, namely PW-48, Gian Chand, when examined in the Court stated that no demarcation was carried out on the spot, with respect to the piece of land for which application had been made, and that the report was given after a cursory look at the site of the applied for land and Tatima was also prepared without actual demarcation. Said Patwari is not an accused in the case. Also, he has not been cross-examined …10… by the prosecution, which means his testimony is very much relied upon by the prosecution. In view of the testimony of this witness, it cannot be said, with certainty, that there stood no trees on the land, bearing Khasra No.4704, which had been granted by way of Nautor to respondents Vinay Kumar and Ravi Kumar. 21. Another allegation levelled by the prosecution is that respondent Jia Lal, who also happens to be the father of respondent No.1 Rajinder Singh, was not in possession of land bearing Khasra No.4765, in respect of which he moved an application for marking and felling of trees, as he had given the said land, in exchange, to PW-10 Jagdish Chand and the latter had planted an orchard on that land. 22. Prosecution relies upon the testimony of PW-10 Jagdish Chand in support of this allegation. The witness though did say, on oath, that the land had been given to him in exchange, his word of mouth cannot be taken to be a gospel truth. It is nobody’s case that value of land was less than `100. In any case, when the total area of the land was 9 bighas and it had allegedly 7 timber trees standing thereon, it can legitimately be presumed that its value was more than `100. Therefore, exchange by a word of mouth could not have taken place. There is no documentary evidence in support of the allegation, not even a stray entry …11… in the revenue papers, indicating that possession of land was with PW-10 Jagdish Chand, at the relevant time. 23. Next allegation in the series is that trees were marked on government land, in the guise of marking on private land. To prove this allegation, prosecution has examined PW-11 Jagan Nath, Naib Tehsildar, who carried out the demarcation during investigation, and the three forest officials, namely PW-9 Daljit Singh, Block Officer, PW- 14 Bihari Lal, also a Block Officer and PW-15 Devinder Gupta, Forest Guard, who counted the stumps and the marked trees, on the basis of demarcation given by PW-11 Jagan Nath, Naib Tehsildar. 24. Case of the prosecution is that pieces of land, on which trees were applied to be marked for felling purpose, have common boundary with government land. As per Chapter X of Land Record Manual, demarcation for the purpose of delineating the boundary of private land and government land can be carried out only by an Assistant Collector of 1st Grade. PW-11 Jagan Nath was an Assistant Collector of 2nd Grade and, hence, not competent to carry out the demarcation. Further, the witness admitted in his testimony that he did not have copy of Musabi, with him, when demarcation was carried out. How could he have proceeded with the demarcation, unless an authenticated copy of Musabi was with him? He admitted that he …12… assumed certain points to be permanent and fixed points for starting the demarcation, but could not explain the basis of such assumption. He also stated that he measured only the private land and not the government land. Without measuring and demarcating both the lands, how could he have ascertained out the common boundary of private land and government land. Thus, no reliance can be placed upon his demarcation report Ext. PW11/A. 25. Lists of stumps and marked trees, allegedly found on the spot, are based on the aforesaid unreliable demarcation report Ext. PW11/A. Therefore, this reason alone is enough to discard the testimony of the aforesaid three witnesses as also the lists Exts. PW9/A, Ext. PW9/B, Ext. PW9/C, Ext. PW14/.A, Ext. PW14/B, Ext. PW15/A Ext. PW15/B, prepared by them. This apart, the witnesses admitted that the stumps, which were found on the government land, were not connectable with the trees marked on private lands, involved in this case. They also admitted that they had not consulted the compartment history of government forest/government land, on which stumps were found, meaning thereby that the stumps, which they counted, allegedly on the government land, could have been of lawfully felled trees under ten years felling programme or timber distribution scheme. …13… 26. Next allegation in the series is that respondent Om Parkash had been permitted to export timber, despite the fact that he did not have registered property/Khudan marks and that respondent Ram Parkash, Camp Clerk was responsible for this alleged crime, as he did not point out to the DFO that respondent Om Parkash had no registered property mark or Khudan mark. 27. Prosecution itself examined a witness, namely PW-61 Beli Ram, Superintendent from the office of DFO, Rohroo, who, in no uncertain terms admitted, in the course of his cross-examination, that respondent No.3 Om Parkash had been having registered property and Khudan marks. Prosecution relies upon a letter Ext. PW81/G, obtained from the office of DFO, Rohroo, during investigation, in which it is stated that respondent Om Parkash was not having registered property/Khudan marks. This letter is in the nature of secondary evidence. Primary evidence was the register of property and Khudan marks, which the prosecution has withheld for the reasons best known to it. In any case, whatever little evidentiary value this letter had, is wiped out by the testimony of PW-61 Beli Ram, a Superintendent from the office of DFO, Rohroo. 28. The last in the series is the allegation that against 742 scants permitted to be exported, respondent …14… No.3 Om Parkash exported 909 scants, using Permit No.11/81-82 (Ext. PW2/C-82). To substantiate this allegation, prosecution relies upon five RRs Exts. PW4/A, PW4/B, PW4/C, PW4/D and Ext. PW6/A. With regard to the first four RRs, there is a definite opinion of the Handwriting Expert that Export Permit Number on these RRs is written in the hand of deceased Station Master Hari Krishan. With respect to fifth RR, i.e. Ext. PW6/A, Handwriting Expert had reported that it is not possible to give any opinion as to in whose hand the RR is written, because of insufficiency of material. That means, RR Ext. PW6/A does not stand connected with permit No.11/81-82 (Ext. PW2/C-82). If the number of scants mentioned in this RR, i.e. 206 is excluded from the total number of scants, mentioned in all the five RRs, the number comes down to 703, which is short by 39 scants, compared to the numerical quantity of timber permitted to be exported. Thus, this allegation also does not stand established, beyond reasonable doubt. As a result of the above discussion, appeal is dismissed. (Surjit Singh ), J. March 28, 2011(ss) (Rajiv Shrma), J.