1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 322 of 1997 Decided on August 24, 2010 __________________________________________________________ State of H.P. …Appellant. Versus Satya Dev Sharma & Others …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. Rajinder Dogra, Additional Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. For respondent No.1: Mr. Ajay Kochhar, Advocate. For respondents No. 3, 4 and 5 : Mr. G.S. Rathore, Advocate. Justice V.K. Sharma,J. (Oral) The State is in appeal against the judgment dated 25.2.1997 of the learned Special Judge (Forest), Shimla, Himachal Pradesh, whereby the respondents herein who shall hereinafter be referred to as 'the accused' (denoted as A-1, A-2, A-3, so on and so forth), were tried for the offences under Sections 379, 420, 467, 468, 471 and 120-B of the Indian Penal Code and Sections 33, 41 and 42 of the Indian Forest Act read with Section 5(2) of the Prevention of Corruption Act and were ultimately acquitted. 2. The law enforcing machinery was set in motion in this case on the basis of complaint, Ex. PW.1/A, dated 8.3.1987, made by Shri Gurbux Singh, Dy. Supdt. of Police, Enforcement, 2 South Zone, Shimla, which reads as follows:- “To the Station House Officer, Police Station Enforcement, South Zone, Shimla. It has been reliably learnt that Shri Kewal Ram Sharma S/O Shri Jhaun Ram R/O Village Mandhochali, Tehsil Chopal, District Shimla, a private sale contractor, had purchased standing trees of Deodar, Kail, Rai and Cheel from the villagers of Tiprog, Bharanoo, Gaoncha, Navi, Mundali and Koti after preparing affidavits with the villagers on 14.7.1975. Consequently, he arranged false demarcations and enumeration lists of 602 trees in the Government forests in the Garb of private sale case, in connivance with the forest and revenue officials, the then, posted in Chopal Sub-Division of District Shimla. The felling orders of 602 trees from the aforesaid villages was issued by DFO Chopal vide his office memo. No. 376/R dated 6.5.1977. Shri Kewal Ram Sharma then managed to sale these 602 trees of Deodar, Kail, Rai and Cheel to Shri Krishan Singh Ranta S/ O Shri Hari Singh Ranta R/O Village Laghog Pargana Pauria, Tehsil Chopal, through an affidavit, signed by them on 8.9.1980. Shri Krishan Singh Ranta then felled these trees from the Government Forests and converted into timber and exported it to various places outside the H.P. State from Chopal. Thus, Shri Kewal Ram Sharma forest lessee, Shri Krishan Singh Ranta and forest and revenue officials then posted in Chopal Sub-Division have committed offences U/S 379/420/467/468/120-B IPC, read with Section 5(2) (d) of the Prevention of Corruption Act and 41/42 Indian Forest Act. A case may be registered and investigated. (Gurbux Singh)” 3. On the basis of the above complaint, Ex. PW.1/A, formal FIR Ex. PW.1/B, was registered on 9.3.1987. 4. Shorn of details the factual matrix of the prosecution case is that there are two types of forests in the State of Himachal Pradesh, one owned by the Government and other by private proprietors. During the year 1976-77, A-5 Kewal Ram Sharma entered into agreements with different proprietors for sale of Cheel, Kail and Rai trees standing in their private 3 lands for felling under the 10 Years Felling Programme in accordance with the Land Preservation Act. Thereafter, he moved the concerned authorities of Forest Division, Chopal, for grant of permission in favour of the individual proprietors, for sale and felling of those trees in his favour being the private sale contractor. In such process, the sold trees which were to be felled, were to be marked by the Forest Department for such felling. The allegations, as per the prosecution, are that A-5 Kewal Ram Sharma, in conspiracy with other accused except A-6 Krishan Singh Ranta, who were at the relevant time posted in the Forest and Revenue Departments of the State Government, in the area of Chopal, felled 386 trees of Cheel, Deodar, Kail and Rai, illicitly from the Government Forest, situate in the vicinity of the lands belonging to the individual private proprietors, which were the subject matter of felling under the aforesaid 10 Years Felling Programme. Further, the case of the prosecution is that thereafter, A-5 Kewal Ram Sharma, who could not in the mean time fell all the trees, sold the remaining trees to A-6 Krishan Singh Ranta, who was also a forest contractor. 5. The case was investigated into against the aforesaid backdrop. Since the matter pertained to alleged felling of trees from the adjoining government forest, it fell within the purview of demarcation. Accordingly, the investigating agency moved an application to the concerned authorities for demarcation. Consequently, the requisite demarcation was carried out and report Ex.PW.23/A was obtained. It is alleged that during 4 demarcation, it was found that 386 trees of Cheel, Deodar, Kail and Rai were found to have been illicitly felled from the adjoining Government Forest, as reflected in lists of old stumps Ex. PW.3/A to Ex. PW.3/Z. 6. On completion of investigation, a charge-sheet was laid against the accused, who were sent up to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined as many as 25 witnesses. 7. On close of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., wherein they set up defence of denial simpliciter, innocence and false implication. In essence, their case was that only those trees were cut and felled which were duly marked in the lands belonging to the private individual proprietors, and no tree was ever felled from any Government Forest. 8. On conclusion of the trial, all the accused were acquitted by the learned trial court, as already noticed. Being aggrieved, the State is in appeal against the impugned judgment of acquittal dated 25.2.1997, which is supported by the accused. 9. We have heard the learned Additional Advocate General and learned Deputy Advocate General for the appellant-State, learned counsel for the respondents-accused and perused the record. 10. It shall be pertinent to observe at the very out set that initially when the felling permission was accorded in favour of A-5 in the year 1976-77, the respective lands belonging to the 5 private individual proprietors, were got demarcated through the then SDM, Sh. Sher Singh, who by the time matter went to the Court for trial, had already died. However, the demarcation report submitted by the said Sh. Sher Singh, SDM, was not brought on record by the prosecution. One of the grounds, set up by the learned trial court for acquitting the accused, is that the demarcation report submitted by Sh. Sher Singh, SDM, was not annulled by any Appellate or Revisional Authority, the same stood and it being so, the demarcation carried out later on by Shri Kishori Lal, Naib Tehsildar, who had also in the mean time died when the matter came up at the stage of trial before the trial Court, was of no legal consequence, and as such, cannot be relied upon. However, this aspect of the matter has not found favour with the Hon'ble Apex Court, as is apparent from para-2 of the order passed by the Hon'ble Supreme Court in Criminal Appeal No. 2021 of 1996, titled State of H.P. Versus Hari Dass & Others, with connected appeals, which is extracted below:- “We heard learned counsel for the State at length. We also heard Mr. Jaspal Singh, learned senior counsel for the remaining accused. We are not in agreement with the findings of the trial court and High Court on the premise that the demarcation made by the officials under the guise of which trees were felled would be presumed to be valid until it is set aside by adopting the procedure prescribed by law. We make it clear that the questioned demarcation is described to be part of the criminal conspiracy with which all the offences were committed. If it can be held that the demarcation was made as a step in aid pursuant to the 6 conspiracy hatched it is unnecessary for that demarcation to be set aside by resorting to the due process of law. This is because that demarcation is ipso facto illegal being part of a criminal design.” 11. True it is, that the prosecution case rests mainly on the premise that the earlier demarcation carried out by Sh. Sher Singh, SDM, and the report submitted by him pursuant thereto, was as a result of conspiracy between the accused. However, it is a settled principle of Revenue Law that once a demarcation is issued by a particular revenue officer and either of the parties thereto is not satisfied therewith and applies for fresh demarcation, ordinarily either an officer of the coordinate status and designation is detailed to carry out fresh demarcation or the job is entrusted to an officer of a higher rank, but in the present case, the earlier demarcation was carried out by an officer of the rank of SDM and the later demarcation was got carried through a junior revenue officer of the rank of Naib Tehsildar, which was not a very happy situation. 12. Even apart from that, on appraisal of the evidence led by the prosecution during the trial, we are constrained to say that the same is not upto the mark and could not have been made basis for returning a finding of guilt against the accused as has been concluded by the learned court below. The reasons to arrive in this inference are set out hereinafter. 13. As already noticed that the demarcation report submitted by Sh. Sher Singh, SDM, was not brought on record 7 by the prosecution during the trial for scrutiny of the trial court and by necessary implication that of this Court. In absence of that report, the later report Ex.PW.23/A submitted by Sh. Kishori Lal, Naib Tehsildar, cannot be subjected to comparison with the earlier report. Though, it is alleged that it was revealed pursuant to demarcation report Ex.PW.23/A that as many as 386 trees of Cheel, Deodar and Rai were found to have been illicitly cut and removed from the adjoining Government Forest, as reflected in lists of old stumps Ex.PW.3/A to Ex.PW.3/Z, yet the evidence led by the prosecution, to establish this allegation, nowhere comes up to the mark. 14. The manner in which the later demarcation was carried out by Sh. Kishori Lal, Naib Tehsildar, leaves much to be desired. The application for demarcation was moved by PW.2, Sh.Vijay Kumar, the then Inspector, Enforcement. However, he has stated during cross-examination that the said application was not shown to him at the time of his examination as a witness before the learned trial court. A perusal of demarcation report Ex.PW.23/A reveals that the lands, forming part of private forest belonging to different individual proprietors, was demarcated thereunder. During the course of this demarcation, the adjoining land which formed part of Government Forest is also said to have been measured pursuant to which it was found that the aforesaid 386 trees had been cut and removed therefrom. It is in evidence in the statements of PW.2 Sh.Vijay Kumar and other material prosecution witnesses, namely, PW.3 Sh. Sant Ram, the then Deputy Range Officer, PW.4 Sh. Liaq Ram 8 Chauhan, Range Officer, PW.5 Sh. Mangat Ram, Deputy Range Officer and PW.23 Sh. Giaru Ram, the then Field Kanungo, that no notices were issued to the concerned parties i.e. proprietors of whose lands were to be demarcated and the adjoining owners of private lands. There is also no satisfactory and credible evidence as to whether any Pukka points were fixed to lend credence to the demarcation carried out vide report Ex.PW.23/A. The witnesses who were present at the time of demarcation have made contradictory statements and the same cannot be safely relied upon. Above all the evidence on record reveals that no hammer marks could be found on the stumps of 386 trees of Cheel, Deodar and Rai allegedly felled illicitly by the accused from the adjoining Government Forest in conspiracy with each other. 15. Further more, the entire lot of trees marked in favour of A-5 Kewal Ram Sharma, was not felled during the year 1976-77 or within reasonable time thereafter, and instead out of the total trees numbering 602, only 194 trees were felled by him and the remainder numbering 408 were later on sold by him to A-6 Krishan Singh Ranta, who felled the same only during the year 1981 after getting the felling order revalidated from the concerned authorities as is apparent from letters Ex.D1and D2 dated 6.5.1980, 22.5.1980 and Ex.D3 Certificate dated 3.1.1981, whereby the felling order was revalidated after due verification and fresh demarcation, when even A-1 Satya Dev Sharma and A-7 Mehar Singh were not posted in the concerned Forest Range, i.e., Tharoch Range. 9 16. The above discussion brings us to conclude that there is no credible evidence on record to come to the conclusion that either the earlier demarcation report submitted by Sh. Sher Singh, SDM, was either factually incorrect and thereby also included the trees standing on the adjoining government forest and that such report was submitted by him in conspiracy with the accused except A-6 Krishan Singh Ranta or that the later demarcation report Ex.PW.23/A clinchingly established that apart from the marked trees standing in the lands belonging to the individual proprietors, 386 trees of different categories were also felled by A-5 Kewal Ram Sharma and A-6 Krishan Singh Ranta with active participation and in conspiracy of other official accused belonging to the Forest and Revenue Departments. It being so, no ground is made out for any interference with the impugned judgment of acquittal dated 25.2.1997. The appeal is accordingly dismissed. (R.B. Misra) Judge August 24, 2010 (V.K. Sharma) (Purohit) Judge