Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.5 of 2004 Judgment reserved on:31.8.2010. Date of Decision: September 17,2010. State of H.P. ……… Appellant. Versus Dhani Ram and others. …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. J.S. Rana, Asstt. Advocate General. For the Respondents : Mr.N.S. Chandel, Advocate, for respondents No.1 and 3. Mr. Ashok Chaudhary, Advocate, vice Mr. B.N. Mehta, Advocate, for respondent No.2. Surinder Singh, J : The State is in appeal against the judgment of acquittal of the respondents passed by the leaned Special Judge in Corruption Case No.7- S/7 of 2001, decided on 4.8.2003 for the offences punishable under Sections 379 and 120-B of the Indian Penal Code Sections 33, 41 and 42 of the Indian Forest Act and Section 13(2) of the Prevention of Corruption Act, 1998, hence the appeal. 2 2. Respondent No.2 Daya Ram has been a Forest Block Officer and respondent No.3 Jeet Ram Forest Guard, whereas respondent No.1 is a local resident of Roni Chadara, Tehsil Theog. 3. The prosecution story in nutshell can be stated thus. (i) On 27th April, 1997 at 7 a.m., PW14 Dhani Ram Sub Inspector, Enforcement Department of Police, was present at Kufri alongwith PW15 HC Sarvinder Rattan, in connection with some inquiry. (ii) S.I. Chain Lal alongwith Forest Guard Mohan Lal and constable Shamsher Singh were in the official Jeep being driven by Inder Singh. They were going towards Theog. (iii) PW14 S.I. Dhani Ram met them at Kufri. By that time, he received a secret information that respondent Dhani Ram had indulged in smuggling of timber from the illicit felling from the government forests and in case his premises are raided in his village, a good number of illicit timber could be recovered. 3 (iv) On this, a raiding party consisting of above police officials was constituted at Kufri by SI Dhani Ram and proceeded to the village of respondent No.1. (v) On the way, they included PW6 Sohan Lal Forest Guard of Matiana Beat in their raiding party. 4. The aforesaid party reached the village. PW14 aforesaid issued Hukumnama to the villagers through Constable Shamsher Singh to join them in the search operation, but they denied to oblige them. Thereafter the raiding party reached the house of Dhani Ram respondent. He was present there. The said Police Officer informed him the reasons for carrying out the search of his house. The house of the respondent aforesaid was two storied and the ground floor was being used a cowshed. The search of the house was carried out and police found 142 Deodar scants lying in the cowshed. These were bearing T.D. marks. Respondent Dhani Ram was asked to produce the T.D. permit or any other documents, but he could only produce the T.D. permit Ex.PW3/B. 4 5. Thereafter the respondent Dhani Ram was asked to identify the stump of the tree which was connected with the aforesaid permit. He took the raiding party to the Government forest Jhalaru and got identified the stump. The girth of the stump of Deodar was 117/118 c.m. and it was the Deodar class Ist-E mother tree, whereas the permit Ex.PW3/B pertained to II-B class Deodar tree. Said I-E Deodar could not have been granted under the T.D. Scheme. The police also found 43 feet long log besides the stump. The seizure hammer was also applied thereon. It was taken into possession and given on supurdari vide memo Ex.PW6/D to PW6 Sohan Lal Forest Guard. 6. Police prepared site plan Ex.PW14/A. Ruka Ex.PW12/A was sent for the registration of the case, which culminated into FIR Ex.PW12/B. 7. Police officials were of the view that 142 scants were of illicit origin hence these were seized and taken into possession after applying seizure hammer. 5 8. The volume of Deodar tree found felled from the spot was got prepared from PW1 Block Officer Bhagat Ram. 9. Police also took into possession applications for T.D. permits Exts.PW3/C and DA from the office of D.F.O. 10. It was the case of the prosecution that the respondents No.2 and 3 were posted as Block Officer and the Forest Guard respectively in the said Block and both of them connived with respondent Dhani Ram, got felled the mother tree of Deodar under the pretext of T.D. permit, which was in fact for Deodar class II-B, thus both these officials abused their official position to obtain the pecuniary benefit from the respondent Dhani Ram, thus sought their prosecution sanction. After obtaining the relevant documents with respect to the appointment and posting and on completion of the challan, it was presented in the Court for their trial. 11. All the respondents were charge sheeted for the aforesaid offences. They pleaded not guilty and claimed trial. After the full-fledged trial, they were acquitted, firstly on the ground that respondent 6 Dhani Ram, his mother Begmu were sanctioned and granted TD permit Ex.PW3/B and Ex.DA respectively of class II-B in Government forest Jhalaru in Matiana Block for the construction of his house and secondly the timber scants bore the T.D. mark and the prosecution could not relate it to the felling of class I- E tree of Deodar and further 43 feet long log was found besides the stump, which was not converted into timber. The collusion of the forest officials as alleged were not found as such they were exonerated. 12. I have heard the learned counsel for the parties and have carefully gone through the evidence on record. 13. The whole case revolves around the statements of the prosecution witnesses, i.e. PW1 Bhagat Ram, PW5 Vinay Sood, PW6 Sohan Lal, PW 10 Mahantu, PW14 S.I. Dhani Ram and PW15 Sarvinder Rattan. 14. Prosecution was not able to produce the notification under Section 29 of the Indian Forest Act declaring the said Forest as “protected forest”, therefore, the prosecution had utterly failed to prove 7 the offence punishable under Section 33 of the Indian Forest Act. Further the transportation of the timber to attract the provision of Sections 41 and 42 of the Indian Forest Act was also not proved. No witness to this fact was examined that the respondent Dhani Ram was not a right-holder and had transported the timber from one estate to another, thus, the prosecution case also out-rightly failed on this score. 15. Insofar as the conspiracy of the respondents to fell the aforesaid tree and with respect to committing the alleged theft of the timber illicitly felled by the respondents is concerned, even for that there is no cogent and legal evidence available on record. 16. PW10 Mahantu resident of village Dhalru stated that respondent Dhani Ram had not felled any tree in Jhalaru Government forest, rather according to him, 4-5 years ago, he had cut and felled a tree of Deodar of a medium size in the said forest, which was sanctioned to him under the T.D. scheme. He did not at all support the prosecution case, as such he was declared hostile. He also 8 admitted that the house of Dhani Ram had gutted into fire and further that his mother Begmu was also sanctioned and a tree under the T.D. scheme in the said forest, which was converted into timber and brought home by respondent Dhani Ram. His statement assumes importance because besides the tree allotted to respondent Dhani Ram, vide applications Ext.PW3/C and Ex.PW3/D on different occasion, his mother Begmu was also sanctioned a Deodar tree in the year 1995, the permit whereof is Ex.DA. It has also come in evidence that he alongwith his brothers and mother are residing in the same house. Admittedly Dhani Ram is a right-holder in the estate of village Roni where the said jungle is situated. 17. Another witness of the prosecution is PW15 Sarvinder Rattan, the driver of the official vehicle in which the raiding party proceeded to the spot. He is a witness to the recovery of 142 scants from the cowshed of respondent Dhani Ram. He stated that when they visited the forest, the stump of the Deodar tree was pointed out by the respondent Dhani Ram it bore the Khudan number, but there was no 9 hammer mark. Besides it a 43 feet long log was lying and taken in possession vide memo Ex.PW6/B. Pertinently in his cross-examination he expressed his ignorance whether Dhani Ram had disclosed that timber found in his house was granted to him as well as his mother under the TD scheme, but admitted having shown TD permits Ex.PW3/B and Ex.DA to the police. Significantly he also stated that the stump of Deodar found in the jungle was not measured by the police. 18. From the statement of the aforesaid witnesses, it becomes absolutely clear that beside the stump of the tree there was 43 feet long log lying there and it was not converted into timber. Further the prosecution has not led any evidence that the timber scants found in the possession of respondent Dhani Ram were in any way connected with the stump in question. The prosecution pressed into service the statement of PW1 Bhagat Ram Block Officer, who has prepared the volumes and price table of the tree stump found on the spot, taken into possession vide memo Ex.PW1/A by the police. Unfortunately, he stated that he never visited the 10 spot nor checked and measured the stump in question. He was informed about the Dia orally by the police, whereas PW15 Sarvinder Singh stated that neither the stump nor the log were measured on the spot. Therefore, his statement is of no consequence. 19. PW5 is Vinay Sood, Range Officer, who was associated by the police during investigation of the case. His statement is juxta opposite to PW1 aforesaid. According to him, the stump was measured at the instance of police and on checking the record, he found that Dhani Ram was sanctioned Deodar tree of class II-B vide TD permit on 14.6.1996 In cross-examination, he also admitted the TD permit Ex.DA regarding one tree in the name of mother of Dhani Ram. He also stated that the log found on the spot was neither measured in his presence by the police nor by him and no list was also prepared. The tree was lying felled and logs were not converted. He further stated that they visited the spot. The stump was 5/6 inches above the surface. The tree was cut from the stump in a straight position. He also stated that the TD is sanctioned by 11 the D.F.O. and the permit is issued by the Block Officer concerned and not the Forest Guard. 20. PW6 Sohan Lal Forest Guard of Matiana Beat stated that the police did not enquire about the ownership and possession of the place from where timber scants were recovered. He also stated that the Pradhan, Panch and Chowkidar of the concerned Panchayat were not called on the spot by the police, which goes contrary to the statement of the Investigating Officer that they had asked the villages to witness the search and they did not oblige them. He also stated that he alongwith police went straightway to the spot and returned on the same day. He categorically stated that police did not make any effort on the way to procure the presence of independent witnesses. He contradicted the other witness as stated above that the stump, which was shown to them in the forest was not having any hammer mark. He further stated that he had seen the stump carefully and tried to search out the hammer mark, but same was not found. Thus, his statement goes contrary to what the other official witnesses have deposed. 12 21. The last important witness is Investigating Officer PW14 SI Dhani Ram. He stated that when they reached the village of the respondent Dhani Ram regarding the recovered timber, he was asked to produce the permit, to which he could not produce except a TD permit Ex.PW3/B. He did not say anything about Ex.DA. He further stated contrary to the statement of PW6 Sohan Lal Forest Guard that the stump was got measured from Mohan Lal and Sohan Lal Forest Guards and also got compared with the permit aforesaid. The size was found to be different. Thereafter they returned to the house of the respondent aforesaid and seized the timber. He admitted that the house from where the timber was recovered belongs to three brothers including respondent Dhani Ram, their mother was also residing with them. He neither recorded the statement of his brothers nor tried to ascertain the ownership and possession of the house in question. He denied that no villager was called by him in the search operation. 22. From the above discussion, I find that the prosecution has not proved the case beyond a 13 reasonable doubt that the timber in question recovered from the cowshed of respondent Dhani Ram was exceeding the permits Ext.PW3/B and Ex.DA, which was in the name of respondent Dhani Ram and another was in the name of his mother Begmu. It is further decipherable from the record that earlier the house of the respondent was gutted in to fire and there is a relaxation with respect to the grant of another tree within the stipulated period. The record shows that an application Ex.PW3/C taken in possession from the forest office is an application of respondent Dhani Ram for sanctioning one Deodar tree, which was moved in the year 1993. The application was processed through Forest Guard and Block Officer concerned and he was sanctioned one tree of Deodar of class II-B and the another application Ex.PW3/D which was also moved in the year 1995 by him, again the Deodar tree of class II-B was sanctioned in his name, which is connected with the permit Ex.PW3/B and the third permit Ex.DA is in the name of Begmu Devi his mother with respect to Deodar of class II-B. Thus, in this way, the defence stands probablised with 14 respect to grant of three Deodar trees class IIB under the T.D. scheme, to the respondent Dhani Ram. The three trees of Deodar II-B have not been converted into volumes to match it with the recovered scants. The volume which is converted by PW1 is with respect to the tree of said class I-E stump of which was not measured whether it was of I-E. Thus, the recovery could not be related to the timber in question. 23. Therefore, in these circumstances, neither the conspiracy nor offences charged are made out against the respondent. The evidence led by the prosecution is self contradictory and not worth inspiring confidence. The findings of acquittal are borne out from the record, as such, the acquittal of the respondents cannot be interfered with. 24. The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. 25. Send down the records. September 17, 2010. (Surinder Singh) (Pds) Judge.