IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.258/2001 Reserved on.27.2.2008 Decided on. 20.3.2008 State of H.P. …Appellant. Versus Id Mohammad and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. Anil Kumar Jaswal, Deputy Advocate General. For the respondents Mr. Bimal Gupta, Advocate. Rajiv Sharma, J. The respondents were prosecuted in criminal case No. 18-A/2 of 1998/97 for offences punishable under section 26 of the Indian Forest Act read with section 379 of the Indian Penal Code in the court of Chief Judicial Magistrate, Sirmaur District at Nahan and were acquitted on 30.12.2000. The State has filed this appeal against the judgment dated 30.12.2000. The facts which can be gathered from the judgment of the trial court are that on 24.11.1995 in broad-day light, the accused persons perpetrated the illicit felling by dishonestly felling nine trees of khair of different specifications from the reserved forest R.F. East Bhedon, C-2 and C-3. This act was noticed by the forest officials, namely, Parkash Chand and Ramesh Chand when they were patrolling the said forest on 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 24.11.1995. The damage report was prepared and the complaint was lodged with the police. The FIR Ex. PM was registered at Police Station Nahan on 29.11.1995. The matter was investigated and the challan was put up. The prosecution had examined as many as 14 witnesses to support its case. The accused persons were examined under section 313 of the Code of Criminal Procedure. The trial court acquitted the respondents on 30.12.2000, hence, this appeal by the State. The learned Deputy Advocate General had strenuously argued that the prosecution has proved the case against the respondents- accused and the judgment of the trial court dated 30.12.2000 is not sustainable. Mr. Bimal Gupta, Advocate appearing for the respondents- accused had supported the judgment dated 30.12.2000. I have heard the learned counsel for the parties and have gone through the record of the case. The occurrence is dated 24.11.1995. The damage reports were prepared by the Forest Officials; however, the FIR was registered on 29.11.1995. The prosecution has not explained at all why there was delay in lodging the FIR. PW-1 Gita Ram has stated that he was patrolling the forest with Sh. Puran Singh and Guard Prakash Chand. According to him they heard the sound of cutting of trees at 2.00 P.M. According to him Id Mohammad, Lal Deen, Sharafat Ali, Roshan Deen and Umardeen were cutting the trees. Two accused ran away and two accused were brought to the Police Check Post. The accused had left one axe and one shawl. He had admitted in his cross-examination that Prakash Chand Guard is his real brother. Prakash Chand was 3 examined by the prosecution as PW-6. In his cross-examination, he has stated that the accused persons had cut 3 trees in their presence. He has further stated that the trees, which were cut by the accused persons, their girth was 3 -4 feet and the height was 40 feet. He has further deposed that to cut a tree of the dimensions as given by him, it takes about two hours. He then stated that when the trees were cut by the accused persons we apprehended them. He further stated that they snatched one bed-sheet and one axe from the accused persons, but could not state from whose possession the bed-sheet and axe were snatched. PW-2 is Sita Ram. He had only deposed that the forest officials had put Naka on 25.11.1995 on receiving the information that the illicit felling is being perpetrated in the forest. He has stated that the cow-shed of accused Lal Deen was searched in the presence of Subedeen Numberdar. He has stated that the logs could not be produced in the court since they had rotten and the hammer mark could not be read. PW-3 is Sh. Puran Singh. He was declared hostile by the prosecution. PW-4 Sh Jagdarshan Singh is a formal witness. He had only visited the spot in the forest where illicit felling had been done and found the stumps of Khair trees on the spot. PW-5 is Phakrudeen. He was declared hostile. PW-6 is Prakash Chand Forest Guard. He has stated that he along with witnesses Suresh, Puran Singh and Gita Ram were on forest duty in C-2 and C-3 and they heard the sound of cutting of trees in the forest and they found that the accused Lal Deen, Hoshan Deen, Umar Deen and Id Mohammad were engaged in illicit felling of trees and escaped from the spot. He then stated that they tried to apprehend the accused persons, but could not apprehend them, but they left behind some logs of khair trees on the spot. PW-1 has stated 4 that two accused fled away and two accused were taken to the Police Check Post, however, this witness stated that accused persons ran away leaving behind one axe and some logs. He has further stated that on 25.11.1995, he along with Forest Guard Ramesh Chand visited the Forest Range Office, Kolar and made report in this behalf to the Range Officer. He then deposed that on 26.11.1995 they searched the cow- shed of accused Lal Deen and 24 logs of khair trees were recovered from his cow-shed and the damage report Ex. PH to this effect was prepared. However, the damage report Ex.PH is issued on 24.11.1995. PW-7 is Kartar Singh, Range Officer. He has not explained why the FIR was not registered promptly on 24.11.1995 instead of 29.11.1995. PW-8 is Ramesh Chand, Forest Guard. He has not stated whether he had the knowledge of the ownership of cow-shed of the accused Lal Deen or did he take any steps to ascertain the same. PW-9 constable Pawan Kumar is a formal witness. PW-10 Raghubir Singh has partly carried out the investigation. PW-11 Head Constable Joginder Singh has also carried out the investigation. The prosecution has failed to produce the logs in the court as earlier noted. The prosecution has failed to prove the recovery of 24 logs from the cow-shed of accused Lal Deen satisfactorily. The trial court had come to a just conclusion that the recovery memo in accordance with law for effecting the recovery of logs was not prepared by the Investigation Officer. The cow-shed of accused Lal Deen could not be identified properly by any of the witnesses by associating any independent witness. The felling of trees is also doubtful in view of the contradictory statements made by the prosecution witnesses. Witness PW-6 has stated that all the accused had run away from the spot, but PW-1 has stated that two 5 accused were taken to the Police Check Post. PW-1 has stated that girth of the trees was 3-4 feet and their height was 40 feet. He has stated that the accused persons were apprehended only when the trees were cut. If the trees according to him were being cut and he was in the company of other witnesses, immediately steps should have been taken to prevent the accused from cutting the trees instead of waiting them to cut the trees. The prosecution has not satisfactorily explained why the FIR was registered on 29.11.1995 when the damage report already stood prepared on 24.11.1995. The cumulative effect of the above discussion is that the prosecution has failed to prove the case against the accused persons and they have rightly been acquitted by the learned Chief Judicial Magistrate, Sirmaur District at Nahan vide judgment dated 30.12.2000. Consequently, there is no merit in the appeal and the same is dismissed. The bail bonds are cancelled and sureties are discharged. March 20, 2008. ( Rajiv Sharma), Judge *Awasthi*