IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals No.521 & 580 of 2004 Date of decision : April 7, 2011 Cr.A No.521/2004 Kartar Chand ….Appellant. Versus State of H.P. …Respondent. Cr.A No.580/2004 Prem Dass …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate, in Cr.A No.521 of 2004. Mr. Rajnish K. Lall, Advocate, in Cr.A No.580 of 2004. For the Respondent : Mr. P.M. Negi, Deputy Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge(Oral) By this common judgment, two Criminal Appeals, in which the same judgment, i.e. judgment dated 30th November, 2004, of learned Special Judge, has been assailed, are being disposed of. Two persons have been convicted and sentenced by the learned Special Judge, vide impugned judgment. They have filed separate appeals. So, they are being disposed of by a common judgment. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Case of the prosecution may be stated thus. There is a village, by the name of Kohila in Ani Sub Division of Kullu District. Prem Dass, appellant in Criminal Appeal No.580 of 2004, retired as Kanoongo from Revenue Department, in the year 1985. Before being promoted as Kanoongo, he served as Patwari. On account of his being a member of field staff of Revenue Department, he made friends with Kartar Chand, appellant in the second appeal, i.e. Criminal Appeal No.521 of 2004. Appellant Kartar Chand was posted as Patwari in Kohila Mohal, during the period 1988 to 1991. He handed over the charge to PW-16 Ram Sarup. Appellant Prem Dass, who is permanent resident of village Kohila, had land in that village. One piece of land, bearing Khasra No.294, was situated in sub area, known as Bragnidhar. He also jointly owned another chunk of land, bearing Khasra Nos.344, 345 and 346. This was part of sub area, known as Kanda Nullah. Appellant Prem Dass has a son, by the name of Jiwan Singh. Said Jiwan Singh contested election of Predhan of Gram Panchayat, in the year 1995. He was elected. Candidate defeated by him was PW-10 Ram Saran. 3. After Jiwan Singh, son of appellant Prem Dass, won the election of Pradhan of Gram Panchayat, a complaint was made against him that he had made encroachment on a portion of Undemarcated Protected …3… Forest, adjacent to aforesaid Khasra No.346. It appears that encroachment proceedings were initiated against appellant Prem Dass, father of Jiwan Singh, and a Tatima, showing the allegedly encroached upon portion of Undemarcated Protected Forest, was also prepared, which is Ex. PW-4/A. Two complaints, one Ex. PW-9/A and the other Ex. PW-10/A, were made to Deputy Speaker of Vidhan Sabha, by some residents of Kohila village, including PW-10 Ram Saran, who lost the election to Jiwan Singh, that the encroached upon portion of Undemarcated Protected Forest, had wrongly been shown as Khasra No.294, owned by Prem Dass and that the mischief had been done, by removing a portion of Latha (a sheet of cotton cloth with the Patwari, on which map is drawn) and machine-stitching a piece of cloth at the site of removed portion of Latha. 4. Inquiry was conducted by the Vigilance Department of the State and substance was found in the allegation. On the basis of that inquiry, case was registered, vide FIR Ex. PW-24/A. 5. During the course of investigation, Latha Ex. P-1 was taken into possession. Apparently, that portion of the Latha, which is depicted as Khasra No.294, is in the form of a patch machine-stitched to the main Latha. Prosecution compared the Latha with original Musabi. It was found that location of Khasra No.294 was …4… away from the location shown in the Latha, by means of a patch. Location of Khasra No.294, as per Musabi, is near Khasra Nos.551 and 552, in the sub area, known as Bragnidhar, while its location in Latha is shown near joint land of appellant Prem Dass bearing Khasra No.346, sub area of which is known as Kanda Nullah. 6. Investigation suggested that location of Khasra No.294 had been shifted from its original location to cover up encroachment, on a portion of Undemarcated Protected Forest, made by Jiwan Dass, son of appellant Prem Dass, and this was a part of conspiracy between appellant Prem Dass, who retired as Kanoongo, and appellant Kartar Chand, Patwari of Kohila Mohal. 7. On completion of investigation, challan was filed in the Court of learned Special Judge, who, after supplying the copies of challan and other papers filed therewith and hearing learned Public Prosecutor as also learned defence counsel, found that a prima facie case, under Sections 420, 467, 468, 471 & 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988, was made out against the appellants. They were charged accordingly. They pleaded not guilty to the charge and were, therefore, put on trial. 8. Prosecution examined 26 witnesses and proved a number of documents to substantiate its case. …5… Appellants denied that there was any conspiracy between them or any crime had been committed. Appellant Kartar Chand denied that he had stitched the patch on the Latha. He pleaded that Latha was intact, when he handed over the charge to his successor PW-16 Ram Sarup, in the year 1991. 9. Learned trial Court concluded that case of the prosecution stood established, beyond reasonable doubt, and convicted both the appellants of offences, under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code. Accused Kartar Chand was also convicted of offence, under Section 13(2) of the Prevention of Corruption Act, 1988, in addition to the aforesaid offences, under Indian Penal Code. Both the appellants were sentenced to undergo rigorous imprisonment for one year and to pay fine of `1,000/-, in respect of each of the offences, they were convicted of. Sentences were ordered to run concurrently. 10. I have heard learned counsel representing the appellants as also learned Deputy Advocate General and reappraised the evidence in its entirety. 11. It was more than 7-8 years after appellant Kartar Chand handed over the charge of the post of Patwari of Kohila Mohal to his successor, PW-16 Ram Sarup that the allegation of tampering with Latha surfaced. PW-16 Ram Sarup, when in the witness box, no …6… doubt, stated that the patch on Latha on a portion of Undemarcated Protected Forest was there, in the year 1991, when he took over the charge from appellant Kartar Chand, but he could not offer any convincing explanation for his not pointing out this to his superiors, immediately, or till a complaint was made to the Deputy Speaker of Vidhan Sabha, pointing out that a patch had been stitched to the original Latha, by removing a portion of it, to show the location of Khasra No.294 in the Undemarcated Protected Forest, near Khasra No.346, which was jointly owned and possessed by appellant Prem Dass with some other persons. This is despite the fact that allegation of encroachment on Undemarcated Protected Forest had been made, soon after the election of Jiwan Singh as Pradhan of the Gram Panchayat, in the year 1995. 12. Latha is supposed to be consulted by the Field Kanoongo, during the course of crop inspection and also while making inspection of the fields for other purposes. In this case, Field Kanoono was PW-4 Bhogi Ram. He stated that he remained Kanoongo from February 1990 to July 1997. Had there been any tampering with the Latha, before this was pointed out in complaints Ex. PW-9/A and Ex.PW-10/A, PW-4 Bhogi Ram was supposed to have noticed the same. The witness has nowhere stated that he found any tampering with the Latha, prior to the …7… registration of the case. Not only this, the witness very categorically stated that when he verified Tatima Ex.PW- 4/A, regarding encroachment case, which had been instituted against appellant Prem Dass, he found the Latha with the Patwari to be intact and not torn out. He stated that Tatima Ex.PW-4/A had been prepared from the Latha. That means when this Tatima Ex. PW-4/A, which is dated 23rd July, 1996 was checked by this witness on 24th July, 1996 (date of checking on Tatima below the signature of this witness is 24th July, 1996), the alleged tampering with Latha was not there. Trial Court has not taken note of this vital aspect of the matter, while passing the judgment of conviction. 13. PW-8 Paras Ram and PW-9 Duni Chand were the supporters of PW-10 Ram Saran, who contested the election of Pradhan, Gram Panchayat, against Jiwan Singh, the son of appellant Prem Dass. PW-9 Duni Chand is also a brother-in-law of PW-10 Ram Saran. These three witnesses and some other residents of the village made complaints Ex. PW-9/A and Ex. PW-10/A against Jiwan Singh and not against appellant Prem Dass that Latha had been tampered with. These complaints were made by them only after Jiwan Singh was elected as Pradhan of the Gram Panchayat. 14. In the two complaints as also the testimony of the aforesaid witnesses in the Court, they categorically …8… stated that encroachment had been made by Jiwan Singh, son of appellant Prem Dass and not by appellant Prem Dass. The witnesses have stated that they saw the patch on the Latha with their eyes and then they realized that mischief had been done, by shifting the location of Khasra No.294 in the Latha. If these three villagers could have smelt rat, on seeing a patch on the Latha, it is not believable that PW-16 Ram Sarup Patwari, when taking over the charge, could not have entertained a doubt about the tampering with the Latha, had it been a fact. Possibility cannot be ruled out that when PW-10 Ram Saran could not succeed in his plan to unseat Jiwan Singh from the post of Pradhan, by making complaint of encroachment, because the encroachment proceedings were initiated not against Jiwan Singh but against his father appellant Prem Dass, he, in connivance with the Patwari or otherwise, got a portion of Latha removed and a patch stitched in its place. 15. There is no evidence on record, indicating that appellant Prem Dass is not in possession of the site, which is shown to bear Khasra No.294 in the Musabi or say the original site of Khasra No.294. Now, if he is not shown to be not in possession of original site of Khasra No.294, presumption should be that he is in its possession, because entry appears in his favour in the latest Jamabandi, which is for the year 1999-2000, copy …9… Ex. D-9. He has been shown to be owner in possession of Khasra No.294, consistently since 1950-51, per copies of Jamabandis Ex. D-1 to Ex. D-9. 16. In view of the abovestated position, I am of the considered view that conviction of the appellants, for the aforesaid offences, is not well founded. Hence, appeals are accepted, judgment of the trial Court, convicting and sentencing the appellants, is set aside and both the appellants are acquitted. Both the appeals stand disposed of. April 7, 2011(sd) ( Surjit Singh ), J