IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.472 of 1999 Date of decision: 24.7.2010 State of H.P ..Appellant Versus Gian Chand & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? No For the appellant: S/Sh.Rajesh Mandhotra and Vikas Rathour, Deputy Advocate Generals. For the respondents: Mr.Anup Chitkara, counsel for respondent No.1. Mr.N.K.Thakur, counsel for respondent No.2. Mr.Manish Sharma, counsel for respondents No.3 and 4. Mr.Yash Chauhan, Advocate vice Mr.Anil Chauhan, counsel for respondent No.5. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 14.7.1999 passed by the learned Special Judge, Chamba in Corruption Case No.2 of 1994 whereby 2 he acquitted the accused of having committed offences punishable under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code read with Sections 41 and 42 of the Indian Forest Act and Section 13(2) of the Prevention of Corruption Act, 1988. 2. At the outset, we may notice that before the learned Trial Court, the learned public prosecutor had himself stated that there is no evidence whatsoever against the accused No.5 Sohna Gujjar. Despite this statement having been made, the present appeal was filed against respondent No.5 also. In our view, this should not have been done. 3. The prosecution case, in brief, is that the accused Chatro and Hardayal applied for grant of timber under the Timber Distribution Rights (TD Rights) for repair of their houses vide their applications Ext.PM and Ext.PN respectively. These applications were processed and approved by the competent authority. Chatro accused was permitted to fell one deodar tree of I.B grade and two spruce trees of II.B grade from Khajrot Demarcated and Protected Forest on payment of the prescribed fee. 3 Thus three trees in all were granted in favour of Chatro Ram. The orders recommending grant of TD rights and the final sanction to the accused Chatro are Exts.PM/1 to PM/4. 4. In case of the accused Hardayal, the orders recommending grant of TD rights and the final sanction to him are Exts.PN/1 to PN/4. He was permitted to cut one deodar tree of I.B grade, 1 deodar tree of II.B grade and 2 spruce trees of II.B grade from the same forest. It is the admitted case of both sides that the applications Ext.PM and Ext.PN were filed by the two accused and sanction orders being Exts.PM/1 to PM/4 and Exts.PN/1 to PN/4 were passed thereon. Therefore, there is no question of there being any forgery under sections 467, 468 and 471 of the Indian Penal Code and these provisions have wrongly been invoked in the present case. 5. Kishan Singh was posted as Forest Guard of the concerned area. Gian Chand was the Block Officer of the neighbouring area, i.e., Lakkar Mandi Block but since PW/5 Moti Ram who was the Block Incharge of the concerned area had not been issued any hammer, the 4 marking on the trees was done by the accused Gian Chand. The prosecution case is that the accused Gian Chand and Kishan Singh in connivance with the accused Hardayal and Chatro marked over-sized trees and thus caused loss to the State. To prove this fact, it was incumbent upon the prosecution to prove, what are the specifications of the different categories of trees, i.e., I.B, ID, II.B etc? Though the prosecution alleges that the trees which were cut, on the basis of the girth were over-sized, it has miserably failed to prove on record any instructions, regulations or rules laying down the specifications of the different categories of trees. No doubt, PW/13, Sh.Rakesh Kumar has proved on record a volume table Ext.PAZ. However, this table has not been prepared by this witness. He has only proved this table on the basis of the identification of the signatures of his superior official. This does not amount to proof of the contents of the document. Even otherwise this table does not help us at all in the matter. The first column of the table gives the Dia.Class which probably means Dia-meter Class and the classifications are from Grade V to ID. There are different 5 volumes given for different categories of trees and the last column deals with girth class. The trees having girth of 9 feet and above have been defined to be trees falling in category ID. The case of the prosecution is that all the trees which were felled were more than 9 feet in girth and, therefore, they were of category ID. We are unable to accept this contention. This volume table by itself does not categorize the trees. Some material should have been placed on record to show that some competent authority had fixed the criteria for categorizing the trees in different classes. This has not been done. 6. Even assuming that this table has to be followed, we are faced with another issue. At what height of the tree has the girth to be measured? As per the statements of the various officials, the girth is to be measured at the breast height. Admittedly the trees which had been cut were measured at some height which is much below breast height. This Court can take judicial notice of the fact that a tree is broad at the bottom and narrow as it grows taller. There is no notification or other evidence led before the learned Trial 6 Court to show that the tree which has girth of 11 feet at the bottom would have girth of more than 9 feet at a height of about four feet. It is true that once a tree has been cut, it is impossible to measure its height at breast height but the prosecution could have led evidence by calling the officials from the Forest Department who could have deposed as to in what proportion the growth narrows as the height increases. 7. As far as the accused Gian Chand and Kishan Singh are concerned, we find that no case is made out against them under the Prevention of Corruption Act, 1988. Even according to the prosecution, there was no hammer marks on the trees which were found cut. No doubt, the prosecution alleges that the hammer marks had been erased and covered with mud but it cannot be said with certainty that the hammer marks, if any, on the trees had been affixed by the accused. 8. As far as the accused Chatro is concerned, he was not even present on the spot and there is nothing to connect him with the felled trees. 7 9. Narinder Kumar, PW/2 stated that when he received secret information, he went to the spot where four trees were being cut out of which two were of the spruce and two were of the deodar. At the spot, Hardayal was present alongwith his son-in-law. The wood cutters were also present at the spot. Moti Ram was also present there. We are faced with the defence of Hardayal that the trees which were being cut were the trees earmarked to him under the T.D. rights. As already held above by us, no proof with regard to the wrong categorization has been given by the prosecution. Even assuming that Hardayal was cutting these trees, it cannot be said that he was involved in the illicit felling of trees. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge. 24th July, 2010 (Sanjay Karol) (m) Judge 8