IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 68 of 2000 alongwith Cr. Appeal No. 127 of 2000 Judgment reserved on: 05.10.2010 Date of decision: 15.12.2010 __________________________________________________________________ 1. Cr. Appeal No. 68 of 2000 The State of H.P. .....Appellant. Versus Dharam Pal and others. .....Respondents. 2. Cr. Appeal No. 127 of 2000 Huma Nand. .....Appellant. Versus State of H.P. & others. .....Respondents. Coram The Hon'ble Mr. Justice R.B. Misra, J. The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. __________________________________________________________________ For the appellant: Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General in Cr. Appeal No. 68 of 2000 and Mr. I.D. Bali, Senior Advocate with Mr. Virender Bali, Advocate in Cr. Appeal No. 127 of 2000. For respondents: Mr. Ramesh Sharma, Advocate for respondents No. 1, 2 & 4 in Cr. Appeal No. 68 of 2000 and for respondents No. 2, 3 and 4 in Cr. Appeal No. 127 of 2000. Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General for 1 Whether reporters of Local Papers may be allowed to see the judgment? ...2... respondent No. 1 in Cr. Appeal No. 127 of 2000. Mr. Neeraj Sharma, Advocate for respondents No. 3 & 5 to 7 in Cr. Appeal No. 68 of 2000. V.K. Sharma, J. It is proposed to dispose of the above titled two appeals by a common judgment, as these arise out of a single judgment. 2. Whereas the State is in appeal against the impugned judgment of acquittal dated 20.07.1999 of the learned Special Judge (Forest), Shimla, Himachal Pradesh in Corruption Case No. 49-S/7 of 1992, titled State vs. Dharam Pal and others, acquitting the appellants herein, who shall hereinafter be called as the accused (denoted as A-1, A-2, A-3, so on and so forth) who were tried for the offences under Sections 420, 467, 468, 411 read with Section 120-B of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, the accused are aggrieved by the order of confiscation with regard to the case property, i.e., seized timber and in the alternative in case the same has been auctioned, depositing proceeds thereof in the Government Treasury. 3. The law enforcing machinery was set in motion in this case on the basis of complaint, Ex. PU/1, dated 23.12.1977, made by Shri Sukh Ram Thakur (PW-47), the then Dy.S.P., C.I.D. H.P., Shimla, which reads as follows: ...3... “During the course of investigation of case FIR No. 133 dt. 4.11.77 P.S. Theog, it has been found that M/s Suraj Timber i.e. Dharam Pal and Daulat Ram having connived with the local revenue and forest officials hatched a conspiracy and felled about 50/60 kail trees in Dadyog Govt. Forest and sold to M/S Three Stars viz Ram Lal, Huma Nand and Bhagmal under the garb of Private sale of trees in the year 1976-77. the revenue/Forest Officials concerned have been found to have done it deliberately by fraudulent and corrupt means thereby putting the Govt. to the loss of thousands of rupees. It has also been found that the relevant documents prepared by the concerned persons are false and forged. This all had been done by them for monetary gain. The forest lessess and the said firm also possessed the case property knowing it to be a stolen one. On the complaints of Shri Shama Nand Chauhan and Smt. Kamla Devi addressed to Governor H.P., C.M. H.P., Forest and revenue Minister, Gian Chand SDO (C) Theog, P.C. Sharma DFO Simla, B.S. Chandel, Niab Tehsildar Kotkhai, Suresh Dutta R.O. Kotkhai, Parvesh B.O. Gowadi Block, Puran Singh Guard, Surat Ram Field Kangoo and Partap Singh Patwari of Himri Circle also checked the earlier demarcation in between 22 to 25th Oct. 1977. the latters are also responsible for harboring and favouring the accused persons. This all amounts to the offences under Sections 375, 423, 411, 467, 468, 120B, 212, 219 IPC read with 5(ii) of the PC Act. Hence this case is being registered in respect of village Hadyog separately to ...4... facilitate the investigation and the possession of the case, because of the place, date of commission of offence and persons concerned are different from each others. Hence the case may be registered and FIR be sent to the State CID investigating officer.” 4. Pursuant to the above complaint, Ex. PU/1, formal FIR Ex. PU/2 was registered on 04.11.1977. 5. It shall be pertinent to notice at the very outset that there are two types of forests in the State of Himachal Pradesh, one owned by the Government and other by private proprietors. 6. It was found during investigation that M/S Suraj Timber, owned by A-1 Dharam Pal and A-2 Daulat Ram entered into agreements with different proprietors for sale of Kail trees standing in their private lands, bearing khasra Nos. 349, 352, 351/1, 1, 18, 56, 57 and 145, for felling under the 10 years felling Programme in accordance with the Land Preservation Act. After procuring relevant papers from the concerned Patwari, they prepared requisite documents regarding purchase of trees, application for demarcation and affidavits for marking the trees. Besides this, signatures of private land owners were also said to be forged by the said accused. Thereafter, these papers, together with applications, were presented before Divisional Forest Officer, Shimla, and SDO(C) Theog and SDO(C) sent these documents to Field Kanungo, Kotkhai for demarcation. On the other hand, DFO, Shimla, sent the papers to R.O. Kotkhai for marking. Thereafter, A-1 Dharam Pal, ...5... A-2 Daulat Ram and A-4 Palas Ram of M/S. Suraj Timber sold these trees to M/S. Gulabu Ram, Sadh Ram and Ram Lal, who got demarcation of the lands done through Surat Ram, Field Kanungo and Gobind Singh Patwari. Thereafter, marking lists were prepared by Moti Ram Bhardwaj, B.O. and trees were marked on the demarcated lands by him with his hammer. 7. As per marking lists, 27 trees in Khasra No. 349 of Chet Ram, 33 trees in Khasra Nos. 352, 352/1 of Lachhi Ram, Ganga Ram, 21 trees in Khara No. 1 of Adam and Moti Ram, Ram Dass, Chandu Lal, Devku and Belku, 13 trees in Khasra Nos. 18, 56 and 57 of Lagnu and Jia and 52 trees in Khasra No. 145 of Roop Dass were marked. In all, 82 deodar and 64 kail trees, totaling 146 trees were shown to have been incorporated in the marking list. After that Ratti Ram, Block Officer, certified that the demarcation was done by him from Field Kanungo, Kotkhai and the trees itemized in the lot have been marked with his personal hammer and no trees have been marked in the government land. Likewise, Surat Ram, Field Kanungo also certified that he had given demarcation to Block Officer, Gwach, and the trees detailed in the list have been marked and no tree in the government land was marked. Subsequently, these documents were sent to DFO Shimla for necessary felling permission and DFO Shimla vide his letter No. C-XXX II-43/9418 R, dated 10.3.77 gave the felling permission. 8. Consequent upon grant of permission for felling the trees, M/S Gulabu Ram, Sadh Ram and Ram Lal sold these standing trees vide an affidavit to M/S Three stars, owned by Ram Lal, A-3 ...6... Huma Nand and Bhag Mal and these trees were got felled and converted into scants by M/S Three Stars from contractors, namely, Ata Mohd. and Padam Bhadur. The scants were marked with hammer producing impression ‘HRB’ which was not registered with the forest department. Carriage was done through a Gorkha Labour Contractor. 9. On receipt of the aforesaid complaint, S/Shri Gian Chand Khatana SDO(C), Theog, Balbir Singh Chandel, Naib Tehsildar, Kotkhai,Suresh Dutta, R.O. Kotkhai, Surat Ram, Field Kanungo, jointly re-demarcated the said lands, though they did not bother to check it thoroughly and they supported initial demarcation vide their report dated 24.10.1977. 10. During investigation, demarcation was got carried out again through Shri P.C. Dogra, the then ADM, Shimla, which showed that no tree has been marked and cut from private khasra number 349. Conversely, 5 deodar trees were marked in khasra Nos. 389, 391 owned by Parma Nand, 13 trees of kail and deodar were found in khasra Nos. 388/1, 388/2, 392, 394/1 and 1 in government land, 27 trees were shown to have been marked in khasra No. 349 owned by Chet Ram, but on demarcation no stumps were found on khasra Nos. 352 and 352/1 owned by Lachhi Ram and Ganga Ram, 33 trees of kail and deodar were shown to have been marked, but no stumps were found in the above mentioned khasra Nos. and instead 10 trees in khasra Nos. 355/1, 19 trees from khasra No. 355 and 4 trees of deodar from khasra No. 358, owned by the government, were found to have been marked and ...7... cut. 13 trees of deodar were shown to have been marked in khasra Nos. 18, 56, 57, owned by Lagnu and Jhaiya. However, on re- demarcation 7 stumps of deodar were found in khasra Nos. 56 and 57 and 2 trees of deodar marked in khasra No. 376/1 were owned by government. 21 trees were also shown to have been marked in khasra No. 1 owned by Adam and Moti etc., however, no stump was found in the aforesaid khasra No. and instead in its place 20 trees of deodar were marked in khasra Nos. 1/1, 377/1 of government land. 51 trees of kail which were shown to have been marked were owned by Roop Dass in the private land, but on re-demarcation 9 stumps of kail trees in khasra No. 123 owned by Mohan Lal in unapplied khasra No. and 13 marked stumps of kail were found in khasra No. 144 of government land. 11. It has further come in investigation that Ratti Ram, the then Block Officer signed the marking list of private sale of trees which was prepared by A-5 Sohan Lal Kalta and he also certified that the tress detailed in the list have been marked in the private land and no trees of government land have been marked, which afterwards on re-demarcation proved false and vague. These, above mentioned persons prepared false and fabricated record with intention to cause fiscal gain to the accused persons and consequent loss to the government. During re-demarcation by Shri P.C. Dogra, 9 trees marked in khasra Nos. 388/1, 388/2, 394/1, 20 trees in khasra No. 1/1, 375, 377/1, 21 trees in khasra Nos. 354/1, 355, 358, 2 trees in khasra Nos. 376/1 and 14 trees in khasra No. 144/1, i.e., total 66 trees, worth Rs. 44,082/- had been marked by ...8... the accused in the government land. 12. It was further revealed that the accused acquired copies pertaining to the aforementioned private lands without the knowledge of the owners of the said lands and signatures/thumb impressions of some of the private owners were also forged by the accused. The police re-demarcated all the above detailed khasra numbers from Shri P.C. Dogra and Shri Abhey Pant during the course of investigation and stumps were also counted by them. On conclusion of demarcation and counting of stumps, 36 trees were found to have been marked on the aforementioned private khasra Nos. and 66 trees were illicitly cut by the accused from the Govt. land. 13. From the above narrated facts, it was concluded that there was a conspiracy amongst all the accused to illicitly fell trees from the government land situate in village Dewag under the garb of felling trees from private lands. To accomplish their objective, the accused forged affidavits and signatures of Devku and Balku etc., owners of private lands and got the same attested, fully knowing that the same were forged by impersonation in the absence of deponents and thereafter used the forged documents as genuine knowingly or having reason to know that the same were forged. Accused Surat Ram, Sohan Lal, G.C. Khatana and Ratti Ram were charged for preparation of records and documents incorrectly in the form of list of enumerated and marked trees with an intention to cause loss to State by corrupt means to obtain fiscal benefits to them and to other co-accused. ...9... 14. On completion of investigation, 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 examined as many as 59 witnesses. 15. 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 defence the accused examined DW-1 Dev Raj Kaushal and tendered in evidence attested copies of judgments Ex. DX-1 to DX-5 and mark DX. 16. 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 20.07.1999 and the accused persons are dis- satisfied with the order of confiscation in favour of the State. 17. We have heard the learned Senior Additional Advocate General and learned Additional Advocate General for the State, learned counsel for the accused and perused the record. 18. It shall be pertinent to observe at the very outset that initially when the felling permission was granted by DFO, Shimla, on 10.3.1977, the respective lands belonging to the private land owners were got demarcated through A-6, Surat Ram, the then Field Kanungo. However, the demarcation report submitted by the said Surat Ram was not brought on record by the prosecution. Further, it is the case of the prosecution that the demarcation of the land and marking of trees on the private land was carried out by ...10... accused Surat Ram alongwith Ratti Ram (since deceased) in absence of the land owners. But, it has come in the statements of PW-1 Shri Chandu Lal, PW-8 Smt. Belku, PW-9 Shri Ram Dass, PW-10 Shri Ganga Ram, PW-11 Shri Lachhi Ram, PW-24 Smt. Devku, PW-28 Shri Moti Ram that all of them were present at the time of demarcation of their lands and marking of trees standing thereon. 19. Though it is alleged that it was revealed pursuant to the demarcation reports submitted by PW-19 Shri P.C. Dogra, Ex. PR-29, PR-35 and PR-43, that as many as 66 trees of kail and deodar were found to have been illicitly cut and removed from adjoining government forest, yet the evidence led by the prosecution to establish this allegation, nowhere comes up to the mark. 20. The demarcations, carried out by PW-19 Shri P.C. Dogra and PW-37 Shri Abhey Pant, were not found to be in consonance with the instructions issued by the Financial Commissioner from time to time. The same were not carried out in presence of the private land owners. Both the demarcation reports were stated to have been carried out in the presence of some local residents of the area, police and forest officials, but their statements were not on record, except that of Shri K.S. Negi (PW-49) and Shri Hardyal Singh(PW-53). No reason has been stated in these reports as to why the statements of the land owners and other residents, who were present on the spot during the course of demarcation, were not recorded. There is also no ...11... satisfactory and trustworthy evidence as to whether any pukka points were fixed to lend credence to the demarcation carried out by S/Shri P.C. Dogra and Abhey Pant. 21. There are material contradictions viz-a-viz the demarcation reports submitted by both of them and in their statements in the court. As per the demarcation report submitted by Shri P.C. Dogra, illicit felling of the trees was found in khasra No. 144, but when he was examined as PW-19, he has very categorically stated that khasra No. 144 was not measured as it was not required. So, it is difficult to understand that when khasra No. 144 was not measured, then how illicit felling of trees could be found in the said khasra number. He has also stated that the local residents of the area were informed about the demarcation through Patwari by beat of drum and no individual notices were sent to any of them. Further, in Ex. PT-66, which is an application for demarcation of private khasra numbers adjoining to the government land, moved by Shri Hira Lal, Inspector (CID) before the Collector, it has been mentioned that the demarcation carried out during the course of investigation by the Revenue Staff (i.e. by Shri P.C. Dogra) has been found defective due to lack of codal formalities and, therefore, demarcation is required to be conducted in accordance with the Rules. So, there is no reason to place reliance on the demarcation report submitted by Shri P.C. Dogra. 22. Furthermore, it has come in evidence that S/Shri J.S. Chuahan (PW-34) and Narain Singh (PW-36) had prepared the stumps counting lists, Ex. PT-49 to Ex. PT-65 on the basis of ...12... demarcation given by Shri Abhey Pant, but this fact has been falsified by Shri Abhey Pant who has testified that the counting of the stumps and preparation of lists was not done in his presence and the same do not form part of his report and record. There is also no mention about it in his report. So, it cannot be understood as to by whom and under what circumstances, the stumps were counted. So, no reliance can be placed on the demarcation report of Shri Abhey Pant also. 23. It is also the case of the prosecution that the applications for demarcation and affidavits were forged by the accused illegally. According to the prosecution, the private land owners whose lands were sought to be demarcated and trees were sought to be marked therein, had never applied for demarcation and their signatures and thumb impressions were forged with a view to mark and cut the trees from the government land under the garb of private sale cases for which the prosecution had relied upon the statements of PW-1 Chandu Lal, PW-8 Belku, PW-9 Ram Dass, PW-10 Ganga Ram, PW-12 Kamla Devi, PW-24 Devku and PW-28 Moti. None of them has supported the case of the prosecution. They have nowhere stated that they had not applied for demarcation of their lands. So, the applications and affidavits cannot be said to be illegal and forged one. 24. On reappraisal of the evidence on record, we are satisfied that the learned trial court was correct in arriving at the inference that the prosecution was not able to prove its case against the accused beyond any reasonable doubt. ...13... 25. Since the accused had not laid any claim to the case property, i.e., the seized timber at any stage during trial, they cannot lay any lawful claim to the same during appeal. Accordingly, the trial court's order confiscating the seized timber in favour of the State and in the alternative in case the same has been auctioned to deposit the proceeds in the government treasury does not suffer from any infirmity. 26. In view of the above, we do not find any lawful reason for any interference with the impugned judgment dated 20.07.1999. Accordingly, both the appeals are dismissed being without any merit. (R.B. Misra) Judge (V.K. Sharma) Judge December 15, 2010 (virender)