IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 128 of 2001. Judgment reserved on: 8.4.2008 Date of decision: 11.4.2008 Tara Chand alias Tara ……Petitioner Vs. State of H.P. …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr.Ramakant Sharma, Advocate. For the Respondent : A.K. Bansal, Additional Advocate General. Kuldip Singh, Judge. 1. This revision has been directed against the judgment dated 21.7.2001 passed by learned Addl. Sessions Judge, Solan camp at Nalagarh in Criminal appeal No.8-NL/10 of 1999, confirming judgment dated 30.8.1999 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Case No.176/2 of 1996 convicting the petitioner under Section 353 IPC and sentencing him rigorous imprisonment for a period of 9 months and fine of Rs.2,000/- , in default of payment of fine further simple imprisonment of two months. 2. The prosecution case in brief is that PW-1 Gopal Chand, Forest Guard was posted at Jhira beat, Forest Division, Nalagarh on Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 9.10.1996. He alongwith PW-2 Niranjan was patrolling in Beed Plassi Jungle and when they reached village Sarsa at about 9.30 p.m. they heard sound of a tractor. They reached near the tractor and saw that the petitioner was ploughing forest area with the help of a tractor. PW-1 Gopal Chand informed the accused that it was a Demarcated Protected Forest (DPF) and he could not plough it. The petitioner stopped the tractor and caught PW-1 Gopal Chand and tore his uniform. PW-2 Niranjan intervened; the petitioner started the tractor and tried to run over both of them. Gopal Chand and Niranjan went to Saini Majra, the petitioner came there and threatened to kill both Gopal Chand and Niranjan. The matter was reported to the police. The police recorded the statement Ex.PW-1/A under Section 154 Cr.P.C. and on that basis FIR Ex.PW-10/A was registered at Police Station Nalagarh. The investigation was conducted by PW-11 HC Ram Phal, who took into possession shirt Ex.P-1 vide seizure memo Ex.PW-1/B. He prepared site plan Ex.PW-11/B. The tractor was taken into possession. During investigation, it was found that on 9.10.1996 Ajit Singh Incharge Beed Plassi was on leave and PW-1 Gopal Chand was holding charge of Beed Plassi as per order of the Range Officer on the leave application Ex.P-4 of the PW-6 Ajit Singh. The spot was demarcated by PW-8 Som Nath, Kanungo who issued report Ex.PW-4/A. On completion of investigation challan was presented in the Court. The notice of accusation was put to the petitioner under Sections 353, 336 and 506 IPC, to which he pleaded not guilty and claimed trial. The prosecution examined 11 witnesses. …3… The statement of petitioner was recorded under Section 313 Cr.P.C., he did not lead any evidence in defence. The learned Sub Divisional Judicial Magistrate convicted and sentenced the petitioner on 30.8.1999 as noticed above, learned Addl. Sessions Judge vide judgment dated 21.7.2001 dismissed the appeal of the petitioner by maintaining conviction and sentence of petitioner passed by learned Sub Divisional Magistrate, hence this revision. 3. I have heard Mr. Ramakant Sharma, learned counsel for the petitioner and Mr. A.K. Bansal, learned Addl. Advocate General for the State and gone through the record . Mr. Ramakant Sharma, has submitted that the prosecution has miserably failed to prove that PW-1 and PW-2 were discharging public duties at the time of alleged occurrence. There is no evidence on record that petitioner prevented PW-1 and PW-2 from discharging their duties as public servants. He has submitted that there are material contradictions in the prosecution story and both the Courts below have drawn inference from the material which is not possible from the evidence which has come on record. The legality and proprietary of judgment of conviction and sentence passed by the two Courts below is involved in the present revision petition. The learned Addl. Advocate General has supported the impugned judgment and has submitted that after due appreciation of material on record the two Courts below have rightly convicted and sentenced the petitioner. He has submitted that finding of fact has been recorded by two Court below and therefore, in revision no interference on the finding of fact is permissible. …4… 4. In order to appreciate the contentions of either side, it is necessary to refer to the evidence on record. PW-1/A is statement of PW-1 Gopal Chand under Section 154 Cr.P.C. In that statement he has stated that he is Incharge of Beed Plassi forest beat these days. On 9.10.1996 he was patrolling the area of Beed Plassi jungle alongwith B.O. Niranjan Singh, at about 9.30 p.m. they reached Sarsa, they heard the sound of a tractor, both of them came close to the tractor and saw Tara Chand with his tractor bearing registration No.PAN-2552 and was ploughing the forest area. He and B.O. asked Tara Chand that the land was of forest department and a DPF. On this petitioner stopped the tractor and caught hold him from neck and he torn his uniform shirt. On this B.O. intervened and the petitioner left him, he started the tractor and tried to run over both of them. PW- 7/A is DD report No.43 dated 9.10.1996 recorded at about 9.45 pm . As per Ex.PW-7/A PW-2 Niranjan Singh telephonically informed police station, Nalagarh that petitioner quarreled with PW-1 Gopal Chand when he was on duty and threatened to kill him. In Ex.PW-7/A there is no mention that petitioner had torn the shirt of PW-1 and he had ploughed the Govt. land in DPF through tractor or petitioner caught PW-1 from neck and tried to run over both PW-1 and PW-2 with tractor . PW-1 Gopal Chand has stated that on 9.10.1996 at about 9.30 pm he was patrolling Beed Plassi jungle, the accused was ploughing Govt. land at Sarsa river. B.O. Niranjan Singh was also with him. On enquiry the accused told that he was extracting stones. The accused had no permission from the department. The accused …5… stopped his tractor and caught hold him from neck and torn his uniform. Thereafter he ran away from the place. In cross- examination he has stated that at the time of occurrence his posting was in Jhira beet, Beed Plassi is separate beat and Ajit Singh was posted as forest guard in that beat. In his statement he has no where stated that he was incharge of Beed Plassi jungle in absence of Ajit Singh guard on the date of occurrence. 5. PW-2 Niranjan Singh has stated that Ram Gopal was the guard of Jhira beat and Ajit Singh was the guard of Beed Plassi. At the time of occurrence the charge of Beed Plassi was with Ram Gopal but PW-1 Gopal Chand has not stated so. PW-2 has further stated that accused was extracting stones whereas PW-1 has stated that accused was ploughing the field with tractor. PW-2 has stated that accused got down from the tractor and tore the uniform of the guard. PW-2 has not stated that the accused caught hold PW-1 from neck nor he has specifically stated that shirt Ex.P-1 of PW-1 was torn by the accused. PW-3 Ram Karan has stated that police came on the spot and took into possession uniform shirt of PW-1 Ram Gopal which is Ex.P-1. In cross-examination he has stated that in an excise case accused was a witness against him. PW-4 Ram Rakha Patwari Halqua Majoli has stated that he and halqua Kanungo and others gave demarcation of mauza Beed Plassi and report to this effect is Ex.PW-4/A. The khasra No.322 is owned and possessed by department of forest. This witness has nowhere stated that the field from which the accused has allegedly extracted stones or he was …6… ploughing was found to be owned by forest department and a part of DPF forest. PW-5 Gian Chand Clerk, DFO office Nalagarh has produced documents Ex.P-1 to Ex.P-4. PW-6 Ajit Singh Dy. Range Officer, Saini Majra has stated that on 9.10.1996 he was forest guard in Beed Plassi and was on leave on that date. The charge of Beed Plassi was given to Gopal. PW-7 Madho Ram has proved Rapat No.43 dated 9.10.1996 Ex.PW-7/A . PW-8 Som Nath, Kanungo has stated that demarcation of Beed Plassi khasra No.322 owned by State was carried out and report Ex.PW-4/A was prepared to this effect. In his statement he has not stated that he carried out the demarcation as per Financial Commissioner instructions. PW-9 HC Sohan Lal is a witness with respect to recovery of tractor. PW-10 Inspector Rikhi Ram Sharma has stated that on the basis of rukka Ex.PW-1/A, FIR Ex.PW-10/A was registered. PW-11 HC Ram Phal has stated that he recorded the statement Ex.PW-1/A of Gopal Chand under Section 154 Cr.P.C. 6. There is nothing on record to show that PW-1 Gopal Chand was Incharge of Beed Plassi jungle on 9.10.1996 on the date of occurrence. The prosecution has produced Ex.P-4 leave application of Ajit Singh. The application was forwarded to DFO, Nalagarh by Range Officer with the recommendation that Gopal Chand forest guard will look after the charge during leave period of Ajit Singh but the prosecution has not placed on record the ultimate order passed by the DFO, Nalagarh on leave application Ex.P-4. Therefore, it has not been established that PW-1 Gopal Chand was …7… incharge of Beed Plassi jungle on the date of occurrence. In addition to this PW-1 Gopal Chand in his statement has not stated that on 9.10.1996 he was incharge of Beed Plassi jungle. On the contrary in his cross-examination he has stated that at the time of occurrence his posting was in Jhira beat and Beed Plassi is different beat where Ajit Singh forest guard was posted. Thus, it has not been established and proved that PW-1 was incharge of Beed Plassi jungle when he allegedly checked accused ploughing or extracting stones from the Govt. land situated in DPF. There is no allegation against accused that he obstructed PW-2 Niranjan while discharging his duties. PW-1 has stated tearing of shirt by the accused at the time of alleged occurrence but PW-2 has not specifically stated that the shirt was torn by the accused at that time. He has generally stated that the uniform of the PW-1 was torn, thus there are contradictions in the prosecution story. In DD report Ex.PW-7/A it has not been stated that accused has extracted stones from Govt. land or ploughed the Govt. land. It has also not been stated in Ex.PW-7/A that shirt of PW-1 was torn by accused. The demarcation has not been proved to be carried out in accordance with rules. PW-8 Som Nath, Kanungo has failed to point out how he fixed the points and from where he started the demarcation. In State of H.P. vs. Laxmi Nand 1992(2) SLC 307 how demarcation is to be carried out has been specifically dealt with. The demarcation in the present case has not been carried out as per law laid down in State of H.P. supra case. Therefore demarcation report Ex.PW-4/A has no legal value. The prosecution has not …8… examined any independent witness in support of the case. It is not the prosecution case that khasra No.322 is situated at isolated place and there is no abadi nearby khasra No.322. In the State of Tripura vs. Sashimohan Malakar and others 1977 Cr.LJ. 1663, it has been held that on the basis of certain notification the Forest Officer could exercise powers under Section 64 of the Forest Act, if the offence was committed within a distance of 5 miles of the Tripura border but where there was no evidence that place of incident was within 5 miles of the border, the officer had no right to apprehend the accused and if there is any scuffle during the course of which the officer sustained injuries, the accused cannot be said to have committed any offence under Section 353. In the present case it has not been proved on record that PW-1 was incharge of Beed Plassi jungle and he was discharging official duties regarding Beed Plassi jungle at the time of alleged occurrence. PW-2 has not specifically stated that Beed Plassi jungle was within the area of BO Saini Majra where PW-2 was posted during the relevant time. Therefore, it has also not been proved that PW-2 was discharging official duties regarding Beed Plasi jungle when he accompanied PW- 1 on 9.10.1996 at the time of alleged occurrence. The Supreme Court in Pandurang Sitaram Bhagwat vs. State of Maharashtra (2005) 9 SCC 44 has held that in terms of Section 397 of the Code of Criminal Procedure, the correctness, legality or propriety of any finding, sentence or order may fall for consideration of the revisional court. The two Courts below have not properly appreciated the …9… material on record. In the light of above discussion the judgment of conviction and sentence recorded by learned Sub Divisional Judicial Magistrate, Nalagarh in Case No.176/2 of 1996 on 30.8.1999 and confirmed by learned Addl. Sessions Judge , Solan camp at Nalagarh in Criminal appeal No.8-NL/10 of 1999 dated 21.7.2001 are not sustainable and liable to be set aside. 7. No other point was urged. 8. In view of above, the revision petition is allowed and judgment of conviction and sentence dated 30.8.1999 passed by learned Sub Divisional Judicial Magistrate, Nalagarh in Case No.176/2 of 1996 and upheld by learned Addl. Sessions Judge , Solan camp at Nalagarh in Criminal appeal No.8-NL/10 of 1999 dated 21.7.2001 are set aside. The petitioner-accused is acquitted of charge under Section 353 IPC, fine if any, deposited by the petitioner, be refunded to him, his bail bonds are discharged. ( Kuldip Singh ) Judge. April 11, 2008 (sks)