IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 189/2004 Date of decision: 28.6.2011 State of H.P. …..Appellant Versus Vas Dev and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 No For the Appellant: Mr. A.K. Bansal Addl. Advocate General. For the respondent : Pt. Om Parkash, Advocate, for respondents No. 2 and 5. Mr. N.K. Thakur, Advocate, for respondents No. 3 and 4. Respondent No. 1 dead. Surinder Singh, J. (Oral) The learned Additional Sessions Judge reversed the judgment of conviction and sentence passed by the learned trial Court in case No. 154-1 of 1999 decided on 31.1.2001/ 9.2.2001 for the offence punishable under Section 379 read with Section 34 Indian Penal Code. As such the respondent-State felt aggrieved and challenged the said judgment of acquittal in the present appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - 2. Heard and gone through the evidence on record. 3. Precisely, the case of the prosecution is that respondents allegedly felled four Shisham trees from the Shamlat land which was allotted to the Industrial Department of the State Government. Pursuant to the orders of the SDO (Civil), Amb, the land from where the alleged illicit felling was done, was got demarcated through PW3 Satpal Kanungo who was duly assisted by PW4 Dilbag Singh Patwari and PW5 Mangat Ram, Patwari Settlement. He submitted the demarcation report Ext. PW3/A stating therein that the trees in question were felled from khasra No. 1882. 4. The FIR was lodged. Police took into possession the logs of Shisham trees, recorded the statements of the prosecution witnesses and concluded the involvement of the respondents for the offences punishable under Section 379 read with Section 34 Indian Penal Code and challan was presented in the court for their trial. Learned trial court convicted the accused persons under Section 379 read with Section 34 Indian Penal Code and sentenced them to undergo simple imprisonment for three months each and to ay a fine of `500/- each with the default clause. - 3 - 5. Feeling aggrieved by the impugned judgment of conviction and sentence, respondents filed an appeal in the court of Sessions which was allowed and respondents were acquitted of the charges. 6. State felt aggrieved and dissatisfied by their acquittal and preferred the present appeal. 7. During the pendency of this appeal respondent No. 1 Vas Dev died and the appeal against him stands abated. 8. Admittedly, the land in question was earlier a Shamlat land owned by the ‘Gram Panchayat Kuthera Khairla’. PW5 Mangat Ram Patwari Settlement admitted that prior to the year 1980, Milkhi Ram and Amar Singh were inducted as non-occupancy tenants by the Panchayat. He also admitted that the respondents are holders of their power of attorney. He further admitted that proprietary rights were also conferred on the said tenants and they became its owners, including trees existing thereon. Ext. D1 is the copy of plaint which establishes the fact that successors of Vas Dev, Rajinder and Vijay Kumar had filed the suit for temporary injunction restraining the respondents-State and the General Manager Industries from causing any interference into their possession with respect to khasra No. 1881 in the month of January, 1999. Disputed khasra No. 1882 was - 4 - also a shamlat land. Record also reveals that Shamlat land which was owned by the Panchayat later vested in the State of H.P. in the year 1974. There is nothing on record to show that the possession of the land in question was taken by the State Government in accordance with the Himachal Pradesh Village Common Lands Vested and Utilization Act, 1974 and the rules framed thereunder. Further, I also find that PW3 Sat Pal Kanungo did not demarcate the land in question in the presence of accused. He also admits that Numberdar or Panch of the Ilaqua were also not associated in the demarcation. The perusal of the report further shows that while conducting the demarcation, what method was used by him to fix the pucca points. Khasra Numbers 1881 and 1882 both are adjoining to each other. Its boundary was not fixed in accordance with law. He stated that there was abadi area on one side thus he was not able to fix pucca points. Abadi land has not been pinpointed by him on any portion of the land shown in aks sajra. 9. Therefore, in my considered opinion, the demarcation conducted by the Kanungo is not in consonance with the instructions issued by the Finance Commissioner in this behalf. The demarcation conducted by the revenue staff is discrepant and the predecessor of the respondents was alleged to be owner in possession of - 5 - khasra No. 1881 and with respect to other khasra number which was also shamlat land, was earlier in possession of the Gram Panchayat, no evidence has been put forth as to whether its possession was taken by the respondents in accordance with law and thereafter handed over to the Industries Department which is the land from where the alleged felling is stated to have done by the respondents. In absence of this evidence, regarding possession, the offence of theft cannot be said to have been made out. 10. For the aforesaid reasons, I do not find any ground to interfere in the impugned judgment of acquittal passed by the learned Additional Sessions Judge reversing the impugned judgment. The appeal lacks merits, therefore, dismissed. 11. The respondents are discharged of their bail bonds entered upon by them at any time during the proceeding of this case. June 28, 2011 (Surinder Singh), (cm) Judge.