IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.438 of 2000. Judgment reserved on: 11.8.2008 Date of decision: 13.8.2008 State of H.P. …….Appellant Vs. Amar Singh and another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. Janesh Mahajan, Advocate. Kuldip Singh, Judge. This appeal has been filed against the judgment dated 18.12.1999 passed by learned Judicial Magistrate Ist Class, Chopal in Case No.229-1 of 95, acquitting respondents under Sections 379, 34 IPC and under Section 33 of the Indian Forest Act, 1927. 2. The prosecution case in brief is that the respondents in furtherance of their common intention had illicitly, in one year, prior to 22.5.1993 felled 20 deodar and 30 kail trees from Jubli Dehat without any valid permit of forest department. PW-1 Munshi Ram, Range Officer, Kanda had sent a written complaint Ex.PW-1/A on 22.5.1993 to Incharge Police Post, Kupvi that respondents had illicitly cut 20 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… deodar and 30 kail trees from Jubli Dehat on land comprised in khasra No.392/208. On this complaint, rapat No.6 Ex.PW-10/A was entered on 23.5.1993 and thereupon FIR Ex.PW-10/B was registered on 24.5.1993 at Police Station, Chopal. The police commenced the investigation, PW-2 Dula Ram, forest guard had issued damage report dated 14.5.1993 Ex.PW-2/A against respondents for cutting 20 deodar and 30 kail tress. It has been alleged that respondents refused to sign the iqbalnama. The illicit timber of deodar and kail in the form of five bundles was handed over to forest guard Dula Ram, drat and rope were recovered, site plan was prepared. The respondents were arrested but later on released on bail. The demarcation was got done through Udai Singh Naib Tehsildar. On completion of investigation, challan was presented in the Court. The respondents were charged for having committed offence punishable under Sections 379, 34 IPC and under Section 33 of the Indian Forest Act, to which they pleaded not guilty and claimed trial. The prosecution examined 11 witnesses and produced some documents. The respondents were examined under Section 313 Cr.P.C. in which they pleaded their innocence but led no evidence in defence. On completion of trial, the learned trial Magistrate acquitted the respondents as noticed above, hence, this appeal by the State. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the appellant and Mr. Janesh Mahajan, learned counsel for the respondents and gone through the record. It has been submitted on behalf of the appellants that learned trial Magistrate has …3… not properly appreciated the evidence on record and has erred in acquitting the respondents. The learned counsel for the respondents has supported the impugned judgment of acquittal. 4. PW-1 Munshi Ram has stated that he remained Range Officer from 1990 to 1993. On 22.5.1993, Dula Ram, forest guard came in his office and on 23.5.1993 he submitted the case to police post Kupvi for registration vide report Ex.PW-1/A. In cross- examination he has stated that Dula Ram, forest guard came to him but he himself did not visit the spot and he does not know anything of the case. PW-2 Dula Ram has stated that he remained posted as forest guard, Sainj Beat from 1990 to 1997. On 14.5.1993 he was patrolling Jubli Dehat, on spot Amar Singh, Ran Singh were cutting small 20 deodar trees and 30 kail trees from Jubli Dehat Kupta Dhar. They were also enclosing the area by stone wall. In the enclosed area there were 34 small trees. He prepared damage report Ex.PW- 2/A. He handed over felled trees on supurdari to Durga Singh. The police handed over five bundles of fuel wood of deodar and kail to him on supurdari and memo to this effect Ex.PW-2/B was prepared. The report Ex.PW-1/A was sent by range officer through him. The area was demarcated by the Naib Tehsildar in the year 1995. In the demarcation some land was found to be in the ownership of some other persons and on some land encroachment of Amar Singh etc. was found on Govt. land. In cross-examination he has stated that he did not give the copy of notification to the police. He did not prepare …4… any list on the spot. The case property was not shown to him in the Court. 5. PW-3 Man Singh did not support the prosecution and he was declared hostile. He was cross-examined by the prosecution but nothing favourable to prosecution was extracted in his cross- examination. PW-4 Udai Singh has stated that on 18.9.1995 he demarcated the land comprised in khasra Nos. 392/308/1, 392/308/2, measuring 4-11 bighas. He prepared demarcation report Ex.PW-4/A which is counter signed by Tehsildar. In cross-examination he has stated that no tatima was prepared on the spot. He has not annexed copies of momi and tatima with the demarcation report. The demarcation team remained on the spot for one day as fixed points were not available on the spot nor any one from the forest department was present on the spot. 6. PW-5 Roshan Lal has stated that memo Ex.PW-5/A was prepared about 3-4 years ago which was signed by him, his statement was recorded on 26.3.1999. In cross-examination he has stated that no recovery of drat and rope was made in his presence from accused. PW-6 Dula Ram and PW-7 Joban Dass did not support the prosecution and they were declared hostile. PW-8 Madan Lal ASI has stated that he got the land demarcated on 18.5.1995. The recovery of drat from Amar Singh and recovery of rope from Ran Singh was made through memo Ex.PW-5/A. In cross- examination he has stated that when he went to the spot the incident had already taken place 6-7 months ago. The case property, material …5… were not on the spot. The area was vacant. PW-9 Sahi Ram has given general statement that Amar Singh had cut some trees from Jubli Dehat and encroached some Govt. land. 7. PW-10 ASI Devi Singh has stated that on 23.5.1993 Munshi Ram, Range Officer, Kanda reported the matter at police post vide rapt Ex.PW-10/A which was sent from police post Kupvi to Police Station, Chopal for registration of FIR Ex.PW-10/B. He investigated the case, prepared the site plan Ex.PW-10/C. PW-11 Durga Dev, Patwari has stated that on 18.9.1995 he went to the spot with Naib Tehsildar along with papers of Jubli. He prepared tatima Ex.PW- 11/A, copy of jamabandi Ex.PW-11/B. In cross-examination he has stated that no demarcation was done by him, he only handed over papers to the Tehsildar. He does not know how the demarcation was done. He has stated that area in jamabandi Ex,PW-11/B is measuring 3071 bighas. He has stated that on spot there is ownership land also. 8. There is nothing on record to show that Jubli Dehat is in fact a Govt. forest. Ex.PW-4/A is the demarcation report. In the demarcation report it has not stated how the fixed points were ascertained. The demarcation report is not accompanied with copies of musabi, momi or tatima. There is nothing in the demarcation report to show that who were present on the spot. The statements of the interested parties were also not recorded by PW-4 at the time of demarcation. The demarcation was allegedly carried out on 18.9.1995 whereas the incident is of 14.5.1993 . PW-11 …6… Durga Dev, Patwari has stated that on 18.9.1995 he handed over some papers to the Naib Tehsildar. He does not know how the demarcation was done on the spot. The demarcation is otherwise not in accordance with demarcation instructions. The demarcation report, therefore, cannot be relied. It has not been proved that the area in question infact is part of Govt. land. PW-2 has stated that he found accused cutting deodar and kail trees on 14.5.1993 but he reported the matter to PW-1 on 22.5.1993 . The delay of 8 days has not been explained by the prosecution. In demarcation report Ex.PW- 4/A, it has been stated that no stumps were found on the spot. No independent witness has supported the prosecution case. The recovery of drat and rope has not been proved, on the contrary PW-5 witness to recovery memo Ex.PW-5/A has stated that accused in his presence did not produce any rope and drat. The learned trial Magistrate has taken a possible view from the material on record which requires no interference. 9. The result of above discussion, appeal fails and is accordingly dismissed. ( Kuldip Singh ) Judge. August 13, 2008 (sks)