Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.114 of 2001. Dated of Decision: August 21, 2008. State of H.P. ……… Appellant. Versus Narayan Dass and Others. …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. J.S. Guleria,Law Officer. For the Respondents : Mr. Raman Sethi, Advocate. Surinder Singh, J (oral): The respondents were tried and acquitted by the learned trial court, in Criminal Case No.155/2 of 1999, on 24.8.2000, for the offences punishable under Sections 379 and 411 of the Indian Penal Code read with Sections 41 & 42 of the Indian Forest Act. In short, the prosecution case is that on 18.5.99, PW1 Forest Guard Santosh Kumar and PW2 Swaran Singh Forest Nursery Incharge were on patrolling duty in the D.P.F. Rakh Rampur and found that some trees were felled in the said forest. During the night at about 8 p.m., they put a ‘naqa’ in the said jungle and found the respondents cutting two khair trees. They were apprehended and were produced before the Block 2 Officer and informed the police in writing Ex.P1, on the basis of which FIR was lodged on 19.5.1999 at 10 a.m. Police arrested the respondents on the same day. They are alleged to have made joint disclosure statement with respect to felling of trees and concealment of instruments used for felling of trees, pursuant to which eight logs of Khair wood were recovered vide memo Ex.P5 in the presence of Swaran Singh and Bachnu Ram. The accused are alleged to have pinpointed the place of alleged occurrence. The police obtained the demarcation from the Kanungo. He submitted his report Ex.P7. Police prepared the site plan Ex.P8. Some pieces were allegedly sold by the other accused to Raj Kumar respondent which were recovered. After recording the statements of the witnesses and on completion of the investigation, challan was presented in the court for the trial of the respondents. Since the accused Raj Kumar was alleged to have found in possession of the theft khair wood, as such, he was charge-sheeted under Section 411 of the Indian Penal Code and other respondents were charge-sheeted for the offences under Sections 379 of the Indian Penal Code read with Section 41 & 42 of the Indian Forest Act. The respondents pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. After hearing 3 the parties and on going through the record, at the end of the trial, the respondents were acquitted, on the grounds that the prosecution failed to prove its transportation and also the fact of felling of trees from the Government forest. The joint disclosure statement of the accused persons recorded under Section 27 of the Indian Evidence Act was not admissible in evidence and further that the recovery pursuant to that was a farce and further that the articles alleged to have concealed was an open place, thus the evidence was to be discarded and the demarcation was not done by the Kanungo in accordance with the requirement of law as held in State Vs. Lachmmi Nand [1992(2) SLC 307] and further the statements of the witnesses were contradictory and did not inspire confidence. Shri J.S. Guleria, learned Law Officer has argued that the learned trial court has mis-appreciated the evidence on record. Respondents were caught red handed, thus there was no escape from their liability for the offence charged. Contra, Shri Raman Sethi, learned counsel for the respondents has vehemently argued that there are material contradictions in the statements of PWs 1 and 2 and further that when the respondents were alleged to have been caught red handed while felling the trees then what was the necessity to get the place identified by them by the police and on the top of it the instruments used for felling of trees and the logs were known to the witnesses (PWs 1 & 2) then what was the need 4 for recording their disclosure statement and then effecting the recovery as alleged. All this exercise appears to be to implicate them either on the basis of suspicion or for some other reason best known to the police. Further the logs recovered were not connected with the stumps of the trees alleged to have been felled. The instruments which were used for felling the trees could not have been concealed by the accused, if they were caught red handed. The area from where the alleged felling was done was abutting to the private land and demarcation was not conducted according to the rules. Therefore, the offences charged were not proved by the prosecution in accordance with law and the reasoning given by the learned trial court for acquitting the respondents is borne out from the record, therefore, the appeal merits dismissal. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record of the case. PW1 Santosh Kumar has stated that during the patrolling of D.P.F. Rakh, Rampur, they found the felling of certain trees, they put a ‘naqa’ on 18.5.99 around 8 P.M. and were attracted by the sound of felling of trees. They reached the spot and apprehended the respondents. They produced them before the Block Officer and the report was made to the police. Neither PW1 Santosh Kumar nor PW2 Swaran Singh have stated whether the trees felled were already converted 5 into the logs by them. If they were apprehended by them while felling two trees, it is not understood as to how the damage report was not chalked out on the spot. According to the respondents except Raj Kumar in their statements under Section 313 Cr.P.C., they had gone to collect the dry wood. Swaran Singh was known to them and they were taken to the Block Officer and then handed over to the police whereas Raj Kumar has denied that he was running any depot or that he had ever purchased any timber from them. Their plea appears to be plausible. Had they been caught red-handed by the Forest Guards, then there was absolutely no need for making the disclosure statement and effecting the recovery by the police pursuant to it in the presence of PW2 Swaran Singh forest official who already knew about the place and the fact where the Khair wood was lying in the Jungle. Further their joint statement alleged to have been made under Section 27 of the Evidence Act followed by recovery of khair wood both are wrong and illegal for numerous reasons. Firstly, the joint disclosure statement as well as joint recovery pursuant to it is neither interceded in law nor it is made out clearly as to which of the accused had made the disclosure first and who next. Secondly, the joint statement or the joint discoveries are not admissible against any of the accused persons unless the prosecution is able to prove as to who was first person to make the statement leading to the discovery. Thirdly, the place was already known to the 6 prosecution witnesses. Fourthly, the prosecution story lacks the probity on the ground if the respondents were caught red handed where was opportunity to them to conceal the cutting instruments like axes and saw. Fifthly, PW1 Santosh Kumar Forest Guard has admitted in his cross-examination that when they caught the respondents except Raj Kumar in the Jungle, they saw the axes and saw in their hands. Thus the testimonies of the aforesaid witnesses also improbablise the prosecution case. The prosecution also could not establish the place from where the trees were allegedly felled, also fall within the land owned by the State Government. The demarcation report Ex.P7 is also discrepant and not done in accordance with law. None of the respondents and the adjoining land owners were associated with the demarcation. PW5 Som Nath, Field Kanungo who is stated to have demarcated the land in question, he only tendered his report Ex.P7 in his statement but he did not depose anything as to how he conducted the demarcation nor his report discloses what procedure was adopted by him in demarcating the land. Even he did not say, who were the persons present on the spot. The procedure and validity in conducting the demarcation was assailed in his cross-examination. He could not satisfactorily give his reply or explanation. Since the work of measurement and giving demarcation is of a technical type and it is required to be 7 performed by the Revenue Officer well versed with the settlement operations and in accordance with the Chapter-8 of the H.P. Land Revenue Act, which deals with the surveys and boundaries and Section 106 empowers the Financial Commissioner to make rules for demarcation of boundaries and erection of survey marks and the powers of Revenue Officer to define boundaries are contained in Section 107 of the said Act. There was no proper measurement of the land in question as per the procedure while defining the limits of holdings to decide boundaries, more specifically when the private land was adjoining to the D.P.F. Rakh, Rampur and the alleged trees were found cut at a little distance away, from the private land. Thus it cannot be said that in any case the felling of the trees was done from the government land. Further there is no evidence connecting the recovered khair logs with the stumps found on the spot. There is a great variation in the girth of logs and the stumps. The recovery of khair woods could not be proved by leading a legal evidence from Raj Kumar respondent. Therefore, in these circumstances, the learned trial court has rightly acquitted the respondents for the offence charged. The findings of acquittal are borne out from the record and I do not find anything worth interference therein. Accordingly, the appeal is dismissed. 8 The respondents are discharged of their bail bonds entered upon by them at any time during the proceedings of the case. Send down the records. August 21,2008. (Surinder Singh) (Pds) Judge.