IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 128 of 2004 Date of Decision: 11th November, 2010 __________________________________________________________ State of H.P. ….Appellant. Versus Rajinder Singh ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ___________________________________________________________ For the Appellant: Mr. P.K. Sharma, Additional Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. For the Respondent: Mr. K.S. Kanwar, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The State is aggrieved by the judgment of acquittal passed by the learned Judicial Magistrate Ist Class, Court No. II, Poanta Sahib. 2. The respondent was charged for offences under Sections 26 of the Indian Forest Act and 447 of the Indian Penal Code. The allegation against the respondent was that in the month of February, 2000 he was found to be encroaching upon 0.2 bighas of land belonging to the Forest Department in Reserve Forest C-2 at Sataun, Tehsil Poanta Sahib and despite directions issued to him to desist from the construction, he did 1 Whether Reporters of Local Papers may be allowed to see the judgment?. 2 not cease from the illegal activities. The demarcation report was prepared and sent to the Range Officer, who filed a complaint in the police and the FIR was registered against the respondent. 3. In support of its case, the prosecution examined seven witnesses in all. The statement of respondent under Section 313 of the Code of Criminal Procedure was recorded, but he denied the case against him. 4. On the evidence on record, the learned trial Court found that there was no proper demarcation and in absence of the proper demarcation report, conviction could not follow. For this purpose, the Court relied upon the judgment of this Court in State of H.P. vs. Laxmi Nand and others, 1992(2) Sim.L.C. 307 and acquitted the respondent. The State is now in appeal. 5. It is urged by the learned Additional Advocate General that the learned trial Court is in grave error in not appreciating the evidence of the prosecution. He has taken me to the evidence extensively. 6. Before adverting to the evidence of other witnesses, what was required to be proved by the prosecution was that the respondent had infact encroached upon forest land. The demarcation report Ext.PW-5/A has been proved in evidence of PW5 Balbir Garg,Tehsildar, Pachhad. He states that in the year 2000 he was posted as Naib Tehsildar, Kanroo. On 20.6.2000 he prepared the report Ext.PW5/A. In examination in chief, he only states this fact. He has been subjected to lengthy cross examination. He admits that the demarcation was carried out at the behest of the Forest Department. He admits that this piece of land is surrounded by the other private land. His statement is totally silent as to whether the pucca points were fixed in accordance with law, before the demarcation was carried out. He admits that according to the rules of the Financial Commissioner 3 three pucca points are to be fixed. Though he states in his cross examination that he associated the respondent at the time of demarcation, yet he admits that there is no record in the demarcation file to show that he infact was so associated. He says that some kind of notice was sent to the respondent through the Patwari, but even that has not been proved on record. In these circumstances, it becomes difficult to hold that the respondent is guilty of offence as charged. 4. The learned trial Court holds that the other witnesses namely PW1Milkhi Ram Range Officer does not know where the land is and he has not seen the accused carrying out any construction. He only sent the complaint to the Forest Guard Tulsi Ram who while appearing as PW2 admits that the respondent is residing with his father in the house which was construted before 50-60 years prior to the lodging of report. He also admits that there is no boundary wall between the land of the Forest Department and inhabitants of the area. Gurdeep Singh PW3 also states that he was posted as Block Officer, visited the spot and admits that there is no boundary wall between the private lands and forest land. In these circumstances, it was all the more necessary that not only the statutory requirements of demarcation should have been followed and applied but the evidence of encroachment should have been brought on record to establish the offence beyond any reasonable doubt. 5. A Division Bench of this Court in State of H.P. vs. Laxmi Nand’s case has held: “15. Since there was no set measurement procedure, to be followed while defining limits of holdings of private individuals, to decide boundary dispute cases, a reference was made by the High Court of Judicature at Lahore to the Financial Commissioner, Punjab for issuance of necessary instructions and guidelines to the Revenue Officer, 4 who were enjoined with the duty to carry out demarcation of the boundaries on the spot, in accordance with the provisions of Section 101 of the Punjab Land Revenue Act, 1887 (which corresponds to section 107 of the Himachal Pradesh Act). The Financial Commissioner issued the necessary instructions and guidelines in this behalf in exercise of the powers under section 100 of the Punjab Land Revenue Act (corresponding to Section 106 of the Himachal Pradesh Act), which now form part of Chapter I-M of Volume I of High Court Rules and Orders, as stated above. We have been informed that these instructions are still in vogue and have neither been withdrawn nor modified and are required to be followed. In order to answer the question posed before us, it would be profitable to quote the instructions in extensor, as under:- I. If a boundary is in dispute the Field Kanungo should relay it from the village map prepared at the last settlement. If there is a map which has been made on the square system he should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus, he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then 5 find three points on different sides of the place in dispute as near to it as he can, and if possible, not more than 200 kamads apart. Which are shown in the map and which the parties admit to have been disturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map. II. In the report to be submitted by him, the Kanungo must explain in detail how he made his measurement. He should submit a copy of the relevant portion of the current settlement field map of the village showing the fields if any with their dimensions (Karu kan) of which he took measurement situated between the points mentions in Instruction I above and the boundary in dispute. This is necessary to enable the 6 Court to follow the method adopted and to check the Field Kanungo’s proceedings. III. If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceeding of the current settlement, that also should be demarcated on the ground so far as this may be possible and also shown in the copy of the current field map to be submitted under instruction No. II. IV. On the same copy should be shown also the limits of existing possession. V. The areas of the fields abutting on the boundary in dispute as recorded at the time of law settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo’s report with an explanation of the cause of increase or decrease if any discovered. VI. When taking his measurement the field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end he should record the statements of all the parties to the effect that they have seen and understood the measurements, they have no objection to make to this (or if they have any objection, he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court one or other party impugns the correctness of the measurement and asserts that one thing or another was left undone. This 7 raises difficulties which the above procedure is designed to prevent. VII. The above instructions should be followed by Revenue Officers or Field Kanungo’s whenever they are appointed by a Civil Court Commissioners in suits involving disputed boundaries.” (at p.314-315) I do not find any evidence on record to show the compliance with these mandatory requirements. Even if the evidence of other witnesses is accepted on its face value, the identity of the encroached land remains a mystery. There is thus no merit in this appeal, which is accordingly dismissed. Bail bonds furnished by the respondent are discharged. (Dev Darshan Sud) Judge November 11th, 2010(ms)