IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 547 of 2010. Decided on: 17th October, 2011. _________________________________________________________ State of Himachal Pradesh …Appellant. -Versus- Virender Singh. …Respondent. Coram: The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 __________________________________________________________ For the appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the respondent : Mr. Satyen Vaidya, Advocate. ---------------------------------------------------------------------------------------- Surjit Singh, Judge(Oral) : State has appealed against the judgment dated 17.08.2010, of learned Special Judge (Forest), Shimla, whereby respondent Virender Singh, working as Block Forest Officer in the year 2001, has been acquitted of charge, under Sections 379, 467, 468, 471, 420 of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988. 2. Facts of the case, as alleged by the prosecution, lie in a narrow compass. Respondent is a resident of village Rampuri in Tehsil Jubbal, District Shimla. He was employed as Block Forest Officer in the year 2001. People of Jubbal Tehsil in Shimla District have timber distribution rights in the Government Forests. On account of this right, an application Ex. 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - PW-7/A, in the name of the wife of respondent Virender Singh, was submitted to the Range Officer, Kotihai for allotment of two deodar trees. As per application, timber was required by the wife of the respondent for construction of a new house. She claimed to be a right holder, being resident of that area and also on account of there being some agricultural land in her name. Respondent, in his capacity as Block Officer, recommended the grant of two II-B type deodar trees in favour of his wife. Range Officer, PW-3 Laiq Ram sanctioned the allotment of two trees in favour of the wife of the respondent. PW-4 Dyal Singh, another Block Officer from a different block, was deputed by the Range Officer to mark two trees in favour of the wife of the respondent. Said Dyal Singh marked two trees around the month of April 2001. 3. In August, 2001, PW-1 Usha Chauhan, an Anganwari Teacher, went to the Pati Dhank Gajta froest, where she noticed the respondent getting two felled trees converted into timber. She lodged a complaint with the police. A case was registered with Enforcement Police Station, Shimla. 4. On 16th August, 2011, PW 25 B.S. Thakur, Dy. S.P. visited the spot. He found that there were stumps of three trees. One stump was of I-A tree and two of I-B trees. Also, he found one tree uprooted on the spot. All the three stumps were marked, but marks were not decipherable. There were 29 scants which appeared to have been converted from the trees, stumps of which were there. Those were taken into possession. - 3 - 5. Permit Ex. PW-4/A and its copies Ex. PW-7/B and Ex. PW-7/D were taken into possession. It was noticed that there was interpolation in the permits, because words ‘Top Broken’ had been written within bracket in a different pen below the words and figures “two II-B trees”. Specimen and admitted writings of the respondent were taken by the police and got compared from the Handwriting Expert with the writings on the permit. The expert, namely PW-19 Visheshwar Sharma opined that the entire body of the permit, as also the allegedly interpolated words matched with the standard writings of the respondent. 6. Investigation continued for five years. In the year 2006, a statement of PW-4 Dyal Singh, Block Officer, who had been deputed by the Range Officer to mark the trees, was recorded under Section 161 of the Criminal Procedure Code and as per this statement, the witness had marked two trees of II-B category at a different site about 100 meters away from the site where the trees had been felled and converted into timber. 7. On completion of investigation and after obtaining sanction from the Appointing Authority of the respondent to prosecute him, report under Section 173 of the Criminal Procedure Code alongwith relevant papers was filed in the Court of learned Special Judge, who after complying with the requirement of Section 207 of the Criminal Procedure Code and hearing both the sides and perusing the record, found that a prima facie case under Sections 379, 467, 468, 471, 420, 201 of the Indian Penal Code and Section 13(2) of the Prevention of - 4 - Corruption Act, 1988, was made out against the respondent. He was charged accordingly. Respondent pleaded not guilty to the charge. He was, therefore, put on trial. 8. Prosecution examined 26 witnesses to bring the charge home to the respondent. Most material witnesses are PW-1 Usha Chauhan, Anganwari Worker, PW-3 Laiq Ram, Range Officer, PW-4 Dyal Singh, Block Officer, PW-5 Inder Dutt, Chowkidar, who went with the police at the time of initial inspection of the spot on 16.08.2001, PW-13 Mahinder Dutt, Forest Guard, who also went with the police to the spot in the year 2001, PW-25 B.S. Thakur, Dy. S.P., who inspected the spot in August, 2001 and PW-26 Dhani Ram, who took over the investigation in the year 2004 from the previous Investigating Officer and, inter alia, recorded the statement of PW-4 Dyal Singh in the year, 2006, to the effect that two trees sanctioned in favour of the wife of the respondent, had been marked by him at a different site. 9. Respondent took the plea that he had felled only those two trees, acting as a General Attorney of his wife, which had been marked by PW-4 Dayal Singh. He stated that the 3rd tree of I-A category had been felled by someone else much earlier. He denied his involvement in the uprooting of the 4th tree, which was lying intact, i.e. to say unconverted into timber, on the spot. He claimed that PW-4 Dyal Singh had created false evidence against him, after the inspection of the spot on 16.08.2001 by PW-25 B.S. Thakur, Dy. S.P., by marking two other trees at a different place to save his skin and also to take a - 5 - revenge against him for his having lodged a complaint against a nephew of PW-4 Dyal Singh, who is employed as a Forest Guard. 10. Learned trial Court came to the conclusion that the case of the prosecution did not stand established beyond reasonable doubt and consequently acquitted the respondent. 11. We have heard learned Assistant Advocate General as also learned counsel representing the respondent and gone through the record. 12. Two trees, which were found to have been felled on the spot, are testified to be of I-B category by PW-4 Dyal Singh, Block Officer only. When cross-examined, he expressed his inability to disclose how much timber volume-wise or how many scants of standard size from two trees of I-B or II-B category are likely to yield. Also, we find no expert evidence on record to the effect as to how much timber volume-wise or numerically in the shape standard sleepers, a tree of II-B category is supposed to yield. There were 29 scants in all and their volume had not been worked out. 13. It has come in evidence that if the top of a tree is broken, then it is treated as a damaged or deceased tree. It appears that the implication of tree, being damaged or deceased, is that it is to be treated as a tree of lower category than the category, which may be assigned to it on the basis of its girth. The trees, as per permit Ex. PW-4/A, had broken tops. Prosecution’s allegation is that these words had been interpolated by the accused respondent later on. The permit is - 6 - issued from a book maintained by PW-4 Dyal Singh. Dyal Singh (PW-4) does not say that after the issue of the permit from the book, respondent had an opportunity to take hold of the book or it went into his hands. Therefore, the presumption should be that these words, which are of course in different pen and hence, cannot be said to have been written simultaneously when the rest of the body of the permit were already there when the permit was signed by PW-4 Dyal Singh. It may be pointed out that the entire body of the permit is in the hand of the respondent. Permit is signed by PW-4 Dyal Singh. Dyal Singh stated that the permits were got written by him from the respondent when he was on the spot for marking the sanctioned trees in favour of the wife of the respondent. Allegedly interpolated words are not there only in the original of the permit Ex. PW-4/A, but also in the carbon copies, including the carbon copy available in the book with PW-4 Dyal Singh, per Dyal Singh’s own testimony. Now, when the respondent is not alleged to have taken hold of the permit book subsequent to the issue of the permit and also he did not have the opportunity to get hold of the permit book, it cannot be said that the allegedly interpolated words are in fact interpolated, i.e. to say they were written subsequent to the signing of the permit, especially when such words are carbon copied in the copy available in the permit book of PW-4 also. 14. Above discussion leads to a safe conclusion that the trees which were found to have been felled on the spot at the - 7 - time of visit by PW-25 B.S. Thakur, Dy. S.P. on 16.08.2001, cannot be categorized as I-B trees. 15. As regards the third stump, it is stated by PW-3 Liaq Ram, Range Officer that the same was an old stump, which means the timber found on the spot was of only two trees, which as per defence version had been marked by PW-4 Dayal Singh. 16. Further allegation of the prosecution, as per the testimony of PW-4 Dyal Singh, is that the trees which were actually marked by this witness, in favour of the wife of the respondent, were situated at a different site about 100 meters away from the site where the trees were found to have been felled, when PW-25 B.S. Thakur, Dy. S.P. visited the spot in August, 2001. This story of marking of trees at a different site appeared in the record of the investigation for the first time in the year, 2006 or say five years after the first visit to the spot by the police and seizure of the timber, in the form of statement under Section 161 of the Criminal Procedure Code of PW-4 Dyal Singh. When cross-examined by the defence with respect to this aspect of the matter, PW-4 Dayal Singh stated that he did not disclose to the police in August, 2001 when the police initially visited the spot that he had marked the trees at a different site, which was about 100 meters away. 17. Though PW-26 Inspector Dhani Ram did state that in the year, 2006, he had been shown the trees marked by PW-4 Dyal Singh at a different site about 100 meters away from the site where the stumps were there, his testimony cannot be taken as a gospel truth. Reason is that if the witness had visited the - 8 - spot and seen the marked trees, he must have prepared a site plan, but we do not find any spot map prepared by him on record. Also, in the absence of any explanation by the prosecution for this story of trees having been marked at a different spot, coming into being about five years after the visit to the spot where stumps and the sleepers were found, cannot be accepted. If this were a fact, PW-4 Dyal Singh must have brought it to the notice of PW-25 B.S. Thakur, Dy. S.P. in August, 2001 itself, when the site where the trees were found felled, was visited by him. Dyal Singh was very much with him when he visited the spot in August, 2001. 18. In view of the above stated position, we see no reason to interfere with the judgment of acquittal recorded by the trial Court. Consequently, the appeal is dismissed. (Surjit Singh), Judge (Rajiv Sharma) Judge October 17, 2011. (bhupender) - 9 -