IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 158 of 2004. Date of decision: March 10, 2011. State of H.P. ….. Appellant. Vs. Durga Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the appellant : Mr. Vikas Rathore, Dy. Advocate General with Mr. Ramesh Thakur, Asstt. Advocate General. For the Respondents : Mr. B.S.Ranjan, Advocate, for respondents No. 1 to 4. Mr. N.K.Sood, Advocate with Mr. Aman Sood, Advocate, for respondents No. 5, 6 and 8 to 14. Surjit Singh, Judge, (oral) . This appeal by the State is directed against the judgement dated 13.1.2004 of learned Special Judge (Forests), Shimla, whereby respondents and some other persons who were tried alongwith and are now dead have been acquitted of charge under Sections 379, 411, 420, 467, 468, 471, 218, 120-B IPC and Sections 5(2) of the Prevention of Corruption Act, 1947 and Sections 41/42 of the Indian Forest Act read with Rules 3/17 of H.P. River Rules, 1971. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. Case of the prosecution, which led to the trial of the respondents alongwith some other persons may be stated. Respondents Durga Singh, Surat Ram and Relu Ram were the partners of a firm, known as Nerva Timber Company. The business of the firm was to buy the standing trees in private forests, from the owners of such forests and to convert these trees into timber. They allegedly conspired with revenue officials and forest officials to fell trees from government land in the garb of felling trees from private land. The forest officials who were partners in the alleged conspiracy are respondents Sita Ram, I.D. Sharma (now dead) who was discharged, Mangat Ram Block Officer (now dead) and revenue officials Sher Singh, S.D.O.(Civil) now dead, Inder Singh (now dead), Kedar Singh, Field Kanungo (now dead). 3. In pursuance of the aforesaid conspiracy, certain applications, including one on behalf of land owner by the name of Mauji Ram, were submitted to D.F.O. Sh. I.D. Sharma in the year 1976-77 with the request for grant of permission to fell the trees. Sh. I.D.Sharma rejected the request on the ground that area in which trees were sought to be felled did not come under Ten Years Felling Programme. However, he had made an observation that applicants, i.e. the partners of the aforesaid firm, M/s Nerva Timber Company could approach the Chief Conservator of Forests. Accordingly Chief Conservator of Forests was approached, who allowed the request but on the condition that felling will take place in the year 1977-78, when the area was supposed to come under ten years felling programme. …3… 4. D.F.O. Sh. I.D.Sharma directed Range Officer Sita Ram respondent No. 5 to carry out the demarcation on the spot with the help of his subordinate forest officials, after obtaining demarcation from the revenue department Sita Ram then approached the then S.D.O.(Civil) Sher Singh (now dead) to give demarcation. Sher Singh himself went to the spot to give demarcation. He was assisted by Field Kanungo Kedar Singh, who is now dead. Because of alleged conspiracy, Sher Singh showed during the demarcation certain government forest areas, adjoining the private land, as private land, and trees were marked on that government forest land by respondent Sita Ram and his supporting forest department staff. Lists of trees were prepared, which are Ex. PW 17/A-9 and Ex. PW 17/A-12. Certificates were appended on these lists by the forest officials, including Sita Ram respondent No. 5, that no tree had been marked on government land and that all the marked trees stood on private land, in respect of which applications had been submitted to the D.F.O. The Divisional Forest Officer sanctioned felling of trees. M/s Nerva Timber Company thereafter sold the standing marked trees to a firm, by the name of Moti Lal Okata and Company, of which respondents No. 6 to 14 are the partners. 5. While investigating the case FIR No. 69/77, PW 1 Sukh Ram, Dy. S.P. came to know that one of the private owner, namely Mauji Ram, in whose name applications had been submitted for marking of trees, had never applied for felling of trees from his land nor had he entered into an agreement with M/s Nerva Timber Company for sale of his trees. So he sent a rukka Ex. PW 1/A to …4… Police Station, Chopal, on the basis of which an FIR Ex. PW 1/B was registered. 6. During the course of investigation, demarcation of khasra Nos. 1010 and 1120/1102 of village Kathiana was obtained from PW 40 Abhay Pant, S.D.O.(Civil). On the basis of demarcation given by PW 40 Abhay Pant, stumps were counted by PW 25 Hari Om Parkash Gupta, ACF on the land, which were indicated to be part of adjoining government forest in the report of Sh. Abhay Pant. 138 stumps were counted on such government land. Their lists were prepared, which are Ex. PW 25/A-1 to Ex. PW 25/A-6. 7. On completion of investigation and receipt of sanction to prosecute those of the accused who were government officials, report under Section 173 Cr.P.C. was filed in the court of Special Judge alongwith relevant papers. Learned Special Judge after supplying the copies of challan and relevant papers to the respondents-accused and hearing the Public Prosecutor and counsel for the respondents- accused, felt that prima-facie, a case under the aforesaid penal provisions of law, was made out. He accordingly charged the respondents and their other accomplices, who are now dead. They pleaded not guilty. Prosecution was called upon to produce its evidence. It examined 53 witnesses. Respondents-accused denied that there was any conspiracy and or any tree was marked for felling from government forest, adjoining khasra Nos. 1010 and 1120/1102. 8. Prosecution mainly relied upon the testimony and the demarcation report of PW 40 Abhay Pant and lists of stumps Ex. PW 25/A-1 to Ex. PW 25/A-6 prepared by PW 25 Hari Om Parkash …5… Gupta, to establish the charge. It however, failed to adduce any evidence with regard to the allegation that Mauji Ram, in whose name permission had been obtained, had not applied for felling of trees on his land, because it did not examine said Mauji Ram to substantiate the said allegation and the Oath Commissioner who had attested his affidavit, namely Balbir Singh PW 41, examined by the prosecution testified that affidavit Ex. PW 17/A-6 attached with the application had been sworn before him by Mauji Ram, whom he personally knew. 9. Trial court acquitted all the respondents, holding that the case of the prosecution did not stand established. 10. We have heard learned Deputy Advocate General as also learned counsel representing the respondents and scanned the entire evidence. 11. PW 40 Abhay Pant on the basis of whose demarcation report Ex. PW 40/C, the prosecution alleges that trees were marked of adjoining government land, as per stump lists Ex.PW 25/A-1 to Ex. PW 25/A-6, has not given in his report Ex.PW 40/C the manner in which he fixed boundaries of khasra Nos. 1010 and 1120/1102. While in the witness box, he stated that he measured only the private land, bearing the aforesaid two khasra numbers, and not the adjoining government land on which the stumps were found. Now when adjoining land had not been demarcated, how could it be said that in fact the land was government land, especially when PW 24 Amlok Ram who supplied a copy of latha Ex. PW 24/A on the strength of which demarcation was given by PW 40 Abhay Pant very categorically stated that karu-kans (dimensions) of neither the …6… private land nor the adjoining government land were available on the latha. Copy of latha Ex. PW 24/A also does not record the dimensions either of the private land, which was subjected to demarcation or the government land on which the trees were allegedly marked, as part of the alleged criminal conspiracy. 12. Also the witness (PW 40 Abhay Pant) did not fix the boundary of private land and the alleged adjoining land on which stumps were found. He stated that some marks were shown to him by the accompanying police officials and the same were stated to represent the boundary of private land and Government land. He was supposed to have himself ascertained, by the process of measurements, to fix the boundary. And this he could have been able to do, only if copy of Musabi, with dimensions (Karukans) of the private land and adjoining Government land were made available to him. For this reason also no reliance can be placed on the testimony and the report of PW 40 Abhay Pant and PW 25 Hari Om Parkash Gupta who prepared the lists of stumps. 13. PW 25 Hari Om Parkash Gupta further demolishes the prosecution case by saying that stumps, which were found on the land, identified as government land by PW 40 Abhay Pant, included the stumps of trees felled by the forest corporation, during the felling operation of 1986-87. He also stated that on rest of the stumps, hammer marks or other markings was not visible and therefore, it could not be said that those stumps were of the trees, included in the marking lists prepared by Sita Ram respondent No. 5, which lists are Ex. PW 17/A-9 and Ex. PW 17/A-12. …7… 14. In view of above discussion, we find no scope for interfering with the judgement of acquittal passed by the trial court. Hence, the appeal is dismissed. ( Surjit Singh ), Judge. March 10, 2011. ( Kuldip Singh ), (Hem) Judge.