HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 179 of 1993 Alongwith Cr.A.No.: 124 of 1993 Reserved on: 6.8.2008 Decided on: 28.8.2008 Cr.A. No. 179 of 1993: State of Himachal Pradesh ………Appellant. Versus Krishan Lal and others. ………Respondents. Cr.A. No.124 of 1993: Krishan Lal and others ………Appellants. Versus State of H.P. ………..Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. In Cr.A. No.179 of 1993: For appellant: Mr.Rajesh Mandhotra & Mr.R.M. Bisht, Deputy Advocate Generals. For the respondents: Mr.Ajay Kochar, Mr.Bimal Gupta and Mr.Vinay Thakur, Advocates. In Cr.A. No.124 of 1993: For appellants: Mr.Ajay Kochar, Mr.Bimal Gupta and Mr.Vinay Thakur, Advocates. For the respondent: Mr.Rajesh Mandhotra & Mr.R.M. Bisht, Deputy Advocate Generals. 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. Per V.K. Ahuja, J: This judgment shall dispose of the appeal filed by the State of Himachal Pradesh under Section 377 of the Cr.P.C. (Cr.A. No.179 of 1993) against the judgment of the learned Special Judge (Forest), Shimla, dated 19.8.1993, vide which the respondents, except accused Banka Ram, were held guilty and convicted for collective offences under Section 120-B read with Sections 379, 417, 465, 218 I.P.C. and 5(2) of the Prevention of Corruption Act. These respondents were sentenced to pay a fine of Rs.10,000/-. In default of payment of fine to undergo simple imprisonment for one year. Besides, the accused persons were also sentenced as under: Sl.No. Name of the accused Sections under which convicted Sentence imposed 1. Krishan Lal 465, 417, 379 IPC. Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. 2. Jai Singh 465, 417, 379 IPC. Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. 3. P.C. Sharma 218, 417 IPC and 5(2) of the Prevention of Corruption Act. Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. 4. Bhau Ram 218, 417 IPC and 5(2) of the Prevention of Corruption Act. Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. 5. Sukhchain Singh 218, 417 IPC and 5(2) of the Prevention of Corruption Act. Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. 6. Padam Singh 379, 417 IPC Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. 7. Jagdish Singh 379, 417 IPC Sentenced to pay a fine of Rs.2,000/- each. In default of payment of fine, to undergo simple imprisonment for three months each. Accused Banka Ram was released on probation. He was released on probation for three months on executing personal and surety bond each of the sum of Rs.2,000/-. This appeal has been filed by the State of H.P. enhancement praying that though the respondents have been held guilty under various Sections including under Section 5(2) of the Prevention of Corruption Act, but the learned trial Court had shown leniency and sentenced them to pay fine only. This judgment shall also dispose of another appeal (Cr.A. No.124 of 1993) filed by Krishan Lal etc. under Section 374 of the Cr.P.C. against the said judgment of the learned Special Judge (Forest), Shimla, vide which they were held guilty and punished, as detailed above, and the prayer has been made that the appellants are entitled to be acquitted of the charges framed against them under various Sections. Both the aforesaid appeals shall be disposed of by this common judgment. Briefly stated the facts of the case are that on 21.3.1976, accused P.C. Sharma, Range Officer, forwarded to D.F.O., Rohru, 27 cases of sale of trees standing on private land for permission to fell those trees. The D.F.O., in turn, forwarded those cases to the Conservator of Forests, Shimla, who permitted the marking of trees for the purpose of felling. The marking was to be done after getting the land demarcated from the Revenue Officers. On 19.6.1976, accused Sukhchain Singh, Field Kanungo, went to demarcate the land in the company of accused P.C. Sharma, Range Officer and Shri Bhau Ram, Block Officer in Forest Department. The private land of 19 persons, who had applied for permission to fell their trees, was demarcated by said Sukhchain Singh and 389 trees were marked by P.C. Sharma and Bhau Ram on the private land on which the trees were required to be marked. The trees had been purchased by a Firm known as Partap Singh Krishan Lal, of which Krishan Lal and Partap Singh were the partners. List of the trees marked by the Forest Officers was prepared, which was signed by all these three persons, namely, Sukhchain Singh, P.C. Sharma and Bhau Ram. It is the further case of the prosecution that thereafter, P.C. Sharma made a reference to the D.F.O., Rohru, recommending the felling of marked trees. The permission was granted in respect of trees standing on the lands of 12 persons out of 19 persons on whose land, the trees were marked. Krishan Lal, accused, who had purchased the trees, felled and sawed those trees through one Jai Singh and later on sold the timber extracted from those trees to M/s Thakur Timber, of which accused Padam Singh and Jagdish Singh were partners. Thus, these two partners exported the timber after obtaining an export permit from the D.F.O., Rohru. It is the further case of the prosecution that on 31.8.1976, 32 more cases of private sale of trees were forwarded by P.C. Sharma, accused, to the D.F.O., Rohru, as a result of which, the marking of trees after due demarcation was to be done after the demarcation was given by accused Banka Ram, Field Kanungo, to whom an application for demarcation was marked by Tehsildar, since the concerned Field Kanungo Sita Ram of the area was on leave. The accused Bhau Ram accompanied Banka Ram as representative of the Forest Department for the purpose of marking the trees. In all, 334 trees were marked on the land shown by Banka Ram as private land on which marking was permitted and lists of marked trees were drawn. These lists were signed by Banka Ram and Sita Ram Field Kanungo, who had returned from leave by the time the lists were prepared. The trees standing on this land had also been purchased by M/s Partap Singh Krishan Lal. Marking lists prepared were signed by Sita Ram in token of certification that no tree on government land has been marked and these were sent by accused P.C. Sharma to D.F.O., Rohru with the recommendation that the permission for felling of the trees may be granted, which was granted subsequently. The trees were got felled by Krishan Lal, accused, from Jai Singh, who stacked the extracted timber consisting of 2607 scants, in village Sandasu. It is the further case of the prosecution that while investigating case FIR No.71/77, Shri A.S. Guleria, Dy.S.P., got the information that accused Krishan Lal had felled trees from the government land under the cover of felling trees from private land, which was done by him in connivance with the Forest and Revenue officials. He sent a written report to the SHO, Rohru for registration of the case on the basis of which report, the present case was registered. During investigation, it was found that one application and the concerned papers of the application had been forged by Jai Singh, who was later on impleaded as an accused. The said application was purported to have been made by one Phali Ram, a private land owner. The said Phali Ram stated that the application and other attached papers were authenticated by him but the Finger Print Expert gave opinion that the papers bore the thumb impression of Jai Singh, accused, who was an employee of Krishan Lal, accused. During investigation, the private land from which the trees were sold, of which the demarcation had been given by Sukhchain Singh, was got re- demarcated and it was found that accused Sukhchain Singh had shown part of government land comprised in Khasra No.886 as part of Khasra No.3256, the trees standing on which were allowed to be marked for felling. The result of this wrong demarcation was that four out of five trees purported to be marked on Khasra No.3256, the private land, were marked on government land comprised in Khasra No.886, which four trees were got felled by Krishan Lal. The market value of those trees was Rs.1,224/-. The land demarcated by accused Banka Ram was also subjected to re-demarcation during investigation and it was found that 7 trees had been marked on Khasra No.886 and one tree had been marked on Khasra No.4355 belonging to the Government. Thus, 12 trees were found marked on government land as per the re-demarcation done during investigation for which no permission was taken to fell the trees standing thereon. The investigation further revealed that accused Krishan Lal had illicitly felled 44 unmarked trees from the government land while felling the marked trees. The accused P.C. Sharma, Range Officer, compounded the case of those illicitly fell trees with Krishan Lal for a sum of Rs.14,347.50P., instead of launching criminal prosecution. According to the prosecution case, the wrong demarcation was obtained and trees were felled from the government land by the accused persons in conspiracy with other accused persons who were employees of Forest Department and Revenue Department to obtain pecuniary advantage for the Forest Contractors. The challan, after investigation, was filed before the learned Special Judge, who, vide his order, dated 16.7.1984, discharged the respondents. On appeal, the Apex Court set aside the order and directed the trial Court to proceed with the main proceedings of the case. Thereafter, the charge was framed by the learned trial Court under various Sections mentioned above leading to the conviction and sentence of fine etc. of the accused persons, as detailed above. Being aggrieved by the said judgment, both the parties have filed the appeals. We have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that the main charge as against the respondents was that the wrong demarcation had been given by the respondents, namely, Sukhchain Singh and Banka Ram, who were posted as Field Kanungos, and they had wrongly shown the trees standing in the government land as being in the private land for which permission had been obtained from the Forest Department for felling of those trees. Thus, the main allegation as against accused Sukhchain Singh is that while he was posted as Kanungo, he had given wrong demarcation and had shown a part of government land comprised in Khasra No.886 as part of Khasra No.3256 for which permission was taken. Further, the land demarcated by accused Banka Ram, Field Kanungo, in respect of 32 cases was also re-demarcated and 7 trees had been marked on Khasra No.886, but one tree had been marked on Khasra No.4355 belonging to the Government. To prove the first demarcation given by Sukhchain Singh, the prosecution had examined PW-9 Shri S.M. Katwal, Settlement Officer, who, at the relevant time, was conferred the powers of Collector of Shimla District. He stated that he was posted as SDO (Civil), Rampur Bushahr and was enjoying the powers of Collector. He stated that he had carried out the demarcation in accordance with the procedure, determined the fixed points and gave the demarcation. He also recorded the statements of land owners present there, of Sukhchain Singh and Sita Ram as well as that of Kanungo, Patwari and other persons present there. He stated that in his report, he opined that trees were found to have been cut from Khasra No.886, but the number of stumps was not counted by him. He further stated that the number of stumps was mentioned in the report of Hem Raj, ACF, which is part of his report and he has proved the said reports as Ext.PAD/1, Ext.PAD/2 and Ext.PAD/3. He also proved the statements recorded there of the persons present on the spot. He stated that Khasra No.886, which was a government land, was unmeasured and it was not possible to tell its exact location, karukaan etc. A perusal of the report Ext.PAD/8 given by the aforesaid PW-9 shows that he had carried out the demarcation from various ends, out of which the river bed was one. It cannot be disputed that the river bed changes its course. The record relied upon by him is of settlement which had taken place many years back. It is clear that in giving its findings, he had not fixed all the permanent points and had not tallied them. The assistance taken by him was from river beds, which cannot be said to be a permanent point. A perusal of his report, therefore, clearly shows that in giving its findings, he had not cared to comply with the instructions of the Financial Commissioner in this regard that firstly permanent points are to be fixed and the statements of the concerned persons i.e. adjoining land owners are to be recorded, who accept the permanent points as correct and only then it could have been determined if the trees had been cut from the government land comprised in Khasra No.886. It is clear from a perusal of his report and the statement made by him that this procedure was not followed by him. Therefore, his report cannot be said to be relevant for coming to the conclusion that the trees were allowed to be cut from the government land. The statements of PW-27 Lachhi Ram, Patwari, PW-28 Ganga Ram, Kanungo, and PW-31 H.R. Sood, Forest Official, who counted the stumps, are not material in considering the report of demarcation given by this witness. The second report of demarcation relied upon by the prosecution was in regard to wrong demarcation given of one tree comprised in Khasra No.4355 belonging to the Government, which was wrongly shown as Khasra No.886. To prove the said report of re-demarcation, the prosecution had examined PW-55 Shri G.D. Vaidya, Retired Tehsildar, who was posted as Naib Tehsildar/Tehsildar at the relevant time. A perusal of the demarcation reports given by him, which are Ext.PW-55/A to Ext.PW-55/C, shows that he had not mentioned the permanent points taken by him and had not recorded the statements of adjoining land owners that these were correct. There is no mention of the permanent points taken, from which Khasra Number these were taken, how these were tallied and to our mind, the said report cannot be said to be conclusive to hold that one tree was marked on Khasra No.4355 belonging to the Government. The statements of PW-30, Tilak Raj, Patwari, associated by the Revenue Officer and PW-33, J.L. Sharma, who counted the stumps, cannot be said to be material. During the course of arguments, we have been taken through both the reports proved by these Revenue Officers as well as the statements made by them and other witnesses. The demarcation reports were most material documents in the present case, but, surprisingly, on a careful perusal of the judgment passed by the learned trial Court, we find that the learned trial Court has not made any reference to these two material reports and the testimony of these witnesses. There was no question of remanding the case for consideration of these reports after a lapse of so many years and, therefore, we have ourselves considered the reports and the statements of the relevant witnesses and we are of the view that these reports do not further substantiate the case of the prosecution. Coming to the other part of the evidence relied upon by the prosecution that the thumb impression of Phali Ram, one of the land owner, was forged on the application for a private sale of trees from private land as well as on the agreements. A reference has been made to the report of the Finger Print Expert that the application of Phali Ram was found to be thumb impressed by accused Jai Singh. This part of the evidence has been relied upon by the learned trial Court and though the person concerned with forgery, who had wrongly taken the thumb impression of Phali Ram, is accused Jai Singh, which could be said to be relevant to determine the guilt of accused Jai Singh only, but the learned trial Court by taking assistance from the said report proceeded to hold that it proves conspiracy on the part of all the accused persons and charge of criminal conspiracy stands proved. Coming to the evidence in this regard, the prosecution has examined number of land owners, namely, PW-5 Sub Jit, PW-6 Sagar Das, PW-7 Dharam Jit, PW-8 Hira Nand, PW-11 Tara Sukh, PW-16 Maghu Ram, PW-17 Jyoti Ram, PW-36 Chattar Singh and PW-37 Sunder Lal, who all have stated that they had filed the application for permission to sell the trees from their land, but did not support the story of the prosecution that they did not file any application or that their signatures or thumb impressions were forged on these applications. The prosecution had also examined PW-15 Ram Chand, PW-18 Brasti Devi, PW-35 Janki Dass, who denied their knowledge in case they had filed the applications for permission to sell the trees, but they have not denied that they never applied or that their signatures are not there. They have denied their knowledge in case they bear their signatures or thumb impressions, but did not substantiate the prosecution story that their signatures on these applications were forged or their thumb impressions were forged by any of the accused persons. Therefore, these witnesses have not substantiated the case of the prosecution in any manner. In regard to the case of Phali Ram, during the investigation, these documents were taken into possession by the investigating agency from accused Krishan Lal, vide memo Ext.PBA in presence of PW-24 Attar Singh and PW-25 Shyam Lal, who have not supported the case of the prosecution that these documents were taken in possession from Krishan Lal, accused. These documents should have been taken in possession from the possession of the Forest Department and how these were taken in possession from Krishan Lal has not been explained. Moreover, the prosecution has relied upon the thumb mark taken of Phali Ram as well as of accused Jai Singh and there is evidence that these thumb impressions were taken by the accused Jai Singh. The report of the Finger Print Expert has been proved from the statement of PW-52 Girdhari Lal, who was posted, at the relevant time, in the office of Director, Finger Print Bureau, Phillaur. He stated that six sample cases of thumb impression of Phalli Ram and other persons were received and two applications in the name of Phali Ram and thumb impression on the agreement Ext.50/6 were required to be examined, which he examined. He opined that impressions marked Q-1 and Q-2 are identical with the left thumb impression of Jai Singh marked Q-1 on sample paper Ext.49/5. He had nowhere opined that these thumb impressions were of Phali Ram or not and had given opinion that they are identical with the thumb impression of Jai Singh mark Q-1. To our mind, this report cannot be said to be conclusive to show that the thumb impression of Phali Ram was not there on the application and agreement keeping in view that no such findings were given by the expert that these are not of Phali Ram. It appears that the said Phali Ram could not be examined since he died, but in case a reference is made to the statement made by him under Section 161 Cr.P.C., it appears that he had stated therein that he had thumb marked those application and agreement and, therefore, the findings of the learned trial Court, holding that the charge of conspiracy was proved on the basis of this much evidence, cannot be said to be correct and these findings are liable to be set aside. Coming to the other part of the circumstantial evidence as against the respondent, the prosecution has relied upon the fact that respondent Krishan Lal fell 44 unmarked trees from the government land, while felling the marked trees and accused P.C. Sharma, illegally compounded the case of those 44 trees for a sum of Rs.14,347.50P. The prosecution has proved the damage reports Ext.PBO-1 and Ext.PBO-2. The learned trial Court, while referring to this part of the evidence, has simply made a passing reference that the compounding of the offence was done contrary to provisions of law, but no such oral evidence in this regard or the instructions issued by the Government or the relevant provisions of the Act were discussed to show that this compounding was done by accused P.C. Sharma illegally. A perusal of the record shows that there is statement of DW-2 I.D. Sharma, the then DFO, Rohru, that he has seen the damage reports and the cases for compounding of the offences relating to the said damage reports were sent to him by R.O. Kashdhar. He stated that he accorded sanction for compounding of the said offences, which were duly signed by him in token of such sanctions. He referred to the procedure that the cases sent by the R.O. concerned for compounding on which permission is accorded by the DFO and he had accorded the permission in these cases. Therefore, in view of this statement made by the then DFO, it is clear that the cases were not compounded by accused P.C. Sharma, but by the D.F.O., Rohru, I.D. Sharma, who was posted there at that time and in case he had acted beyond the rules, it was for the prosecution to have proved. But the said I.D. Sharma is not an accused before us and he could have been proceeded against departmentally, but it appears that he has retired at present and, therefore, it is for the Department to consider the question if any action could be taken against him at this stage in regard to the compounding of offences done by him, if done against the instructions of the State Government, which have not been proved on record. From the above discussion of the evidence, it is clear that the prosecution had miserably failed to prove the guilt of the accused persons under various Sections and the learned trial Court, rather than referring to the demarcation reports, considered the other evidence in detail and proceeded on the assumption that this forgery was done by the accused persons by not referring to the specific act of a particular accused who can be alleged to have put the thumb impression on the application submitted by Phali Ram or the contract signed by him which report does not prove conclusively that this forgery was done by one of the respondents, as discussed above. The net result of the above discussion is that the learned trial Court had come to a wrong conclusion in holding the respondents guilty for the charges under various Sections. Surprisingly, for these offences, the learned trial Court proceeded to impose sentence of fine or releasing one of the respondents on probation rather than awarding substantive sentence. This question does not arise for consideration at this stage once it has been held that the findings recorded by the learned trial Court holding the respondents guilty are not correct as per the evidence on record. In view of the above discussion, the appeal filed by the respondents Krishan Lal etc. is allowed and the judgment passed by the learned trial Court holding them guilty under various Sections and sentencing them is set aside. The other appeal filed