IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 556/2000 Reserved on:11.7.2008 Decided on: 21.8.2008 State of Himachal Pradesh. …Appellant. Versus Krishan Dass Rawat and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no For the Appellant : Mr. Rajinder Dogra, Additional Advocate General For the Respondents : Mr. Romesh Verma, Advocate for respondents No.1 & 4 to 6. Mr. Ajay Kochhar and Mr. Bimal Gupta, Advocate for respondents No.2,3,7 to 10. Rajiv Sharma, J. The respondents were prosecuted in Corruption Case No. 8-S/7 of 1991 in the Court of Special Judge (Forests) Shimla under sections 379,420, 218 and 120-B of the Indian Penal Code, section 5 (2) (d) of the Prevention of Corruption Act, 1947 and Rules 11/20 and 18/20 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978. They were acquitted by the learned Special Judge (Forests) on 8.6.2000. 1 Whether the reporters of Local Papers may be allowed to see the judgment? no 2 The present appeal has been filed by the State against the judgment dated 8.6.2000. The brief facts necessary for the adjudication of this appeal are that an FIR No. 18/94 was registered at Police Station Enforcement south Zone, Shimla. The matter was investigated in detail. The challan was put up in the Court. In order to prove its case, the prosecution examined as many as 50 witnesses. The respondents were examined under section 313 of the Code of Criminal Procedure. The trial court acquitted the respondents on 8.6.2000. The State has filed the present appeal against the judgment dated 8.6.2000. Mr. Rajinder Dogra, Additional Advocate General has strenuously argued that the prosecution has proved its case and the judgment dated 8.6.2000 is not sustainable in the eyes of law. Mr. Romesh Verma, Mr. Ajay Kochar and Mr. Bimal Gupta, Advocates appearing on behalf of the respondents have supported the judgment dated 8.6.2000. I have heard the learned counsel for the parties and perused the record carefully. The case of the prosecution in nutshell is that there was a criminal conspiracy amongst the accused to fell 63 trees from the Government land. The further case of the prosecution is that 1340 scants were exported in excess than permitted vide permit No. 1/82-83 from the Railway Station Dharampur to M/s Mohindra Traders, Yamuna Nagar, Parma Nand Sham Singh were not registered forest contractors nor property and Khudan marks were issued in their favour and permit number was not given on the railway receipts on the basis of which excess timber was exported on the authority of permit No. 1/82-83. The further case of the prosecution is that accused Chet Ram, Harbans Lal, Som Parkash 3 Kohli, Ashwani Kumar, Onkar Nath Vadera, Birbal (deceased) Roop Chand Narula (deceased) being public servant by corrupt or illegal means or otherwise abusing their position as public servant, obtained pecuniary advantage for themselves or for their co-accused by abusing their position as public servant and caused wrongful loss to the State. The prosecution has primarily relied upon three witnesses to prove illicit felling of 63 trees. They are PW-19, PW-27 and PW-6. PW-19 Jagan Nath has carried out demarcation at the instance of the police. PW-27 Govinder Singh has assisted PW-19 at the time of demarcation. PW-6 Bihari has counted the stumps and prepared the stumps counting list under his signatures. PW- 19 is a Revenue Officer who has demarcated the land during the course of investigation, as noticed above. The demarcation report of Sh. Jagan Nath is Ex.PW-19/F containing 47 leaves and spot map attached with the report Ex.PW-19/E-1 to Ex.PW-19/E-4 and another document in the shape of tatima and mussabi attached with the demarcation report are Ex.PW- 19/A-1 to Ex.PW-19/A-14. The copies of jamabandis and mutation are Ex.PW-19/A-15 to Ex.PW-19/A-55. He was required to give demarcation of khasra Nos. 399, 1102,/112, 1108/75, 134, 1131, 158, 172, 173, 135, 508, 509, 156, 492, 215, 1077/322, 203, 120, 111, 132, 162, 166, 148, 165, 1116/1017, 214, 107, 136, 163, 164, 110, 494, 160, 85, 187, 188, 64, 1112/752/1, 1098/421, 62 and 99 vide application PW-19/C. During private sale, these khasra Nos. were demarcated by Chet Ram with the assistance of Kagu Ram, who marked the trees as per the marking order of the Divisional Forest Officer and prepared the enumeration list and thereafter the Divisional Forest Officer issued the felling orders on 21.1.1982. PW-19 has not mentioned in his report whether he found the demarcation report given by Chet Ram as correct or not. The report has not pin pointed how the boundaries and situation of disputed khasra 4 numbers were located. As per report, Khasra No. 107 which was required to be demarcated was located with the help of khasra No. 103 which is situated on the boundary of khasra No.106 owned by the Government, but it is nowhere stated how khasra No. 103 from which the demarcation started has been located and how it was verified and whether the said number has been rightly located. It is not mentioned in the report how khasra No. 107 which was made the starting point for demarcation has been located. These khasra numbers which had been mentioned in the application Ex.PW-19/C had not been demarcated. PW-19 in his cross- examination has stated that he did not demarcate the Government land adjoining to the disputed land and he did not ascertain the boundaries of the adjoining land. He has deposed that for carrying out the demarcation, the instructions issued by the Financial Commissioner are to be followed. It has come in his statement that no statements and Rawanas were issued to the owners of the private land for the purpose of demarcation. He has further deposed that three permanent points have not been mentioned in his report and he has not taken permanent points from the disputed fields and how he has located the corners of the disputed land. The report Ex.PW-19/F is not in conformity with the instructions issued by the Financial Commissioner for carrying out the demarcation. The statement of PW-27 Govinder Singh in view of the statement of PW-19 Jagan Nath has rightly been discarded by the learned trial court. PW-6 Bihari Lal was also present at the time of demarcation and he has prepared the stumps counting list and abstracts Ex.PW-6/A, Ex.PW-6/A-1 to Ex.PW-6/A-8 and according to his statement, certain stumps were found in the land during the demarcation and after counting stumps he prepared list and as per list, 63 stumps were found in the Government land, however, no hammer marks were visible nor the same could be deciphered. He has deposed 5 that 8 stumps were found in khasra No. 156. In his cross-examination, he has admitted that khasra No. 156 in which 8 stumps alleged to have been found is owned and possessed by Sh. Rajinder Singh. He has further admitted that as per the list of the stumps, 52 stumps were found on the Government land and he has wrongly calculated 63 stumps and at the time of the counting the stumps and demarcation, they were not possessing any forest record i.e. TD register and general register. The counting lists Ex.PW-6/A, Ex.PW-6/A-1 to Ex.PW-6/A-8 reflect in the remarks column, the condition of the stumps as rotten, dry, burnt and in the column hammer, the word ‘yes’ has been written and in few of the lists, no remark has been given. However, the hammer mark or facsimile has not been mentioned in the column provided in the stump counting list. It has come in the evidence of PW-6 Sh. Bihari Lal that for private sale, the hammer mark ‘HP’ and for right holder the hammer mark ‘RH’ and for general sale, separate hammer mark is used and when the hammer mark is not visible or decipherable, it cannot be ascertained that under which category the tree of which stump was found sanctioned. The whole Government forest was required to be demarcated and it was necessary for the Officers who carried out the demarcation to prepare memo variation which was necessary in this case since earlier demarcation was also given. The initial demarcation given by Chet Ram has not been proved and found to be wrong and there is no evidence to show that any part of the Government land was wrongly included in the land belonging to the private owners and the trees were marked and felled from the Government forest. The report given by Chet Ram was never set aside by any statutory officer. The prosecution has failed to prove that 63 trees were felled from the Government land. 6 Now, the question is to be determined by the Court is: Whether 1340 scants were exported in excess than permitted vide permit No. 1/82- 83 from the Railway Station Dharampur to M/s Mohindera Traders, Yamuna Nagar? Permit No. 1/82-83 Ex.PW-10/A-2 dated 1.4.1982 was valid upto 15.5.1982. It was endorsed to Station Master Dharampur and its extension Ex.PW-4/A-4 was valid upto 27.6.1982. This permit was issued in favour of Parma Nand, Sham Singh by the Divisional Forest Officer, Rohru. The size of each scant was not mentioned in the export permit. The original railway receipts are Ex.PW-3/A-6 to Ex.PW-3/A-189 along with forwarding notes and copy of the railway receipts Ex.PW-2/A-1 to Ex.PW-2/A-105 for 105 railway receipts vide which the scants were alleged to have been exported by respondent from Railway Station Dharampur to Jagadhari in the name of Mohindra Traders Yamuna Nagar and according to these railway receipts, 21232 scants have been booked and received by Mohindra Traders. The volume of these scants, which had been booked through these railway receipts has not been mentioned specifically. It was for the prosecution to prove that not only scants, but the volume of scants exported exceeded and if the volume of the exported timber did not exceed as mentioned in permit Ex.PW-10/A-2, the accused cannot be held guilty. The prosecution has alleged that the respondent has exported 1340 scants in excess than allowed to be exported in connivance with the railway officials. PW-10 Sh. K.C. Nandwani has stated that in order to avoid uneven loading in the wagon and also to use the wagon to its full capacity, few scants are cut. PW-16 M.A. Siddiqui has also stated that the wagon should be evenly loaded and sometimes scants are cut into pieces to use the wagon to its full capacity. PW-2 has also stated that piece of timber ranging from 3 feet to 12 feet is called scant. PW-3 Sh. Dharam Singh Sethi has deposed that sometimes to 7 avoid uneven loading, forest leasees or the loading agents used to convert the timber in small sizes to use the wagon to its full capacity. PW-9 has admitted that as per details of the railway receipts on which he calculated the excess timber comes to 105 whereas the respondents have been charge-sheeted for exporting 1340 scants of timber in excess on the authority of permit No. 1/82-83 Ex.PW-1/A-2. It is not the case of the prosecution that volume of the timber which was exported was in excess of the volume mentioned in Ex.PW-10/A-2. The prosecution has failed to prove beyond reasonable doubt that excess timber was transported on the authority of permit No. 1/82-83. Now, the Court has to consider whether Parma Nand Sham Singh were not registered forest contractors nor property and Khudan marks were issued in their favour. The prosecution has examined PW-14 Amin Chand, Senior Clerk from the office of the Chief Conservator of Forests to prove that Parma Nand Sham Singh in whose favour export permit No. 1/82-83 Ex.PW-10/A-2 was issued, were not registered forest contractors with the Divisional Forest Officer, Rohru nor their property and Khudan marks were registered. He has stated that he remained posted as Camp Clerk in the office of Divisional Forest Officer, Rohru from 1986 to 1992. He has testified that he remained associated in the investigation of the case and during the investigation, he produced attested copy of Schedule-III regarding the registration of M/s Parma Nand Sham Singh and another copy of abstract of register of property Khudan mark regarding the registration of the property mark ‘RAJ’ and khudan mark ‘JR’ in respect of M/s Jai Lal and Company. These were taken into possession by the police vide seizure memo Ex.PW-13/L-1. He has further deposed that as per record of the register, property mark and khudan mark of M/s Parma Nand and Sham Singh was never registered in 8 the office of Divisional Forest Officer, Rohru. During the cross- examination, he has stated that as per Ex.PW-13/M, M/s Parma Nand Sham Singh private sale contractors, village Kanoth P.O. Anti, Tehsil Jubbal have paid the registration fee of Rs. 100/- and have been approved and registered as a private sale contractor in the Divisional Forest Office, Rohru. He has admitted that at Sr. No. 233 at page 58, validity period of property mark and Khudan mark have been given from 1978 to 1981 and the property and Khudan marks were issued by the Divisional Forest Officer, Rohru on the application and he has further admitted that upto Sr. No.250, date has been given and thereafter at Sr. No. 251, no date has been given in the column No.1 in property and Khudan marks. He has further admitted that most of the pages of the register of the property and khudan marks are in loose form and do not contain any certificate regarding paging. It has come in the evidence that M/s. Parma Nand Sham Singh had deposited a sum of Rs. 100/- as registration fee and they were registered as private sale contractors and were issued property and khudan marks. The findings recorded by the trial court on this issue after discussing the entire evidence are upheld. Lastly, the Court has to see the effect of non-mentioning of permit number on the railway receipts on the basis of which excess timber was exported on the authority of permit No. 182-83. The learned Additional Advocate General has failed to prove under which law the permit number is required to be mentioned. It has come in the evidence of Sh. K.C. Nandwani and Sh. Siddiqui that if any civil restrictions are imposed, the same are required to be circulated to the railway officials. PW-10 Sh. K.C. Nandwani has deposed that he had detected 5 types of irregularities in his report Ex.PW-19/A and the present case falls in the category of excess loading, meaning thereby that he has not detected any irregularity. Since it 9 is categorically held, as discussed hereinabove, that 63 trees had not been felled illicitly from the Government forest, there is no question of Kagu Ram and Birbal giving wrong certificates at the foot of the enumeration list as well as on the timber list regarding which they have been charged. It cannot be held that the respondents had entered into any criminal consipiracy and in furtherance of such conspiracy felled trees and committed theft and put the Government to pecuniary loss and exported excess number of scants than permitted. It cannot be further held that official accused had abused their official position and committed offence punishable under section 5 (2) of the Prevention of Corruption Act in order to give pecuniary advantage either to themselves or to their co- accused. The prosecution has not led any evidence to prove the conspiracy. The trial court on the basis of the correct appreciation of the evidence led by the prosecution, has rightly acquitted the respondents. Consequently, there is no merit in this appeal and the same is dismissed. The bail/surety bonds of the respondents are discharged. August 21, 2008 (Rajiv Sharma ), J. *awasthi*