IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 704 of 2002. Date of Decision: 9th March, 2010. State of Himachal Pradesh .. Appellant. Versus Abhay Singh .. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. J.S. Rana, Assistant Advocate General. For the respondents: Mr. Sanjay Kumar Sharma, Advocate. Surinder Singh, J (oral) . The respondent was convicted and sentenced by the learned trial Court under Section 33 of the Indian Forest Act, but acquitted by the learned Sessions Judge in appeal filed by his detailed judgment, in Criminal Appeal No.16 of 2001, on 20th June, 2002, which has been challenged by the State in this appeal. In nutshell, the facts giving rise to the present appeal can be stated thus. As per the case of the prosecution, Khasra No.1, measuring 166-34-96 hectares, falls in protected forest compartment No.205, as such, felling, girdling, lopping and breaking up for cultivation or any other act is prohibited under the Forest Act and is punishable under Section 33 of the Indian Forest Act. It is alleged that on 21st September, 1998 Naresh Kumar, Forest Guard (PW-5) was on patrol duty in the said area alongwith Up- 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - Pradhan, Gram Panchayat, PW-1 Chhering Lal, PW-2 Prem Dass and PW- 3 Tashi Poti. They found respondent unauthorizedly grazing his goats and sheep about 150 in number in Compartment No.205 and noticed that 3519 plants of Robania were damaged. The respondent was also found having constructed his hutment nearby in the protected forest. The Guard and other accompanying persons asked the respondent to vacate the encroachment, but he refused. Rather, he asserted his claim over the land on the strength of the judgment passed by the Court in Civil Suit No.30-1 of 1996 against the State Government and others, copy whereof is Ext.D.1. The said judgment and decree is passed by the learned Senior Sub Judge, Kinnaur, on 26th August, 1996. The plea raised by the respondent did not appeal to the Forest Guard, thus he chalked out the damage report vide Ext.PW-5/A for the said offence, but the respondent did not sign the confessional statement. Thereafter the Block Officer dealt with the damage report Ext.PW-5/A, even on his enquiry he refuted the allegations and claimed his ownership and the same story was repeated by him to the Range Officer. After the damage report, Tehsildar, Pooh also demarcated the area in question in the presence of proprietary body of that village as they had complained regarding girdling of Chilgoza trees from the protected forest. He also found the respondent in possession of the land in question. The Challan was presented in the Court. The learned trial Court charge-sheeted the respondent for the offence aforesaid to which he denied. The prosecution evidence was led. He took up the same stand as aforesaid. This above plea did not find favour with the learned trial Court, as such, he was convicted and sentenced, but in appeal the learned Sessions judge acquitted him on the ground that the respondent was in - 3 - settled possession of the land in question under the bonafide belief and in earlier forest case with respect to the same land registered against him in the year 1984, he was acquitted and there is no evidence as to how he was evicted from the land in question, thus the present case was devoid of any merit. I have heard the learned Counsel for the parties and reappraised the evidence on record. Under Section 33 of the Indian Forest Act offence relates to the land constituted as Protected Forest and the ‘Protected Forest’ is declared by the Notification issued by the State Government under Section 30 of the Act. If the fact of notification is not proved, no conviction is possible under the said Section. In the instant case, the prosecution has failed to prove that the area alleged to have encroached fell within the area notified by the State Government as ‘Protected Forest”. There is only one notification (Ext.PW-4/E) on record whereby all the trees in the ‘Protected Forest’ were declared protected and reserved by the State of Himachal Pradesh but this does not make any reference about the area in question. Therefore, it does not meet the requirement of Section 33 of the Act. Therefore, the charge under Section 33 of the Act against the respondent fails on this score alone. Further even if for the sake of arguments it is taken that the area in question is a protected forest, even then in my opinion, the offence charged is not made out against the respondent as his case has been that he is in possession of the land in question since 1984 which is abutting his ownership land. He was also prosecuted for the same offence earlier in the year 1984 but was acquitted. There is no evidence on record whether he was evicted at any time from the said land. Therefore, in the absence of such evidence, he can be said to be in settled position of the land in - 4 - question, more specifically when he had asserted his right of ownership and possession from its inception on the strength of the decree passed by the Civil Court. Thus, in view of the probable defence taken by the respondent, it cannot be said to be a case falling within the provisions of Section 33 of the Indian Forest Act. For the reasons aforesaid, the acquittal of the accused- respondent cannot be faulted with as there are two views deducible from the evidence on record, the view favourable to the accused has to be given due weight. Hence no interference is called for, as such the appeal is dismissed. The respondent is discharged from the bail bonds entered upon by him at any time during the proceedings of this case. Send down the record. March 9, 2010. (Surinder Singh), (rc) Judge.