IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.5 of 2002 Date of Decision : April 18, 2011 State of Himachal Pradesh …Appellant. -Versus- Murti Ram and Others …Respondents. 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 Respondents : M/s Satyen Vaidya, G.S. Rathore and Vishal Panwar, Advocates. Surjit Singh, Judge(Oral) : State has appealed against the judgment dated 31st July, 2001, of the learned Special Judge (Forests), Shimla, whereby respondents Murti Ram and others, hereinafter called accused, have been acquitted of charge, under Sections 379, 411, 420, 467, 468, 471, 167, 218 and 120-B of the India Penal Code and Section 5(2) of the Prevention of Corruption Act. 2. .Accused-respondent Murti Ram and his deceased co-accused Mohi Ram were petty forest contractors. They used to enter into agreements with private land owners to purchase timber trees standing on private land and after obtaining permission from Forest Whether reporters of the local papers may be allowed to see the judgment? …2… Authorities, lumber those trees. In the year 1974, they submitted eleven applications alongwith affidavits and agreements of private land owners, situated in village Kutah, to the Divisional Forest Officer, with the request to mark the trees, standing on the land described in the said applications. Divisional Forest Officer marked the applications to accused Satya Dev Sharma, who was then working as Range Officer, with the direction to mark the trees on the private land described in those applications, after obtaining demarcation from the revenue officials. 3. Satya Dev Sharma approached Shri Sher Singh (deceased), the then S.D.O.(Civil), for carrying out the demarcation. Said Sher Singh carried out the demarcation with the assistance of Kanungo Kanwar Singh (now dead). Trees were marked by accused Satya Dev Sharma, Range Officer, accused Bir Singh, who was Block Officer, accused Kewal Ram and accused Devi Ram, who were then working as Forest Guards. 4. 677 trees were marked, in respect of which, lists Ex.PW-3/A-3 to Ex. PW-3/A-32 were prepared. It was certified by S.D.O. (Civil) Sher Singh (now dead) and the above-named accused forest officials that no tree had been marked on Government land and all the marked trees stood on the private land, described in the aforesaid. …3… 5. On the basis of the aforesaid marking lists and the recommendation of Revenue and Forest Officials, Divisional Forest Officer, Chopal granted permission to fell 677 trees, included in the lists. Copy of the felling order is Ex. PW-14/E. It is dated 24th July, 1975. The trees were felled by deceased-respondent Prithi Singh, proprietor of Khazan Singh Sobha Ram, through agent accused Gainda Singh (now dead), to whom trees were sold by accused Mohi Ram and Murti Ram, pursuant to the aforesaid felling order. The trees of this case and three other cased of private sale yielded 22012 scants of timber. The list of those scants was submitted to the Divisional Forest Officer, seeking permission to export the same. Permission was granted. 6. While investigating case F.I.R. No. 69/77, Sukh Ram, Superintendent of Police, noticed that in the garb of felling of trees on private land in village Kutah, a large scale felling of trees had taken place, on Government land. He made a report to S.H.O., Police Station, Chopal, who registered a case vide F.I.R. No. 101/1977, Ex. PW- 18/B. The case was investigated. During the course of investigation, PW-16 Abhey Pant, S.D.O. (Civil) demarcated the land on which marking was required to be done. He also demarcated the adjoining Government land. As per his report, Ex. PW-16/A, as also the lists of stumps prepared by PW-37 Tek Chand, Block Officer, it …4… was noticed that 1186 trees had been felled illicitly, out of which 1151 trees were on Government land and 35 trees were on private land, described in the applications. 7. According to the prosecution, there was a conspiracy among the private accused, including Khajan Singh, Gainda Singh and the officials of Revenue and Forest Departments, named as accused, to fell trees from Government land, in the garb of felling from private land and in pursuance of that conspiracy, 1151 trees had been felled from Government land and 35 trees from the private land, described in the applications. 8. On completion of investigation, report under Section 173 of the Criminal Procedure Code alongwith relevant papers, was filed in the Court of learned Special Judge (Forests), who after complying with the provisions of Section 207 of the Code of Criminal Procedure. and hearing the learned Public Prosecutor and learned defence counsel, charged the respondents with the offences of criminal conspiracy, forgery, cheating, preparation of incorrect record under I.P.C. and offence of misconduct under Section 5(2) of the Prevention of Corruption Act, 1947. 9. Accused pleaded not guilty to the charge. Prosecution examined 61 witnesses, besides proving a large number of documents to substantiate its case. Respondents in their statements, under Section 313 of …5… the Code of Criminal Procedure, denied that there was any conspiracy of the type, alleged by the prosecution or that the felling of trees had been carried out on Government land or even private land, other than the land mentioned in the applications. 10. Learned trial Court concluded that the case of the prosecution that felling had taken place on Government land or private land of some persons, other than the applicant, in whose name application had been submitted, did not stand established. Consequently, accused were acquitted. 11. We have heard learned Assistant Advocate General, as also learned counsel representing the respondents and gone through the record. 12. Prosecution mainly relies upon the testimony of PW-16 Abhey Pant and PW-37 Tek Chand to substantiate the charge that illicit felling had taken place on Government land, adjoining the private land. Trial Court has disbelieved the testimony of both these witnesses. 13. PW-16 Abhey Pant was SDO (Civil), conferred with the powers of Collector, under the H.P. Land Revenue Act. He was approached by the Investigating Agency to delineate the boundary of the private land, on which trees were marked and permitted to be felled, and the adjoining Government land. He gave report Ex. PW- …6… 16/A, per which stumps of felled trees were found on adjoining Government land. Stumps were counted by PW-37 Tek Chand. They numbered 643. 14. We have reappraised the evidence of both the aforesaid witnesses. We find that documents prepared by PW-16 Abhey Pant, in the nature of demarcation report Ex. PW-16/A, zimini order Ex. PW-20/A, Tatimas and the jamabandis, which have been made part of the demarcation report, create reasonable doubt, whether the Officer, in fact, visited the site and carried out the demarcation. As per demarcation report Ex. PW-16/A, demarcation, on the spot, was carried out on 12th November, 1987. Tatimas, on the basis of which demarcation was carried out and which have been made part of the report, are, however, dated 14th November, 1987. 15. Now, if the demarcation had been carried out on 12th November, 1987, as written in report Ex. PW-16/A and the Tatimas, on the basis of which demarcation is stated to have been carried out, were prepared on 14th November, 1987, how can it be said that the demarcation had been carried out on 12th November, 1987. Not only this, there is a zimini order dated 30th October, 1987, copy Ex. PW-20/A. This zimini order has been recorded in the file, pertaining to demarcation, …7… in question. As per this zimini order, demarcation had been carried out, on the spot, on 29th October, 1987. 16. Above stated position apart, PW-16 Abhey Pant did not have with him the copies of Musabi, while carrying out demarcation. Tatimas attached with the report indicate that they are the copies of Latha (map on a piece of cloth available with the Patwari). Report of demarcation does not indicate how permanent points, for carrying out demarcation and delineating the boundary, were ascertained. 17. We find ourselves in agreement with the findings of learned trial Court that the stumps found on Government land and some private land, other than the land in respect of which application was moved, do not stand connected with the trees that were marked on the private land the applicants. PW-37 Tek Chand, Block Officer, who, on the basis of demarcation given by PW-16 Abhey Pant, counted the stumps on Government land, very categorically testified that most of stumps were decayed and rotten and hammer mark was not decipherable and also the stumps were very old. Now, when the hammer mark, which was supposed to have been embossed on the trees by the accused Satya Dev Sharma, Bir Singh and Kewal Ram, Forest Officials, was not available on the stumps counted on Government land and the private land, other than the land described in the …8… application, it cannot be said that the stumps so found on Government land and private land were of the trees marked by the aforesaid Forest Officials, who are accused in this case. 18. Learned Assistant Advocate General submits that the fact that there were only 35 stumps on the land, on which trees were shown to have been marked, itself is enough to jump to the conclusion that the rest of the trees were marked on Government land. Prosecution itself examined most of the other private land owners, on whose land also trees were marked. They are PW-25 Moti Ram and PW-26 Bali Ram. They testified that most of the stumps of the felled trees had been uprooted by them, in the process of making the land cultivable. 19. It has further been submitted by the learned Assistant Advocate General that report Ex. Y of Fingerprint Expert proves, beyond reasonable doubt, that Murti Ram, one of the accused (petty contractor) had forged the thumb impression of Chiba on affidavit, copy Ex. PW-32/B. Report, no doubt, says that purported thumb impression of Chiba on affidavit, copy Ex. PW-32/B had more than eight characteristics of similarity with specimen thumb impression Marked IV on Ex. Z-6, which purports to be specimen thumb impression of accused Murti Ram, but the prosecution did not lead any evidence …9… to show that in fact Ex. Z-6 is the specimen thumb impression of accused Murti Ram. In view of the abovestated position, we see no reason to interfere with the judgment of acquittal passed, by the trial Court. Hence, the appeal is dismissed. (Surjit Singh), J April 18, 2011(sd) (Rajiv Sharma), J.