:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.511 OF 1993 CRIMINAL APPEAL NO.511 OF 1993 CRIMINAL APPEAL NO.511 OF 1993 Mahabaleshwar Hill Station Municipal Council through its Overseer and the Tree Officer Shri Katekar Adult, Occupation: Service, residing at Mahabaleshwar Taluka: Mahabaleshwar District: Satara ...Appellant. (Org.Complainant) v. 1. Shri Sitaram M. Potdar age about 50 years. 2. Smt. Sushilabai M. Potdar age about 75 years 3. Sou. Malti J. Potdar age about 50 years 4. Shri Jagdishprasad Potdar age about 55 years Occupation No.1 and 4 Traders and No.2 and 3 Household work (All residing at Potdar Building, Mahatma Gandhi Road, Kandivali (Bombay) Pune 411 067) ...Respondents (Org.Accused) 5. State of Maharashtra (Summons to be served on the learned Public Prosecutor, appearing for the State of Maharashtra under the provisions of Criminal Procedure Code, 1973) ..Respondents. Mr.A.V.Anturkar Sr.Adv. i/by Mrs.Vinita Bakre Shastri , advs. for the Appellant. Mr.R.V.Pai , adv. for the Respondent Nos.1 to 4. Mr.Y.M.Nakhawa, APP for the State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 12th March, 2009. DATE: 12th March, 2009. DATE: 12th March, 2009. :2: ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant/Municipal Council challenges the impugned judgment and order dated 3rd December, 1992 passed by the Additional Sessions Judge at Satara in Criminal Appeal No.74 of 1990 recording the respondent nos.1 to 4’s acquittal for the offences punishable under Sections 21(1) and 8 of the Maharashtra (Urban Area) Preservation of Trees Act, 1975 (In short ’The Act’). The brief facts giving rise to the present appeal are as follows: 2. The respondent nos.1 to 4 are the alleged owners of the open land bearing C.T.S.No.63/C situated within municipal limits of Mahabaleshwar Municipal Council. On 12th September, 1988, P.W.1 Mr.Mukund Katekar, Overseer/Tree Officer of the said Municipal Council found that approximately 348 trees standing in C.T.S. No.63/C are fallen and, therefore, with the help of P.W.2, panchanama at Exhibit 34 was recorded. P.W.3 photographer was also taken to the scene of offence to take the photographs. 3. After recording of the panchanama and taking the photographs, the appellant/Municipal Council satisfied that the respondent nos.1 to 4 have committed an offence :3: punishable under Section 21(1) of the said Act and, therefore, complaint was preferred before the learned Judicial Magistrate First Class, Wai. The appellant in order to prove the guilt of the respondent nos.1 to 4 examined three witnesses, namely, P.W.1 Katekar- Overseer/Tree Officer of Mahabaleshwar Municipal Council, Mr.Khaja Abdul Warunkar- panch witness to the panchanama at Exhibit 34 and Mr.Shirish Gandhi Photographer, who took photographs of the fallen trees. The appellant also relied upon the panchanama at Exhibit 34 and photographs at Exhibit 37. 4. The learned Magistrate on the basis of evidence led by the appellant held that the respondent nos.1 to 4 had fallen trees from their open land bearing C.T.S.No.63/C and accordingly, they were convicted under Sections 21(1) and 8 of the said Act. The learned Magistrate held that falling of each tree would constitute one offence and, therefore, sentenced to pay a fine of Rs.400/- each for 348 offences, i.e., Rs.1,39,200/- each in toto, in default of payment of fine amount, sentenced to suffer S.I. for one month for every offence. 5. The respondent nos.1 to 4 being aggrieved and dis-satisfied preferred Criminal Appeal No.74 of 1990 and by the order impugned in this appeal, the learned Additional Sessions Judge at Satara allowed the same and :4: the trial Court’s judgment and order convicting the respondent nos.1 to 4 came to be quashed and set aside. 6. Mr.Anturkar the learned counsel appearing for the appellant/Municipal Corporation submitted that the learned Additional Sessions Judge wrongly recorded the respondents’ acquittal though there is enough evidence on record to prove the respondents’ complicity in an alleged offence under Sections 21(1) and 8 of the said Act. He submitted that there is no dispute that the respondent nos.1 to 4 are the owners of the C.T.S.No.63/C situated within the limits of Mahabaleshwar Municipal Council. He further submitted that the appellant by leading enough evidence on record established that number of trees from C.T.S.No.63/C were fallen. He further submitted that P.W.2 in his evidence stated that the remaining stems of the cut trees were hidden by putting earth and waste leaves. He submitted that taking overall circumstances into consideration, which are established by the appellant, a conclusion can be drawn that only the respondent nos.1 to 4 must have been responsible for cutting of the trees. 7. Mr.Pai the learned counsel appearing for the respondent nos.1 to 4 per contra supported the impugned judgment and order. He submitted that the appellant could prove only two things, namely land bearing C.T.S.No.63/C belongs to the respondents and that some :5: trees standing on this C.T.S.NO.63/C are cut. He submitted that these two circumstances at the most raise suspicion that the respondent nos.1 to 4 might have cut the trees, however, the suspicion howsoever may be strong can not take place of proof and in order to prove that the respondent nos.1 to 4 must have cut the trees, the appellant/Municipal Corporation ought to have brought on record some more evidence and in absence of more evidence on record to complete the chain of circumstantial evidence, respondents can not be convicted. He also submitted that whenever two views are possible, the view in favour of the acquittal should not be disturbed. 8. With the help of Mr.Anturkar the learned counsel appearing for the appellant and Mr.Pai the learned counsel appearing for the respondent nos.1 to 4, I have gone through the evidence of prosecution witnesses and the documents, i.e., Panchanama at Exhibit 34 and photographs of scene at Exhibit 37. I have also gone through the reasoning recorded by the learned Additional Sessions Judge for recording acquittal of the respondent nos.1 to 4. Having gone through the evidence, documents and the reasoning recorded by the learned Additional Sessions Judge, I do not find any error in the impugned judgment. P.W.1 is Overseer/Tree Officer of Mahabaleshwar Municipal Council. He has deposed that the offence is committed in open land bearing :6: C.T.S.No.63/C of Mahabaleshwar owned by the respondent nos.1 to 4. He deposed that the respondents preferred an application on 16.9.1987 for permission to construct a building. Accordingly, permission was granted on 28.9.1987. He further deposed that photographs of the fallen trees were taken by P.W.3 Shirish Gandhi and panchanama of the fallen trees was also drawn on 12.9.1988. He also deposed that no permission was sought by the respondents to cut the trees. Trees must have cut with the help of power machine. 9. P.W.2 Warunkar is a panch witness. He deposed that on 12.9.1988, he was called to act as a pancha. He reached the spot at 9.00 a.m. alongwith another pancha. He testified that remaining stems of the cut trees were hidden and those were around 350. He also testified that trees were cut with the help of machine and cut wood was also hidden by putting earth and waste leaves. Panchanama of all the above trees was drawn and he signed on the panchanama. Thus, he proved panchanama at Exhibit 34. 10. P.W.3 Shirish Gandhi is a photographer. He deposed that on 12.9.1988, he received a letter from Municipal Corporation asking him to take some photographs. He reached at the place of incident at about 9.00 a.m. and thereafter, in presence of P.W.1 and 2, took photographs of the remaining stems and the :7: cut wood. He proved photographs at Exhibit 37. 11. If the evidence of all the three prosecution witnesses is considered together, it is established beyond reasonable doubt that C.T.S.No.63/C belongs to the respondents and approximately 348 trees are cut from this survey number. However, this evidence is insufficient to draw an inference that those trees were fallen either by the respondents or at their instance. It is the case of the Municipal Council that prior to drawing of panchanama dated 12.9.1988, the trees have been cut. Therefore, it is not even the case of the Municipal Council that the cutting of the trees was witnessed by somebody. I find merit in the submission of Mr.Pai in this regard. The above established circumstances merely give rise to the suspicion that the respondents, who are the owners of C.T.S.No.63/C might have cut those trees. In order to prove beyond any reasonable doubt that the trees were cut at the instance of the respondents, it was for the appellant/Municipal Council to adduce some more evidence to connect the respondents with the cutting of the trees. The respondents are the owners of the C.T.S.No.63/C, however, same is unguarded land. It is not the case of the either parties that the respondents employed someone to protect the land. There is no dispute that the respondents are residing at Bombay and they are not residing at Mahabaleshwar. Possibility of cutting of :8: the trees by somebody other than the respondents can not be in my view ruled out. 12. Mr.Anturkar submitted that the stems of the cut trees were hidden by putting earth and waste leaves pointing out needle of suspicion to the respondents. It is true that P.W.2 pancha in his deposition has stated that stems of the cut trees were hidden. However, panchanama at Exhibit 34 does not make any reference in this regard. Panch witness is examined to prove panchanama drawn at the scene of incident. Evidence of the panch witness is contradictory to the facts stated in the panchanama and, therefore, his statement that the stems of the cut trees were hidden by putting earth and waste leaves can not be accepted. According to the case of the appellant, 348 trees are cut. According to them, these trees are cut with the help of electric machine. In my view, it was not difficult for the Municipal Council with the help of local police to collect the evidence of actual falling of the trees. In absence of said evidence, respondent nos.1 to 4 can not be held guilty merely because they are owners of C.T.S.No.63/C. 13. The learned Additional Sessions Judge acquitted the respondent nos.1 to 4 on the ground that there is absolutely no evidence to show that the respondent nos.1 to 4 had cut the trees with the help of electric machine. The learned Additional Sessions Judge :9: acquitted the respondents after appreciating the evidence on record. The view taken by the learned Additional Sessions Judge is a possible view and, therefore, interference in the present appeal is not warranted. In the facts and circumstances mentioned above, I do not find merit in the appeal and it is accordingly, dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)