1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 564 of 2001.. Date of Decision: 28-7-2007. ____________________________________________________________ State of H P. Appellant. Versus Roshan Lal. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant: : Shri J.S. Guleria, Law Officer. For the respondent : : Sh.V K Verma, Advocate. _________________________________________________________ Surinder Singh, J . (oral) The respondent was tried and acquitted for the offence under Section 33 of the Indian Forest Act, in short the ‘Act’, for allegedly encroaching upon the land of UDF in Benchi Kothi Raison, in a ‘protected forest’. The acquittal of the respondent has been assailed in this appeal on the ground that most reliable and unimpeachable evidence was brushed aside by the trial Court. In brief, the allegations against the respondent on which he was put on trial were that the respondent had encroached upon 4 bighas 16 biswas of land in UPF Raison (Cheti Ruhni) by clearing the bushes, dug the land, erected temporary shed and fenced the area having fifteen trees of different species. The Forest Department carried out the demarcation through kanungo and lodged the F.I.R. against the respondent under the aforesaid Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 section. A photo copy of the damage report dated 20.12.1991 to this effect was also taken into possession during the investigation of this case. On completion of the investigation, the challan was put against the respondent for trial. A notice of accusation for the offence aforesaid was put to which the respondent has denied. To prove its case, the prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was of denial simplicitor but no evidence in defense was led. At the end of the trial, the respondent was acquitted by the learned trial Court. According to Shri J.S. Guleria, learned Law Officer, the respondent had encroached upon the protected forest. The statements of witnesses prove this fact and the learned trial Court has wrongly acquitted the respondent. Contra, learned counsel for the respondent has supported the impugned judgment of acquittal. I have given my thoughtful consideration to the rival contentions and have gone through the record. On the consideration of the matter, I feel that the prosecution has miserably failed to prove its case against the respondent beyond doubt, firstly, for the reason that Section 33 (1) (c) of the Indian Forest Act applies to a case where the acts mentioned in that clause are prohibited under Section 30 of the Act. In order words, the act becomes punishable only when such an act relates to the land constituted as ‘protected forest’ declared by notification issued by the State Government. Therefore, it is incumbent upon the prosecution to prove that the area on which encroachment is alleged to have been done prohibits such acts it 3 being declared to be a ‘protected forest’ within the meaning of Section 30 of the Act. To prove this fact, the prosecution has only placed on record a copy of notification dated 1.6.1896 Mark-B which is also a photo copy of a typed copy and is not even signed by any officer authorized to do so. Therefore, the prosecution has failed to prove that the impugned area falls within the ‘protected forest’. Further, the demarcation report Exhibit PW3/A does not depict the khasra number of the land or adjoining land. Neither the report nor in the statement Kanungo (PW3) it is clear how boundaries of this land were fixed by him, whereas, according to PW1 Pradhan, the demarcation was conducted by the Revenue Officer from the ownership land of one Randhir Singh which fact has not been mentioned in the report Exhibit PW3/A. Therefore, this demarcation report which was carried out in the absence of the accused is of no consequence. Further, the damage report Exhibit PW5/A prepared by Talib Ram forest guard on 31.12.1991 about one year prior to the demarcation no where states about the nature of encroachment nor there is any witness mentioned therein. According to PW1, the respondent had sown the wheat crop on the said land but according to the Kanungo (PW3) there were apple plantation and a temporary shed. The Deputy Ranger Som Dutt (PW4) stated, when he visited the spot after one week of the demarcation, he found the encroachment upon the land by raising the Danga and clearing the bushes but he does not say regarding planting the apple trees or any cultivation. Thus, the evidence with respect to encroachment is also self-contradictory. For the foregoing reasons, the prosecution has failed to prove the notification under Section 30 of the Act to show that the 4 area in question fell within the ‘protected-forest’ and further contradictory evidence regarding the encroachment also makes the case of the prosecution doubtful to bring home the offence charged. Therefore I do not find any infirmity in the impugned judgment of acquittal passed by learned trial Court, accordingly the appeal is dismissed. The respondent is discharged from his bail bonds entered upon by him at any time during the trial of this case. (Surinder Singh) Judge. July 28, 2008. (bm)