1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 465 of 2001. Date of decision: March 23, 2009 State of HP …Appellant. Versus Dhanna Ram & others …Respondents. Coram: The Hon’ble Mr.Justice Surjit Singh, Judge. Whether approved for reporting? For the Appellant: Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur Assistant Advocate General. For the Respondents.: M/s N.K. Sood, Ajay Kochhar, G.S. Rathore, Advocates. Surjit Singh, Judge (Oral) This appeal by the State is directed against the judgment, dated 22nd May, 2001, of learned Special Judge (F), Shimla, whereby respondents, numbering ten, who were charged with and tried for offences, punishable under Sections 120-B, 420, 467, 471, 218, 379 of the Indian Penal Code, Section 5(2) of the Prevention of Corruption Act, 1947 and Rules 11 and 18, read with Rule 20 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978, have been acquitted. 2. Factual matrix, which led to the filing of the case against the respondents and their being charged with and tried for the aforesaid offences, may be noticed. In the year 1977, eight 2 land owners of villages Jhokhar and Bhalu in Chopal Tehsil of Shimla District, wanted to fell trees standing on their private land. They agreed to sell those trees to respondent No.1 Dhanna Ram and appointed him as their attorney for seeking demarcation and marking of the trees intended to be sold and felled. Respondent No.1 Dhanna Ram submitted an application to the Divisional Forest Officer, seeking permission to fell those trees. That application was forwarded to respondent No.2 Hari Om Prakash Gupta, who was Range Officer at the relevant time, for marking the trees for felling, after obtaining demarcation from the revenue officials. Late Sher Singh, who was then working as SDM carried out the demarcation with the help of respondent No.3 Mangat Ram Jhagta. On the basis of the demarcation carried out by late Sher Singh, SDM and respondent No.3 Mangat Ram Jhagta, trees were marked by respondent No.2 Hari Om Prakash Gupta, Range Officer, respondent No.4 Hoshiar Chand, then working as Block officer and respondent No.5 Sant Ram, then working as Forest Guard, and they also prepared lists of the trees so marked. According to the prosecution, there was a conspiracy among the abovenamed respondents as also five other respondents ( whose role is being spelt out hereinafter) to fell the trees, standing on Government land, in the garb of marking of trees on private land. 3. Pursuant to that conspiracy, only 48 trees were marked on private land, while the remaining 72 trees were marked on adjoining Government land, bearing Khasra numbers 924/2, 788/1, 991/1, 924/1 and 321/1. Out of these 72 trees, marked on 3 Government land, 64 trees had been felled and nine trees were found intact, that is to say still standing in the forest, during the course of investigation. 64 trees marked on Government land and 48 trees marked on private land lateron were felled and converted into timber. The felled trees yielded 1260 scants, which were marked and permitted to be transported. According to the Rules, the scants could not have been exported or taken out of the forest unless there was certification by the field staff that no unmarked tree had been felled and also that no tree standing on Government land had been lumbered 4. Respondent No. 6 Binder Singh, who was then posted as Forest Guard and respondent No.7 Mangat Ram, who was then posted as Block Officer, certified that no tree had been marked on or felled from Government land and they recommended issue of export permit in favour of respondent No.1 Dhanna Ram. It is alleged that these two respondents, being the field staff posted in the concerned Government forest, were supposed to be in the know that a number of trees had been marked and felled on the Government land and their certification to the contrary indicates that they were party to the conspiracy. 5. Three other respondents were the Railway employees. Respondent No.8 Amrit Singh was Station Master at Summer Hill Railway Station, respondent No.9 Harbans Lal was the Station Master at Dharampur Railway Station and respondent No.10 Som Parkash Kohli was Assistant Station Master at Dharampur Railway Station. Role ascribed to these three 4 Railway employees is that they assisted respondent No.1 Dhanna Ram in exporting the timber by Railways, in violation of Rule 18 of the Himachal Pradesh Forest Produce ( Land Routes) Rules, 1978, inasmuch as they accepted the timber for being transported by Railway, after the expiry of the permit. Another act attributed to these Railway employees is that whereas the export permit was in respect of 1260 scants only, they exported 1286 scants against that permit and thus they also became party to the criminal conspiracy. One more allegation against these Railway employees is that they dispatched the timber to certain Railway stations outside the State of Himachal Pradesh, which were not mentioned in the permit. 6. Learned trial Court, after taking into consideration the evidence led by the prosecution, has come to the conclusions that: (a) it does not stand established that trees were marked on and felled from Government land; (b) it is not proved that timber was offered for being transported by Railways, after the expiry of the export permit; (c ) there is no provision in the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978, prohibiting the dispatch of timber to a station other than the station of destination, mentioned in the export permit, when both the station of destination as also 5 the station to which the timber is sent happen to be outside the State of Himachal Pradesh, as the Rules pertain only to the movement of the timber by land routes, within the State of Himachal Pradesh; (d) though the number of scants exported by Railways was more by 26, than the number permitted to be exported, it was on account of the reason that the Railway receipts relied upon by the prosecution to prove the accusation pertain not only to the export permit in respect of 1260 scants but also to one more. 7. I have heard the learned Deputy Advocate General, representing the State and the learned counsel, representing the respondents. 8. Prosecution mainly relied upon the demarcation report, Ex. PW-28/A, and the testimony of PW-28 Giaru Ram, Kanoongo to prove the allegation that 72 trees were marked on the Government land, out of which 64 had been felled and nine were still standing on the spot. During the investigation of the case, police got the demarcation done from late Kishori Lal, Naib Tehsildar, who was assisted by PW-28 Giaru Ram, Kanoongo. Kishori Lal could not be examined by the prosecution, as he left for his heavenly abode before the start of the trial. PW-28 Giaru Ram was examined. Trial Court has not believed the testimony of PW-28 Giaru Ram, as also the 6 demarcation report Ex. PW-28/A, proved by him. I see no reason to disagree with this view of the trial Court. 9. According to the testimony of PW-28 Giaru Ram, at the time of demarcation, which was got conducted by the police during investigation, neither the owners of the private land on which trees were required to be marked nor the owners of the adjoining land were associated. Not only that, none of the respondents, who are sought to be made liable on the basis of this demarcation, was associated in the demarcation process carried out during the investigation. Para 10.8 of the Himachal Pradesh Land Records Manual states that the demarcating Officer shall call all the parties before him and record their statements, at the time of demarcation. Further para 10.4 of the same Manual requires the impleadment of the owners of the adjoining lands as party to the application for demarcation. Admittedly, in this case, the police, which applied for demarcation, did not implead either the owners of the land sought to be demarcated or the owners of the adjoining lands, as party. 10. Further PW-28, Giaru Ram, Kanoongo, admitted in the cross examination that adjoining Government land, on which the trees had allegedly been marked, had not been demarcated. That means, the land of the Government, on which the trees were allegedly marked and felled, had not been identified to be the Government land and so it cannot be said that in fact any tree was marked on and felled from the Government land. PW-28 Giaru Ram further stated that Musabi was not available with Kishor Lal, Naib Tehsildar, at the time of demarcation. Himachal Pradesh Land Records Manual, vide para No. 7 10.3, requires that the demarcation is to be carried out on the basis of Musabi only. Again when questioned whether permanent points had been fixed, PW-28 Giaru Ram expressed ignorance, meaning thereby that it remains doubtful if permanent points were fixed by Kishori Lal, Naib Tehsildar, before jumping to the conclusion that trees had been marked on and felled from the Government land. Para 10.1 of the H.P. Land Records Manual says that fixing of permanent points is the first step towards the demarcation of any land. 11. Testimony of PW-7 Kali Ram, Block Officer, who assisted the investigating agency in preparing the lists of stumps, allegedly found on Government land, also creates doubt about the correctness of prosecution version. The witness has stated that no demarcation was carried out in his presence. If that is so, how can it be said that the stumps, which he counted, were on that land, which had allegedly been demarcated to be Government land by late Kishori Lal, Naib Tehsildar, assisted by PW-28 Giaru Ram, Kanoongo. Also, the witness stated that hammer mark was not visible on the stumps, which were spotted on the Government land and if that is so it is not possible to reach the conclusion that the stumps were of those trees which had allegedly been marked by respondent No.2 Hari Om Prakash Gupta, Range Officer, Similarly, the witness has stated that hammer marks on nine standing trees were also not decipherable and so it cannot be said that these trees were marked by said respondent Hari Om Prakash Gupta, in the process of marking trees on private land. Also, the prosecution did not lead any direct evidence suggesting that the trees, which were allegedly felled from 8 Government land, had in fact been felled by respondent No.1 Dhanna Ram. 12. In view of the above stated position, I see no reason to disagree with the finding of the trial Court that the evidence on record does not establish, beyond reasonable doubt, that trees were marked on and/or felled from Government land, in the garb of marking and felling of trees on private land. 13. It is true that vide permit Ex. PW-57/A-1, 1260 scants had been permitted to be exported and the said permit was valid from 24.4.1981 to 15.5.1981 and it is also true that the Railway receipts Ex. PW-8/B, Ex. PW-49/A-27, Ex. PW-26/A, Ex. PW-1/A and Ex. PW- 10/B, bear the dates from 18th May, 1981 to 30th September, 1982, but it has come in evidence, per testimony of PW-41 K.C. Nandwani, Railway Inspector, that Railway receipts are issued at the time when the goods are loaded and that loading of the goods takes place only after the receipt of goods at the Railway station and thereafter when the wagons are requisitioned and are made available. There is absolutely no evidence indicating as to when the timber mentioned in export permit Ex. PW-57/A-1 reached the Railway Stations at Summer Hill, Shimla and at Railway Station, Dharampur. In the absence of any evidence it cannot be said that the timber reached the Railway Stations after 15.5.1981, the last date upto which the permit was valid. Rule-18 of the Himachal Pradesh Forest Produce Transit (Road Routes) Rules, 1978, bars the offering of any forest produce for export by Rail on any Railway Station, within the State of Himachal Pradesh, unless a pass has been issued under the Rules. The Rule nowhere 9 says that once the forest produce is offered at the Railway station for export by Rail, during the period mentioned in the permit, it cannot be exported by Rail after the expiry of the period of permit. 14. As regards the allegation that against 1260 scants, permitted to be exported by Rail, 1286 scants were exported, the evidence on record suggests that the aforesaid Railway receipts relied upon by the prosecution pertain not only to the export permit, Ex. PW- 57/A-1 (No. 10/81-82), but also to another permit, i.e. permit No. 76/81-82. Therefore, it cannot be said that scants, in excess of the number mentioned in export permit Ex. PW-57/A-1, had been exported by Rail. In view of the above stated position, I see no merit in the present appeal. The same is, therefore, dismissed. March 23, 2009 (sd) ( Surjit Singh ), J.