Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.374 of 2003. Date of Decision: September 14, 2010. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Bharat Bhushan and others. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. A.K.Bansal, Addl. Advocate General. For the Respondents : Mr. Rakesh Jaswal, Advocate. Surinder Singh, J (oral) : The respondents were tried and acquitted for the offences punishable under Sections 379 of the Indian Penal Code read with Sections 32 and 33 of the Indian Forest Act, allegedly for felling two ‘Cheel’ trees in DPF Siuri, hence this appeal by the State. 2. In short the prosecution case can be stated thus. On 11th January, 2000, a patrol party consisting of forest officials, namely PW2 Forest Guard Hari Ram, PW3 Gokal Chand, PW7 Bahadur Singh, Hem Raj Forest Guard (deceased) and one Ranjeet, was in the area of DPF Siuri. - 2 - They heard noise of cutting trees. The patrol party rushed to the spot. Two persons fled away from the spot, leaving behind the axe and saw, whereas respondent No.1 Bharat Bhushan was apprehended by them. They took into possession the axe and saw from the spot. The matter was brought to the notice of the Range Officer PW1 Jai Chand. He sent a complaint to the SHO, Police Station Joginder Nagar, on the basis of which FIR Ex.PW1/B was formally registered and PW8 Sub Inspector D.C. Verma investigated the case. 3. During investigation, PW8 S.I. aforesaid, visited the spot, took the photographs of the felled trees where some forest officials were also present and respondent Bharat Bhushan was in their custody. He is alleged to have disclosed the names of other respondents. At the instance of Forest Guard Hem Raj (since deceased), site plan Ex.PW8/A of the place of felling of trees was prepared. Logs of felled trees were on the spot, which were taken into possession and given on supurdari to Forest Guard Hem Raj vide memo ExPW2/A. The axe and saw were taken into possession vide memo Ex.PW2/B. On 13.1.2000, statement Ex. PW4/A of respondent Bharat Bhushan was recorded under Section 27 of the Indian Evidence Act for - 3 - pointing out the stumps of aforesaid two Cheel trees. Later, the demarcation was got done from Shri Chunni Lal Kanungo attached with the Forest Department. He submitted demarcation report Ex.PW6/C dated 9.2.2000 alongwith Aks Tatima Ex.PW6/B and copy of jamabandi Ex.PW6/C. 4. After completing the investigation, the Challan was presented in the Court for the trial of the respondents. They were charge-sheeted for the offences aforesaid, to which they pleaded not guilty and claimed trial. 5. To prove the charges against the respondents, the prosecution examined its witnesses and at the end of the trial, they were acquitted, on the grounds that PW7 Bahadur Singh did not support the case of the prosecution and PW5 Jagjeet, Photographer stated that one of stumps was black and burnt and the other witnesses stated that the stumps appeared to be one year old, whereas PW3 Gokal Chand stated that stump gets black only after 5/6 years and also that the statement of the official witnesses did not inspire confidence and the report of the Kanungo with respect to the demarcation did not clinch the matter to establish the guilt of the respondents. - 4 - 6. I have heard the learned counsel for the parties and have carefully gone through the evidence on record. 7. At the very outset, I would like to say that the prosecution has failed to prove that the forest in question from where trees were allegedly felled by the respondents, has not been proved to be “protected forest” to bring it within the mischief of Sections 32 and 33 of the Indian Forest Act as the notification under Section 29 of the Forest Act attracting has also not been proved, therefore, in absence thereof, the aforesaid offence would not attract in the present case. 8. Insofar as the offence punishable under Section 379 of the Indian Penal Code is concerned, for that the prosecution is obliged to prove that the place in question fell within the possession of the State Government and the respondents fell the trees therefrom without their consent. To prove the fact of possession which is sine quo non to prove the offence of theft, the prosecution has examined PW6 Chunni Lal, Kanungo who is alleged to have demarcated the forest land in question. He submitted his report Ex.PW6/C alongwith Aks Tatima Ex.PW6/A and jamabandi Ex.PW6/B. Though, he was not cross-examined by the respondents, yet the report Ex.PW6/C submitted by - 5 - him is subject to criticism and legal scrutiny. He only stated that he was associated by the police during the investigation of this case on 9.2.2000, but there is nothing on record to show as to who requested and authorized him to demarcate the land in question. Further a perusal of the report aforesaid does not specify as to how and in what manner, he had demarcated the aforesaid land and what method he had adopted to fix puckka points. The report is not better than his statement, whereby he only stated that he had demarcated the land in question. The report itself is infirm and discrepant. Even he did not testify during the trial, as to what revenue record he was having in his possession and who assisted him in conducting the demarcation. The report aforesaid does not disclose whether the land in question was demarcated in accordance with the instructions issued by the Financial Commissioner, as per provision of Section 106 of the H.P. Land Revenue Act ( in short the Act). On the top of it, it has also not been shown whether he was competent to conduct the demarcation. 9. In Radha Soami Satsang Beas through Shri Madan Gopal Singh vs. State of H.P. and another [ILR 1984 HP 317] the Division Bench of this Court held that the - 6 - Revenue Officer exercising the powers under Section 107 of the Act is a statutory authority exercising powers and discharging functions entrusted to him under the enactment and the powers so vested are exercisable by him and none other, which are subject to revisional jurisdiction as per Section 17 of the Act aforesaid. It was also observed that the ‘Revenue Officer’ in any provision of this Act means a ‘Revenue Officer’ having authority under this Act to discharge the functions of a Revenue Officer under that provision. Section 7 classifies Revenue Officers into different categories and one of the Officers referred to in the said section is the Assistant Collector of the second grade. As already stated above, Section 107 of the Act confers the power of ‘Revenue Officers’ to define the boundaries. In Radha Soami Satsang’s case supra, it was further observed that the powers conferred on the Revenue Officer under the aforesaid section are exercisable by the Assistant Collector of the second grade in view of the orders made in regard thereto by the State Government in exercise of the powers conferred under Section 11 and/ or section 13 of the Act. 10. Against the aforesaid background, in my opinion, the Kanungo deputed with the Forest - 7 - Department was also not competent to define the boundaries and to act in conformity with Section 107 of the Act, that too when there is no record that the respondents were informed of the demarcation being conducted by him and the report is capricious and arbitrary. The report in question is also contrary to the guidelines/ directions issued by the Financial Commissioner under Section 106 of the Act. 11. Since the demarcation is a foundation of the case connecting the respondent with the offence of theft to prove the possession of the State Government, which in absence of the proper demarcation could not be established. Once the demarcation report is taken altogether out of consideration, there remains nothing on record to connect the respondents with the alleged offence. The statements of the prosecution witnesses are also contradictory. PW7 Bahadur Singh did not support the case of the prosecution. According to him, on hearing the noise of cutting, he reached the spot and found a boy present there. He did not make any reference with respect to the other respondents. He admitted in cross- examination that before his reaching the spot, Forest - 8 - Guard Hem Raj (deceased) and Ranjeet (not examined) had reached the spot before any of them could reach there. He also admitted that respondent Bharat Bhushan was not found cutting the tree by him and it might have noticed by Forest Guard Hem Raj and Ranjeet aforesaid. 12. Further the statement of Bharat Bhushan was recorded by the police under Section 27 of the Indian Evidence Act with respect to pointing out the stumps on 13.1.2000 is also farce and a cover up story, which cannot be believed, also for the reasons that on 11.1.2000, the police was on spot alongwith the forest officials. They knew about the alleged incident as disclosed to them by the forest officials. Bharat Bhushan was alleged to be present with them, so the aforesaid evidence collected by the police is illegal and of no consequence. 13. The statement of PW2 Hari Ram Forest Guard is also contradictory. He is stated to have informed the Range Officer about all the three respondents, but the report Ex.PW1/A does not mention the names of other respondents except Bharat Bhushan. It has also come in the evidence of PW2 aforesaid that the respondent Bharat Bhushan was a resident of adjacent village, but he denied the fact that he had come to jungle for grazing his - 9 - cattle. Grazing the cattle in the “protected forest’’ is not an offence, more specifically when there is a mention in the jamabandi Ex.PW6/B that the villagers have certain ‘bartandari’ rights in the jungle unless the prosecution proves its exclusion by proving the notification under Section 29 read with Section 30 of the Forest Act. 14. In nutshell, it can safely be concluded that in absence of Section 29 of the Forest Act and the proper demarcation, knock off the entire edifice of the offences charged against the respondents. Therefore, no interference is called for in the acquittal of the respondents. Consequently, the appeal filed by the State is dismissed. 15. The respondents are discharged of their bail bonds entered upon by each of them at any stage during the proceedings of the case. Send down the records. September 14, 2010. (Surinder Singh) (Pds) Judge.