IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 28/2005 Date of decision: 27.12.2011 State of H.P. …..Appellant Versus 1. Jagar Mal son of Shri Fimi Ram R/o village Thana Tehsil Chirgaon, District Shimla, H.P. 2. Smt. Bhumi Devi, wife of Shri Jagar Mal R/o village Thana, Tehsil Chirgaon P.S. Rohru Disrict Shimla, H.P. ……Respondents Criminal appeal under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal dated 28.9.2004 passed by the learned Judicial Magistrate Rohru in Cr. Case No. 169-2 of 2003. ---------------------------------------------------------------------------------- Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the Appellant: Mr. A.K. Bansal, Addl. Advocate General. For the respondent : Mr. Rahul Mahajan, Advocate. Surinder Singh, J. (Oral) The State has questioned the acquittal of the respondents for the offences punishable under Sections 32, 33, 41 and 42 Indian Forest Act and Section 379 Indian Penal Code. 2. Heard and gone through the record. 3. In short, prosecution story can be stated thus. On 28.7.2003, some villagers, namely, Bisham 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Singh, Joginder Singh and Smt. Meera Thakur Pradhan of Mahila Mandal lodged the FIR in police station Rohru to the effect that the accused persons belonging to scheduled caste were allotted 5 bighas of land being land less person, under the Scheme by the State Government. They raised an apple orchard thereupon. It is alleged that for the last 4/5 years they have encroached upon the forest land at some distance and illicitly felled trees from the Government land. The complainant party also informed the Forest Department, they chalked out the damage report against them and few other villagers who had encroached upon the forest land of the State government. 4. After lodging the FIR, police came into motion. PW10 Additional SHO Manish Chauhan visited the spot, prepared the site plan of the place of incident and took the photographs of the area alleged to have been encroached upon. He also took into possession the digging implements used in breaking up the land and wood. 5. The demarcation was got conducted from the Tehsildar. He also recorded the statements of the witnesses under Section 161 of the Code of - 3 - Criminal Procedure and further took into possession the damage reports. 6. After completing the investigation, challan was presented in the Court for the trial of the respondents for the offences aforesaid and at the end of the trial both the respondents, who are husband and wife were acquitted. 7. Shri A.K. Bansal, learned Additional Advocate General submitted that the learned trial Court did not appreciate the evidence on record in the right perspective. It stands proved that respondents had encroached upon the land which is a protected forest and committed theft of the seized wood from the forest. Therefore, they are liable to be convicted for the offences aforesaid. 8. To examine the contentions raised by the learned Additional Advocate General, I have scanned the evidence on record. 9. To prove the offences under Sections 32 and 33 of the Forest Act in short the Act, it is sine qua non for the prosecution to prove the notification issued under Section 29 of the Act declaring the provisions of Chapter IV applicable to the forest land or waste land which is not included in a ‘reserved forest’ but which is a property of the - 4 - Government over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled. Further, it also provides that the forest and waste lands comprised in any such notification shall also be called as the ‘protected forest’. 10. In the instant case, prosecution failed to prove the notification in terms of Section 29 of the Forest Act and so much so even the proprietary rights of the State Government over the land by placing on record the jamabandi of the area alleged to have been encroached upon. Further, the demarcation which is alleged to have been conducted by the police is admittedly in the absence of accused persons. By virtue of sub-section (2) of Section 72, any evidence recorded with respect to inquiry into the forest offence shall only be admissible in any subsequent trial before the Magistrate provided it has been taken in the presence of the accused persons. The demarcation report aforesaid therefore, is not admissible in evidence. 11. Further the recovery of logs, fuel wood, and charcoal from the residential house of the accused is also not connected with the alleged - 5 - felled trees from the protected forest and its transit to prove the charges against the accused also for the offences punishable under Sections 41 and 42 Indian Forest Act read with Section 379 Indian Penal Code. Therefore, in the totality of the circumstances as mentioned above, the acquittal of the respondents cannot be interfered with as the prosecution failed to prove that the alleged illegal activities were committed by the respondents within the ‘protected forest’. Even in their statements under Section 313 of the Code of Criminal Procedure, respondents have denied any encroachment over the land. However, appellant-State is at liberty to take action against the respondent under the provisions of Section 163 of the H.P. Land Revenue Act, if they are found to be in possession of the land. But however, the appeal is devoid of any merit, hence dismissed. 12. The respondents are discharged of their bail bonds entered upon by them, at any time during the proceedings of this case. December 27, 2011 (Surinder Singh), (cm) Judge.