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High Court Of Himachal Pradesh
DEVINDER GUPTA,LOKESHWAR SINGH PANTA
STATE OF H.P. - Appellant
Versus
LAXMI NAND - Respondent
Cr. Appeal Nos. 43 of 1985 and 14 of 1985
Decided On : 01/09/1992
INDIAN PENAL CODE - Sections 371, 411, 420, 120-B, 407, 468, 218, 119, 117 - PREVENTION OF CORRUPTION ACT - Section 5(2) - CRIMINAL APPEAL - ACQUITTAL - CONFISCATION OF SEIZED TIMBER - REBUTTAL OF PRESUMPTION UNDER SECTION 69 OF THE INDIAN FOREST ACT - DEMARCATION OF BOUNDARIES - INSTRUCTIONS ISSUED BY THE FINANCIAL COMMISSIONER - H.P. LAND REVENUE ACT, 1953 - SECTION 107 - HADD SHIKNI CASES - CHAPTER 1-M, VOLUME 1 OF HIGH COURT RULES AND ORDERS - REVENUE OFFICER'S DUTY TO DEFINE BOUNDARIES - SURVEY AND BOUNDARY DISPUTE CASES - RELAYING BOUNDARIES FROM VILLAGE MAP - THREE PERMANENT POINTS - MEASUREMENT AND CHAINING - COMPARISON WITH MAP - DRAWING OF LINES AND PERPENDICULARS - FIELD KANUNGO'S REPORT - DETAILS OF MEASUREMENT - COPY OF RELEVANT PORTION OF CURRENT SETTLEMENT FIELD MAP - OBJECTIONS AND OPINION OF REVENUE OFFICER - INCREASE OR DECREASE IN AREA - ACCURACY AND VERACITY OF PROCEEDINGS - RELIANCE ON DEMARCATION REPORTS - CERTIFICATES ISSUED BY KEWAL RAM, SADAR KANUNGO - ABSENCE OF PROPER METHOD - COPIES OF SHAJRA - LACK OF THREE PERMANENT POINTS AND RESULT OF DEMARCATION - REPORTS OF GANESH RAM, PW 25 - INACCURATE DEMARCATION - ABSENCE OF THREE PERMANENT POINTS AND PLAN - USE OF LATHA INSTEAD OF ORIGINAL MUSAVI OR COPY - STRETCHABLE CLOTH - CHANCES OF DIFFERENCE IN RESULTS - MARGINAL DIFFERENCE IN LOCATION OF STUMPS - FAILURE TO PROVE BASIC FACTS - UPHOLDING OF ACQUITTAL - SECTION 69 OF THE INDIAN FOREST ACT - PRESUMPTION IN FAVOUR OF STATE - REBUTTABLE PRESUMPTION - FAILURE TO REBUT PRESUMPTION - DISMISSAL OF APPEAL.
Fact of the Case:
Accused-respondents were tried for charges under various sections of the Indian Penal Code and the Prevention of Corruption Act, including conspiracy, theft, and forgery, related to the felling and removal of trees from government land. The prosecution alleged that the accused conspired to mark trees on private land as government trees and then fell and remove them, using forged documents and abusing their positions as public servants. The accused pleaded not guilty and claimed trial. After the prosecution evidence was recorded, the accused were questioned under section 313 of the Code of Criminal Procedure, wherein they denied the charges and provided explanations for their actions.
Finding of the Court:
The Special Judge acquitted the accused-respondents of all charges, holding that the prosecution had failed to prove the charges beyond a reasonable doubt. The court found that the demarcation reports relied upon by the prosecution were not prepared in accordance with the instructions issued by the Financial Commissioner under the Himachal Pradesh Land Revenue Act, 1953, and therefore could not be relied upon to establish that trees had been felled from government land. The court also found that the prosecution had failed to prove the existence of a conspiracy among the accused or that they had obtained pecuniary advantage by corrupt or illegal means.
Issues: 1. Whether the prosecution had proved the existence of a conspiracy among the accused to fell trees from government land under the cover of felling from private lands? 2. Whether the prosecution had proved that the marking lists, the list of timber, and the certificates at their feet had been incorrectly prepared by the accused with intent to cause loss to the State of Himachal Pradesh? 3. Whether the prosecution had proved that the accused, being public servants, obtained pecuniary advantage for themselves or their co-accused, by corrupt or illegal means or by otherwise abusing their positions as public servants? 4. Whether the prosecution had proved that the accused had forged documents in order to promote the object of conspiracy? 5. Whether the prosecution had proved that the accused had cheated the State of Himachal Pradesh? 6. Whether the prosecution had proved that the accused had committed theft of trees from government land? 7. Whether the prosecution had proved that the accused had used forged documents as genuine, knowing or having reason to know that the same were forged? 8. Whether the prosecution had proved that the accused had obtained pecuniary advantage for themselves or their co-accused by corrupt or illegal means or by otherwise abusing their positions as public servants? 9. Whether the prosecution had proved that the accused had recorded a false certificate on the list of timber? 10. Whether the prosecution had proved that the accused had conspired to fell trees from government land under the cover of felling from private lands? 11. Whether the prosecution had proved that the accused had obtained pecuniary advantage for themselves or their co-accused by corrupt or illegal means or by otherwise abusing their positions as public servants? 12. Whether the prosecution had proved that the accused had committed theft of trees from government land? 13. Whether the prosecution had proved that the accused had committed theft of trees from private land without felling permission? 14. Whether the sanction for the prosecution of the accused was valid?
Ratio Decidendi: 1. The demarcation reports relied upon by the prosecution were not prepared in accordance with the instructions issued by the Financial Commissioner under the Himachal Pradesh Land Revenue Act, 1953, and therefore could not be relied upon to establish that trees had been felled from government land. 2. The prosecution had failed to prove the existence of a conspiracy among the accused or that they had obtained pecuniary advantage by corrupt or illegal means.
Final Decision: The court dismissed both appeals, upholding the acquittal of the accused-respondents and dismissing the appeal filed by the accused-respondents seeking the return of the seized timber.
Devinder Gupta, J.—Criminal Appeal No. 43 of 1985 is by the State of Himachal Pradesh against the judgment passed on November 9, 1984 by Special Judge, Shimla, in Criminal Case No. 34-S/7 of 1983 acquitting the accused-respondents of the charges under sections 371, 411, 420, 120-B, 407, 468, 218, 119 and 117 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act.
2. Criminal Appeal No. 14 of 1985 is by accused-respondents Gulabu Ram and Sadh Ram, seeking to set aside the order passed by Special Judge, Shimla, on November 9, 1984 while acquitting them and ordering the confiscation of the seized timber in favour of the State with a prayer to direct its return or sale proceeds thereof to them.
3. The facts, as revealed, on the basis of which accused-respondents were tried for the aforementioned charges are as under. Accused-respondents No. 7 and 8 had their partnership firm by the name of M/s. Gulabu Ram Sadh Ram which had been dealing with the timber business. Sohan Lal, accused-respondent No. 5, who is son of Gulabu Ram, at the relevant time was posted as Reader in the Court of Sub-Judge-cum-Judicial Magistrate, Theog. Ram Lal, respondent No 6 son of Sadh Ram, respondent No. 8 had died during the pendency of the case before the Special Judge. Respondent No. 8 was posted as the Forest Range Officer at Kotkhai and respondents No 2 and 4 as Forest Block Officer within Kotkhai Range. Respondent No. 1 was Kanungo in Sub-Tehsil Kotkhai
4. On January 15, 1975, certain land-owners entered into an agreement for sale of the different spices of trees standing upon the land owned by them located within three revenue estates, namely, Gwalath, Dhola and Khalana in Tehsil Kotkhai District Shimla in favour of respondents No. 7 and 8 for which purpose 8 separate agreements were executed. Besides, executing agreements, separate affidavits were also given by each of the land-owner, which was one of the requirements for getting the cases processed with the Forest Department for obtaining necessary permission for marking of trees and felling thereof. 8 separate applications were moved by the land-owners addressed to the Divisional Forest Officer, Shimla, through Range Officer, Kotkhai, praying for marking of the trees standing upon their lands so as to enable them to get the same felled through respondents No 7 and 8 to whom they had agreed to sell the same so as to enable them to plant orchard in the land.
5. The aforementioned 8 applications were duly processed in the office of the Range Officer, Kotkhai, who through his letter Ex. PCL/2, dated February 9, 1975, made recommendation to the Divisional Forest Officer, Shimla, for according necessary permission for marking. On February 15, 1975, Divisional Forest Officer, Shimla, issued communication Ex. PCL/6 according necessary permission of marking of the trees silviculturally with a direction to accused-respondent No. 3 to have the demarcation obtained through revenue agency and then mark the trees which were sought to be felled On the strength of this permission, respondent No. 3 got the demarcation through revenue agency and it was respondent No. 1, who is alleged to have carried out the demarcation of the land owned by those persons, who had agreed to sell their trees in favour of respondents No. 7 and 8. Within the area so demarcated 103 Deodar trees, 186 Kail trees and 33 Rai trees, in all 322 trees were marked for being felled for which purpose, on April 24, 1976, marking lists Ex. PCX/1 to PCX/22 were prepared. These marking lists, alongwith recommendation of respondent No. 3 were submitted again to the Divisional Forest Officer and on August 12, W6, PW 48 accorded the requisite felling permission vide Ex. PCU entitling and enabling respondents No 7 and 8 to fell 322 trees as per marking lists. Trees were thereafter felled by respondents No. 7 and 8 and it is the prosecution case that 968 scants were extracted, out of which permission was accorded to respondents
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