The prosecution must prove illegal intent and procedural compliance for criminal trespass charges against encroachment of forest land.

JUDGMENT : 

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 23.07.2014 passed by learned Judicial Magistrate, First Class, Rajgarh, District Sirmour, H.P. (learned Trial Court) vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable under Sections 447 of the Indian Penal Code (IPC) and Section 26 of the Indian Forest Act. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Section 447 of the IPC and Section 26 of the Indian Forest Act. It was asserted that the accused had encroached upon more than 10 bighas of land bearing Khasra Nos.745/641//641/7, 765/734/642/1, and 745/641/6 measuring 5-07 bighas located in Penkuffar forest. A complaint (Ext.PW-1/A) was made to the police. The police registered the F.I.R. (Ext.PW-7/A). HC Balbir (PW-9) investigated the matter. Yoginder Sain (PW-8) demarcated the land and found that there was an encroachment on Khasra Nos. 745/641/7, 765/734/642/1 and 745/641/6 to the extent of 5-07 bighas. He issued the demarcation report(Ext.PW-8/A) and Tatima(Ext.PW-3/A). HC Balbir Singh prepared the site plan (Ext.PW-9/A). He obtained a copy of a Musabi (Ext.PW7/B). The statements of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the Court.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Section 447 of the IPC and Section 26 of the Indian Forest Act, to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined nine witnesses to prove its case. Amar Singh (PW-1) sent an application to the Police. Jai Singh (PW-2) detected the encroachment. Kali Dass Field Kanungo (PW-3) verified the Tatima. MC Sandeep (PW-4) issued the certificate regarding the registration of F.I.R. SI Rajinder Singh (PW-5) prepared the challan, Roop Lal (PW-6) was present at the time of demarcation. ASI Rajesh Pal (PW-7) signed the F.I.R. Yogender Sen (PW-8) demarcated the land. HC Balbir Singh (PW-9) investigated the matter.

5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution’s case in its entirety. He stated that the land was occupied by his ancestors. He tendered documents in his defence.

6. Learned Trial Court held that the report of the demarcation was not as per the law. The notification issued by the Government showed that lopping of trees was allowed in Mushtarka forest land, and a right holder was permitted to remove grass from it. Therefore, the act of the accused of removing the grass did not constitute any offence. The witnesses admitted that the the accused was not in possession of the land since the time of his forefather, and the illegal possession does not constitute an offence punishable under Section 447 of the IPC. Hence, the accused was acquitted of the charged offences.

7. Being aggrieved by the judgment passed by the learned Trial Court, the State has filed the instant appeal asserting that the learned Trial Court erred in acquitting the accused. The reasoning of the learned Trial Court was manifestly unreasonable and unsustainable. The prosecution witnesses proved that the accused had encroached upon the Forest land. Yogender Sain conducted the demarcation and found the encroachment to the extent of 5-7 bighas. No prejudice was caused to the accused by not fixing three permanent points. The continuation of an illegal possession constituted an offence punishable under Section 447 of the IPC. Therefore, it was prayed that the present appeal be allowed and the judgment p