Appeal against acquittal for forest encroachment dismissed: invalid demarcation lacking permanent points and accused presence, unproven forest notification, encroachment below FIR threshold, absent criminal intent for trespass.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 31.05.2014 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 Section 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 informant, Amar Singh (PW1), made a complaint (Ext.PW1/A) to the police that Jagdish Kumar (accused) had encroached upon more than 10 bighas of land in RF Gohtari C-5, and an action should be taken against him. The police registered the FIR (Ext.PW1/B). Yogender Sen (PW10) conducted the demarcation. He found that the accused had encroached upon 9-6 bighas of land bearing khasra No. 164 by planting apple trees over it. He issued the report (Ext.PW10/A) and recorded the statement of accused Jagdish Kumar (Ext.PW10/B). Kamal Kishore (PW5) issued jamabandies (Ext.PW5/A and Ext.PW5/B). Kali Dass Kannungo (PW3) issued Tatima (Ext.PW3/A). The copy of Musabi (Ext.PW10/D) was taken into possession. HC Roshan Lal (PW11) investigated the matter. He prepared the site plan (Ext.PW11/A), took the photographs (Ext.P1 to Ext. P3), seized the notification (Ext.P1) and recorded the statements of witnesses as per their version. 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 eleven witnesses to prove its case. Amar Singh (PW-1) is the informant. Ganga Ram (PW2) detected the encroachment. Kali Dass Kannungo (PW3) prepared Tatima. Roop Lal (PW4) was present at the time of demarcation. Kamal Kishore, Kannungo (PW5), issued the revenue record. Narata Ram (PW6) produced the notifications. Arun Kumar (PW7) did not support the prosecution’s case. Ram Lal (PW8) entered the FIR in the computer and issued a certificate. Kuldeep Kumar (PW9) verified the encroachment. Yogender Sen (PW10) conducted the demarcation. HC Roshan Lal (PW11) 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 he did not own any orchard, and he was not in possession of the land. He was informed by Patwari, and his signatures were obtained over the blank paper. He examined Mohan Singh (DW-1) in defence.

6. Learned Trial Court held that the report of the demarcation was not as per the law. The demarcating official had not affixed three permanent points to locate the boundary. The evidence regarding the exact location of the land was conflicting. The Investiga