Himachal Pradesh High Court
State Of H.P vs Rattan Chand on 29 August, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 224 of 2010
.
Reserved on : 28.7.2016
Date of Decision: 29.8.2016
State of H.P. ...Appellant
Versus
Rattan Chand ...Respondent
of
____________________________________________________________________
Coram
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
rt
Whether approved for reporting?1 Yes
____________________________________________________________________
For the appellant: Mr. P.M. Negi, Dy.A.G.
For the respondent: Mr. C.M. Sharma, Advocate.
____________________________________________________________________
Per Rajiv Sharma, Judge:
This appeal is instituted by the State against the impugned judgment dated 16.12.2009 rendered by the learned Special Judge, Shimla, in Sessions Trial No.4-S/7 of 2008, whereby the respondent/accused, Rattan Chand, (hereinafter referred to as the "accused"), who was charged with and tried for offences punishable under Section 14 of the Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 and Section 409 of the Indian 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 2 Penal Code, has been acquitted.
2 The case of the prosecution, in a nutshell, is that the accused remained posted as Forest Guard of forest beat, Janahan .
w.e.f. 21.8.2000 to 30.5.2003. By virtue of a Forest Guard of the forest Beat, the accused was duty bound to patrol in the said forest beat and to guard and save forest trees from illicit felling and theft.
However, the accused failed to perform his duties. During the months of of January 2003 to March 2003, 5 deodar trees were found illicitly felled from the forest compartment No.D-149, Dabar, out of which rt one felled Deodar tree of Class-II B along with 6 logs was found lying on the spot, whereas rest of the timber of five deodar trees was found to have been stolen. Similarly, during the said period, 41 trees of deodar were found illicitly felled from compartment No.D-150, Bagroa, out of which 8 fully grown trees of deodar and few logs were found to have been stolen. At that time, one Geeta Ram was posted as Block Officer of the forest concerned. In spite of the best efforts made by the Investigating Officer, the culprits who had illicitly felled the Deodar trees and had committed the theft of the timber of the value of Rs.9,72,908/- could not be apprehended. During the course of investigation, it was found that the accused at the relevant time remained absent from duty and the trees, which were found illicitly felled and timber which was recovered on the spot, the same was ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 3 detected after the absence of the accused from duty. Had the accused remained careful and vigilant about his duty, no theft could have taken place. During investigation, it was found that out of total 46 .
stumps, 9 fully grown trees and 11 logs were found on the spot. The said timber was taken into possession vide memo, Ext. PW2/A. The Investigating Officer took into possession tour diaries of PW2 Ved Parkash Gautam, Ext.PW6/A to Ext.PW6/E and the accused, of Ext.PW6/F to Ext. PW6/J vide memo, Ext.PW6/K, permit book, Ext.PW11/D vide memo, Ext.PW5/A, copy of powers and duties of Forest rt Ranger/Deputy Ranger and Forest Guard, Ext.PW1/K through letter, Ext.PW1/L and compartment history, Ext.PW1/M pertaining to Forest D-149 and D-150 from the D.F.O., Theog vide letter, Ext.PW1/O. The investigation was completed and the challan was put up in the trial court after completing all codal formalities.
3 The prosecution examined as many as 14 witnesses, in all, to prove its case against the accused. Statement of the accused under Section 313 Cr. P.C. was recorded, in which he denied the case of the prosecution. In defence, the accused also examined 2 witnesses. The trial court acquitted the accused vide impugned judgment dated 16.12.2009. Hence, the present appeal.
4 Mr. P.M. Negi, learned Deputy Advocate General, has vehemently argued that the prosecution has proved its case against ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 4 the accused beyond all reasonable doubts.
5 Mr. C.M. Sharma, learned Advocate, has supported the impugned judgment dated 16.12.2009.
.
6 We have heard the learned counsel for the parties and have also gone through the judgment and record meticulously.
7 PW1, Ashok Chauhan, testified that he remained posted of as Divisional Forest Officer, Forest Division Theog w.e.f. 26.8.2001 till 14.7.2005. Ved Parkash Gautam was posted as Range Officer, Balsan, Forest Range, Theog. During the said period, the accused rt remained posted as Forest Guard in forest beat Janahan under forest range Balsan. One Geeta Ram remained posted as Block Officer in Forest Block, Ghund, under forest range, Balsan, who has now expired. Ved Parkash Gautam, the then Range Officer, Balsan had written a letter, Ext.PW1/A reporting therein the absence of the accused from duty w.e.f. 6.3.2003. He had also received a copy of letter, Ext.PW1/B from Ved Parkash Gautam regarding illicit felling of deodar trees from compartments No.D-149 and D-150 of forest beat Janahan. He initiated disciplinary proceedings against the accused vide order, Ext.PW1/C and placed him under suspension vide order, Ext.PW1/D. He had written complaint to Range Officer regarding illicit felling of deodar trees. He also issued letter, Ext.PW1/E to the accused disclosing therein that due to his absence ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 5 from the duty, encroachment and illicit felling occurred in his beat.
The letter, Ext.PW1/F was received by him from Range Officer Balsan, who disclosed therein that the illicit felling in Janahan beat .
had taken place. He put his endorsement encircled red at point 'A' on Ext.PW1/G, thereby directing A.C.F. concerned K. R. Kaundal to verify the fact of encroachment in the forest beat and illicit felling of deodar trees. He also intimated the Enforcement Department vide of letter Ext.PW1/H to register the case. On the basis of the compliant, the case was registered by the Enforcement Department. He was rt associated in the investigation. On requisition, he sent abstract of forest manual, Ext.PW1/K vide letter Ext.PW1/L and copy of notification, Ext.PW1/N to the Enforcement Department. He also handed over attested copy of complete history of compartment Nos.
D-149 and D-150 vide Ext. PW1/M. The Block Officer, late Geeta Ram was deputed to check the illicit felling in the said compartments of the forest and in such checking, he took into possession some timber. List of timber which was found in the forest was sent to him by the Range Officer. He handed over the said list of seized timber to the Investigating Officer vide letter, Ext.PW1/P. In his cross-
examination, he deposed that the accused remained absent from duty w.e.f. 6.3.2003. He could not tell the period of absence of accused from duty without record. He volunteered that till ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 6 18.3.2003, the accused was absent from duty. He admitted that it was the duty of the Block Officer, Geeta Ram, to report to the Range Officer regarding absence of the accused from duty. In compartment .
history, the whole of the location and situation of the compartment has been shown. There is no forest barrier adjoining to the said compartment of forest. He did not check the age of the stumps and did not determine the time of cutting of deodar trees from the said of compartments of the forest, but as per the report of Range Officer, the trees were found to have been cut within 2-3 months. He was not rt the expert for determining the age of stumps and duration of cutting of trees. The age of the stumps of the trees and the exact time of cutting can be determined only by the Scientist of the Forest Research Institute. No expert was called to determine the age of the stumps and time of cutting of the trees from the said compartments.
The disciplinary proceedings were initiated against the accused. He admitted that the accused was reinstated and suspension was revoked within one month. He volunteered that the suspension order of the accused was revoked due to shortage of staff. He denied the suggestion that no Scientist was called from F.R.I. to determine the age of axed trees because few of the trees were axed about 15 years ago. He denied the suggestion that during leave period of accused, he, Block Officer and Range Officer connived together and axed the ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 7 trees from the said compartments of the forest and when the fact of illicit felling came to the notice of general public, they falsely implicated the accused. He deposed that the medical certificate was .
produced by the accused later on.
8. PW2, Ved Parkash Gautam, deposed that during 2003 to 2005, he remained posted as Forest Range Officer in Forest Range, Balsan, Forest Division, Theog. At that time, Geeta Ram was posted of as Block Officer of forest Ghund and the accused was posted as Forest Guard in forest beat Janahan. Forest compartment Nos. D-
rt 149 and D-150, Dabar and Baroha, are situated in forest beat Janahan. Geeta Ram has expired. He had worked with him as Block Officer for about 2 years. He had seen him writing letters and he could identify his handwriting and signatures. Letter, dated 24.4.2003, Ext.PW2/A was in the handwriting of Geeta Ram. Vide letter, Ext.PW2/A, Geeta Ram informed him that 42 deodar trees were cut in forest compartment Nos.D-149 and D-150 in Janahan beat. He informed D.F.O., Theog vide letter Ext.PW2/B regarding felling of the trees in the said compartments. An F.I.R. was registered by the Enforcement Department and the investigation ensued. He came to know from the public that the accused was absent from duty. Geeta Ram also disclosed him verbally that the accused was absent from duty. Thereafter, vide letter, Ext.PW1/A, ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 8 he informed the D.F.O. regarding absence of accused from duty.
Ashok Chauhan, the then D.F.O. put the accused under suspension.
The officials of Enforcement Department arrested the accused during .
the investigation of the case. On 5.5.2003, the police officials took him along with Chet Ram Forest Guard, Geeta Ram Block Officer, Sandeep Thakur and Rakesh Kumar to the compartment No.D-149 and on checking, they found 5 deodar trees to have been axed within of a period of 2-3 months. The said number was assessed by him seeing the colour of stumps. He prepared technical report, rt Ext.PW2/C. The timber was found lying on the spot in the shape of 6 logs and one full deodar tree, description whereof has been mentioned in Ext.PW2/D. The seized timber was hammer marked with seizure hammer 'BL' of beat Guard. The said technical report, list of seized timber and sample of hammer were taken into possession by the Investigating Officer vide memo, Ext.PW2/F. On 6.5.2003, he along with aforesaid officials again remained associated with the police and visited compartment No.D-150, Janahan beat.
They checked the forest and the technical report with respect to illicit felling of trees was prepared vide Ext.PW2/G. The timber was seized separately vide report, Ext.PW2/H and hammer Ext.2/BL was affixed on the seized timber, sample whereof was taken on Ext.PW2/J. On 17.2.2004, he also produced one T.D. register pertaining to entries of ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 9 Janahan beat during 1999 to 2003 in which entries have been made at different pages. As per tour diaries, he visited different stations in connection with his duties. He also prepared compartment history .
map from the compartment history file of D-149 and D-150 vide Ext.PW2/Q-1 and Ext.PW2/Q-2. In his cross-examination, he admitted that T.D. register, Ext.PW2/L was not maintained by him.
He deposed that he came to know about the illicit felling on of 24.4.2003. He had written a letter to the Block Officer regarding non-
issuance of absence report of the accused and illicit felling. He rt admitted that there are scientific methods to determine the age of a tree. He volunteered that they could also assess the age of the tree on the basis of tapering formula, for which, they were experienced.
The upper part of the stump was not rubbed by him. He admitted that in case upper part of the stump is rubbed, then the stump would appear as fresh one. He admitted that the accused was reinstated after one month of his suspension. He was not aware whether any departmental inquiry was instituted against the accused or not. He denied that the accused proceeded on leave after due sanction. The accused remained absent on 6.3.2003. He did not know upto what period, he remained absent.
9. PW4, Laiq Ram, deposed that on 29.8.2003, he produced damage report book No.7, Ext.PW4/A. The damage report ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 10 was handed over by him to Madan Singh, Forest Guard. The last damage report in the book was issued by the accused on 9.8.2002.
10 PW5, Ranjit Singh, deposed that on 5.5.2003, Geeta .
Ram, Block Officer, Ghund, produced permit book No.7/2000-2001 and book No.537, which were taken into possession by the police vide memo, Ext.PW5/A in his presence.
11 PW6, Ved Parkash, testified that he was posted as Range of Clerk, Balsan and the record of the office was being maintained by him. On 4.5.2003, Sub Inspector, Enforcement Department, rt requisitioned the record, which he produced from the office. Record was consisted of report of the Block Officer, Ghund qua illicit felling of the trees in Janahan beat, Ext.PW2/A and tour diaries of Block Officer, Ghund, Ext.PW6/A to Ext.PW6/D. He had worked with late Sh. Geeta Ram, Block Officer. He identified his handwriting and signatures on Ext.PW6/A to Ext.PW6/D. He also produced compartment history sheet of forest compartment Nos.D-149 and D-
150 pertaining to Forest Dabar and Baroha vide Ext.PW2/Q-1 and PW2/Q-2 and permit book No.457 pertaining to year 2000-01, Ext.PW6/E. He also handed over tour diaries of accused vide Ext.PW6/F to Ext.PW6/J. On 23.6.2005, Ved Parkash Gautam produced record i.e. letter Ext.PW1/A regarding absence of accused from duty, letter of illicit felling, Ext.PW1/B, suspension order of ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 11 accused, Ext. PW1/C, order regarding reinstatement of the accused, Ext.PW1/D and letter of illicit felling, Ext.PW2/B, which were taken into possession vide seizure memo, Ext.PW2/N in his presence.
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12. PW7, Chet Ram Chauhan, testified that he remained posted as Forest Guard in forest beat Ghodna and Deha from the years 2003 to 2005. On 5.5.2003, he and Ved Parkash Gautam Range Officer, Balsan remained associated in the investigation with of the Enforcement Department, Shimla. They visited compartment No.D-149, Dabar and on checking, they found there 5 stumps of rt deodar trees of different sizes axed within 2-3 months. They also found 6 logs of different sizes and one full axed tree of Class-II B on the spot. The Range Officer, Ved Parkash Gautam and Enforcement staff had measured the stumps, logs and trees and prepared spot inspection list mentioning therein description of tree stumps, logs and duration of felling. They also prepared market value assessment of the same. Timber was seized by affixing seizure memo, Ext.2/BL-
Theog and sample of seizure hammer was kept vide Ext.PW2/E. Timber was taken into possession vide memo, Ext.PW2/F and handed over to Ved Parkash Gautam, Range Officer, Balsan in presence of witnesses, Sandeep and Rajesh. On 6.5.2003, they visited compartment No. D-140 Baroha, Janahan beat and on inspection, 43 trees were found to have been axed, stumps of which ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 12 were visible on the spot. Out of 43 trees, two trees were of T.D. and remaining trees were illegally axed. 5 logs of different sizes and 9 deodar trees were lying on the spot. The stumps were also of Deodar .
trees. The stumps were measured on the spot. The logs and trees were also measured by class and size wise. Detailed report was also prepared on the spot. All the trees were found to have been axed within 2-3 months. They prepared detailed reports, Ext.PW2/G and of Ext.PW2/H. The timber was seized vide memo, Ext.PW2/K. In his cross-examination, he deposed that he had shown his visit to D-149 rt and D-150 in daily diary. He, Range Officer, Balsan, Block Officer, Ghund and enforcement team checked the forests. No test from Dehradun regarding age of the trees was got done. He volunteered that on the basis of experience and training, they opined the age and period of cutting the trees. He denied the suggestion that in case upper layer of the stump is removed, the same would become afresh.
13. PW10, Rajinder Singh, deposed that during 1990 to 2003, he remained posted as Forest Guard Deha/Balsan Range in different beats. The accused was posted as Forest Guard. He was suspended by the D.F.O. because there was illicit felling in the Janahan beat. In the month of April, 2003, the Range Officer, Balsan asked him to take charge of forest.
14. PW11, Daulat Ram, testified that in the year 2003, he ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 13 was posted as Sub Inspector/Investigating Officer in the Enforcement Department, South Zone, Shimla. On 2.5.2003, on the basis of Ext.PW1/H and Ext.PW1/J, FIR, Ext.PW11/A was registered at .
Police Station, Enforcement, South Zone, Shimla. He associated Range Officer Ved Parkash Gautam, Chet Ram Forest Guard and inspected forest compartment No.D-149 in Janahan beat. On inspection of forest, 5 stumps of deodar tree, some full axed trees of and some logs were found lying there. He got conducted the inspection of the timber and obtained spot inspection report from rt the forest officials wherein species of trees, dia of stumps, their classification and the duration of felling trees were mentioned. The duration of the felled trees was within 2-3 months. The valuation of the trees was also done by the forest officials. The forest officials supplied to him inspection report, Ext.PW2/C and Ext.PW2/G. On the timber seized, hammer of the forest Guard was obtained and sample of the seized hammer was taken on a piece of paper, Ext.PW2/E. The timber was seized vide memo, Ext.PW2/F. On 6.5.2003, he along with aforesaid forest officials visited Forest Compartment No. D-150 and checked the forest and on inspection, 43 stumps of deodar tree were found to have been axed. Out of those, two trees were of T.D. and remaining trees were illegally axed. In the forest, 9 deodar trees were also found to have been axed. Some logs ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 14 were also recovered. He also took into possession documents vide memo, Ext.PW6/K. He also recorded the statements of the witnesses.
In his cross-examination, he admitted that he had not got conducted .
any scientific test to determine the age of the trees. He volunteered that the forest officers were trained in order to assess the age of the trees and he obtained the report from them. It was not necessary to obtain the scientific report to assess the age of the trees. The forest of officials gave the report after inspecting, seeing, measuring and rubbing the each stump. He denied the suggestion that the trees rt whose stumps were recovered were axed 10-15 years back. He also denied the suggestion that the full trees which were found on the spot were cut by some other persons during the leave period of the accused.
15. PW12, Dy. S.P. Rama Devi, had also investigated the matter. In her cross-examination, she admitted that no scientific test was got conducted to determine the age of the trees. She volunteered that before absence of the accused from duty, within three months the said illicit felling was done. She denied that the trees whose stumps were found in the forest were cut about 10-12 years back.
She denied the suggestion that when the accused was on leave, trees were felled by some persons in connivance with the forest officials.
She also denied the suggestion that they intentionally did not get ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 15 conducted the scientific test to prove the age of felled trees and stumps. She volunteered that Range Officer and Forest Guard are technically trained in this regard.
.
16. PW14, Ashok Thakur, deposed that he remained posted as Principal Secretary (Forest) to the Government of Himachal Pradesh in the year 2006. He had accorded the permission, Ext.PW12/B, under Section 36 of the H.P. Prevention of Specific of Corrupt Practices Act, 1983 against the accused, who was posted as Forest Guard at that time.
17. rt DW1, Rakesh Kumar, deposed that Sant Ram, son of Dhirju Ram is a registered Contractor of H.P. State Forest Corporation. He was engaged as Chowkidar by Sant Ram. He remained Chowkidar with him for about 5-6 months. The land of Mohan Lal and Mohi Ram is adjoining to the forest named D-1 Baroha. Few deodar trees had fallen in forest beat Janahan, which falls in forest D-1 Baroha. Those trees were 15-20 years old. There were few stumps in the said forest which were quite old. In his cross-examination, he deposed that he is matriculate and knows how to read and write Hindi. He admitted his signatures on memo, Ext.PW2/A, Ext.PW2/E, Ext.PW2/F and Ext.PW2/J. He also admitted that he was cited as witness, but later on was given up by the learned Public Prosecutor. He deposed that he used to sign the ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 16 papers after reading the contents.
18. DW2, Narain Singh, deposed that during the year 2002- 2003, the accused remained posted as Forest Guard in Forest beat .
Janahan. As per the office record, the accused remained on earned leave w.e.f. 6.3.2003 to 7.3.2003. He remained on medical leave w.e.f.
8.3.2003 to 30.3.2003. The medical leave was sanctioned in favour of the accused on 13.4.2004. The accused remained suspended of w.e.f. 25.3.2003 to 23.5.2003 and his suspension was revoked on 23.5.2003. In his cross-examination, he admitted that on 18.3.2004, rt the Range Officer had written a letter to the accused warning him not to remain on leave frequently because forest beat in which the accused was deputed on duty was quite sensitive.
19 The accused remained posted as Forest Guard of forest beat, Janahan. One Geeta Ram (now deceased) remained posted as Block Officer in Forest Block, Ghund, under forest range, Balsan.
PW1, Ashok Chauhan, the then Divisional Forest Officer, Forest Division Theog, testified that PW2 Ved Parkash Gautam, the then Range Officer, Balsan, Forest Range, Theog, wrote a letter, Ext.PW1/A, to him, reporting therein the absence of the accused from duty w.e.f. 6.3.2003. He also received a copy of letter, Ext.PW1/B from PW2 Ved Parkash Gautam regarding illicit felling of deodar trees from compartments No.D-149 and D-150 of forest beat ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 17 Janahan. He also initiated disciplinary proceedings against the accused vide order, Ext.PW1/C. The accused was placed under suspension vide order, Ext.PW1/D. He also issued letter, Ext.PW1/E .
to the accused disclosing therein that due to his absence from the duty, encroachment and illicit felling occurred in his beat. A copy of the said letter was also sent to PW2, Ved Parkash, Range Officer. He also directed the officer concerned to detect the encroachment and of illicit felling of deodar trees in the forest beat. He also intimated the Enforcement Department vide letter Ext.PW1/H to register the case rt and accordingly, the case was registered. PW2, Ved Parkash Gautam, testified that Geeta Ram wrote a letter dated 24.4.2003 to him informing therein that 42 deodar trees were axed in forest compartment Nos.D-149 and D-150 in Janahan beat. Thereafter, he informed about it to PW1, Ashok Chauhan, Divisional Forest Officer, Theog vide letter Ext.PW2/B. An F.I.R. came to be registered by the Enforcement Department. He also came to know from the public that the accused was absent from duty. Vide letter, Ext.PW1/A, he informed the D.F.O. regarding absence of the accused from duty.
The accused was put under suspension by PW1, Ashok Chauhan.
He further deposed that on 5.5.2003, when he, Chet Ram Forest Guard, Geeta Ram, Block Officer, Sandeep Thakur and Rakesh Kumar accompanied the police officials to the compartment No.D-
::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 18149, they found 5 deodar trees to have been axed that too within a period of 2-3 months. The said number was assessed by him seeing the colour of stumps. He prepared technical report, Ext.PW2/C. On .
6.5.2003, he along with aforesaid officials checked compartment No.D-150, Janahan beat. He also prepared the technical report Ext.PW2/G with respect to illicit felling. The timber was seized.
According to him, the illicit felling was done within 2-3 months prior of to March, 2003. PW7, Chet Ram Chauhan, also testified that on 5.5.2003, he along with PW2 Ved Parkash Gautam Range Officer, Balsan remained rt associated in the investigation with the Enforcement Department, Shimla and visited compartment No.D-149 Dabar and on checking, they found 5 stumps of deodar tree of different sizes axed within 2-3 months. They also found 6 logs of different sizes and one full axed tree of Class-II B lying on the spot.
PW2, Ved Parkash Gautam and Enforcement staff measured the stumps, logs and trees and prepared spot inspection list mentioning therein description of tree stumps, logs and duration of felling. They also prepared market value assessment of the same. On 6.5.2003, they visited compartment No.2-150 Baroha, Janahan Beat and on checking they found 43 trees to have been axed. Out of 43 trees, two trees were of T.D. and remaining trees were illegally axed. 5 logs of different sizes and 9 deodar trees were also found lying on the spot.
::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 19The stumps, logs and trees were also measured by class and size wise. Detailed report was also prepared on the spot. All the trees were found to have been axed within a period of 2-3 months. They .
prepared detailed reports, Ext.PW2/G and Ext.PW2/H.
20. PW11, Daulat Ram, is the Investigating Officer in this case. According to him, he associated PW2 Ved Parkash Gautam, Chet Ram Chauhan Forest Guard in the investigation and they of inspected forest compartment No.D-149 in Janahan beat. He got conducted the inspection of the timber and obtained spot inspection rt report from the forest officials wherein species of trees, dia of stumps, their classification and the duration of felling trees within 2-3 months were mentioned. On 6.5.2003, he along with aforesaid forest officials also visited forest compartment No. D-150 and on inspection, 43 stumps of deodar tree were found to have been axed.
In the forest, 9 deodar trees were also found to have been axed. Some logs were also recovered. Forest Officers prepared the inspection report mentioning therein classification of the trees and market value.
21. The accused was posted as Forest Guard in forest beat, Janahan. It was his responsibility to protect the forest. Mr. C.M. Sharma, learned Advocate, has vehemently argued that the accused remained on medical leave w.e.f. 8.3.2003 to 30.3.2003, however, ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 20 fact of the matter is that the medical leave was sanctioned in favour of the accused on 13.4.2003. PW1, Ashok Chauhan, deposed that medical certificate was produced by the accused later on. DW2, .
Narain Singh, also testified that as per the office record, the accused remained on earned leave on 6.3.2003 and 7.3.2003 and on medical leave w.e.f. 8.3.2003 to 30.3.2003. The medical leave was sanctioned in favour of the accused on 13.4.2004. The accused was of put under suspension w.e.f. 25.3.2003 to 23.5.2003 and his suspension was revoked on 23.5.2003. PW1, Ashok Chauhan, had rt initiated disciplinary proceedings against the accused vide order, Ext.PW1/C. Statement of DW1 Rakesh Kumar does not inspire confidence because in his cross-examination conducted by the learned Public Prosecutor he has admitted his signatures on documents/memos, Ext. PW2/A, Ext.PW2/E, Ext.PW2/F and Ext.PW2/J. He also deposed that he is matriculate and knows how to read and write Hindi. He also admitted that he was cited as witness, but later on was given up by the learned Public Prosecutor. He further went on to depose that he used to sign the papers after reading the contents. Thus, it cannot be believed that he was made to sign the blank papers.
22 The technical report, Ext.PW2/C and Ext.PW2/G were prepared by PW2, Range Officer, Ved Parkash Gautam. In his cross-
::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 21examination, though he admitted that there are scientific methods to determine the age of a tree, but he volunteered that they could also assess the age of the tree on the basis of tapering formula, for which, .
they were experienced. According to report, Ext.PW2/C, the trees in compartment No.D-149 (Dabar) of forest beat Janahan were axed within 2-3 months. The market value of the axed trees was assessed to be Rs. 1,10,136/- . According to technical report of compartment of No.D-150 (Deha) of forest beat Janahan, Ext.PW2/G, trees were found to have been cut within 2-3 months and the total value of axed rt trees was assessed to be Rs.12,78,906/-. The reports, Ext.PW2/C and Ext.PW2/G have not been objected to while being proved by PW2, Ved Parkash Gautam during trial. PW7, Chet Ram Chauhan, also visited both the compartment Nos. D-149 and D-150. According to him also, the trees were found to have been axed within 2-3 months. He also deposed that though no test regarding age of the trees was got done from Dehradun, but he volunteered that on the basis of experience and training, they opined the age and period of cutting the trees. He also denied the suggestion that in case upper layer of the stump is removed, the same would become fresh one.
PW11, Investigating Officer, Daulat Ram also visited the compartment Nos. D-149 and D-150 on 5.5.2003 and 6.5.2003.
According to him also, the duration of the cutting of the trees on the ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 22 spots was within 2-3 months. He also deposed that it was not necessary to obtain the scientific report to assess the age of the trees because the forest officers were trained in order to assess the age of .
the trees and they gave the reports to him after inspecting, seeing, measuring and rubbing the each stump. PW12, Dy.S.P. Rama Devi, deposed that before absence of the accused from duty within three months, the said illicit felling was done. She denied the suggestion of that the trees whose stumps were found in the forest were axed about 10-12 years back. She also deposed that Range Officer and rt Forest Guard are trained to assess the age of axed trees and stumps.
23. The prosecution has duly proved that illicit felling had taken place in Forest compartment Nos. D-149 Dabar and D-150, Baroha in forest beat Janahan, where the accused was posted as Forest Guard. The learned trial court has erred in law by ignoring the technical reports, Ext.PW2/C and Ext.PW2/G prepared by PW2, Ved Parkash Gautam. As discussed above, the accused had taken the plea that he was on medical leave w.e.f. 8.3.2003 to 30.3.2003, but the fact of the matter is that the medical leave was sanctioned in his favour on 13.4.2004. It was not necessary for the prosecution to prove that the accused remained continuously on duty as Forest Guard of Forest Beat, Janahan w.e.f. 5.2.2003 till 5.5.2003. The experts have stated that the felling of trees occurred within 2-3 ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 23 months. The technical reports, Ext.PW2/C and Ext.PW2/G were prepared on 5.5.2003 and 6.5.2003 and they would relate back to 5/6.2.2003. Thus, it is clear that the accused was on duty in the .
month of February and March and the trees were illicitly felled during his posting at Jahanan beat. It has also come on record that he used to remain absent from duty. DW-2 Naraian Singh has also admitted in his cross-examination, that on 18.3.2004, the Range of Officer, Balsan, had written a letter to the accused warning him not to remain on leave frequently because forest beat in which he was rt deputed was quite sensitive. He also admitted that as per the record, the illicit felling was also reported to Range Office, Balsan. His defence that he has been falsely implicated merits rejection.
24. The learned trial court has also erred in law to observe that it was necessary to initiate departmental proceedings against the accused. It has come in the statement of PW1, Ashok Chauhan, the then Divisional Forest Officer, Theog that the disciplinary proceedings were initiated against the accused. Though, it is settled law that it is for the employer either to initiate criminal proceedings or disciplinary proceedings, but even if hypothetically it is assumed that the disciplinary proceedings were not initiated against the accused, it would not absolve the accused from the criminal prosecution. The learned trial court has also not correctly calculated ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 24 the exact period of leave and made the observation that the accused remained on leave for a longer period.
25. According to PW1/K, the following are the chief duties of .
the Forest Guard:-
i. To be fully acquainted with his beat and to have knowledge of everything taking place therein.
ii. To be fully acquainted with and to possess a list of the rights, privileges and concessions that may be of exercised by the people in the forests of his beat.
iii. Strictly to observe the rules for compounding forest offences.
iv.
rt To carry out under orders of the range officer; repairs to the boundary pillars, road and buildings in his beat.
v. To carry out, without orders -
a. The maintenance of fences.
b. Tending operations in regeneration areas and plantings.
c. Weeding of young plants but not to incur expenditure on these works without the range officer's sanction.
vi. To see that the shooting rules are observed and to put a stop to illegal shooting and trapping.
26. The accused was supposed to be fully acquainted with his beat and to have knowledge of everything taking place therein including illicit felling and encroachment on the forest land. It was his duty to protect the forest wealth and to report about the illicit ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 25 felling in his forest beat to his superiors. He was entrusted with the forest property being a public servant. The property was in his dominion as public servant.
.
27 Their Lordships of Hon'ble Supreme Court in Rabindra Kumar Dey vs. State of Orissa, (1976) 4 Supreme Court Cases 233 have held that although the onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is of proved or admitted it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case, the rt prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused. Their Lordships have held as under:-
[6] Having regard to the stand taken by the parties, the matter lies within a very narrow compass. So far as the entrustment of Rs. 10,000/- is concerned that it undoubtedly admitted by the appellant, and the only explanation given by him is that he had returned the money to the Nazir after his return from the village Balichandrapur and he had also directed the Nazir not to deposit the money in the treasury. If once the explanation of the accused is disbelieved or proved to be absolutely false, then it is quite natural that he must be presumed to have retained the money with himself for a period of six months. Although the onus lies on the prosecution to prove the charge against the accused, yet where the entrustment is proved or admitted it will be difficult for the prosecution to prove the actual mode or manner of misappropriation and in such a case the prosecution would have to rely largely on the truth or the falsity of the explanation given by the accused. In Jaikrishnadas Manohardas Desai v. State of Bombay, (1960) 3 SCR 319 at p. 324 = (AIR 1960 SC 889 at p. 891) this Court observed as follows :::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 26
"The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in .
the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he had dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of of misappropriation with dishonest intent may readily be made."
The Courts below appear to how convicted the appellant on the basis of the decision referred to above and have held that since the explanation given by the appellant rt was false, an inference of misappropriation could reasonably be drawn against him. This proposition cannot be doubted. But the question is whether the explanation given by the appellant in this case can be said to be absolutely false? Another question that arises is what are the standards to be employed in order to judge the truth or falsity of the version given by the defence? Should the accused prove his case with the same amount of rigour and certainty, as the prosecution is required, to prove a criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case? In our opinion three cardinal principles of criminal jurisprudence are well- settled, namely :
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts.
It is true that under Section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 27 prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he .
succeeds not because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which of competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. This aspect of the matter is no longer res integra but is concluded by several authorities of this Court. In rt Harbhajan Singh v. State of Punjab, (1965) 3 SCR 235 at p. 241 = (AIR 1966 SC 97 at p. 101) this Court observed as follows :
"But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged is the accused person succeeds "in proving a preponderance of probability."
As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt."
::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 28The same view was taken in a later case in State of U.P. v. Ram Sarup, (1975) 1 SCR 409 at pp. 416-417 = (AIR 1974 SC 1570 at p. 1576), where this Court observed as follows :
"That is to say an accused may fail to establish .
affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under Section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. The burden which rests on the accused to prove the exception is not of the same rigour as the burden of of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea."
28. rt In the instant case, the accused has failed to prove the defence taken by him that he was on leave during the relevant period when illicit felling of trees had taken place in his beat. The prosecution has proved the factum of illicit felling of trees in his beat.
Thus, the prosecution has proved beyond reasonable doubt that the accused has committed the offences punishable under Section 14 of the Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 and Section 409 of the Indian Penal Code.
29. Accordingly, the appeal is allowed and the impugned judgment dated 16.12.2009 rendered by the learned Special Judge, Shimla, in Sessions Trial No.4-S/7 of 2008 is set aside. Accordingly, the accused Rattan Chand, is convicted for the offences punishable under Section 14 of the Himachal Pradesh Prevention of Specific ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 29 Corrupt Practices Act, 1983 and Section 409 of the Indian Penal Code. He be produced in the Court to be heard on the quantum of sentence on 2.9.2016. The bail bonds are cancelled.
.
30. The registry is directed to prepare the production warrant.
31. However, before parting with the judgment, we are constrained to observe that there is a large scale encroachment on of the forest land and illicit felling of trees throughout the State of Himachal Pradesh. In the instant case, the number of fully grown rt deodar trees could not be axed without the complicity and connivance of accused. The encroachment on forest land is also carried out by the persons due to sheer greed expecting that the same would be regularized sooner or later. The investigation in this case was defective. The police could not book the persons who had axed and removed the trees. The State Government should not regularize the unauthorized construction and also the encroachments, that too, on the forest land. It is expected from the State to maintain rule of law. The action of the State Government to regularize the unauthorized construction/encroachments is suggestive of non-governance. The State should promote honesty instead of dishonesty. We were taught in the school that "Honesty is the best policy".
::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 3032. Thousands of unauthorized constructions have not been raised overnight. The Government machinery was mute spectator by letting the people to raise unauthorized constructions .
and also encroach upon the government land. Permitting the unauthorized construction under the very nose of the authorities and later on regularizing them amounts to failure of constitutional mechanism/machinery. The State functionary/machinery has of adopted ostrich like attitude. The honest persons are at the receiving end and the persons who have raised unauthorized rt construction are being encouraged to break the law. This attitude also violates the human rights of the honest citizens, who have raised their construction in accordance with law. There are thousands of buildings being regularized, which are not even structurally safe. The Himalayan range is youngest range and it is prone to high seismic activity. The area towards Himland Hotel of Shimla Town is a sliding zone and the areas around The Ridge are in the sinking zone and area towards Indian Institute of Advance Studies is creeping zone. Mr. Ashwani Sharma in his well researched and documented article captioned "Downhill Story"
published in Daily Edition of Indian Express (August 22,2016) has highlighted the issue of haphazard and unauthorized construction raised by the persons blatantly and brazenly against the law in the ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 31 town of Shimla. He has also suggested remedial measures. This issue has also been highlighted in an article by Daya Shankar Shukal Sagar published in Daily Edition of Amar Ujala (August 20, .
2016). The Tribune in its Daily Edition (August 22, 2016) has also highlighted the ill conceived move of regularizing the unauthorized construction under the caption "Move to legalise structures draws flak" by Bhanu P. Lohumi.
of
33. The State holds the government property as a trustee and cannot be privy to its destruction. The State property cannot be rt permitted to be taken over by unscrupulous persons. The sovereign State can not abdicate its constitutional duties. The illicit felling of trees results in degradation of environment and also loss to the nation wealth. Even removal of a blade of grass results in degradation of environment. The Court can take judicial notice of recent seismic activities in the State of Himachal Pradesh. The haphazard unauthorized construction carried out all over the State of Himachal Pradesh would pose a grave threat to the life and property in case of earthquake of severe magnitude. The high-rise buildings would cause tremendous damage to the adjoining buildings by the process called as "pounding" The regularization of unauthorized constructions/encroachments on public land will render a number of enactments, like Indian Forest Act 1927, Himachal Pradesh Land ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 32 Revenue Act, 1953 and Town and Country Planning Act, 1977 nugatory and otiose. The letter and spirit of these enactments cannot be obliterated all together by showing undue indulgence and .
favouritism to dishonest persons. The over-indulgence by the State to dishonest persons may ultimately lead to anarchy and would also destroy the democratic polity.
34. The State Government has not made sincere efforts to of prevent and evict the persons who have encroached upon the forest land. There are large tracts of forests, which have not been rt demarcated till date (i.e. UDF-). The State Government has only taken steps after the intervention of this Court to evict the persons who have unauthorizedly occupied the forest land and raised orchards. The action has been initiated primarily against those persons who had given affidavits admitting their encroachment upon the forest land. Thus, in larger public interest, the State Government is directed to initiate process to identify the encroachments over the forest land and the persons who have planted fruit bearing trees and to take necessary steps for their eviction under the H.P. Public Premises and Land (Eviction and Rent Recovery) Act, 1971 as well as under the H.P. Land Revenue Act, 1954 and also to register FIRs against those persons under the Indian Forest Act and Indian Penal Code. The Director, Enforcement Directorate, Ministry of Finance, ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 33 Government of India, New Delhi is also directed to register cases against those persons who have encroached upon the huge tracts of forest land and have planted fruit bearing trees and amassed ill-
.
gotten money and also engaged in money laundering within 3 months. The State Government is also directed to provide necessary details of the persons, who have encroached upon more than 10 bighas of forest land and have also indulged in money laundering of within 4 weeks to the Director, Enforcement Directorate, Ministry of Finance, Government of India, New Delhi to enable it to register cases rt against them. It shall be open for the Director, Enforcement Directorate, Ministry of Finance, Government of India, New Delhi to confiscate/forfeit the property of the persons, who have encroached upon more than 10 bighas of forest land under the Prevention of Money-Laundering Act, 2002. The Vigilance Department of the State of H.P. is also directed to carry out periodical verification of movable and immovable properties of the revenue officials/forest officers posted, more particularly, in Districts Mandi, Shimla, Chamba and Sirmaur, where the encroachment on forest land is rampant, every 6 months. The State Government is directed to carry out the demarcation of un-demarcated forest (UDF) in the State of Himachal Pradesh within 1 year by maps prepared by electronic methods i.e. geomatics (remote sensing and GIS), GPS and satellite imagery, in ::: Downloaded on - 15/04/2017 21:05:54 :::HCHP 34 larger interest. The Chief Secretary to the Government of Himachal Pradesh shall be personally liable to ensure implementation of the above mentioned mandatory directions. A copy of this judgment be .
sent to the Director, Enforcement Directorate, Ministry of Finance, Government of India, New Delhi for its due compliance.
(Rajiv Sharma)
of
Judge
(Sureshwar Thakur)
August 29, 2016 rt Judge
*pankaj*
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