Himachal Pradesh High Court
Reserved On: 10.09.2025 vs Tej Ram on 22 September, 2025
2025:HHC:32836 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 4259 of 2013 .
Reserved on: 10.09.2025 Date of Decision: 22.09.2025.
State of H.P. ...Appellant
Versus
Tej Ram ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 For the Appellant : Mr Lokender Kutlehria, Additional Advocate General.
For the Respondent : Mr B.S. Attri, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 17.07.2013, passed by learned Judicial Magistrate, First Class, Manali, District Kullu, H.P., (learned Trial Court), vide which the respondent (accused before the learned Trial Court), was acquitted of the commission of offences punishable under Section 447 of Indian Penal Code (hereinafter referred as IPC) and Sections 32 and 33 of Indian Forest Act. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/09/2025 21:30:09 :::CIS 22025:HHC:32836 hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
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2. Briefly stated, the facts giving rise to the present appeal are that the Range Forest Officer made a complaint to the police stating that the respondent had encroached upon forest land measuring 1-12-68 hectares, bearing khasra Nos. 137, 140/1, 151/1, 173, 241, 242, 255 and 136 in Baragarh-III Forest. The State Government had issued a notification directing the registration of FIRs against those persons who had encroached upon more than 10 bighas of forest land; therefore, a complaint (Ex.PW2/A) was filed to register the FIR in compliance with the Government notification. The Police registered the FIR (Ex.PW4/A). HC Rakesh Kumar (PW4) investigated the matter. He obtained the demarcation and found that the encroached land was forest land.
He prepared the site plans (Ex.PW1/A to Ex.PW1/C). A video recording was also carried out, which was transferred to the CD (Ex.PW4/C). The notifications (Ex.PW2/B and Ex.PW2/C) were taken into possession. The record of the proceedings of encroachment (Ex.PW2/C, Ex.PW2/D & Ex.PW2/H) was obtained.
Statements of prosecution witnesses were recorded as per their ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 3 2025:HHC:32836 version, and the challan was prepared and presented before the learned Trial Court after the completion of the investigation.
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3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a charge was put to him for the commission of offences punishable under Sections 32 and 33 of the Indian Forest Act and Section 447 of the IPC, to which he pleaded not guilty and claimed to be tried.
4. The prosecution examined five witnesses to prove its case. Lal Chand (PW1) conducted the demarcation and found the encroachment over the forest land. Pune Ram (PW2) is the informant. Deep Kumar (Forest Guard) (PW3) was present at the time of demarcation, and he identified the encroachment. HC Rakesh Kumar (PW4) conducted the investigation. Constable Ramesh Dogra (PW5) video recorded the encroachment.
5. The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution's case in its entirety. He did not produce any evidence in his defence.
6. Learned Trial Court held that the demarcation was not proper because no revenue official below the rank of Tehsildar can conduct the demarcation of a government land. No damage ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 4 2025:HHC:32836 report was prepared by the Forest Department. No evidence was produced to show that the notification regarding the land being a .
protected forest was published in the vicinity. Hence, the ingredients of the offences punishable under Section 447 of the IPC and Sections 32 and 33 of the Indian Forest Act were not satisfied. Accordingly, 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 present appeal, asserting that the learned Trial Court failed to properly appreciate the evidence on record. The prosecution had proved its case beyond a reasonable doubt. It was duly proved that the accused had encroached upon the forest land by planting the orchard. The land was a protected forest, which was not denied by the accused. Learned Trial Court ignored the prosecution's evidence. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
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8. I have heard Mr Lokender Kutlehria, learned Additional Advocate General, for the appellant/State and Mr B. S. .
Attri, learned counsel, for the respondent/accused.
9. Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State, submitted that the learned Trial Court erred in acquitting the accused. It was duly proved on record that the accused had encroached upon the Government land. The accused did not dispute in the cross-examination that the land was located in a forest. Learned Trial Court erred in acquitting the accused; hence, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
10. Mr B.S. Attri, learned counsel for the respondent/accused, submitted that there is no evidence of the publication of the notification, which is an essential requirement to establish the offence punishable under Section 33 of the Indian Forest Act. Therefore, he prayed that the present appeal be dismissed. He relied upon the judgment of this Court in State of HP vs. Ghambo Devi, 2025: HHC: 28247, in support of his submission.
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11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
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12. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon'ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:
(2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed at page 440:
"23. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
"38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) "29. After referring to a catena of judgments, this Court culled out the following general principles ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 7 2025:HHC:32836 regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa .
case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) '42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973, puts r no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 8 2025:HHC:32836 person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having .
secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8)
8. ... 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence.
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record.
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible."
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41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in .
favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity.
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record."
13. The present appeal has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
14. Learned Trial Court held that the demarcation of the Government land touching the private land can only be given by an officer of the rank of Tehsildar. In the present case, the demarcation was not given by the Tehsildar, and it was invalid.
This conclusion is not correct. The State Government issued a notification on 24th April 1997, empowering a revenue official of the level of Assistant Collector Second Grade and above to ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 10 2025:HHC:32836 demarcate private land touching the Government land. However, the State Government withdrew this notification on 13.09.2012, .
as per the Himachal Pradesh Land Code, Vol. I, page 207.
Unfortunately, this notification was not brought to the notice of the learned Trial Court, and the learned Trial Court proceeded to reject the report on irrelevant grounds.
15. Section 441 of the IPC defines criminal trespass as an entry upon the property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person from possession of such property. It was laid down by the Hon'ble Supreme Court in Mathri v. State of Punjab, 1963 SCC OnLine SC 180: AIR 1964 SC 986 that the prosecution has to prove that the aim of the accused was to insult, intimidate or annoy and merely because the insult, intimidation or annoyance was caused by the entry is not sufficient. It was observed:
18. We think, with respect, that this statement of law, as also the similar statements in Laxaman Raghunath case [26 Bombay 558] and in Sellamuthu Servaigaran case [ILR 35 Mad 186], is not quite accurate. The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to an-
noy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or in- sult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 11 2025:HHC:32836 of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the .
entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circum- stances including the presence of knowledge that its natu- ral consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or an- noyance, being the dominant intention which prompted the entry.
16. This position was reiterated in Rajinder v. State of Haryana, (1995) 5 SCC 187: 1995 SCC (Cri) 852, wherein it was observed at page 198:
"21. It is evident from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. In other words, unless any of the intentions referred to in Section 441 is proved, no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case..."
17. In the present case, the complaint only mentions that the accused had encroached upon the Government land by raising an orchard. There is no averment that the entry was made with the intent to commit an offence or to intimidate, insult or ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 12 2025:HHC:32836 annoy any person in possession. Therefore, the ingredients of Section 447 of IPC were not satisfied.
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18. Learned Trial Court held that the issuance of the notification was necessary to constitute an offence punishable under Section 33 of the Indian Forest Act. This is a correct proposition of law. The charge sheet does not mention that any notification was issued that the forest where the encroachment was made was a reserved forest. This Court held in State of H.P. Vs. Ami Chand 1992 (2) Shim.LC 169 that a person cannot be held liable for the commission of an offence punishable under Section 33 of the Indian Forest Act in the absence of any notification and its due publication. It was observed: -
"7. Sections 29 to 39 of the Indian Forest Act, 1927 (shortly hereinafter referred to as 'the Act') are material. The procedure of declaring protected forest is laid down in section 29 of the Act, which provides that the State Government may by notification in the official Gazette declare the provisions of Chapter IV of the Act applicable to any forest land or wasteland which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government Is entitled. The forest land comprised in such notification is referred to in the Act as a protected forest. Sub-section (3) of section 29 of the Act provides for certain inquiries to be made before declaring a forest as the 'protected forest'. Under section 30, the State ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 13 2025:HHC:32836 Government is authorised inter-alia to declare any trees or class of trees in protected forest to be reserved from the date to be fixed by notification or to prohibit from a date .
fixed for the removal of any forest produce and the breaking up or clearing for cultivation of any land in a protected forest for such terms, not exceeding thirty years as the State Government thinks fit. Resultantly, the rights of private persons, if any, over such portion shall stand suspended during such term, provided that the remainder of such forest be sufficient and, in a locality, reasonably convenient, for the due exercise of the rights suspended in the portion so closed. The Collector then is required under section 31 to cause translation into the local vernacular of every such notification issued under section 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification. Section 32 entitles the State Government to make rules to regulate the forest matters set out in the said section, including "clearing or breaking up of land for cultivation or other purposes in such forest". Section 33 provides penalties for acts in contravention of a notification under section 30 or for rules under section 32.
9. Apart from it, even if the aforesaid copy of the notification bs assumed to be a legal and valid notification for the sake of argument, the requirement of section 31 of the Act has not been proved. Admittedly, as per the prosecution evidence, the land of the accused adjoins that of the alleged encroached land. Section 31 referred to above envisages that the Collector shall cause a translation into the local vernacular of every notification issued under section 30 to be affixed in a conspicuous place in every town and village in the neighbourhood of the forest comprised in the notification Here neither oral nor documentary evidence has been adduced to show whether notification (Mark X) was translated in the local vernacular and whether its copy was affixed in a conspicuous place in the neighbouring villages as envisaged therein This procedure is meant only so that the ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 14 2025:HHC:32836 respondents of the neighbouring villages, much less the accused, may acquire knowledge as to the declaration of a particular forest into demarcated protected forest, In the .
absence of such procedure having not been followed by the appellant, ii would be against the principle of natural Justice to permit the subject of a Slate including the accused to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence, have acquired any knowledge Natural justice requires that before a law can become operative it must be promulgated or published It must be broadcast in some recognisable way so that all persons may know what it is ; or at the very least, there must be some special rule or regulation or some other way or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. In the absence thereof, a law cannot come into being by merely issuing a notification without giving it due publicity in accordance with the mandatory provisions of law."
19 This position was reiterated in State of H.P. Ravi Kumar 2008 HLJ 363, wherein it was observed: -
"10. The prosecution has failed to prove that ten pine trees were cut by the respondent from the land in question. There is no evidence on record to link the trees allegedly cut by the respondent to the land in question. No demarcation of the land from where the trees were allegedly cut has been proved on record. There is nothing on record that the forest in question is a notified protected forest. The notification declaring the Forest in question as a protected forest has not been placed on record. There is no evidence of circulation of notification, under Sections 32, 33, read with Sections 30 and 31 of the Act, in the vernacular in the locality. The alleged confessional statements, Ex. PA and Ex. PW 2/A are of no help to the prosecution for want of proof of notification, under ::: Downloaded on - 22/09/2025 21:30:09 :::CIS 15 2025:HHC:32836 Sections 32, 33, read with Sections 30 and 31 of the Act and its publication in the vernacular in the locality..."
20. Therefore, the learned Trial Court had taken a .
reasonable view while holding that the offence punishable under Section 33 of the Indian Forest Act was not made out in the absence of notification; however, the view of the learned Trial Court that the offence punishable under Section 447 of the IPC is not made out is sustainable on the other ground. Thus, no interference is required with the judgment of the learned Trial Court.
21. In view of the above, the present appeal fails, and it is dismissed and so are the pending miscellaneous applications, if any.
22. Record of learned Trial Court be sent back forthwith along with a copy of the judgment.
(Rakesh Kainthla) Judge 22nd September, 2025 (Anurag) ::: Downloaded on - 22/09/2025 21:30:09 :::CIS