Himachal Pradesh High Court
State Of H.P vs Mast Ram Kashyap & Others on 28 September, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 117 of 2012 Reserved on: 20th September, 2018.
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Date of Decision: 28th September, 2018.
State of H.P. .....Appellant.
Versus
Mast Ram Kashyap & others ....Respondents.
Coram r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Hemant Vaid, Addl. A.G., with, Mr. Y.S. Thakur, Dy. A.G. For Respondents No. 1 to 5: Mr. J.N. Kanain, Advocate _______________________________________________________ Sureshwar Thakur, Judge.
The instant appeal, stands, directed by the State, against, the pronouncement made by the Special Judge (Forests), Shimla, H.P., upon, Corruption case No. 5- S/7 of 2008, whereunder, the accused/respondents herein stood acquitted.
2. The facts relevant to decide the instant case are that the then Additional Principal Conservator of Forest, reported the matter to the police, on the basis of ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 2 which FIR No.22/99 of 18.08.1999 came to be registered at Police Station South Zone, Vigilance Shimla carrying allegations that a fire broke out in Sharontha depot of the .
Forest Working Division, Sawara, on 8.2.1999, adjoining to forest lot No.3/98-99, 4/98-99 and 5/98-99 and inquiry so conducted by the department unravels that 22 green trees stood felled in lot No.4/98-99 and 45 illicit stumps were found in the same very lot. In lot No.5/98-99, 11 trees were illicitly felled, thus causing loss of Rs.12 lacs to the State. The investigation was carried out. After investigating in brevity, the case against each accused alleged in the report under Section 173 of the Cr.P.C., is as under:-
Mehar Singh
3. He remained posted as Dy. Ranger from 1996 to 31.10.2002 in Tikkar Block and salvage marking was done in three lots namely 133 Kail tree in lot No.3/98-99, 261 kail and deodar tees in lot No.4/98-99 and 275 Kail and deodar tees in lot No.5/98-99 and the forest was handed over to the Forest Corporation for working. The Forest Corporation awarded the work to Rameshwar Nand Sharma, Labour Supply Mate, who felled 43 Kail, 2 deodar trees in lot No.4/98-99 DPF Sharontha illicitly. He also ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 3 felled 11 Kail trees illicitly in lot No.5/98-99 UF Tangri, thus causing loss of Rs.12,67,609-89/-. Similarly labour Supply Mate in lot No.3/98-99 Bagdhar did not fell 38 marked .
trees and in lot No.5/98-99 UF Tangri 41 Kail trees were not felled. Mehar Singh, being Dy. Ranger did not take action on illicit felling, nor informed the department and, thus, abused his office. The marking list in respect of lot No.3/98-99 Bagdhar (Field Bag) was forged one in as much as 18 green Kail trees were shown as dried one. He is alleged to have committed offences under Section 467, 468, 471, 120 B, IPC, Section 13(2) of P.C. Act and Section 14 of the H.P. Prevention of Specific Corrupt Practices Act.
LACHHI RAM
4. He remained posted as Forest Guard from July, 1997 to February, 1999 at Sharontha Beat and in this beat salvage marking was done in three lots namely 133 Kail tree in lot NO.3/98-99, 261 Kail and deodar trees in lot No.4/98-99 and 275 Kail and deodar tees in lot No.5/98-99 and the forest was handed over to Forest Corporation for working. The Forest Corporation awarded the work to Rameshwar Nand Sharma, Labour Supply Mate, who felled 43 Kail, 2 deodar trees in lot No.4/98-99 DPF Sharontha illicitly. He also felled 11 Kail trees illicitly in lot No.5/98-99 ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 4 UF Tangri, thus, causing loss of Rs. 12, 67,609-89.
Accused Lachhi Ram did not issue damage reports, but on the oral instruction of RO, 22 stumps were marked and .
allowed the same as unfelled. He showed 18 Kail trees green as dried and marking list of lot No.3/98-99 was forged one. He got hammer mark deblazed and issued forged certificate in respect of lot No.5/98-99 showing that no illicit felling had taken place, whereas, 11 kail trees were found to have been illicitly felled. He is alleged to have committed offences under Section 467, 468, 471,, 201, 120 B, IPC, Section 13(2) of P.C. Act.
Mast Ram Kashyap
5. He was Assistant Manager from July 1996 to February, 1999 in the Forest Corporation, Sawara. In the year 1998, Forest Department handed over three lots No.3/98-99 UPF Bagdhar, Lot No.4/98-99 DPF Sharontha c-
7 and lot No.5/98-99 UP Tangri in which 103 Kail tees, 261 Kail and deodar tees and 275 kail and deodar trees were marked as salvage marking and handed over to the Forest Corporation. The Work was handed over by the Forest Corporation to Rameshwar Nand Sharma and felling was done under his supervision. Chanchal Singh was Deputy Ranger, Bhinder Dutt was Forest Guard, Lahori Singh was ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 5 Timber Watercher. Rameshwar Nand felled 43 kail and 2 deodar tees in lot No.4/98-99 DPF Sharontha illicitly and in lot No.5/98-99 UPF Tangri, 11 kail trees. As such, the value .
of these trees stood Rs.12,67,609-89. Rameshwar Nand allowed 38 Kail trees so marked unfelled in lot No.3/98-99 and 41 kail trees in lot No.5/98-99. He did no take any action nor informed his higher officers. He committed misconduct by not exercising proper control. He issued and verified first and final bills in respect of lot No.5/98-99 UP Tangri certifying that no illicit felling had taken place, whereas, 11 trees were found to have been illicitly felled.
Similarly certificate was given by him in lot No.3/98-99 in which 18 green kail trees were found to have been illicitly felled. He is alleged to have committed offences under Section 467, 468, 471, 120 B, IPC, Section 13(2) of P.C. Act.
Chanchal Singh
6. He remained posted as Deputy Ranger in Sawra Division from 1994 to 12.10.1998 and salvage marking was done in three lots namely 133 kail tree in lot No.3/98- 99 and 275 Kail and deodar trees in lot No.4/98-99 and 275 kail and deodar trees in lot No.5/98-99 and the forest was handed over to Forest Corporation for working. The ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 6 Forest Corporation awarded the work to Rameshwar Nand Sharma, Labour Supply Mate, who felled 43 kail, 2 deodar tees in lot No.4/98-99 DPF Sharontha illicitly. He also felled .
11 Kail trees illicitly in lot NO.5/98-99 UF Tangri, thus causing loss of Rs.12,67,609.89. Similarly, Labour Supply Mate in lot No.3/98-99 Bagdhar did not fell 38 marked trees and in lot No.5/98-99 UF Tangri 41 Kail trees were not felled. Chanchal Singh being Dy. Ranger did not take action for illicit felling nor informed the department and thus, abused his office. He is alleged to have committed offences under Section 120 B, IPC and Section 13(2) of P.C. Act and Section 14 of the H.P. Prevention of Specific Corrupt Practices Act.
Bhinder Dutt.
7. He remained posted as Forest Guard (Officiating Deputy Ranger) at Rohru from 12.10.1998 to 2000. Forest Department had in the year 1998 handed over three lots namely 133 kail tree in lot No.3/98-99, 261 kail and deodar trees in lot No.4/98-99 and 275 kail and deodar trees in lot No.5/98-99. In the aforesaid lots, the Forest Corporation awarded the work to Rameshwar Nand Sharma, Labour Supply Mate, who felled 43 kail, 2 deodar trees in lot No.4/98-99 DPF Sharontha illicitly. He also felled 11 Kail ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 7 trees illicitly in lot No.5/98-99 UF Tangri, thus, causing loss of Rs.12,67,609-89/- to the State. He is alleged to have committed offences under Section 467, 468, 471 an 120 B, .
IPC and Section 13 (2) of the P.C. Act.
Lahori Singh.
8. He remained as Timber Watcher in Forest Working Division, Rohru from 1984 to 1999. Forest Department had in the year 1998 handed over three lots namely 133 Kail tree in lot No.3/98-99, 261 kail and deodar trees in lot No.4/98-99 and 275 kail and deodar trees in lot NO.5/98-99. In the aforesaid lots, the Forest Corporation awarded the work to Rameshwar Nand Sharma, Labour Supply mate, who felled 43 kail, 2 deodar trees in lot No.4/98-99 DPF Sharontha illicitly. He also felled 11 Kail trees illicitly in lot No.5/98-99 UF Tangri, thus, causing loss of Rs.12,67,609-89/- to the State. He gave false certificate in respect of lot No.5/98-99 that no illicit felling had taken place whereas 11 trees were found to have been illicitly in this lot. He is alleged to have committed offences under Sections 467, 468, 471 and 120B, IPC and Section 13(2) of the P.C. Act.
Rameshwar Nand Sharma.
::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 89. In the year 1998, he was Labour Supply Mate with Forest Corporation and Forest Corporation were granted lots for working in Sharontha Beat, i.e. lot No.3-98- .
99UPF Bagdhar, 4/98-99 DPF Sharontha C-7 and 5/98-99 UP Tangri being salvage marking. In lot No.3/98-99 133 kail tree were marked, in lot No.4/98/99, 261 kail and deodar trees were marked, whereas, in lot No.5/98-99, 275 Kail and deodar trees were marked. He had applied for working, i.e. felling, conversion, transportation etc., to Forest Corporation. His tenders were accepted and he was allowed to work in these lots. He allowed 38 kail trees unfelled in lot No.3/98-99 which were at some distance from the road, whereas in lot NO.5/98-99, 41 kail trees were allowed unfelled and similarly in lot No.4/98-99, he allowed trees marked alongside the road standing, instead felled 43 kail and 2 deodar trees illicitly felled and in lot No.5/98-99 UPF Tangri, he felled 11 kail trees illicitly, thus causing loss of Rs.12,67,609-89 and thus, he did it in connivance with officials of the Forest Department and Forest Corporation. He gained pecuniary advantage to this extent. He is alleged to have committed offences under Sections 379, 420, 467, 468, 471, 120B, IPC and Section 33 of Indian Forest Act.
::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 910. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was .
prepared, and, filed before the learned trial Court.
11. The accused/respondents herein stood charged, by the learned trial Court, for, theirs committing offences, punishable under Sections 379, 420, 468, 471, 120-B, IPC, Section 33 of the Indian Forest Act, Section 13(2) of PC. AC and Section 14 of the H.P. Prevention of Specific Corrupt Practices Act. In proof of the prosecution case, the prosecution examined 28 witnesses. On conclusion of recording, of, the prosecution evidence, the statements of the accused, under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case.
12. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/ respondents herein.
13. The appellant herein/State, stands aggrieved, by the findings of acquittal, recorded, by the learned trial Court. The Additional Advocate General, has, concertedly and vigorously contended, qua the findings of acquittal, ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 10 recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, .
of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction.
14. On the other hand, the learned counsel appearing for the respondents has with considerable force and vigour, contended qua the findings of acquittal, recorded, by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
15. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
16. Three lots, bearing Lot No.3/98-99 UPF Bagdhar, Lot No.4/98-99 UPF Sharontha CN-7, and, Lot No.5/98-99, (a) were handed over by the forest department to the Forest Corporation, for working, by way of salvage marking, of 133 Kail trees, 261, Kail and deodar trees, and, 275 Kail tees respectively, (b) and, the work of ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 11 felling, sawing, conversion, and, transportation, stood, alloted to Rameshwar Nand, Labour Supply Mate.
However, illicit felling of trees occurred thereat, hence, the .
State, allegedly suffered a loss of Rs.12,67,609-89/-. It is also alleged that for legalizing the illicit felling of trees, forged documents standing prepared.
17. PW-2 S.D. Sharma, the then DFO, Rohru had conducted, a, preliminary inquiry qua the illicit felling, and, over marking of trees, and, had prepared report, borne, in, Ex.PW2/A. He had also reported the matter, to, the Conservator of Forests. PW-2 in his testification, has, rendered a version qua his visiting the lots, from, 7.3.1999 to 10.03.1999, and, his recording the statements of Lachhi Ram, Mehar Singh, and, Harjap Singh. He has further testified, in his testification, qua it being a routine checking, and, work, of, all lots being in progress. He has further testified qua Sharotha-Tikkar road being constructed through these lots. He has also testified qua the people of the area having TD rights, and, other rights including felling of trees, for, religious and other ceremonies, in these lots. He has further testified that during the construction of road, damage being caused to trees. He, during the course of his cross-examination, ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 12 showed his inability to disclose, qua, the number, of, stumps, appertaining, to, freshly felled trees, and, vis-a-
vis, old felling(s). The testification of PW-1 clearly unravels .
(a) qua his being unaware qua the identity, of, persons, who had illicitly felled the trees in the afore lots. (b) His testification also discloses that the ongoing construction of the afore road, also hence damaging the green trees, (c) thereupon no incriminatory role is fastenable, upon, the accused.
18. PW-1 Onakar Chand, Kaundal, has, conducted a detailed inquiry with respect to the afore lots. He in his testification has testified, qua, his on 25.04.1999 along with two Deputy Ranger, and, two Forest Guards, conducting the inspection, and, his noticing that some marked trees, still standing there, and, some of the unmarked trees, rather standing felled. He submitted his report, borne, in, Ex.PW1/A. He testifies, qua, the dried and fallen trees being marked. He has also testified that a road being constructed, through, lots No.3/98-99 and 5/98-
99. He in his report disclosed qua some unmarked trees near the road, standing, felled, whereas, some marked trees, rather standing at a distance, from, the road, rather remaining unfelled. An incisive perusal of report, borne in ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 13 Ex.PW1/A, unravels (i) that in lot No.3/98-99 Bagdhar 133 dry standing/uprooted kail trees, being marked and 18 uprooted trees of kail, being also marked alongside the .
road, yet stumps of afore trees, being found to stand buried under the debris. His report Ex.PW1/A is based on the statement of R.O. Tikkar. However, Range Officer Tikker, remains unexamined by the prosecution, hence, to support his version, thereupon, for want thereof, the echoings occurring in Ex.PW1/A, hold no probative vigour.
Both PW-1 and PW-2 in their respective testifications admitted qua a road being constructed, through, the afore lots, and, during construction whereof, damage being caused to the trees. Consequently, no liability can be fastened, upon, the officials. According to report, borne in Ex.PW1/A, 89 marked kail trees were found standing in the lot, yet PW-1 omitted to testify qua the existence, of, hammer marks thereon, hence in the absence, of, occurrence, of, hammer marks, on the afore kail trees, it cannot, be construed qua theirs, being marked for felling.
Furthermore, the contention of the prosecution, that, 18 uprooted trees, were felled, while constructing the road, also cannot be accepted, given their stumps being not found, nor hence, it can be construed, that, unmarked 18 ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 14 kail trees, being illicitly felled. Furthermore, PW-1 testified that in lot No.5/98-99 UPF Tangri, 275 dry standing/uprooted trees were marked, and, handed over to .
Forest Corporation, but they remained unfelled. However there is no detail, in Ex.PW1/A, qua, the number of unfelled marked trees, and, qua the marks affixed thereon.
Report, borne in Ex.PW1/A also discloses qua illicit felling of trees, however, there exists no evidence on record that the said illicit felling, was, done by Rameshwar Nand. It has also come on record that the people of area are also having TD rights, and, they are also having rights to fell trees for religious, marriage ceremonies etc. It has also further come in evidence, that, a road was being constructed through the afore lots, and, damage was caused by the contractor to the trees, while constructing the road, hence, given the afore material, no incriminatory liability can be fastened upon the accused.
19. In lot No4/98-99, UPF Sharontha, CN-7, 261 dry/uprooted trees of kail and deodar were marked.
According to report, borne in Ex.PW1/A, 76 trees of kail and two deodar trees rather were found unfelled.
However, owing to occurrence, of, fire, vis-a-vis, this lot, PW-1, was unable to disclose with certainty, qua, the ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 15 number of marked, and, unmarked trees, as, stood purportedly felled, nor, he could detect 16 marked trees or stumps, nor he can validly claim, that, 43 kail trees, and, .
two deodar trees being illicitly felled. Furthermore, no reliance can be placed upon the report, borne, in, Ex.PW1/A, given PW-1 not checking and counting, the total number of stumps existing in these lots, whereas, he held the marking lists with him, and, rather was well equipped, to notice the hammer mark, on, the unfelled trees.
However, there is no mention in Ex.PW1/A, qua whether hammer marks being found by him, on the afore trees, trees whereof, are, claimed to be unfelled. Reiteratedly, since there is no direct evidence on record, qua Rameshwar Nand, felling the unmarked or green trees, from these lots, and, more so when it is admitted case, of the prosecution, that, the people of area having their TD rights and other religious rights in the lots, for, cutting the wood therefrom, hence, no incriminatory liability can be assuredly fastened upon the accused.
20. PW-23, Suresh Kumar, who, remained posted as Field Mand in Sharontha Beat we.f. 1996 to 2005, has deposed qua his remaining present at the relevant lots, at, the time when, the, marking was done. He has also ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 16 testified qua his being deputed as Chowkidar, to look after, the converted timber. He has further testified qua his duty being, to keep a watch, qua the labour not resorting to .
illicit felling. He in his testification has testified that, no, illicit felling of trees, was done, in the aforesaid lots, and, no unmarked trees were felled, hence, he has not supported the prosecution case. There exists no other evidence on record to support the prosecution case. As per PW-1 Onkar Chand, stump counting register standing maintained by the Forest Corporation, and, progress reports being sent thereat. Admittedly, the running bills Exts. PW9/B, PW9/C and Ex.PW9/D were duly submitted by Rameshwar Nand, bills whereof were checked by accused Lachhi Ram, Binder Dutt, Chanchal Singh and Mast Ram, however, there is no evidence on record to display qua false certificates, being issued or forged documents hence being prepared. Further, it is also an admitted fact that in Sharontha Beat, where, timber was stacked by the Forest Corporation, there was fire, and, a damage bill, standing raised against the forest corporation, yet it being returned by the corporation.
21. PW-10, Kishore Lal, Naib Tehsildar in presence of Enforcement Officials Padam Singh, RO, Adarsh Mohan, ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 17 BO, Surinder Singh and others, on 26.10.2005, conducted the demarcation, and, after demarcation, of, Khasra No.186, 11 stumps were noticed to be illicitly felled. His .
testification, unravels, qua his not measuring other khasra numbers i.e. 283, 14 and 56, and, his not affixing three permanent points. He has testified in his testification, that, trees for TD, funeral etc, standing felled by the people, of area, as they hold TD rights, in Khasra No.186.
PW-18 Satya Prakash remained present, at the time of demarcation, and, he had prepared lists, of stumps, illicitly felled. He has admitted in his cross-examination qua the stumps being old ones. He has, in his testification, also stated qua his being unaware, about, the fixation of permanent points by the Naib Tehsildar. Similarly, PW-19 Padam Singh also remained present at the time of demarcation, and, he also echoes qua the demarcation being carried, from, Khasra No.14, and, three permanent points, being taken near Khasra No.186, and, other kahsra numbers being also demarcated. However, his testification, rather contradicts, the testification of, PW-10, Kishori Lal, hence, no reliance can be placed, on the testimony of PW-19. PW-27, Hari Ram, IO has in his testification admitted that he did not seize any record qua ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 18 number of trees felled from 1997 to 1999, nor, the record qua grant of trees under TD, and, damage reports, from 1999 to 2005. Accordingly to him, all unmarked stumps .
were considered illicitly felled. PW-3 Basant Lal, had prepared reports borne in Ex.PW3/A and Ex.PW3/B, reports whereof, unfolds, felling of trees without marking, and, qua trees standing duly marked, yet theirs not being felled.
PW-3 visited the spots/lots on 16 th, and, on 17th September, 1999. In his testification, he is categorical qua his inability, to, dislcose, the identity, of, those, who had done the illicit felling. Ex.PW3/A, and, Ex.PW3/B, as testified by PW-3 Basant Lal, and, PW-28 Madan Lal, were prepared at the time of demarcation, and, the demarcation(s) of the lots, as testified by PW10, were conducted on 26.10.2005, hence, it cannot be construed that the lists/reports, borne in Ex.PW3/A, and, in Ex.PW3/B, standing prepared, in, the apt year 1999.
22. Furthermore, PW-2 S.D. Sharma, during the course of preliminary inquiry recorded statements of accused Mehar Singh Lachhi Ram, statements whereof, are respectively borne in Ex.PW2/D-1 to Ex.PW2/D-3. PW-
2 at the relevant was DFO and the accused were working under him. During the course of his cross-examination, ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 19 he, has admitted that he had, not, recorded the statement, of, the accused. He has also admitted that he cannot tell as to what hammer mark, was carried, upon, the trees, .
which he had counted. He has also admitted that his report was entirely based on the admission made by the accused Mehar and Lachhi Ram. However, he has admitted that he has not recorded the statement of the aforesaid accused, yet they were claimed to be made before him, hence, it was enjoined, upon, the prosecution to examine the person, who has recorded in writing the statements, of, the aforesaid accused, statements whereof, are alleged to be made, before PW-2. However, the prosecution has omitted to examine the said person as a witness. Consequently, no reliance can be placed, upon, the statements of the aforesaid accused, respectively borne in Ex.PW2/D-1 to Ex.PW2/D-3. Moreover, given recitals, borne in the aforesaid statements, standing not supported by any of the prosecution witness, also renders them to be incredible.
23. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the ::: Downloaded on - 03/10/2018 22:57:50 :::HCHP 20 analysis of the material, on record, by the learned trial court, hence, not suffering from any gross perversity or absurdity of mis-appreciation and non appreciation of .
germane evidence on record.
24. Consequently, the appeal is dismissed. In sequel, the impugned judgment is affirmed and maintained. All pending applications also stand disposed of. Records be sent back forthwith.
r to (Sureshwar Thakur)
Judge
28th September, 2018.
(jai)
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