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2011 DIGILAW 1827 (HP)

State of Himachal Pradesh v. Balbir

2011-03-30

V.K.SHARMA

body2011
JUDGMENT V.K. Sharma, Judge The challenge herein in this appeal under Section 378 of the Code of Criminal Procedure ( in short ‘Cr. P.C’) is against the judgment dated 27.11.2003, of the learned Chief Judicial Magistrate, Kinnaur, at Reckong Peo, whereby the respondent (hereinafter referred to as ‘the accused’), was acquitted of the offence under Section 33 of the Indian Forest Act, 1872 (in short ‘the Act’). 2. In brief, the case of the prosecution is that in the month of March 1997, the accused had cut and removed two deodar trees from Government Forest without valid permit/permission. It was noticed only on 27.3.1997, when Shri Ramesh Chand, Block Officer (PW-1) and Shri Daulat Ram, Forest Guard (PW-4), were on routine checking in the jungle. On enquiry, it was revealed that the trees have been felled by the accused, who had carried away the timber to his house. Accordingly, both the aforesaid Forest Officials went to the house of the accused, who confessed his guilt in the presence of Member, Gram Panchayat. 26 scants of deodar were recovered from the possession of the accused and were handed over to Shri Sadar Vir (PW-2), Member, Gram Panchayat, vide sapurdari memo Ex.PW2/A. Damage report was prepared against the accused by the Forest Guard in the presence of Shri Sadar Vir (PW-2) and Shri Bhag Sain (not examined). Ikbalnama (confessional statement) of the accused was also recorded. The value of the trees was assessed at Rs.78,416/-. The accused had agreed to pay compensation equivalent to the value of the trees towards which he deposited a sum of Rs.10,000/-. However, he did not pay the remaining amount of compensation. Accordingly, the case was filed against him in the Court. 3. On being served with Notice of Accusation, he did not plead guilty and claimed to be tried. The prosecution evidence followed. In all, it examined four witnesses. 4. On close of the prosecution evidence, the accused was examined by the learned trial Court under Section 313 Cr. P.C, wherein his defence was that of total denial, innocence and false implication. In defence, he examined one witness, namely, DW-1 Shri Bhag Nar. 5. After hearing the parties, the learned trial Court proceeded to acquit the accused. 6. I have heard learned Deputy Advocate General for the appellant-State, learned counsel for the respondent-accused and gone through the records. 7. P.C, wherein his defence was that of total denial, innocence and false implication. In defence, he examined one witness, namely, DW-1 Shri Bhag Nar. 5. After hearing the parties, the learned trial Court proceeded to acquit the accused. 6. I have heard learned Deputy Advocate General for the appellant-State, learned counsel for the respondent-accused and gone through the records. 7. There is no direct evidence about the occurrence and instead the case of the prosecution was based solely on circumstantial evidence coupled with the alleged confessional statement of the accused. The accused has been acquitted by the learned trial Court mainly on the grounds that the only independent witness PW-2, Shri Sadar Vir, has not supported the case of the prosecution and the other independent witness, Shri Bhag Sain, was not examined. Furthermore, there was no evidence that the premises from where 26 scants of deodar were recovered belonged to the accused. Still further, it was found that the Ikbalnama (confessional statement) allegedly made by the accused was hit under Section 25 of the Evidence Act. It was also held that in the face of the undertaking by the accused that he would pay compensation of Rs.78,416/-, out of which he is stated to have deposited a sum of Rs.10,000/-, no proceedings, either Civil or Criminal, could be taken in respect of the alleged offence and the only remedy of the State is to fall back upon Section 82 of the Act and to recover the amount mentioned in the undertaking as if it were an arrear of land revenue. 8. Insofar as the confessional statement allegedly made by the accused is concerned, the same cannot be relied upon for the reason that the same is hit under Section 25 of the Evidence Act, as Forest Officials are vested with Police powers and any confession made to them cannot be proved against the accused, as has been held by this Court in State of H.P vs. Tara Chand and others, 1994 (4) S.L.J. 3333. 9. Even as per its own case, it was alleged by the prosecution that the accused had agreed to pay compensation of Rs.78,416/-, on account of felling of two deodar trees and removing timber thereof and had in fact paid a sum of Rs.10,000/-, towards such compensation. 9. Even as per its own case, it was alleged by the prosecution that the accused had agreed to pay compensation of Rs.78,416/-, on account of felling of two deodar trees and removing timber thereof and had in fact paid a sum of Rs.10,000/-, towards such compensation. Such an undertaking taken by the aforesaid Forest Officials was towards compounding of the offence under Section 68 of the Act and in view of sub section (2) thereof, no further proceedings could have been taken against the accused or in respect of the seized property, as laid down by the Hon’ ble Bombay High Court in The State of Maharashtra vs. Kisan Rupaji Ghatal, 1978 CRI. L.J. 1487. 10. On appraisal of the evidence on record and above legal position, I do not find any infirmity in the findings returned by the learned trial Court under the impugned judgment dated 27.11.2003, acquitting the accused of the charged offence. The appeal is accordingly dismissed. However, it shall not debar the State to fall back upon Section 82 of the Act and to recover the remaining amount of compensation of Rs.68,416/-, along with interest at the rate of 6 % per annum with effect from 30.3.1997, that is, the date of the undertaking till the date of realization, as if it were an arrear of land revenue and steps to effect such recovery shall be taken as expeditiously as possible. The Registrar General, of this Court shall send a copy of this judgment to the Principal Chief Conservator of Forest, Himachal Pradesh, for compliance forthwith.