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Himachal Pradesh High Court · body

2014 DIGILAW 809 (HP)

State of H. P. v. Hiru Ram

2014-06-30

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, Judge. State has instituted this appeal against the judgment dated 25.5.2011 rendered by the Special Judge (forests), Shimla in Corruption Case No. 7-S/7 of 2007. 2. Case of the prosecution, in a nutshell, is that during the investigation of FIR No. 19/84, Inspector Sunder Lal while checking records of Railway Station, Shoghi noticed that M/s. Hiru Ram, Private Sale Contractor, Kotkhai misused export permit No. 138/81-82 dated 4.7.1981 and transported 1277 scants against permitted 633 scants. FIR bearing No.11/85 was registered in Police Station Enforcement South Zone, Shimla. Various documents, including an application for felling from Khasra Nos. 341, 348 and 343 were taken into consideration. Demarcation was conducted and trees were marked for felling and the Divisional Forest Officer granted permit No.138/81-82 dated 4.7.1981 for transportation of 633 scants. This permission was granted upto 3.10.1981. 597 scants were transported through Forest Check Post, Dhalli. However, through RR Nos. 821577, 821578, 821580, 821586, 821601, 821602, 821771, 821773, 821779, 821781 and 821783, 1277 scants were transported to various firms at Jagadhari. RR Nos. 821577, 821578, 821580, 821586, 821601 and 821602 were issued by deceased accused Hari Krishan, Station Master, Shoghi and the forwarding notes were filled up by Hiru Ram himself. Forwarding notes accompanying RR Nos. 821601 and 821602 were signed by Shiv Dutt. Deceased Milkhi Ram had signed in his capacity as A.S.M., RR Nos. 821771, 821773, 821669 and 821781 and Hiru Ram had signed forwarding notes accompanying RR Nos. 821577, 821578, 821580 and 821781. Subhash Chand was the Assistant Station Master, Shoghi. He issued RR No. 821783 and forwarding note was signed by Hiru Ram. Hiru Ram received payment of Rs. 72,000/- from M/s Saverwal Brothers, Yamuna Nagar. He received Rs. 18,983.92 from M/s Ghanshyam Dass Vijay Kumar. The specimen signatures and handwritings were obtained and sent to Government Examiner, Questioned Documents for examination with the disputed handwritings. The Challan was put up in the court under sections 379, 420, 467, 468 and 120-B of the Indian Penal Code, under sections 41 and 42 of the Indian Forest Act read with sections 5 (2) and 13 (1) (d) of the Prevention of Corruption Act. 3. The prosecution examined as many as 32 witnesses to prove its case against the accused. Statements of accused were recorded under section 313 of the Code of Criminal Procedure. Accused claimed it to be a false case. 3. The prosecution examined as many as 32 witnesses to prove its case against the accused. Statements of accused were recorded under section 313 of the Code of Criminal Procedure. Accused claimed it to be a false case. Trial court acquitted the accused vide judgment dated 25.5.2011. 4. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the prosecution has proved its case against the accused. 5. Mr. Satyen Vaidya has supported the judgment dated 25.5.2011. 6. We have heard the learned counsel for the parties and have perused the record carefully. 7. PW-1 Narain Singh has deposed that he was posted as Camp Clerk in the office of D.F.O. Shimla in the year 1986. He produced before the police private sale file of M/s Hiru Ram qua permit No.138/81-82 dated 4.7.1981. He admitted in his cross-examination that before marking, the area is demarcated by the revenue authorities. 8. PW-2 Bharat Bhushan has testified that he was working as Accountant with M/s Ghanshyam Dass Vijay Kumar, Yamuna Nagar. The owner has expired. He produced photocopies of cash book and ledger of the firm, which were taken into possession vide memo Ex.PW-2/A. The original record was not available and the photocopies were marked as marks PW-2/B and PW-2/C. 9. PW-3 Narain Dass has testified that he was posted at Forest Check Post, Dhalli. Goverdhan Dass was their Incharge. He has produced copy of permit Ex.PW-3/A, abstract of balance timber mark PW-3/B, 4 challans Ex.PW-3/C-1 to C-4, copy of extension of export permit Ex.PW-3/D and challans Ex.PW-3/E-1 to E-3. He has admitted in his cross-examination that all the challans were within the expiry date of permit and extension and the permit was for the route Nihari to Shimla and outside Himachal Pradesh. He has also admitted that as per the permit and its extension, no excess timber had been allowed to be exported from the check post. He has also admitted that all the challans were from Nihari to Shogi Railway Station. 10. PW-4 Amrit Lal has testified that he was working as Timber Commission Agent alongwith his brother Charanjit Lal. They used to receive wood through the trains as well as trucks. They had received wood from accused Hiru Ram. Whenever they used to receive wood, they used to receive railway receipts also. 10. PW-4 Amrit Lal has testified that he was working as Timber Commission Agent alongwith his brother Charanjit Lal. They used to receive wood through the trains as well as trucks. They had received wood from accused Hiru Ram. Whenever they used to receive wood, they used to receive railway receipts also. He has admitted in his cross-examination that in order to maintain the balance of the bogey, the slippers used to be cut into pieces and by cutting of the wood the number of scants increases but the volume of the wood remains the same. 11. PW-7 Ghanshyam Dass has testified that the firm continued its business till 1987. Thereafter, it was dissolved. They purchased timber from accused Hiru Ram in the year 1981. They used to maintain record of the purchase of timber. In his cross-examination, he has deposed that they used to receive the timber of different sizes ranging from 3 to 12 feet. The timber was measured in terms of cubic feet and they used to make the payment of the timber on the basis of cubic feet. He could not tell how much timber was received by the firm in cubic feet or in scants. 12. PW-10 Sardai Lal Sahni has testified that he was posted Chief Goods Clerk at Railway Station, Jagadhari. His duty was to receive the goods at the Railway Station coming from different stations. He used to make entry of the same in unloading books. He has admitted in his cross-examination that every piece of timber irrespective of its size is a scant and is written as scant. The timber used to be received of different sizes ranging from 2 feet to 10 feet. The entry of the actual number of the timber received used to be made in the unloading book and delivery book. The record of unloading and delivery book was not taken from him by the police. 13. PW-13 Shakti Ram has admitted in his cross-examination that in order to avoid the uneven loading and to use the wagon to its full capacity, the timber is used to be cut at the time of loading. He has also admitted that number of scants used to increase and cubic feet remained the same. Any piece of timber irrespective of its size is called as scant and written as it is. 14. He has also admitted that number of scants used to increase and cubic feet remained the same. Any piece of timber irrespective of its size is called as scant and written as it is. 14. PW-19 Narinder Kumar has deposed that he remained posted as Range Officer, Kotkhai Range from 5.12.1980 to 24.11.1982. On 30.12.1980, he alongwith field Kanungo, accused Hiru Ram, Contractor, Block Officer and Forest Guard visited village Barvi for the purpose of demarcation of the land belonging to Hiru Ram and others. Field Kanungo gave the demarcation of Khasra Nos. 348, 341 and 343. From Khasra No.348, he marked one tree of deodar, 13 trees of Kail and from Khasra Nos. 341 and 343, 15 trees of deodar and 28 Kail trees were marked by him with hammer mark 67 for the purpose of private sale. He marked the trees on Silviculture basis. The felling orders were issued by the D.F.O. The application Ex. P-19/C was moved by accused Hiru Ram to him for the purpose of issuing export permit, which was addressed to D.F.O. Shimla. After the receipt of the report from the concerned B.O. and Forest Guard, he forwarded the application to D.F.O. Shimla for export permit. In his cross-examination, he has admitted that there was no report regarding illicit felling even after issuing of permit till he remained there, i.e. till 24.11.1982. 15. PW-20, Anant Ram, in his cross-examination, has admitted that every piece of timber irrespective of its size was written as scant in the RR. He has also admitted that the timber is measured in terms of cubic feet. He has deposed that there was no such evidence collected that the volume of the timber had increased. 16. PW-21 S.U. Siddiqui, has deposed that when the goods are booked in the railway station, the consigner fills the forwarding note. He would also give the full description of senders’ name and address, description of the goods to be booked and the names and addresses of the consignee and description of goods to be booked. The Station Master would verify the facts mentioned in the forwarding note and also would check weight and measurement of the goods to be booked and filled the reversal of the forwarding note after verification. Thereafter, he enters the details in the priority register. The Station Master would verify the facts mentioned in the forwarding note and also would check weight and measurement of the goods to be booked and filled the reversal of the forwarding note after verification. Thereafter, he enters the details in the priority register. In his cross-examination he has admitted that it could be ascertained from the priority register as to when the goods were registered and by whom. He has also admitted that the station master is not bound by restrictions imposed by the State or the Central Government. Restricted items are defined in the railway rules. He has also admitted that timber is not entered as restricted item in the rules. He has admitted that if the owner has filled the note for one B.C. then he can fill the wagon by cutting the timber into pieces to avoid uneven loading and if the timber is cut into pieces, in that eventuality, the number of scants increases. He has also admitted that any piece of timber irrespective of its size would be called and written as a scant in the RR. 17. PW-24 Surat Ram has deposed that he demarcated the land in village Barari comprised in Khasra Nos. 348, 341 and 343 on private land and trees of Deodar and Kail were standing there. After demarcation, these were numbered and details thereof incorporated in Ex. PW19/A and Ex.PW-19/B. He has given certificates Ex.PW24/A and Ex. PW-24/B. 18. PW-26 Amarjeet Singh has testified in his cross-examination that after the receipt of the goods at the railway station, forwarding note is filled in and entry is made in the priority register. He has also admitted that from priority register, it could be ascertained as to when the goods were tendered for booking. Priority registers were also taken into possession but the same were not shown to him in the Court. 19. PW-30 M.A. Siddiqui has testified that he was on deputation to the railway board and was working as Inspector (Vigilance) special squad. Shri K.C. Nandwani was investigating inspector. He was senior to him. During checking of record, it was found that timber was booked from railway station in excess of export permit after expiry of permit, without extension by the Department. Shri K.C. Nandwani was investigating inspector. He was senior to him. During checking of record, it was found that timber was booked from railway station in excess of export permit after expiry of permit, without extension by the Department. In his cross-examination, he has admitted that he did not find clarifications which were sought by them from CCF of Shimla anywhere in the record, which were checked. He has also admitted that notification/ clarification/ instructions, if any, of the state or Central Government are to be notified to the station master through Head Office. He did not find any notification/clarification or instructions ever notified to the Station Master. He has admitted that record is maintained at the trans-shipment point where the goods are unloaded from narrow gauge wagon and reloaded in the broad gauge wagon and similar record is also maintained at the destination station. He has also admitted that on production of the forwarding note the entry is made in the priority register and registration fee is charged. The validity of the permit is to be seen at the time of registration, i.e. accepting the forwarding note. It can be ascertained only from the priority register as to when the forwarding note was accepted and entered in the priority register. He did not check or seen the priority register. He has admitted that in order to avoid the uneven loading and derailment and to use the wagon to its full capacity the timber can be cut into pieces. He has not examined any person who has actually done or seen loading. According to him, any piece of timber irrespective of its size is called scant. He could not ascertain from the RR as to what was the size of the timber. 20. PW-31 K.C. Nandwani has deposed that according to the clarification given by the Forest Department, no forest produce could be exported out of the Himachal Pradesh without the authority of the forest permit issued by the Forest Department in which number of scants, date of availability and station is mentioned. On the receipt of the forwarding note, the Station Master is required to register his demand in the priority register and thereafter on the supply of wagon, which is controlled by the Divisional Officer, consignment will be loaded by the sender and RRs issued accordingly. On the receipt of the forwarding note, the Station Master is required to register his demand in the priority register and thereafter on the supply of wagon, which is controlled by the Divisional Officer, consignment will be loaded by the sender and RRs issued accordingly. In his cross-examination, he has admitted that except the record on the booking station, he has not checked other record. He has admitted that in addition to the trans-shipment record at Kalka, the record is also maintained at the destination station. He has also admitted that the validity of the permit is to be seen at the time of indenting the wagon and tendering the forwarding note and not at the time of the loading of timber in the wagon. He has also admitted that as per rule 1465 of the Railway Commercial Manual, Volume-II, if there are civil restrictions, these are to be notified to the Railway Station through the Head Office and if these are not notified to the Railway Station by the Department, then the Station Master is not bound by such restrictions issued by the Central or the State Government. He could not tell the CFT wise timber booked and exported through railway station. According to him, it cannot be ascertained from the RRs as to what was the size of the each scant transported. He had not seen the priority registers during his inquiry. 21. According to PW-3 Narain Dass, as per the permit and its extension, no excess timber had been allowed to be exported from the check post, Dhalli. PW-4 Amrit Lal has deposed that the slippers used to be cut into pieces in order to maintain the balance of the bogey. PW-10 Sardari Lal Sahni has admitted that every piece of timber irrespective of its size is a scant and is written as a scant. PW-13 Shakti Ram has admitted that in order to avoid the uneven loading and to use the wagon to its full capacity, the timber used to be cut at the time of loading. PW-14 Beli Ram has deposed that accused Hiru Ram had removed only those trees which were marked by the forest department for felling. PW-13 Shakti Ram has admitted that in order to avoid the uneven loading and to use the wagon to its full capacity, the timber used to be cut at the time of loading. PW-14 Beli Ram has deposed that accused Hiru Ram had removed only those trees which were marked by the forest department for felling. PW-19 Narinder Kumar has deposed that if the permit had been issued, it itself suggests that till then there was no illicit felling by the Contractor and there was no report regarding illicit felling even after issuance of the permit till he remained there, i.e. 24.11.1982. PW-21 S.U. Siddiqui has testified that any piece of timber irrespective of its size will be called and written as a scant in the RR. PW-30 M.A. Siddiqui has deposed that the validity of the permit is to be seen at the time of registration. According to him, the record is maintained at the trans-shipment point where the goods are unloaded from narrow gauge wagon and reloaded in the broad gauge wagon and similar record is also maintained at the destination station. He did not check any record except the record of booking station. He has not seen the priority register. He has also admitted that notification/clarification or restrictions, if any, of the State or Central Government are to be notified to the Station Master through the Head Office. He did not find any notification/clarification or instructions ever notified to the Station Master. Similarly, PW-31 K.C. Nandwani has deposed that except the record on the booking station, he has not checked other record and it could not be ascertained from the RRs as to what was the size of each of the scants transported. 22. There is no evidence to prove that the forwarding notes were signed and prepared by accused Hiru Ram or any of his agents. There is no evidence as to who submitted the timber and the forwarding notes to the Railway authorities for transportation purposes. PW-26 Amarjeet Singh has not testified that the timber and forwarding notes were produced by accused Hiru Ram. Priority register though seized was not produced in the Court. In none of the RRs, CFT has been noted down. According to the prosecution witnesses, any piece of timber is written in the RR irrespective of the size as a scant. PW-26 Amarjeet Singh has not testified that the timber and forwarding notes were produced by accused Hiru Ram. Priority register though seized was not produced in the Court. In none of the RRs, CFT has been noted down. According to the prosecution witnesses, any piece of timber is written in the RR irrespective of the size as a scant. PW-22 Sunder Lal has deposed that he had seized the priority registers; however, the same were not produced in the court. The report of Government Examiner of Questioned Document did not disclose that any of the forwarding notes were signed by accused Hiru Ram. The prosecution has failed to prove that forged documents were prepared by accused Hiru Ram. The prosecution has failed to prove illicit felling of trees. The trees were marked after due demarcation. Export permit was issued after verifying the facts. It has come in evidence that in order to maintain the balance of the bogey, the slippers are used to be cut into pieces and by cutting of the wood the number of scants increases but the volume of the wood remains the same. The prosecution has failed to prove that CFT of the timber has ever increased beyond the permit. No notification/clarification or instructions were ever brought to the notice of Station Master. 23. Accordingly, in view of discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are discharged.