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2015 DIGILAW 1868 (HP)

STATE OF H. P. v. OMI

2015-12-11

SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. Cr. MP (M) No. 1064/2015 1. For the reasons set out in the application, delay of 12 days in filing the application for leave to appeal, which, in my considered view, has sufficiently been explained, is condoned. Application stands disposed of. Cr. MP (M) No. 1063/2015 2. State has filed the present petition, under the provisions of Section 378 (3) of the Code of Criminal Procedure, seeking leave to appeal against the judgment dated 31.3.2015, passed by Additional Chief Judicial Magistrate, Kasauli, District Solan, Himachal Pradesh, in Criminal Case No.44/2 of 2012, titled as State of Himachal Pradesh v. Omi and another, whereby accused-respondents Omi and Ashok Kumar (hereinafter referred to as the accused), stand acquitted of the charge for having committed offences, punishable under the provisions of Section 447 of the Indian Penal Code and Section 33 of the Indian Forest Act. 3. In relation to FIR No.161/2011, dated 14.9.2011 (Ex.PW-5/A), registered at Police Station, Dharampur, District Solan, Himachal Pradesh, under the provisions of Section 447 of the Indian Penal Code and Section 33 of the Indian Forest Act, accused were charged to face trial. 4. Briefly stated, case of the prosecution is that based on an application (Ex.PW-1/A), moved by Shri Krishan Singh (PW-1), Block Forest Officer, FIR (Ex.PW-5/A) was registered. In the application, it is averred that the accused have constructed a pucca house since long on Forest D-161, Sihardi C-1, measuring 0.017 hectares. During investigation, police prepared site plan (Ex.PW-6/A); got the spot photographed and took into possession photographs (Ex.P1 to P6); got the spot demarcated from Shri Malkiat Singh (PW-3), Naib Tehsildar, Settlement, Dharampur; took into possession demarcation report (Ex.PW-3/F) and revenue record, i.e. Jamabandi (Ex.PW-3/B). On completion of investigation, which, prima facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 5. Based on the testimonies of witnesses and the material on record, trial Court acquitted both the accused of the charged offence. Hence, the present petition for leave to appeal by the State. 6. Mr. R.S. Verma, learned Additional Advocate General, has taken me through the record of trial Court, including testimonies of the prosecution witnesses. 7. Conjoint reading of testimonies of the witnesses shows that there is contradiction in the same. Application/ complaint (Ex. Hence, the present petition for leave to appeal by the State. 6. Mr. R.S. Verma, learned Additional Advocate General, has taken me through the record of trial Court, including testimonies of the prosecution witnesses. 7. Conjoint reading of testimonies of the witnesses shows that there is contradiction in the same. Application/ complaint (Ex. PW-1/A) was made by Shri Krishan Chand (PW- 1), on the basis of information received from Shri Jalam Singh (PW-2), Forest Guard of Kando beat. Shri Jalam Singh does not state that source from where he came to know that the accused have encroached upon forest land. Perusal of demarcation report (Ex.PW-3/F) shows that it is a photocopy and only certain columns with regard to FIR etc. have been filled in blue ink. Shri Malkiat Singh (PW-3), Naib Tehsildar, admits that 34-35 carbon copies of Ex.PW-3/F were prepared. Further, the witness also admits that he did not obtain the musabi of last settlement at the time of demarcation and that he did not fix pucca points of the last settlement. He states that he fixed pucca points, but it not established how he did so when the musabi was not with him at the time of demarcation. It is also not established that at the time of demarcation, accused persons were present on the spot, for their statements were not recorded. Shri Malkiat Singh also admits that there are 35-36 houses on the spot. But however, no one from those houses was associated during demarcation, investigation or examined in Court. Why so? has not been explained. Further, there is no mention of adopting of triangular system, while carrying out demarcation. 8. Thus, perusal of testimony of the revenue official reveals that the demarcation was not conducted in accordance with the guidelines issued by the Financial Commissioner. Triangular system was not adopted, while carrying out the demarcation. This Court in Salig Ram and others v. Ram Lal and others, Latest HLJ 2008 (HP) 484, has clearly held such demarcation to be illegal. 9. Also, except for the demarcation report (Ex.PW-3/F), there is no other evidence to prove the alleged trespass. On the contrary, it stands proved on record that there are 35-36 hours on the spot, which are quite old. 10. Hence, trial Court, in my considered view, rightly acquitted the accused. 9. Also, except for the demarcation report (Ex.PW-3/F), there is no other evidence to prove the alleged trespass. On the contrary, it stands proved on record that there are 35-36 hours on the spot, which are quite old. 10. Hence, trial Court, in my considered view, rightly acquitted the accused. There is no error apparent on the face of record or illegality or perversity, resulting into miscarriage of justice, in the findings returned by the trial Court, warranting interference by this Court. As such, present petition for leave to appeal, being without any merit, is dismissed and disposed of.