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2015 DIGILAW 1871 (HP)

STATE OF H. P. v. KALAWATI

2015-12-11

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Cr. MP (M) No. 1066/2015 1. For the reasons set out in the application, delay of 89 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. 1065/2015 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 27.11.2014, passed by Judicial Magistrate 1st Class, Chopal, District Shimla, Himachal Pradesh, in Police Challan No. 237-II/2013, titled as State of Himachal Pradesh v. Kalawati, whereby accused-respondent Kalawati (hereinafter referred to as the accused), stands 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. 69/2011, dated 18.6.2011 (Ex.PW-3/A), registered at Police Station, Chopal, District Shimla, Himachal Pradesh, under the provisions of Section 447 of the Indian Penal Code and Section 33 of the Indian Forest Act, accused Kalawati was charged to face trial. 4. Briefly stated, case of the prosecution is that accused had illegally encroached upon the Government land comprised in Khasra No. 961/648, measuring 0-77-85 hectares, Jungle/Beat Marawag, Tehsil Chopal, District Shimla, Himachal Pradesh, and had raised an apple orchard over it. The matter was reported to the Police by Kewal Ram (PW-1), Beat Guard, on the basis of which FIR (Ex. PW-3/A) was registered. During investigation, police prepared spot map (Ex. PW-3/D); got demarcation of the spot conducted; took into possession demarcation report (Ex. PW-2/A), jamabandi (Ex. PW-3/B), Aks Musabi (Ex. PW-3/C). 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 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. From the conjoint reading of testimony of the revenue and forest officials, it is quite apparent that the demarcation, so carried out on the spot by Shri Mohinder Singh (PW-4), Field Kanungo, is not in accordance with law. R.S. Verma, learned Additional Advocate General, has taken me through the record of trial Court, including testimonies of the prosecution witnesses. 7. From the conjoint reading of testimony of the revenue and forest officials, it is quite apparent that the demarcation, so carried out on the spot by Shri Mohinder Singh (PW-4), Field Kanungo, is not in accordance with law. Shri Mohinder Singh does not state that any spot tatima was prepared at the time of demarcation. He states that the accused was present on the spot at the time of demarcation. However, his testimony shows that no statement of the accused was recorded on the spot. Thus, presence of the accused on the spot becomes doubtful. Also, no witness from the locality was associated at the time of demarcation. Why so? has not been explained. 8. Further, demarcation report (Ex. PW-2/A) is silent about fixing of three permanent points and also there is no mention of adopting of triangular system, while carrying out demarcation. 9. 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. 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.