STATE OF H.P. Vs. KAMAL CHAND

JUDGEMENT

(1.) By this appeal, the State has challenged the acquittal of the accused by the Additional Sessions Judge (Special -II), Shimla in Criminal Appeal No. 165 -S/10 of 1985 under Sec. 33 of Indian Forest Act, 1927.

(2.) Briefly, the facts are that Forest Guard Giani Ram (PW -1) while patrolling the area of Nalivan (forest), found two Deodar trees having been illicitly felled. The accused was found present at the spot and was caught red -handed while cutting the trees. Damage report was prepared and one of the trees was taken into possession and handed over on Spurdari to Budhi Singh. The complaint against the accused was prepared and initiated in the Court of Sub -Divisional Judicial Magistrate, Rohru. Notice under Sec. 251 of the Code of Criminal Procedure was given to the accused who pleaded not guilty and claimed to be tried. The trial ended in conviction of the accused and he was sentenced to rigorous imprisonment for three months and a fine of Rs. 500/ -. This conviction was successfully assailed before the appellate Court; this is how the matter has been brought in this Court by the State. Shri Ram Murti Bisht, learned Law Officer for the State contends that the impugned judgment of the Additional Sessions Judge deserves to be set aside for the reason that in view of the cogent and convincing evidence on the record the conviction recorded by the trial Judge could not have been set aside. It was also contended that the appellate Court created a new case in favor of the accused although no such defense or plea was ever set up by the accessed before the trial Court. The appellate Court could not have acquitted the accused on the basis that application of Ss. 29, 30, 31 and 33 of the Forest Act was not established by the prosecution. Let the matter be examined in the light of these submissions of the counsel for the State. According to the evidence, it was Forest Guard, Giani Ram (PW -1) who found the accused cutting the trees at the spot. He prepared the damage report (Ex. PA) as well as the confessional statement (Ex. PC). According to him, the accused confessed having cut the trees, but refused to sign the confessional statement. This fact has been recorded on this document witnessed by Moti Lal (PW -2) and Parma Nand (PW -3). Although these witnesses have not supported the prosecution, however, it cannot be denied that cutting of two trees of Deodar variety by the accused is established from the statement of Giani Ram (PW -1). There is no reason to disbelieve him. As a matter of fact, there is reason as to why Moti Lal (PW -2) and Parma Nand (PW -3) have not supported the case of the prosecution. They are known to the accused and belong to his vicinity. They are interested in the accused in saving him and not in saving the trees being cut illicitly. Further, the explanation given by Moti Lal (PW -3) relating to his signing of document (Ex. PC) is thoroughly absurd. These witnesses cannot, as a matter of fact, be called independent Witnesses since their whole attempt has been to save the accused. Therefore, even if their statements art not taken into consideration, the statement of the forest Guard (PW -1) is enough to prove the case of illicitly felling of two Deodar trees by the accused who went on cutting the same despite the fact that he was asked by the forest Guard not to do so.

(3.) Next, the question as to whether the appellate court is right in coming to the conclusion that the prosecution has not been able to establish that the forest is protected forest and the statutory provisions in this regard were duly applied. The conclusion on this aspect is completely misconceived. Firstly, there is no dispute on this aspect of the matter between the parties and it is not necessary for (the prosecution to have first alleged and proved that the forest in question is a protected forest. It was only because it was protected forest that cutting of the trees was prohibited. Secondly, the prosecution has already filed notification (Ex. PX) on the record of this case. Thirdly, the accused has nowhere suggested to any of the witnesses to the case that the forest has not been notified as protected forest. As a matter of fact in his explanation under Sec. 313 Code of Criminal Procedure he has admitted that Nalivan Forest is a protected forest. Fourthly, under Sec. 114(e) of the Evidence Act there is presumption that all official acts have been regularly performed. No evidence has been led to rebut this presumption by the accused in this case. Fifthly, these requirements are not mandatory in nature and everyone has a knowledge that particular forest is Government forest and cutting of trees therein is statutorily prohibited. Reference to Hira Lal v/s. State of Himachal Pradesh (Cr. Revision No. 143/85, (ILR 1986 H. P. 71) is no longer relevant in view of my decision in State of Himachal Pradesh v/s. Tangin Durja, (1989 (1) Sim L.C. 255) (ILR 1989 H. P. 52) which has been confirmed by the Supreme Court of India in Special Leave Petition (Cril. No. 832 of 1989) decided on 13th January, 1989 (six). The result of the aforesaid discussion is that there is merit in this appeal by the State. Accordingly the appeal is allowed and the impugned judgment is set aside. The accused is convicted under Sec. 33 of the Forest Act.