State of H.P. vs Tangin Durja

Bhawani Singh, J.—The State of Himachal Pradesh, feels aggrieved by the judgment of Chief Judicial Magistrate, Kinnaur at Kalpa, in case No. 149/3 of 1983, whereby the accused Tangin Durja, has been acquitted of the charge u/s 33 of the Indian Forest Act.

The allegation against the accused Shri Tangin Durja, is that on 15-1-1982, Forest Guard Bharat Bhushan. and Block Officer, Shri Partap Singh, while on patrol duty in Forest Compartment No. 173, found the accused felling 5 deodar trees. A damage report was prepared, statements of witnesses recorded and the challan was there after filed in the Court, aforesaid, u/s 33 of the Indian Forest Act, 1927. After the trial, the accused was acquitted by the Court.

Shri Lokeshwar Singh Panta, learned Deputy Advocate General for the State of Himachal Pradesh, assailed the judgment of the trial court and urged that the prosecution has clearly established the case against the accused. So, in view of this, the judgment of the trial court deserves to be set-aside. Reference has been made to the statements of various witnesses produced by the prosecution.

Shri Kapil Dev Sood, learned Counsel appearing for the accused, submits that offence against the accused is not proved and there are major contradictions in the statements of various witnesses cited by the prosecution. These submissions of the learned Counsel for the accused, in my opinion, have no substance and have to be rejected in view of the evidence being discussed hereinafter.

The statement of P. W. 1, Shri Partap Singh, Block Officer, is that while patrolling Forest Compartment No. 173 along with Forest Guard Bharat Bhushan, Sohan Singh and Padam Lal, on 15-1-1982, the accused met them. The accused had cut 5 deodar trees and after sawing the same, he was sitting there. On being asked, the accused admitted the guilt. The Forest Guard prepared a damage report. The timber was taken in possession and as the accused did not pay the compensation for cutting the trees, he states, the present case had to be filed. He further states in his cross-examination that there is a field of the accused adjacent to the place of occurrence. The accused had not cut. Trees from his own field. He further states that he did not make measurement of the area because the trees were within the boundary pillars of the Forest Department and the accused did not say that this land, where the trees had been cut, belonged to him. The other witness is P. W. 2, Slid Padam Lal, who has been declared hostile. However, he admits his presence in the forest with Block Officer, Partap Singh, P. W. 1, Forest Guard Bharat Bhushan, P.W. 3, Sohan Lal and one or two persons and availability of sufficient cut timber but says that it was in the land of the accused. He admits his signatures on the damage report Ex. P. W. 2/A and that the accused had also signed on this report in his presence. He denies that the accused had admitted the fact that he had cut the trees in the Government Forest although, he states, the Forest Guard and the Block Officer were saying that the trees had been cut in the Government Forest. In his cross-examination by the defence, he state that the signatures of the accused were taken on the damage report Ex. P. W. 2/A after the contents of the same were read over to him although the accused had said that he had cut the timber in his own land.

P.W.3, Shri Bharat Bhushan, Forest Guard, supports the version of P.v.1 and further states that the accused had said that the trees were in his land whereupon they had told him to get the land measured which he did not do. The damage report Ex. P. W. 2/A was signed by the accused of his own will and they had not threatened him to do so. He further states that the accused had admitted his guilt in the presence of Padam Lal and further states that the forest in question was a reserved forest covered under the notifications filed and proved as Ex. P. W. 3/ B and Ex. P. W. 3/C. He also states that there is boundary around this forest. In his cross-examination, this witness states, there is no fencing at this place. The land of the accused adjoins this place and the same is uncultivated and there are boundary pillars at this place. He states that he had asked the accused to demarcate the land and that is why he got the signatures of the accused on the damage report the next day.

P.W.4, Shri Sohan Singh, confirms his presence along-with other P. Ws in the forest and the factum of trees having been cut and sawn. He further states that the accused on being questioned as to why he had cut trees, .the accused stated that the same were cut from the land in his ownership whereupon he was told by the Forest Guard, P.W. 3, that the same were cut from the Government Forest. Thereafter the damage report was prepared. It was signed by the accused. The timber was given in the sapurdari of one Shri Sarjan Bhagat, P.W. 5. In his cross-examination, he states that the land of the accused is adjoining to the place where the trees were cut.

P.W.6 in his cross-examination states that the boundary pillars of the Government arc situate at a distance from the land of the accused where there was no fencing and that the place where the cut timber was lying, was owned by the accused.

The accused in his examination u/s 313 of the Code of Criminal Procedure stated that he had cut a tree in his land but admits that he was called by the Forest Guard (P.W. 3) on the spot and that he was asked to demarcate land which he did not do and that the damage report was prepared and the same was signed by him at point ''A'' He denies that the forest in question was a Government Forest and that there was boundary around it. No defence was led by the accused except tins statement.

From the perusal of the evidence on record, it is clear that the prosecution has been able to prove successfully that it was a Government Forest. 5 deodar trees were cut by the accused ''and the accused also admitted the same having been cut by him. A damage report was prepared and signed by the accused. The only point of dispute is the version of the accused that the trees were cut by him in his own land. This defence of the accused cannot be accepted in view of the fact that the land of the accused is distinct and separate from the land of the Government. The separation is indicated by the boundary pillars. It is proved that trees have been cut from the place which is within the boundary pillars. Where there are boundary pillars, there is no need to raise any type of fencing as raising of boundary pillars is a sufficient indication of the area within the boundary pillars being owned by the Government. An effort has been made by the accused to set-up a case that the timber was laying in his field away from the boundary pillars. But I am not convinced by this explanation. It appears that the accused wants to confuse the issue by mixing the cutting of trees with existence of converted timber. It can be that where the forest of the Government and the land of the accused is adjoining to each other, the converted timber may be collected by the accused in his own land whereas the trees were cut in the nearby area. Such a situation has, it seems, taken place in the present case. It does not, in my opinion, make any dent in the case of the prosecution nor does it significantly change the basic fabric of the case. The accused having signed the damage report Ex. P.W.2/A voluntarily, further shows that the case now being attempted to be set-up is patently wrong.

I proceed to deal with the submission of Shri K.D. Sood, learned Counsel appearing for the accused, that there cannot be any conviction unless and until the prosecution proves that the forest in question has been declared to be a "protected forest" u/s 29 of the Indian Forest Act and then the trees are declared reserved u/s 30 of the Act. It is further contended that requirement of the notification to be affixed in the neighborhood of the forest in the local vernacular as required u/s 31 has to be there.

This defence has not been taken by the accused before the trying Magistrate. However, I examine this argument also. Perusal of the record shows that the prosecution has placed notification Ex. P.W. 3/B dated February 25, 1952 relating to the application of Sections 29 and 30 of the Act. Besides, another notification dated November 30, 1963, Ex. P.W. 3/C, has also been issued u/s 30 and 31 of the Indian Forest Act. (XVI) of 1927 declaring all the trees in the forest, declared protected vide notification Ex. P.W. 3/B, to be reserved with effect from January 1, 1964. The third contention is of no significance because, firstly, the same is not a mandatory requirement. Even if it is presumed that the notification is displayed in the neighborhood of the forest, as the official acts are presumed to have been donned in the manner envisaged, it becomes insignificant, with the passage of time, as the people, for whom the same is meant, do not at all remember as to the affixation thereof at one time in the past. Such publication is to be presumed as it is not possible to prove notifications issued in 1952 and 1963 after such a long lapse of time and this difficulty will go on increasing with the passage of time. The object of displaying the same is that the people come to know that the forest belongs to the Government and the same is protected and cutting of trees there from is prohibited. How long will it last even if the notification is so displayed? Certainly not for more than a couple of weeks if it is not defaced, destroyed or removed before that. Therefore, there should be some such display which constantly informs the people as to the existence of the Government forests, which in the present case, is met by the boundary pillars constructed by the Government. These boundary pillars not only separate the Government forests from the private land but also inform the people constantly that the forests within the boundary pillars belong to the Government. This contention, therefore, is insignificant and the challenge is unsustainable logically and practically as well.

Reference to Hari Lal v. State of H.P. reported in I.L.R.1986 H.P. 71, does not, on facts as well, apply to the present case as neither the notifications, as are available in the present case, were there in that case nor any discussion and decision made in the light of that. Further, the mandatory and non-mandatory nature of Section 31 of the Indian Forest Act was not specifically discussed and decided. In addition to this, the plea of boundary pillars was not also in issue in that case.

In view of the discussion above, the appeal succeeds and it is allowed. The judgment of the trial court is set-aside. The accused is convicted of having committed an offence u/s 33 of the Indian Forest Act. Taking a lenient view of the matter as there is no evidence of any previous conviction of the accused and the accused being a Tribal, I think, imposition of fine, instead of jail sentence, would serve the purpose in the present case. I, therefore, impose a fine of Rs. 500/- on the accused and in default thereof to under go simple imprisonment for a period of two months. The timber seized from the accused and lying in the sapurdari of Sarjan Bhagat (P.W.5) be confiscated to the State.