State Of Jharkhand vs Jodhi Yadav

Heard the parties.

The case of the prosecution in brief is that on 18.11.1998 at about 8:00 am, the forest guard Anjani Kumar Sinha saw the respondent breaking up and

cleaning the land inside the forest with a spade and the respondent fled away after seeing the patrolling party and the forest officials recovered and

seized one spade and one basket from the place of occurrence and the same was brought to beat office at Tisri and after enquiry, the offence report

was submitted in the court.

Cognizance for the offence punishable under Section 33 of the Indian Forest Act, 1927 and Section 2 of the Forest Conservation Act, 1980 was

taken and charges for the said offences were framed.

In order to prove its case, the prosecution altogether examined four witnesses. Besides the oral testimonies the following documents were also

proved by the prosecution:-

(a) Ext.-1 is the map of place of occurrence.

(b) Ext.-2 is the prosecution report.

(c) Ext.-3 is the seizure list.

(d) Ext.-4 is the offence report.

(e) Ext.-5 is the notification under Section 29 of the Indian Forest Act.

(f) Ext.-6 is the notification under Section 30 of the Indian Forest Act.

(g) Ext.-7 is the notification as published in vernacular.

P.W.-1 Anand Bihari is the forester. He has stated about being informed by the forest guard Anjani Kumar Sinha about the occurrence. He went

to the place of occurrence for enquiry and found the occurrence to be true. He found 30 decimals of land of plot No.4 and 6 of the forest were

encroached. He prepared the map (Ext.1). In his cross-examination, the P.W.-1 has stated that he cannot say the boundary or the area of plot No.4

and 6 nor can he give the dimension of the place of occurrence.

P.W.-2 Anjani Kumar Sinha is the forest guard. He has stated that on 18.11.1998 while patrolling along with Jagdeo Prasad Singh- another forest

guard, he saw the accused- respondent breaking the soil within forest area and on seeing the patrolling party, he ran away. One spade and one basket

were seized from the place of occurrence and seizure list has been prepared. The P.W.2 submitted the offence report to the P.W.1. In his cross-

examination, the P.W.2 stated that he was not aware about the area of the plot No.4 and 6 and he cannot say whether there is any raiyat of plot No.4

and 6 but he stated that near the place of occurrence, there are raiyats but there is thick fields in the southern and eastern side of the place of

occurrence land which is being cultivated. He cannot say the Khata number of the place of occurrence land. The seized property was not available in

the court at the time of examination of the P.W.2 as a witness in court. He does not know whether decree has been passed in respect of plot No.4

and 6 in favour of the accused person.

P.W.-3 Jagdeo Prasad Singh has stated that on 18.11.1998 in the morning, he along with the P.W.2 were patrolling and during the patrolling he saw

the accused/ respondent- Jodhi Yadav was cultivating the forest land and was cutting the soil and on seeing the P.Ws.2 and 3, he fled away. They

seized one spade and a basket from the place of occurrence. He identified the accused/respondent who was present in the court. In his cross-

examination, he stated that there is a basti (hutment) of 50-60 houses. The seized articles were not available in the court when P.W.3 was examined.

The place of occurrence consists of four beds (kyari).

P.W.-4 Krishna Barai is the court forest guard. He is a formal witness. He has proved the documents which have been marked exhibits.

In his defence, the accused-respondent examined four witnesses. D.W.-1 Pokhi Mahto stated that the place of occurrence land bears plot No.4

Khata No.18 Mauza- Khoto. The age of D.W.-1 Pokhi Mahto was seventy years on the date of his examination in the court and he has stated that

since the date of his gaining sense, he has been seeing the accused Jodhi and prior to that his ancestors have been cultivating the said land and the

accused- respondent never cultivated inside the forest area. In his cross-examination, the D.W.-1 Pokhi Mahto stated that the plot No.4 is in total area

of 8 acres and the plot No.4 is not included in the forest land and the present case has been instituted for ten decimals of land.

D.W.-2 Lokhi Mahto is also a person of 70 years of age on the date of his examination in the court and he has also stated about the place of

occurrence being cultivated by the accused- respondent and prior to him, his ancestors cultivated the land for 50-60 years and near the place of

occurrence, there are other lands also and forest is far away from the place of occurrence. The civil court passed a decree in favour of the accused-

respondent in respect of plot No.4 and 6. In his cross-examination, the D.W.-2 has stated that there is relationship of paternal uncle and nephew

between him and the accused.

D.W.-3 Baijnath Vishwakarma is an advocate’s clerk. He has proved the land revenue receipt which has been marked Ext. A and A/1.

D.W.-4 - Jodhi Yadav is the accused-respondent himself. He has stated that he is having eight acres of paddy field over plot No.4 and 6. His

grandfather got the said land by way of Hukumnama and they have been paying the land revenue in respect of the said land. A case was going on in

the Civil Court also and the Civil Court has passed a decree in his favour. He never cultivated the forest land.

The learned trial court relied upon the judgment of a co-ordinate Bench of this Court passed in the case of Jagdish Mehta vs. State of Jharkhand

reported in [2003 (2) J C R 525 (Jhr)] wherein in the facts of that case when no fresh notification under the provisions of the Indian Forest Act, 1927

renewing the place of occurrence of that case to be a protected forest was even after elapsing of more than 30 years the co-ordinate bench observed

that the prosecution in that case was suffering from legal infirmity. The trial court considered that in this case the notification declaring the place of

occurrence land to be a protected forest was published in 1961 and the occurrence took place in 1998 that is more than 30 years after the publication

of the said notification and the prosecution failed to bring on record any subsequent notification under Section 30 of the Indian Forest Act, 1927 to be

valid on the date of occurrence, and held that the prosecution has failed to establish the offence punishable under Section 33 of the Indian Forest

Act,1927 and the prosecution failed to establish the offence under Section 2 of the Forest Conservation Act, 1980 and hence, acquitted the accused-

respondent of the case.

Mr. Shekhar Sinha, learned Public Prosecutor appearing for the State submits that the learned trial court failed to appreciate the evidence in the

record and the learned trial court failed to consider that the place of occurrence land has been notified by the Government vide Notification No. C/F

17023/55-2653 R dated 31.08.55 and thereafter to decide the right and title of the individuals, a forest settlement officer was appointed but the

accused-respondent having failed to ventilate his demand before the forest settlement officer, he cannot claim to be the owner of the place of

occurrence land. It is further submitted that the leaned trial court failed to consider that though the accused-respondent claimed that a Hukumnama

was granted in favour of his grandfather but the accused-respondent withheld the said Hukumnana from the trial court. Learned Public Prosecutor

further submits that in view of the evidence in the record, learned trial court ought to have held that the offence punishable under Section 2 of the

Forest Conservation Act, 1980 is also made out. It is next submitted that the operative portion of the order passed by the coordinate Bench of this

Court in the case of Jagdish Mehta (supra) has been stayed by the Hon’ble Supreme Court vide order dated 08.11.2003 passed in Petition (S) for

Special Leave to Appeal (Crl.) No.3506 of 2003. Hence, it is submitted by the learned Public Prosecutor that the impugned judgment of acquittal

dated 27.03.2004 be set aside and the respondent be convicted for both the offences for which he has been charged.

Mr. Shree Niwas Roy, the learned counsel for the respondent on the other hand defended the impugned judgment and submitted that the

prosecution has miserably failed to establish any offence punishable under Section 33 of Indian Forest Act, 1927 having been committed by the

accused-respondent. It is further submitted that for reasons best known to the prosecution, it failed to produce the alleged seized spade or the basket

in the court. It is then submitted that there is no material in the record that the alleged spade or basket was belonging to the respondent more so when

the same were not produced in court. It is next submitted that admittedly, the prosecution witnesses have stated that there was thick cultivable land

adjacent to the place of occurrence land, none of the witnesses of the prosecution could state about the boundary of the place of occurrence nor could

anybody including the forester- who prepared the map, state about its dimension though undisputedly the place of occurrence is a part plot of a large

chunk of land. It is also submitted that under such circumstances, in the absence of any credible evidence in record to sufficiently describe the place

of occurrence land with dimensions or boundaries, when admittedly the place of occurrence land is a part plot of a large chunk of land, so the

evidence in the record is insufficient to establish either of the charges framed against the accused-respondent. It is further submitted that admittedly

the place of occurrence land was a bed (kyari) which means cultivable land, hence it is highly unlikely that there would be any bushes existing over

such cultivable land and this makes the case of the prosecution highly improbable. So far the offence punishable under Section 2 of Forest

Conservation Act, 1980 is concerned, it is submitted by the learned counsel for the accused-respondent that the same is not a penal offence hence,

learned court ought not have framed the charge for the said offence and having held that no offence under Section 2 of Forest Conservation Act, 1980

is made out, no wrong has been committed by the trial court.

It is further submitted that penalty for violation of the provisions of the Forest Conservation Act, 1980 has been provided in Section 3A of Forest

Conservation Act, 1980 but the restraint envisaged in section 2 of Forest Conservation Act, 1980 for non-use of forest land for non-forest purpose

casts the duty in respect of the same upon by the State Government or any authority passing any order in this respect and in this case as the accused

person is admittedly neither any authority of the State nor anyway related to the State Government hence, it is submitted that the offence of Forest

Conservation Act, 1980 cannot be committed by a private person like the accused- respondent. Hence, it is submitted that learned court below having

rightly acquitted the accused respondent, this appeal being without any merit be dismissed.

Having heard the rival submissions made at the Bar and keeping in view the settled principles of law that an appellate court, however, must bear in

mind that in case of acquittal, there is double presumption in favour of the accused, firstly, the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of

law and secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the

trial court as also the principle that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not

disturb the finding of acquittal recorded by the trial court as has been held by the Hon’ble Supreme Court of India in the case of Chandrappa v.

State of Karnataka, (2007) 4 SCC 415, and also the settled principle of law that the mere fact that a view other than the one taken by the trial court

can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an

order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the

conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to

the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court

answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be

recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then â€" and then only â€" reappraise the

evidence to arrive at its own conclusions as has been held by the Hon’ble Supreme Court of India in the case of Ramesh Babulal Doshi v. State

of Gujarat, (1996) 9 SCC 225, this Court is of the considered view that as there is the admission of the prosecution witnesses in the record that there

was thick cultivable land adjacent to the place of occurrence land and in the absence of any credible evidence in the record to pin point the exact

location of the place of occurrence land by mentioning the dimensions or the boundaries of any of the individual plots, though they were parts of big

plots and as also admittedly the place of occurrence was a bed (kyari), which supports the contention of the accused-respondent that he and his

ancestors have been cultivating the said land from the time of his ancestors, it is highly improbable that there would be any shrub in such land and this

coupled with the fact that without any plausible reason the prosecution has failed to produce the alleged seized articles- the spade and bucket in court

as well as the testimonies of the defence witnesses which indicates that the accused-respondent has never encroached upon the forest land, this Court

is of the considered view that the accused- respondent is entitled to the benefit of doubt so far as the charge for the offence punishable under section

33 of the Indian Forest Act, 1927 is concerned.

So far as the charge for the offence punishable under section 2 of Forest Conservation Act, 1980 is concerned, it is relevant to quote Section 2 and

3A of Forest Conservation Act, 1980 which read as under:-

Restriction on the dereservation of forests or use of forest land for non-forest purposeâ€"Notwithstanding anything contained in any other

law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central

Government, any order directing:

(i) that any reserved forest (within the meaning of the expression “reserved forest†in any law for the time being in force in that State)

or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non- forest purpose;

[(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority,

corporation, agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose

of using it for reafforestation.]

3-A. Penalty for contravention of the provisions of the Act.- Whoever contravenes or abets the contravention of any of the provisions of

Section 2, shall be punishable with simple imprisonment for a period which may extend to fifteen days.

It is crystal clear from the bare perusal of section 2 of Forest Conservation Act, 1980 that the same is not a penal provision of law and certainly

charge for the said offence simpliciter ought not have been framed by the trial court. Though section 3A of Forest Conservation Act, 1980 is penal

provision of law the same is not attracted so far as the allegations against the accused-respondent of this case are concerned. Thus no fault could be

found in the order of the trial court for the said acquittal of the accused-respondent.

In view of the discussions made above the evidence in the record falls short from warranting interference with the impugned judgment of acquittal

in exercise of the appellate power of this court. Accordingly, there being no merit, this appeal is dismissed.

Let the L.C.R. be sent to the learned court below along with a copy of this judgment.