Devinder Gupta, J.
1. Criminal Appeal No. 43 of 1985, is by the State of Himachal Pradesh against the judgment passed on November 9, 1984 by Special Judge, Shimla, in Criminal Case no. 34-S/7 of 1983 acquitting the accused-respondents of the charges under Sections 379, 411, 420, 120B, 407, 468, 218, 119 and 117 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act.
2. Criminal Appeal No. 14 of 1985 is by accused-respondents Gulabu Ram and Sadh Ram, seeking to set aside the order passed by Special Judge, Shimla, on November 9, 1984 while acquitting them and ordering the confiscation of the seized timber in favour of the State with a prayer to direct its return or sale proceeds thereof to them.
3. The facts as revealed, on the basis of which accused-respondents were tried for the aforementioned charges are as under. Accused-respondents Nos. 7 and 8 had their partnership firm by the name of M/s. Gulabu Ram Sadh Ram which had been dealing with the timber business. Sohan Lal, accused-respondent No. 5, who is son of Gulabu Ram, at the relevant time was posted as Reader in the Court of Sub-Judge-cum-Judicial Magistrate, Theog. Ram Lal, respondent No. 6 son of Sadh Ram, respondent No. 8 had died during the pendency of the case before the Special Judge. Respondent No. 8 was posted as the Forest Range Officer at Kotkhai and respondents No. 2 and 4 as Forest Block Officer within Kotkhai Range.. Respondent No. 1 was Kanungo in Sub Tehsil Kotkhai.
4. On January 15, 1975, certain land-owners entered into an agreement for sale of the different species of trees standing upon the land owned by them located within three revenue estates, namely, Gwalath, Dhole and Rhalana in Tehsil Kotkhai District Shimla in favour of respondents Nos. 7 and 8 for which purpose 8 separate agreements were executed. Besides executing agreements, separate affidavits were also given by each of the landowner, which was one of the requirements for getting the cases processed with the Forest Department for obtaining necessary permission for marking of trees and felling thereof. 8 separate applications were moved by the landowners addressed to the Divisional Forest Officer, Shimla, through Range Officer, Kotkhai, praying for marking of the trees standing upon their lands so as to enable them to get the same felled through respondents Nos. 7 and 8 to whom they had agreed to sell the same so to enable them to plant orchard in the land.
5. The aforementioned 8 applications were duly processed in the office of the Range Officer, Kotkhai, who through his letter Ex.PCL/2 dated February 9, 1975, made recommendation to the Divisional Forest Officer, Shimla for according necessary permission for marking. On February 15, 1975, Divisional Forest Officer, Shimla, issued communication Ex.PCL/6 according necessary permission of marking of the trees silviculturally with a direction to accused-respondent No. 3 to have the demarcation obtained through revenue agency and then mark the trees which were sought to be felled. On the strength of this permission, respondent No. 3 got the demarcation through revenue agency and it was respondent No. 1, who is alleged to have carried out the demacration of the land owned by those persons, who had agreed to sell their trees in favour of respondents Nos. 7 and 8. Within the area so demarcated 103 Deodar trees, 186 Kail trees and 33 Rai trees, in all 322 trees were marked for being felled for which purpose, on April 24, 1976, marking lists Ex. PCX/1 to PCX/22 were prepared. These marking lists, along with recommendation of respondent No. 3 were submitted again to the Divisional Forest Officer and on August 12, 1976, P.W. 48 accorded the requisite felling permission vide Ex.PCU entitling and enabling respondents Nos. 7 and 8 to fell 322 trees as per marking lists. Trees were thereafter felled by respondents Nos. 7 and 8 and it is the prosecution case that 968 scants were extracted, out of which permission was accorded to respondents Nos. 7 and 8 to export 484 scants by issuing export permit (transit pass) Ex.PAZ/1 dated April 25, 1977. Respondents Nos. 7 and 8 exported the 484 scants. The remaining 484 scants were ultimately seized by the police during investigation vide seizure memo Ex.PN and seizure list Ex.PN/I. 478 scants were retained in the range depot at Kotkhai whereas 6 scants were taken by way of sample in custody by the police.
6. Shama Nand Chauhan P.W. 10 on October 7, 1976, November 12, 1976 and July 26, 1977, sent three different complaints Exs. PAB, PAB and PAB/2 to higher authorities complaining that respondent No. 5 Sohan Lal due to his influence which he was wielding in the area had started indulging in illicit felling of trees from Government land. On November 3, 1977, Kamla Devi P.W. 40 also submitted her complaint Ex.PCB to the higher authorities complaining regarding illicit felling from Government lands by various persons. This complaint made by Kamla Devi resulted in the registration of FIR No. 133 of 1977 at Police Station Theog. During investigation of the case registered under the aforesaid FIR, P.W. 2 Sukh Ram Deputy Superintendent of Police on December 23, 1991 sent three different reports Exs. PA, PB and PC on the basis of which FIR No. 160 of 1977 Ex.PA/1, FIR No. 161 of 1977 Ex.PB/1 and FIR No. 162 of 1977 Ex.PC/1 were registered at Police Station Theog regarding the alleged illicit felling of trees from Government land situate within revenue estates Dhola, Khalana and Gwalth, respectively.
7. During investigation of the cases, the investigating agencies alleged to have obtained and procured the services of Kewal Ram Sadar Kanungo from the office of District Collector, Shimla, for carrying out demarcation which are alleged to have been given by him on January 21, 1978 and January 22, 1978 as regards revenue estate Gwalth and jungle Mihani as per the certificates of demarcation Exs. PO and PO/1 for revenue estate Gwalth and Ex.PO/ 2 for revenue estate Jungle Mihani. On the basis of this demarcation, lists of stumps of felled trees Exs.PH, PK and PL are stated to have been prepared by P.W. 3 Magni Ram, Forest Block Officer. Sadar Kanungo Kewal Ram has since died and could not be examined in the cases as a witness. Subsequently by moving another application, demarcation was also obtained by the investigating agency through P.W. 25 Ganesh Ram, Naib Tehsildar, who is stated to have carried out demarcation on April 30, 1978 to May 3, 1978 within revenue estates Dhola and Khalana vide his certificate Exs. PD/1, PE/1 and PG for which separate reports of demarcation were submitted by him on May 6, 1978, which have been proved on record as Exs. PBH and PBH/1. On the basis of this demarcation carried out by P.W. 25, Maghi Ram, Block Officer P.W. 3 and R. P. Jaswal, Assistant Conservator of Forests are stated to have prepared lists of the stumps of felled trees, Exs.PD to PH. It is the prosecution's case that as a result of demrcation got carried out by it during the investigation of the case through Kewal Ram and Genesh Ram P.W. 25.124 trees were found to have been felled from within the Government land, out of which 105 stumps were noticed having hammer mark thereupon, whereas 193 found to be Unmarked. Besides this, 26 trees were found to have been felled within the land comprised in Khasra No. 101 situate in revenue estate Dhola owned by one Raidhu Ram, out of which 22 were having hammer mark thereupon and four were unmarked, who had never agreed to sell his trees in favour of respondents Nos. 7 and 8. The remaining trees are stated to have been found within the area applied for.
8. The prosecution furher alleged that as a result of the opinion rendered by the handwriting expert and Finger Print Bureau, Phillaur, some of the applications as well as affidavits, on the basis of which permission for marking was obtained, were found to have been forged by Ram Lal deceased son of respondent No. 8. Sohan Lal respondent No. 5 son of respondent No. 7, who was posted as Reader and had nothing to do with the partnership firm of respondents Nos. 7 to 8 was also found to have prepared marking lists and scribed the certificates appended to those lists. Blanks in the affidavit accompanying the applications seeking marking permission were also found to have been filled in by Sohan Lal, who also happened to identify some fake persons as deponents before the Oath Commissioners, who attested the affidavits. Sohan Lal was also stated to have obtained copies of the Musavi attached to the applications seeking permission to mark the trees. On the basis of these facts and circumstances; a challan was presented in Court against the respondents on the allegations that there was a conspiracy amongst the accused to illicitly fell the trees from the Government land under the cover of felling trees from the private lands. It was alleged that to achieve this object, accused-respondents Nos. 1 to 4 prepared incorrect marking lists and certificates at their foot and also at the foot of list of timber on the basis of which export permit was got issued from the Divisional Forest Officer Shimla and as such they abused their position as public servants to obtain pecuniary advantage for themselves or for the other co-accused. Accused Sohan Lal and Ram Lal, now deceased, were alleged to have forged documents in order to promote the object of conspiracy while accused-respondents Nos. 7 and 8 Gulabu Ram and Sadh Ram are alleged to have committed the ultimate act of felling and removal of trees from the Government land.
9. The Special Judge, on the basis of material available on record charged the accused respondents, who pleaded not guilty and claimed to be tried. After the prosecution evidence was recorded, the accused, respondents were questioned under Section 313, Cr.P.C., wherein they denied having marked or felled the trees from Government land or the other acts which according to prosecution constituted conspiracy. Laxmi Nand pleaded that due and proper demarcation, as per the revenue record was given and he discharged hid duty and obligation without any mala fide object and to the best of his capacity. Respondents Nos. 2 to 4 stated that on the basis of the demarcation carried out by Laxmi Nand in accordance with law, rules and regulations. They marked the trees which were found to be standing upon the private land of the individuals for which applications had been made and discharged their duty in accordance with the jurisdictions issued in this behalf by the higher authorities. Sohan Lal denied having exercised any influence on any public servant for obtaining any undue favour and respondents Nos. 7 and 8 denied having felled and removed any tree from the Government land or having taken undue advantage. Sohan Lal as well as accused Dila Ram explained the circumstances under which Sohan Lal prepared the marking lists and appended certificates in his hand below the same as per the instructions of accused Dila Ram, which certificate was stated to have correctly been appended by Dila Ram respondent. Sohan Lal also explained the circumstances under which he happened to have filled in the blanks in affidavits and done other work for the benefit of his relations, namely, father and uncle, accused-respondents Nos. 7 and 8. The accused seriously objected and disputed as to the manner in which the investigating agency procured demarcation reports, legality, validity and genuiners of which was also challenged.
10. The Special Judge, on the basis of oral and documentary evidence produced by the prosecution and keeping in view the stand taken by the accused-respondents in order to find out as to whether the prosecution had made out its case and proved the charges against accused-respondents formulated the following points for determination :
1. Whether the prosecution has proved that there was a conspiracy among the accused to fell the trees from the Government land under the cover of felling from private lands?
2. If point No. 1 is proved whether all the accused persons and if not all, which of them, were privy to the conspiracy?
3. Whether the prosecution has proved that the marking lists, the list of timber and the certificates at their feet had incorrectly been prepared by accused N. K. Gupta, Dilla Ram Datta, Ratti Ram Bhardwaj and Laxmi Nand accused with intent to cause loss to the State of Himachal Pradesh.
4. Whether the prosecution has proved that the accused N. K. Gupta, Dilla Ram Datta, Ratti Ram Bhardwaj, and Laxmi Nand, being public servants, obtained pecuniary advantage for themselves of their co-accused, by corrupt or illegal means or by otherwise abusing their positions as public servants?
5. Whether the prosecution has proved that lists of marked trees, list of timber and the certificates at their feet had been forged by accused N. K. Gupta, Dilla Ram Datta, Ratti Ram Bhardwaj and Laxmi Nand?
6. If point No. 5 is proved whether the accused are guilty of using the documents mentioned therein as genuine knowing or having reason to know that the same were forged.
7. Whether the prosecution has proved that accused Sohan Lal Kalta forged documents in the names of the owners of private lands of Chaks Gawalth, Dhola and Khalana, as alleged?
8. If point No. 7 is proved whether the accused Sohan Lal is guilty of using the documents mentioned in the said point, as genuine knowing or having reason to know that the same were forged?
9. Whether the prosecution has proved that the accused Sohan Lal, being public servant, by corrupt or illegal means or by otherwise abusing his position as Public servant obtained pecuniary advantage for himself or his co-accused?
10. Whether the prosecution has proved that the accused Ratti Lal Bharwaj recorded a false certificate on the list of timber that the timber mentioned in the list did not include any timber extracted from any illicitly fellted tree and that no illicit feeling had been done by M/s. Gulab Ram Sadh Ram?
11. Whether the prosecution has proved that accused N. K. Gupta, Ratti Ram Bhardwaj, Dila Ram Datta, Laxmi Nand and Sohan Lal Kalta have cheated the State of Himachal Pradesh?
12. Whether the prosecution has proved that the accused Sadh Ram Gulab Ram committed the theft of trees from the Government land comprised in khasra Nos. 2, 8, 68, 71 and 132/100?
13. Whether the prosecution has proved that the accused Gulab Ram Sadh Ram committed the theft of 26 trees from khasra No. 101 in respect of which there was no felling permission?
14. Whether the sanction for the prosecution of accused N. K. Gupta, Dilla Ram and Ratti Ram accorded by the Chief Conservator of Forests is not a valid one?
11. The a forementioned points, as formulated by the Special Judge were answered in the negative, as a result of which the accused were acquitted. It is this judgment of acquittal, which is under challenge in Cr.A. No. 43 of 1985. While acquitting the accused-respondents, the Special Judge also considered the prayer of accused-respondents No. 7 and 8 for release of the seized timber which had already been disposed of during the pendency of the trial and the sale proceeds deposited in the Government treasury. The prayer of accused-respondents No. 7 and 8 was turned down. However, the Special Judge ordered the confiscation of the seized timber to the extent of the yield which could be obtained from out of the trees, which were alleged to have been felled from the Government land and directed the return of the balance timber to accused-respondents Nos. 7 and 8, as the timber had already been disposed of, it directed that the amount of money equivalent to the price of the timber which the trees in question could have yielded be deposited in the Government treasury and the balance be returned to the accused. This order is also under challenge at the behest of accused-respondents No. 7 and 8 in Criminal Appeal No. 14 of 1985.
12. We have heard the learned counsel for the parties at great length. We have been taken through the oral and documentary evidence. Shri Chuni Lal Sharma, representing the State vehemently urged that there was I material on record, sufficient enough to bring home the charge against accused-respondents and the findings recorded by the learned Special Judge were liable to be set aside. The demarcation as given on spot by P.W. 25 and Kewal Ram Kanungo were perfectly legal and valid. The conclusion drawn by learned Special Judge discarding such reports were not in confirmity with law. Having heard Shri Sharma, appearing for the State, we do not find any ground to interfere with the reasoning and conclusions of the learned special Judge and we proceed to record our reasons for the same.
13. The demarcation was given by accused-respondent No. 1 on April 24, 1976, at the time when marking lists Ex. PCX/1 to Ex.PCX/22, were prepared by accused-respondents 2 to 4 on the strength of the permission Ex.PCL/6 accorded on February 15, 1975 by P.W. 48. Such report of demarcation has not been produced on record and there is no presumption in law that respondent No. 1 failed to discharge his statutory duty while carrying out the demarcation. In the absence of the report, it has to be presumed that respondent No. 1 did carry out the task of demarcating those parcels of land) out of which marking permission was sought by the land-owners to mark the trees which they had agreed to sell in favour of accused-respondents Nos. 7 and 8. The prosecution relied heavily upon the demarcation reports of Kewal Ram, Sadar Kanungo, Exs.PO/1 and PO/2 and Exs.PBH and PBH/1 given to I Ganesh Ram P.W. 25, on the strength of which lists of stumps Exs.PH, PK and PL and Ex.PD, Ex.PH were prepared by Magni Ram I P.W. 3, which form the basis for the prosecution in assuming that trees had been felled from the Government land. The question which requires determination is whether any reliance can be placed upon such reports of demarcation. The learned Special Judge has discarded these reports of demarcation on various grounds and concluded that since it is not shown that demarcation was carried out in accordance with the instructions issued by the Financial Commissioner, which have been incorporated in Chapter 1-M, Volume I of High Court Rules and Orders, pertaining to Hadd Shikni cases, the same cannot form the basis for holding that trees from Government land were felled.
14. Carrying out the work of measurement and giving demarcation is of a technical type, which is required to be performed by persons well versed with the settlement operations. It is apart of survey work and has to be done carefully so as to rule out any possibility of error being crept in. Chapter 8 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954) deals with surveys and bondaries. Section 106 empowers the Financial Commissioner to make rules for demarcation of boundaries and erection of survey marks. Powers of Revenue Officer to define boundaries are contained in Section 107, which reads as under :
Section 107. Power of Revenue Officer to define boundaries.--
(1) Revenue Officer may for the purpose of framing any record or making any assessment under this Act or on the application of any person interested, define the limits of any estate or of any holding field or other portion of an estate and for the purpose of indicating there limits, repairs survey-marks to be erected or repaired.
(2) In defining the limits of any land under Sub-section (1) the Revenue Officer may cause survey-marks to be erected on any boundary already determined by or by order of any Court, Revenue Officer or Forest Settlement Officer, or restore any survey-marks already set up, or by order of any Court of any such officer.
Similar provisions are found in the corresponding enactment in Punjab, namely, Punjab Land Revenue Act, provisions of which were applicable before coming into force of the H.P. Land Revenue Act.
15. Since there was no set measurement procedure, to be followed, while defining limits of holding of private individuals, to decide boundary dispute cases, a reference was made by the High Court of Judicature at Lahore to the Financial Commissioner, Punjab for issuance of necessary instructions and guide-lines to the Revenue Officer, who were enjoined with the duty to carry out demarcation of the boundaries on the spot, in accordance with the provisions of Section 101 of the Punjab Land Revenue Act, 1887 (which corresponds to Section 107 of the Himachal Pradesh Act). The Financial Commissioner issued the necessary instructions and guidelines in this behalf in exercise of the powers under Section 100 of the Punjab Land Revenue Act (corresponding to Section 106 of the Himachal Pradesh Act), which now form part of the Chapter 1A of Volume I of High Court Rules and Order, as stated above. We have been informed that hese instructions are still in vogue and have neither been withdrawn nor modified and are required to be followed. In order to answer the question posed before us, it would be profitable to quote the instructions in extenso, as under :--
I. If a boundary is in dispute the Field Kanungo should relay it from the village map prepared at the last settlement. If there is a map which has been made on the square system he should reconstruct the square in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares, he should with his scale read on the map the position and distance of those points from line of a square and then with a chain and cross staff mark put the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute as near to it as he can, and, if possible, not more than 200 kadams apart, which are shown in the map and which the parties admit to have been disturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distance when thus compared agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then lay them out with the cross staff as before and test the work by seeing whether the distance from one of his marks to another is the same in the map. If there is only a small dispute as to the boundary between two fields, the greater part of which is undisturbed, then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.
II. In the report to be submitted by him, the Kanungo must explain in detail how he made his measurement. He should submit a copy of the relevant portion of the current settlement field map of the village showing the fields if any with their dimensions (Karu kan) of which he took measurement situated between the points mentioned in Instruction I above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo's proceedings.
III. If a question is raised as to the position of the disputed boundary according to the field map of the settlement proceeding of the current settlement, that also should be demarcated on the grounds so far as this may be possible and also shown in the copy of the current field map to be submitted under instruction No. II.
IV. On the same copy should be shown also the limits of existing possession.
V. The areas of the fields abutting on the boundary in dispute as recorded at the time of last settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo's report with an explanation of the cause of increase or decrease if any discovered.
VI. When taking his measurement the field Kanungo should explain to the parties what he is doing and should enquire from them whether they with anything further to be done to elucidate the matter in dispute. At the end he should record the statements of all the parties to the effect that they have been and understood the measurements, they have no objection to make to this (or if they have any objection, he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court one or other party impugns the correctness of the measurement and asserts that one thing or another was left undone. This raises difficulties which the above-procedure is designed to prevent.
VII. The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court Commissioners in suits involving disputed boundaties.
16. Demarcation of boundaries of any holding, field or any portion of any other estate under Section 107 of the Act is otherwise a statutory funcion of quasi-judicial nature of the Revenue Officer, as held in Radha Soami Satsang Beas through Shri Madan Gopal Singh v. State of H.P., ILR 1984 HP 317 : (AIR 1989 HP 15). Since the function to demarcate the limits of any holding or field is a statutory function of a quasi-judicial nature, it is, therefore, absolutely necessary for the Revenue Officer, while carrying out demarcation, to perform the function in accordance with the instructions and guidelines, which have been issued by the Financial Commissioner under the powers contained in Section 106 of the Act meticulously without any deviation therefrom, since it also affects valuable rights of the estate right holders. The report of demarcation on the face of it must show that all precautions which are required to be taken as per the instructions were taken, so as to enable the Court, when the report comes before it to follow the method adopted by the Revenue Officer while carrying out demarcation and to find out that no mistake has been committed in doing so, so as to avoid the possibility of any error having crept in.
17. It is the admitted case of the parties that in so far as the three revenue estates are concerned, the maps prepared during the last settlement were not on square system, Accordingly, the determining officer was required to relay the boundaries of the fields sought to be demarcated from the Shajra (village map), prepared at the last settlement. He was required to locate three permanent points on three different sides of the area sought to be demarcated. The three points so selected and to be taken as basis must be those, which are admitted to have remained undisputed from the last settlement. The officer is thereafter required to chain these three points on the spot and then compare the result with the distance given as per scale on the Shajra. It is only when distance, so compared, agree that the Revenue Officer can proceed with the further work of measurement. A pencil line is supposed to be drawn joining these three permanent points and thereafter perpendiculars are supposed to be drawn from these lines to each of the point, which are required to be located on the spot, in order to enable him to find out the exact distance from these points to the point sought to be demarcated, and then tally the result with the help of the scale on the Sharja, which can be drawn only with the help of the scale on the Shajra, which can be drawn only with the help of a crossed staff. The result to be finally checked by measuring on the help of scale on the Sharja. Since this report of demarcation is liable to scrutiny, by way of evidence, it is required that the report of the concerned officer on the face of it must explain the details and the manner as to how he made his measurements, which report must accompany a copy of the relevant portion of the Field Book of current settlement of the village showing Karu kans (dimensions) of the fields of which he took measurements as also a map showing therein the three permanent points, the fields measured and the boundary in dispute. As per the instructions, this is one of the necessary requirements to enable the Court to follow the method adopted and also in order to find out the veracity of the proceedings. The other requirement, while submitting the report is to record the statements of interested parties before taking the three permanent points to the effect that all of them agreed and accepted the three points as permanent points on three different sides of the property. In case any objection is raised as to the manner in carrying out the demarcation, the said objection is required to be reduced into writing, so as to avoid the possibility of raising any question specifically and also to enable the Court to decide such objections. In case, objection is raised on the spot, the demarcating officer is also required to submit his opinion on such objections. In case, while carrying out the demarcation, any dicrepancy is noticed in the area of the fields abutting on the boundary in dispute as recorded in the last settlement and the one arrived at as a result of the actual measurement on the spot, the report is required to incorporate the same with explanation as to the cause of increase or decrease, if any, discovered on the spot. All these requirements, in our opinion, have been incorporated in the instructions with the ultimate object of ascertaining that while carrying out the demarcation correct method was adopted and no mistake committed.
18. Now, in case reference is made to the three reports of demarcation alleged to have been carried out by Kewal Ram, Sadar Kanungo, namely, Exs. PO,PO/1 and PO/2, it can be seen that, as a matter of fact, the same are not the demarcation repts but are only certificates to the effect that he carried out the demarcation of the fields mentioned therein. There is nothing on record that such demarcation was carried out by Kewal Ram as per the aforementioned instructions. There are copies of Shajra Exs. PP and PR of revenue estate Gwalath appended to these certificates but neither there is any mention of three permanent points on these copies, nor do these contain the result of demarcation, namely, drawing of perpendicular or depicting the location of stumps on any portion of the government land. There are two other copies appended to these certificates but apparently the same are of subsequent date, namely, Ex. PT dated January 28, 1978 and Ex. P-4 dated January 24, 1978 but there is also no such endorsement on the copies. In the absence of there being any report of demarcation, it is not possible to place reliance upon these certificates issued by Kewal Ram, which form the basis of lists Exs. PH, PK and PL, which are stated to have been prepared by Magni Ram, PW 3, according to whom none of the accused was present at the time of carrying out demarcation by Kewal Ram. He was also not in a position to state as to whether any proper method was adopted by Kewal Ram while carrying out demarcation since he was also not conversant with the demarcation work of lands. As such, the Special Judge was perfectly justified in concluding that no reliance could be placed upon the certificates issue by Kewal Ram or as to the correctness of lists Exs. PH, PK and PL, which admittedly had been prepared as a result of the certificated issues by Kewal Ram and the same could not be used for forming the basis while holding that any tree was felled by accused-respondents Nos. 7 and 8 from out of the government land comprised in Khasra Nos. 8 and 68 in Mauza Gwalath and Khasra No. 2 in jungle Mihani.
19. Referring to the reports Exs. PBH, PBH/1 dated May 6, 1978, coupled with the statement of its author Ganesh Ram, PW 25, again it would be noticed that the same is not in consonance with the instructions. Admittedly, the demarcation carried out by PW25 was neither in the presence of land-owners, whose land was sought to be demarcated, nor in the presence of the accused against whom the same was to be used. The demarcation was stated to have been carried in the presence of some of the residents of the area, the police officials and forest officials. The reports would further show that the three permanent points which were required to be taken on three different sides were not taken. The same were taken on one side and that too without ascertaining the correctness thereof as also whether the same had remained undisputed from the last settlement. There is no plan attached to this report as no such plan was prepared admittedly by PW 25 on the spot or the said date. The demarcation was carried out between April, 30 to May 3, 1978 within revenue estates Dhola and Whalna. Only a copy of Shajra prepared by a patwari is appended to the report, which was prepared on May 6, 1978 and is worked as Ex. PH/2. Even on this copy of the plan there is no mention of the three permanent points. Per endicualr have also not been drawn from the alleged permanent points to the area sought to be demarcated and even result of the demarcation is not depicted on the plan. In his statement PW 25 admitted that the demarcation was not carried out with the help of Musavi. Neither the original Musavi nor copy thereof was made available to him at the time of carrying out the demarcation. He carried out the demarcation on the basis of Latha. It may be noticed that map on Latha is not the original settlement map but copy thereof traced on a cloth meant for the use of Patwari for his day-to-day work, which is prepared as per the requirement of para 4.30 of the Himachal Pradesh Land Records Manual. As has been noticed by the learned Special Judge, this cloth is stretchable one. One of the requirements of the instructions is to tally the result obtained by measurements on the spot with the scale on the plan. In case copy of plan is traced from Latha (traced map on the piece of cloth known as Latha), it is not possible to have the correct result, since the cloth is stretchable one and when scale is applied thereon, the results are bound to differ. According to the statement of PW 25, he was aware of the fact that for doing demarcation of the land in question it was necessary to carry out the same with the help of original Musavi or copy thereof. He further stated that he did ask the Investigating Officer to provide him with the copy of Musavi but the same was not supplied. He was also not possessed at the relevant time with the instrument, namely, cross staff so as to enable him to carry out the demarcation. The witness also admitted that he did not demarcate the adjoining fields forming part of government land since the Investigating Officer had in the application not applied for the demarcation of the same. Only such of the fields were measured or demarcated for which application had been made. In case reference is made to the reports exs. PBH and PBH/1, it could be seen that only Khasra Nos. 37, 71, 78, 132/100 and 100 of village Dholla and Khasra Nos. 182 and 182/1 of revenue estate Khualana were measured by him. As noticed in his statement, it was absolutely necessary, in order to carry out the correct demarcation to have the original Musavi which was not made available to him nor copy thereof was supplied. The demarcation was carried out with the help of Latha only without any instrument. All fields numbers were not measured and only those were measured which were pointed out by the investigating agency. According to the witness, chances of difference in the result of demarcation done by two persons at two different times cannot be ruled out. Thus it can be seen that this witness also did not follow the instructions while carrying out the demarcation and, as rightly noticed by the learned Special Judge, no reliance on this report could also be placed and as such lists Exs. PD to PH cannot be said to be depicting the correct picture so as to form the basis for holding the accused-respondent guilty of the charges.
20. Though the reports of demarcation cannot be relied upon for the aforementioned reasons but in case reference is made to the lists prepared as a result of this demarcation, it would be seen that there was only a marginal difference as regards the location of the stumps which were found to have been noticed on the spot by P.W. 3. In order to bring home the charge against the accused, it was necessary for the prosecution to have led sufficient and cogent evidence to enable the court to form a definite opinion that stumps of the felled trees which had been marked by accused-respondents 2 to 4 on spot, as per marking lists Exs.PCX/1 and PCD/22 were not on the private land but on the government land for which it was absolutely necessary to have obtained demarcation perfectly in accordance with the aforementioned instructions and in the absence of which it is neither possible to hold that respondents Nos. 7 and 8 felled and removed any trees out of the government land nor to form an opinion that respondents entered into any conspiracy, as alleged by the prosecution.
21. As noticed above, there is nothing on record to suggest that respondent No. 1 failed to discharge his statutory duty while carrying out the demarcation in accordance with law. In the absence of which it is also not possible to hold that respondents Nos. 2 to 4 did not correctly mark the trees or marked any tree not standing upon the private land. Since the basic facts which were required to be proved by the prosecution have not been proved in accordance with law and no point or circumstances have been brought to our notice to take a different view, we find that the learned Special Judge correctly came to his conclusion and we have no hesitation in upholding such finding. No other point was urged before us.
22. In the result, we uphold the judgment of acquittal recorded by the Special Judge and dismiss Criminal Appeal No. 43 of 1985.
23. Dealing with the appeal preferred by accused-respondents Nos. 7 and 8, the Special Judge took notice of the provisions of Section 69 of the Indian Forest Act, which provides for presumption being raised in favour of the State where there is dispute in any proceedings relating to any forest produce, with respect to which an offence is alleged to have been committed to be belonging to the State. The presumption raised is rebuttable one which has to be rebutted by a private person. Upholding the acquittal of accused-respondents on the ground that the prosecution has failed to bring home the charge for want of sufficient evidence will not be sufficient ipso facto to rebut the presumption required to be drawn under Section 69 of the Act.
24. In order to claim the seized timber, it was necessary for the accused appellants to have brought on record sufficient material for rebutting the presumption which, in our opinion, is lacking in the instant case. Moreover, in the statements recorded under Section 313 of the Code of Criminal Procedure also, the accused-respondents have not laid any claim to the sized timber. In view of this, we do not find any merit in the appeal and as such Criminal Appeal No. 14 of 1985 is also dismissed.