27.2.2026 vs Of on 9 March, 2026

Himachal Pradesh High Court

Reserved On: 27.2.2026 vs Of on 9 March, 2026

                                                                                   2026:HHC:6201




     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                              Cr. Appeal No. 347 of 2014




                                                                                   .
                                              Reserved on: 27.2.2026





                                              Date of Decision: 09.3.2026.





    State of H.P.                                                       ...Appellant

                                          Versus




                                                     of
    Tara Singh                                                          ...Respondent


    Coram
                           rt
    Hon'ble Mr Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1 No.

    For the Appellant                 :         Mr Ajit Sharma, Deputy Advocate
                                                General.


    For the respondent                :         Mr Rakesh Thakur, Advocate.


    Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 26.5.2014, passed by learned Judicial Magistrate First

Class, Rajgarh, District Sirmour, H.P. (learned Trial Court), vide

which the respondent (accused before the learned Trial Court)

was acquitted of the commission of offences punishable under

Section 447 of the Indian Penal Code (IPC) and Section 26 of

Indian Forest Act. (Parties shall hereinafter be referred to in the

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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same manner as they were arrayed before the learned Trial Court for

convenience.)

.

2. Briefly stated, the facts giving rise to the present

appeal are that the police presented a challan before the learned

Trial Court for the commission of offences punishable under

Section 447 of the IPC and Section 26 of the Indian Forest Act.

of
Amar Singh (PW6) made a complaint to the police (Ex.PW1/A)

stating that the accused Tara Singh had encroached upon more
rt
than 10 bighas of land in the Reserved Forest, Dol; hence, an

action should be taken against him. The police registered an FIR

(Ex.PW9/A). Yoginder Sain (PW8) demarcated the land and

found that the accused Tara Singh had encroached upon Khasra

No.489/446/374/1, which was owned by the State. He prepared

the report (Ex.PW8/A). Notification (Ex.PW6/B) and history file

(Ex.PW6/C) were seized by the police. Statements of witnesses

were recorded as their version, and after completion of the

investigation, a challan was prepared and presented before the

learned Trial Court.

3. Learned Trial Court found sufficient reasons to

summon the accused. When the accused appeared, a notice of

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accusation was put to him for the commission of offences

punishable under Section 447 of the IPC and Section 26 of the

.

Indian Forest Act, to which he pleaded not guilty and claimed to

be tried.

4. Prosecution examined 10 witnesses to prove its case.

Jia Lal (PW1), Saroj Devi (PW2), Kamlesh (PW3), Kali Dass (PW5)

of
and Hem Raj (PW7) were present during the demarcation.

Ramesh Kumar (PW4) did not support the prosecution’s case.

rt
Amar Singh (PW6) made a complaint to the police. Yoginder

Sain (PW8) demarcated the land. ASI Rajesh Pal (PW9) and HC

Balbeer Singh (PW10) investigated the matter.

5. The accused, in his statement recorded under Section

313 of Cr.P.C., denied the prosecution’s case in its entirety. He

stated that he had not encroached on any Government land, and

he had enjoyed the land of his forefathers. He did not produce

any evidence in defence.

6. Learned Trial Court held that the demarcation was

not conducted as per law because three permanent points were

not taken. The plea of the accused that he was occupying the

land since the time of his forefathers was made probable on

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record. Mere possession, even if illegal, is not sufficient to

constitute criminal trespass. Hence, the learned Trial Court

.

acquitted the accused.

7. Being aggrieved by the judgment passed by the

learned Trial Court, the State has filed the present appeal

asserting that the learned Trial Court erred in acquitting the

of
accused. It was duly proved on record that the accused had

encroached upon the Government land. Yoginder Sain (PW8)
rt
conducted the demarcation as per law after following the

prescribed procedure. Learned Trial Court erred in holding that

three permanent points were not taken, whereas the report of

demarcation, a copy of musabi and the field book clearly showed

that fixed points were taken. There was no boundary dispute

between the parties, and the report of demarcation was not

relevant. The accused admitted that he had been enjoying the

land since the time of his forefathers. Therefore, the

demarcation report was not material in the present case. The

trespass into the Government land could only be with the intent

to annoy the State. The prosecution had proved its case beyond a

reasonable doubt, and the learned Trial Court erred in acquitting

the accused. Hence, it was prayed that the present appeal be

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allowed and the judgment passed by the learned Trial Court be

set-aside.

.

8. I have heard Mr Ajit Sharma, learned Deputy

Advocate General, for the appellant-State and Mr Rakesh

Thakur, learned counsel for the respondent/accused.

of

9. Mr Ajit Sharma, learned Deputy Advocate General,

for the appellant-State, submitted that the learned Trial Court
rt
erred in acquitting the accused. It was duly proved by the

evidence on record that the accused had encroached upon the

Government land and raised an apple orchard over it. The

accused claimed in his statement recorded under Section 313 of

Cr.P.C. that he was enjoying the land since the time of his

forefathers, and he had not disputed his possession. The learned

Trial Court erred in holding that the report of the demarcation

was not required. The learned Trial Court had taken a view that

could not have been taken by any reasonable person. Therefore,

he prayed that the present appeal be allowed and the judgment

passed by the learned Trial Court be set aside.

10. Mr Rakesh Thakur, learned counsel for the

respondent/accused, submitted that the accused had not

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admitted his possession of the Government land. He only

claimed that he had been enjoying the land since the time of his

.

forefathers. The evidence proved that the Government land and

the private land were contiguous. Therefore, it was essential to

demarcate the land to establish that the accused had encroached

upon the Government land. There was no satisfactory evidence

of
in support of this fact, and the learned Trial Court had rightly

acquitted the accused. This was a reasonable view that could
rt
have been taken based on the evidence produced before the

Court, and this Court should not interfere with the reasonable

view of the learned Trial Court while deciding the appeal against

the acquittal. Hence, he prayed that the present appeal be

dismissed.

11. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

12. The present appeal has been filed against a judgment

of acquittal. It was laid down by the Hon’ble Supreme Court in

Surendra Singh v. State of Uttarakhand, (2025) 5 SCC 433: 2025 SCC

OnLine SC 176 that the Court can interfere with a judgment of

acquittal if it is patently perverse, is based on misreading of

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evidence, omission to consider the material evidence and no

reasonable person could have recorded the acquittal based on

.

the evidence led before the learned Trial Court. It was observed

at page 438:

“24. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal

of
recorded by the learned trial Judge would be warranted by
the High Court only if the judgment of acquittal suffers
from patent perversity; that the same is based on a mis-
reading/omission to consider material evidence on
rt
record; and that no two reasonable views are possible and
only the view consistent with the guilt of the accused is

possible from the evidence available on record.

13. This position was reiterated in State of M.P. v.

Ramveer Singh, 2025 SCC OnLine SC 1743, wherein it was

observed:

21. We may note that the present appeal is one against
acquittal. Law is well-settled by a plethora of judgments

of this Court that, in an appeal against acquittal, unless
the finding of acquittal is perverse on the face of the

record and the only possible view based on the evidence is
consistent with the guilt of the accused, only in such an
event, should the appellate Court interfere with a
judgment of acquittal. Where two views are possible, i.e.,
one consistent with the acquittal and the other holding
the accused guilty, the appellate Court should refuse to
interfere with the judgment of acquittal. Reference in this
regard may be made to the judgments of this Court in the
cases of Babu Sahebagouda Rudragoudarv. State of
Karnataka (2024) 8 SCC 149; H.D. Sundara v. State of
Karnataka (2023) 9 SCC 581 and Rajesh Prasad v. State of
Bihar (2022) 3 SCC 471.

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14. The present appeal has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

.

15. The accused stated in his statement recorded under

Section 313 of Cr.P.C. that he had not occupied any Government

land and had enjoyed his forefathers’ land. Therefore, the plea

taken in the memo of appeal that the accused did not dispute the

of
encroachment on the Government land is factually incorrect.

Once the accused denied any encroachment on the Government
rt
land, it was incumbent upon the State to establish the

encroachment by leading satisfactory evidence.

16. Yoginder Sain (PW8) demarcated the land. He stated

that he conducted the demarcation and found an encroachment

over Khasra No. 489/446/374/1, which was owned by the State.

He prepared his report (Ex.PW8/A), which shows that the

demarcation was conducted, and Tara Singh was found in

possession of Khasra No. 489/446/374/1, where he had raised an

apple orchard. A tatima was prepared. Boundaries of Khasra No.

489/446/374/1 were measured by drawing a perpendicular from

the adjacent field.

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17. Yoginder Sain (PW8) stated in his cross-examination

that perhaps he had taken three permanent points, but he was

.

not sure of the Khasra number in which those points were taken.

He could not tell the distance between the permanent points and

the disputed points. Perhaps the statements were recorded

about the permanent points, but they were not on record. He had

of
not issued any notice to the accused and the forest officials

regarding their presence on the spot at the time of the
rt
demarcation.

18. The process of demarcation was explained by this

Court in State of H.P. v. Laxmi Nand, 1992 SCC OnLine HP

41:1992(2) Sim. L.C. 307, wherein the instructions issued by the

Financial Commissioner were considered, and it was held: –

“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 the
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 a 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 the scale on the Shajra. It is only when the

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distances so compared agree that the Revenue Officer can
proceed with 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 points, 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 Shajra, which can be
drawn only with the help of the scale on the Shajra, which

of
can be drawn only with the help of a crossed staff. The
result is to be finally checked by measuring with the help
of a scale on the Shajra. Since this report of demarcation
is liable to scrutiny, by way of evidence, it is required that
rt
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 KaruKans (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 an 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 discrepancy is noticed
in the area of the fields abutting on the boundary in

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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
an 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 was committed.”

19. The Court considered a similar report was considered

of
in Laxmi Nand (supra), and held that when the details of the

process adopted in the demarcation were not given, such a
rt
report is not admissible and cannot be used for convicting the

accused. It was observed:

“8. 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, they are not the

demarcation reports 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
ShajraExs. PP and PR of revenue estate Gwalath appended
to these certificates, but neither is there any mention of
the three permanent points on these copies, nor do these
contain the result of demarcation, namely, drawing of
perpendicular lines 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

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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,
PW3, 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 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

of
placed upon the certificates issued 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
rt
be used for forming the basis while holding that any tree
was felled by the accused-respondents Nos. 7 and 8 from

the government land comprised in Khasra Nos. 8 and 68
in Mauza Gwalath and Khasra No. 2 in jungle Mihani.”

20. In the present case, the report of the demarcation

does not describe the procedure, and no reliance can be placed

upon it.

21. HC Baldev Singh (PW8) admitted in his cross-

examination that the land of the accused and other persons was

located adjacent to the disputed land. Thus, the plea taken in the

memorandum of appeal that the demarcation was not necessary

cannot be accepted. When the land of the accused is located

adjacent to the disputed land, it was necessary to demarcate

them to pinpoint the land over which an orchard was raised. In

the absence of the proper demarcation, it was not established

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that the orchard was raised on the government land, and the

learned Trial Court had rightly discarded the prosecution’s case

.

that the accused had encroached upon the government land.

22. Yoginder Sain (PW8) stated in his cross-examination

that no summons was issued to the accused and the forest

officials. He volunteered to say that intimation was given

of
through Patwari. Kamlesh-Patwari (PW3) stated in her cross-

examination that no notices were issued to the accused and the
rt
local persons to associate during the demarcation. Thus, it is

apparent that the demarcation was conducted in the absence of

the accused. It was laid down by this Court in State of H.P. vs.

Joginder Singh 1992 (1) Shim. LC 339 that where the demarcation

was conducted in the absence of the accused, the same cannot be

relied upon to convict him. It was observed:

“7. Be that as it may, the testimony of PW-3 Keshav Ram,

Kanungo, shows that only Forest Officials were present at
the time of demarcation. Assuming that the said
demarcation was properly done by him at the material
time while verifying the tatima Ex. PW-2/A, but no notice
to the accused at the material time has at all been served,
nor was he present at the relevant time. In that view of
the matter, the demarcation has not been done properly
according to the instructions issued by the Financial
Commissioner, Himachal Pradesh. A very basic
foundation in view of it is wiped out. I need not discuss
the other evidence resulting in the conclusion arrived at

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by the trial Court. To my mind, the Court below has
rightly considered the evidence in recording the
impugned order of acquittal. Accordingly, the appeal is
dismissed.”

.

23. Section 441 of the IPC defines criminal trespass as an

entry upon the property in possession of another with intent to

commit an offence or to intimidate, insult or annoy any person

of
in possession of such property. It was laid down by the Hon’ble

Supreme Court in Mathri v. State of Punjab, 1963 SCC OnLine SC
rt
180: AIR 1964 SC 986 that the prosecution has to prove that the

aim of the accused was to insult, intimidate or annoy and merely

because the insult, intimidation or annoyance was caused by the

entry is not sufficient. It was observed:

18. We think, with respect, that this statement of law, as

also the similar statements in Laxaman Raghunath case
[26 Bombay 558] and in Sellamuthu Servaigaran case [ILR

35 Mad 186], is not quite accurate. The correct position in
law may, in our opinion, be stated thus: In order to
establish that the entry on the property was with the

intent to annoy, intimidate or insult, it is necessary for
the Court to be satisfied that causing such annoyance,
intimidation or insult was the aim of the entry; that it is
not sufficient for that purpose to show merely that the
natural consequence of the entry was likely to be
annoyance, intimidation or insult, and that this likely
consequence was known to the persons entering; that in
deciding whether the aim of the entry was the causing of
such annoyance, intimidation or insult, the Court has to
consider all the relevant circumstances including the
presence of knowledge that its natural consequences

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would be such annoyance, intimidation or insult and
including also the probability of something else than the
causing of such intimidation, insult or annoyance, being
the dominant intention which prompted the entry.

.

24. This position was reiterated in Rajinder v. State of

Haryana, (1995) 5 SCC 187: 1995 SCC (Cri) 852, wherein it was

observed at page 198:

of
“21. It is evident from the above provision that
unauthorised entry into or upon property in the
possession of another or unlawfully remaining there after
lawful entry can answer the definition of criminal
rt
trespass if, and only if, such entry or unlawful remaining
is with the intent to commit an offence or to intimidate,

insult or annoy the person in possession of the property.

In other words, unless any of the intentions referred to in
Section 441 is proved, no offence of criminal trespass can
be said to have been committed. Needless to say, such an

intention has to be gathered from the facts and
circumstances of a given case…”

25. In the present case, the complaint (Ext.PW-1/A) only

mentioned that the accused had encroached upon more than 10

bigahs of land, and an action should be taken against him. There

is no averment that the accused had encroached upon the land

with an intent to commit an offence or intimidate, insult or

annoy any person in possession; therefore, the ingredients of

Section 447 of IPC were not satisfied.

26. Section 26 of the Indian Forest Act deals with the acts

prohibited in reserved forests. Section 4 of the Indian Forest Act

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provides that whenever it has been decided to constitute any

land a reserved forest, the State Government shall issue a

.

notification in a Government Gazette declaring that it has been

decided to constitute such land a reserved Forest and specifying

as nearly as possible its situation and limits.

27. Section 6 of the Indian Forest Act provides that when

of
a notification is issued under Section 4 of the Act, the Forest

Settlement Officer shall publish a proclamation specifying as
rt
nearly as possible the situation and limits of the proposed forest

in the local vernacular in every town and village in the

neighbourhood of the land comprised therein. While dealing

with a similar provision of the Forest Act in Chapter IV, this

Court held in State of H.P. vs. Amin Chand 1992 (2) Shim.LC 169

that the issuance of the notification and its publication are

necessary to attract the provisions of Section 33 of the Indian

Forest Act. It was observed:-

“7. Sections 29 to 39 of the Indian Forest Act, 1927
(shortly hereinafter referred to as ‘the Act’) are material.
The procedure of declaring protected forest is laid down in
section 29 of the Act, which provides that the State
Government may by notification in the official Gazette
declare the provisions of Chapter IV of the Act applicable
to any forest land or wasteland which is not included in a
reserved forest, but which is the property of Government,

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or over which the Government has proprietary rights, or to
the whole or any part of the forest produce of which the
Government Is entitled. The forest land comprised in such
notification is referred to in the Act as a protected forest.

.

Sub-section (3) of section 29 of the Act provides for
certain inquiries to be made before declaring a forest as a
‘protected forest’. Under section 30, the State Government

is authorised inter-alia to declare any trees or class of
trees in protected forest to be reserved from the date to be
fixed by notification or to prohibit from a date fixed for the

of
removal of any forest produce and the breaking up or
clearing for cultivation of any land in a protected forest for
such terms, not exceeding thirty years as the State
Government thinks fit. Resultantly, the rights of private
rt
persons, if any, over such portion shall stand suspended
during such term, provided that the remainder of such

forest be sufficient and, in a locality, reasonably
convenient, for the due exercise of the rights suspended in
the portion so closed. The Collector then is required under
section 31 to cause translation into the local vernacular of

every such notification issued under section 30 to be
affixed in a conspicuous place in every town and village in
the neighbourhood of the forest comprised in the

notification. Section 32 entitles the State Government to
make rules to regulate the forest matters set out in the

said section, including “clearing or breaking up of land for
cultivation or other purposes in such forest”. Section 33
provides penalties for acts in contravention of a

notification under section 30 or for rules under section 32.

9. Apart from it, even if the aforesaid copy of the
notification is assumed to be a legal and valid notification
for the sake of argument, the requirement of section 31 of
the Act has not been proved. Admittedly, as per the
prosecution evidence, the land of the accused adjoins that
of the alleged encroached land. Section 31 referred to
above envisages that the Collector shall cause a translation
into the local vernacular of every notification issued under
section 30 to be affixed in a conspicuous place in every

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town and village in the neighbourhood of the forest
comprised in the notification Here neither oral nor
documentary evidence has been adduced to show whether
notification (Mark X) was translated in the local

.

vernacular and whether its copy was affixed in a
conspicuous place in the neighbouring villages as
envisaged therein This procedure is meant only so that the

respondents of the neighbouring villages, much less the
accused, may acquire knowledge as to the declaration of a
particular forest into demarcated protected forest, In the

of
absence of such procedure having not been followed by the
appellant, ii would be against the principle of natural
Justice to permit the subject of a Slate including the
accused to be punished or penalised by laws of which they
rt
had no knowledge and of which they could not even with
the exercise of reasonable diligence, have acquired any

knowledge Natural justice requires that before a law can
become operative it must be promulgated or published It
must be broadcast in some recognisable way so that all
persons may know what it is ; or at the very least, there

must be some special rule or regulation or some other way
or customary channel by or through which such
knowledge can be acquired with the exercise of due and

reasonable diligence. In the absence thereof, a law cannot
come into being by merely issuing a notification without

giving it due publicity in accordance with the mandatory
provisions of law.”

28. This position was reiterated in State of H.P. Ravi

Kumar 2008 HLJ 363, wherein it was observed: –

“10. The prosecution has failed to prove that ten pine
trees were cut by the respondent from the land in
question. There is no evidence on record to link the trees
allegedly cut by the respondent to the land in question. No
demarcation of the land from where the trees were
allegedly cut has been proved on record. There is nothing
on record that the forest in question is a notified

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protected forest. The notification declaring the Forest in
question as a protected forest has not been placed on
record. There is no evidence of circulation of notification,
under Sections 32, 33, read with Sections 30 and 31 of the

.

Act, in the vernacular in the locality. The alleged
confessional statements, Ex. PA and Ex. PW 2/A are of no
help to the prosecution for want of proof of notification,

under Sections 32, 33, read with Sections 30 and 31 of the
Act and its publication in the vernacular in the locality…”

29. In the present case, no copy of the notification was

of
placed on record to show that Khasra No.489/446/341/1 was

declared a reserved forest.

rt

30. Reliance was placed upon the notification

(Ex.PW6/B), which mentions RF-13 Dol C1-A to C4-B, totaling

617-10. It does not mention any Khasra number. Therefore,

there is no evidence that the land was within the reserved forest,

and no offence punishable under Section 26 of the Indian Forest

Act was made out.

31. No other point was urged.

32. Consequently, the present appeal fails, and it is

dismissed. Pending miscellaneous application(s), if any, also

stand disposed of.

33. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

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2026:HHC:6201

Sanhita, 2023) the respondent/accused is directed to furnish bail

bonds in the sum of ₹25,000/- with one surety in the like

.

amount to the satisfaction of the learned Trial Court within four

weeks, which shall be effective for six months with stipulation

that in the event of Special Leave Petition being filed against this

judgment, or on grant of the leave, the respondent/accused on

of
receipt of notice thereof, shall appear before the Hon’ble

Supreme Court. rt

34. Records be sent back to the learned Trial Court

forthwith, along with a copy of the judgment.

(Rakesh Kainthla)
Judge
9th March, 2026
(Chander)

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