2026:HHC:9657

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 376 of 2014

Reserved on: 03.03.2026

Date of Decision: 01.4.2026.

State of H.P. ...Appellant

Versus

Kalyan Singh ...Respondent

Coram

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 N.K. Tomar, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 30.5.2014, 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. It

was asserted that Amar Singh (PW6) made a complaint to the

police (Ex.PW6/A) stating that the accused, Kalyan Singh, had

encroached upon more than 10 bighas of land in the Reserved

Forest, Manva and Kaloha; hence, an action should be taken

against him. The police registered an FIR (Ex.PW7/A). Yoginder

Sain (PW5) demarcated the land and found that the accused,

Kalyan Singh, had encroached upon Khasra Nos. 644/1, 646/1,

and 804/641/1, measuring 30 bighas 13 biswas , which was

owned by the State. He prepared the report (Ex.PW5/A),

recorded the joint statements (Ex.PW5/B) and issued a

jamabandi (Ex. PW5/C). HC Sanjay Kumar (PW7) investigated

the matter. He visited the spot, prepared a site plan (Ex. PW7/B)

and took the photographs (Ex. P1 to Ex. P4). Notification

(Ex.PW6/B) and a copy of the working plan (Ex.PW6/C) were

seized by the police. Statements of witnesses were recorded as

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per 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

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 8 witnesses to prove its case.

Jai Singh (PW1) detected the encroachment. Kalidass (PW2) and

Roop Lal (PW4) were present during demarcation. Sandeep

Kumar (PW3) entered the contents of the FIR in the official

computer. Yoginder Sain (PW5) demarcated the land. Amar

Singh (PW6) made a complaint to the police. HC Sanjay Kumar

(PW7) investigated the matter. ASI Rajesh Pal (PW8) signed the

FIR.

5. The accused, in his statement recorded under Section

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

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stated that he had not encroached on any Government land. He

produced Laxmi Singh (DW1) in defence.

6. Learned Trial Court held that the demarcation was

not conducted as per law because three permanent points were

not taken, and the accused was not present during the

demarcation. The accused was occupying the land since the time

of his forefathers, and the intent to insult, intimidate or annoy

was not proved. 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

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

encroached upon the Government land. Yoginder Sain (PW5)

conducted the demarcation as per the 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

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between the parties, and the report of demarcation was not

relevant. It was wrongly held that the accused was occupying the

land since the time of his forefathers. The accused admitted that

an encroachment case was instituted against his father before

Divisional Forest Officer (DFO) Rajgarh, which showed that the

accused was aware of the encroachment on the government

land. He continued his possession, which showed his intent. 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

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 N.K. Tomar,

learned counsel for the respondent/accused.

9. Mr Ajit Sharma, learned Deputy Advocate General,

for the appellant-State, submitted that the learned Trial Court

erred in acquitting the accused. It was duly proved by the

evidence on record that the accused had encroached upon the

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Government land and raised an apple orchard and house over it.

The learned Trial Court erred in holding that the report of the

demarcation was not as per the law. The accused continued his

possession of the government land despite the initiation of

proceedings of ejectment against his father. 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 N.K. Tomar, learned counsel for the

respondent/accused, submitted that the learned Trial Court had

rightly held that the demarcation was not conducted as per the

law. Three permanent points were not taken, and the accused

was not summoned to witness the demarcation. Mere

possession is not sufficient to constitute criminal trespass. No

notification was placed on record to show that the area was a

reserved forest. The learned Trial Court had rightly acquitted

the accused. This was a reasonable view that could have been

taken based on the evidence produced before the Court, and this

Court should not interfere with the reasonable view of the

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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

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

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

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.

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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 Rudragoudar v. 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.

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

parameters laid down by the Hon’ble Supreme Court.

15. Yoginder Sain (PW5) demarcated the land. He stated

that he conducted the demarcation and found the accused

Kalyan Singh had encroached upon Khasra Nos. 644/1, 646/1,

and 804/641/1, measuring 30 bighas 13 biswas, by raising an

apple orchard and a house. He prepared his report (Ex.PW5/A),

which mentions that the boundaries were measured by drawing

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perpendiculars, and these were shown to the police and forest

officials.

16. Yoginder Sain (PW5) stated in his cross-examination

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

not remember the Khasra number in which those points were

taken. He admitted that the private land was located adjacent to

the government land, and he was not competent to carry out

demarcation in the present case. He had not issued any notice to

the accused regarding his presence on the spot at the time of the

demarcation. He volunteered to say that the notice was issued by

Patwari.

17. 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

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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

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

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

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

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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

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.”

18. The Court considered a similar report was considered

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

process adopted in the demarcation were not given, such a

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

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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,

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

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

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.”

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

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

upon it.

20. Yogender Sain (PW5) admitted in his cross-

examination that the private land was located adjacent to the

disputed land. Thus, the demarcation was essential to pinpoint

the land over which an orchard and house were raised. In the

absence of the proper demarcation, it was not established that

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the orchard and house were 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.

21. Yoginder Sain (PW5) stated in his cross-examination

that no summons was issued to the accused. He volunteered to

say that intimation was given through Patwari. Patwari was not

examined to prove that any notice was served upon the accused.

No copy of the notice was placed on record. HC Sanjay Kumar

(PW7) admitted in his cross-examination that the accused was

not present at the time of demarcation. Thus, 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

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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

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.”

22. 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

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

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

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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

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.

23. 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:

“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

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…”

24. In the present case, the complaint (Ext.PW-6/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.

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

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

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.

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

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

Settlement Officer shall publish a proclamation specifying as

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

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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,

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

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

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

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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

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

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

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.”

27. 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

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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

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…”

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

placed on record to show that Khasra Nos. 644/1, 646/1, and

804/641/1, measuring 30 bighas 13 biswas, was declared a

Reserved Forest.

29. Reliance was placed upon the notification

(Ex.PW5/C), which mentions C3a to C6 measuring 815.72. 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.

30. No other point was urged.

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

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

stand disposed of.

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

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

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

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

Supreme Court.

33. Records be sent back to the learned Trial Court

forthwith, along with a copy of the judgment.

(Rakesh Kainthla)

Judge

1

st

April, 2026

(Nikita)