Himachal Pradesh High Court
Kaku Ram And Anr vs State Of Himachal Pradesh on 10 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.185 of 2008.
Judgment Reserved on 2.5.2016
.
Date of Decision: 10.5.2016.
______________________________ _________________________
[
Kaku Ram and Anr. .........Petitioners.
Versus
State of Himachal Pradesh ..........Respondent.
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
For the petitioners:
rt Mr. Rajiv Rai, Advocate.
For the respondent: Mr. Rupinder Singh Thakur,
Additional Advocate General, with
Mr. Pankaj Negi, Deputy Advocate
General.
_________________________________________________________
Sandeep Sharma, J.
The instant criminal revision petition filed under Sections 397 read with Section 401 of the Cr.PC is directed against the judgment dated 20.8.2008 in Criminal Appeal No. 04-CrA/10 of 2005, rendered by learned Sessions Judge, Sirmaur District at Nahan, H.P., affirming the judgment of conviction and sentence dated 31.3.2005, in Cr. Case No. 87/3 of 2000, rendered by learned Judicial Magistrate, Ist Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -2-Class, Court No. 2, Paonta Sahib, District Sirmaur, H.P., whereby the accused are sentenced to undergo simple .
imprisonment for one month and a fine of Rs.500/- each and in default of payment of fine, they have to further undergo simple imprisonment for fifteen days.
2. In nutshell, case of the prosecution is that on of 29.11.1999 at about 4:40 pm a police party headed by SHO Police Station, Paonta Sahib intercepted a truck bearing No. rt HP-18-4625 at Dhaula Kuan, District Sirmaur, HP. Aforesaid truck was on the way from Dhaula Kuan side towards Nahan.
The vehicle, which was being driven by accused Kaku Ram was stopped by police for inspection and at that time another person namely Shyam Lal was also sitting in the truck. Since, timber was being transported in the truck, driver was asked to produce its documents including permit for export etc. However, at that time, Shyam Lal, who was sitting in the truck stated that he is owner of the timber and he produced the permit valid upto 30.11.1999 and one challan form disclosing Khair of different sizes in all 120 pieces mentioned therein. As per prosecution story, it was found ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -3- that timber being transported in the truck appeared to be much more than as mentioned in the challan form. On .
having suspicion, police party counted the timber loaded in the truck. As per prosecution story, it was further revealed that besides 120 pieces of Khair, there were many more pieces of Khair loaded in the truck which could not be of counted as it had already become dark. Admittedly, as per record, permit was issued by the forest department, Renuka rt District Sirmaur, H.P. in favour of one Shri Amit Kumar-accused No. 3. Since in the vehicle intercepted by police , timber was found in excess of the quantity than the authorized quantity vide permit, the case under Section 41 and 42 of the Indian Forest Act read with Section 379 of the Indian Penal Code was registered in police station Paonta Sahib. During the investigation, truck was taken into possession vide Seizure memo PW-2/A along with khair wood, permit, challan form and RC permit. As per narration given by the prosecution, Block Officer Jagat Singh PW-13, measured the timber loaded in the truck, wherein he found 190 pieces of khair being transported illegally in the intercepted vehicle which ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -4- was admittedly in excess to the authorized quantity. On weighment, Gutka which was also being carried in the .
vehicle was found to be 18.90 quintals which was also beyond authorized quantity of 12.90 quintals. However, during investigation offence under Section 379 of the Indian Penal Code was dropped and three accused persons were of challaned under Section 41 and 42 of the Indian Forest Act.
3. Prosecution with a view to prove its case, rt examined as many as 13 witnesses and statements of accused persons were also recorded under Section 313 Cr.PC, wherein, they admitted that on 29.11.1999 at about 4.40 pm at Dhaula Kuan truck No. HP-18-4625 driven by Kaku Ram was stopped by the police and the permit Ext.PW5/A in respect of the timber was produced. Vide permit, authorized sanction in their favour was for transporting 120 logs of khair and 6 quintals Gutkas till 30.11.1999. They specifically denied that they were transporting the logs and gutkas more than the permissible quantity. However, it has come in their statement that police took into possession 190 logs of Khair wood and Gutkas weighing 18.90 quintals vide memo ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -5- Ext.PW4/A and permit authorizing the accused for carrying 120 logs and six quintals Gutka valid upto 30.11.1999 was also .
taken into possession by the police vide memo Ext.PW2/A on 29.11.1999. They pleaded not guilty and claimed trial.
However, they did not lead any evidence in their defence.
4. Learned trial Court, after completion of trial, of held the accused guilty of offences under Sections 41 and 42 of the Indian Forest Act and convicted and sentenced them rt for commission of offences under Sections 41 and 42 of the Indian Forest Act.
5. Feeling aggrieved and dis-satisfied with the judgment passed by the learned trial Court, accused filed appeal under Section 374 Cr.PC against the conviction and sentence, however, same was also dismissed by the learned Sessions Judge, Sirmaur, H.P. Hence, the present criminal revision petition.
6. Mr. Rajiv Rai, learned counsel appearing for the petitioners-accused vehemently contended before this Court that judgments passed by both the courts below are not sustainable and deserve to be quashed and set-aside.
::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -6-Moreover, courts below have wrongly held the petitioners guilty of committing offences under Sections 41 and 42 of the .
Indian Forest Act because prosecution has miserably failed to prove on record the charges framed against the accused beyond reasonable doubt. Furthermore, if statements given by prosecution witnesses are read in its entirety, it is ample of clear that both the courts below have erred in not appreciating the statements in right perspective. During the rt arguments, Mr. Rai, invited the attention of this Court to the statements made by various prosecution witnesses to highlight material contradiction and prayed that judgments passed by the courts below are liable to be quashed and set-aside and petitioner-accused deserve to be acquitted of the charges framed against them.
7. On the other hand, Mr. Pankaj Negi, learned Deputy Advocate General, appearing for the respondent-
State, supported the judgments passed by the courts below.
He further argued that no interference of this Court is warranted as the bare perusal of the judgments passed by the courts below suggests that they are based on the correct ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -7- appreciation of evidence available on record. He further contended that this Court has very limited powers under .
Section 397 Cr.PC while exercising its revisionary jurisdiction.
Mr. Negi submitted that, admittedly, accused were carrying 70 logs and12.90 quintals of Gutkas more than the permissible quantity. He prayed that the present petition deserves of dismissal being devoid of any merit.
8. I have heard both the parties as well carefully rt gone through the record.
9. True it is that this Court has very limited powers under Section 397 Cr.PC while exercising its revisionary jurisdiction but Admittedly, Sections 401 Cr.PC and 482 Cr.PC provides ample powers to this Court to look into the entire matter, if this Court is satisfied that grave injustice has been caused to the accused. Moreover, in the instant case, where petitioners-accused have been convicted and sentenced, it would be apt in the interest of justice to critically examine the statements of the prosecution witnesses solely with a view to ascertain that the judgments passed by learned courts below are not perverse and same ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -8- are based on correct appreciation of the evidence on record.
.
10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon'ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court of Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or rt procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP -9-
482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously .
when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or of order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct rt irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
11. In the present case, PW-1 Tajender Singh DFO Nalagarh deposed in his statement that he had issued permit in favour of Mr. Amit Kumar Aggarwal which was extended vide extension order Ext.PW1/A till 30.11.1999. PW-2 Sunder Singh stated that he was along with police officials when loaded khair wood truck was checked which was coming from Nahan towards Paonta Sahib. He further deposed that there were 190 logs of khair wood and 18.90 quintal of gutka which was certainly more than the authorized quantity. His statement also suggests that he had gone to the spot along ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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with police officials to the spot at about 5.15pm from the Divisional Office and reached the spot at 5:30pm, whereas .
statement of PW-2 suggests that truck was intercepted at 4:30pm, this fact creates doubt with regard to presence of the witness at the site of interception. Neither logs of wood were counted nor gutka was weighed at the spot. Even of statement given by him under Section 161 Cr.PC shows that only 120 logs were counted on the spot. He also proved the rt Seizure memo Ext.PW2/A by which the case property was taken into possession by the police.
12. PW-3 Ramesh Gupta, owner of the truck stated that on 29.11.2009 truck was being driven by accused Kaku Ram. PW-4 Devi Singh is formal witness to seizure memo Ext.PW-4/A vide which 190 logs of khair wood and gutka were also taken in custody by the police and handed over to Forest Guard Tarsem Singh. He had admitted that Gutka was not weighed in his presence.
13. PW-5 Prithvi Singh Forest Guard, stated that on 29.11.1999, truck was loaded with 120 logs of khair wood and six quintals of gutka and challan Ext.5/Aduly signed by him ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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was issued. However, he stated that he did not mention any time of departure in the departure challan form. PW-6 .
Bahadur Singh handed over the logs to Tarsem Singh through Ext.PW-4/A and recorded the statements of witnesses.
14. PW-7 Satwinder Singh deposed that timber was weighed at Dharam Kanta at Industrial Department and on of weighment, it was found to be 18.19 quintals and receipt whereof is exhibited as Ext.PW-7/A. However, he admitted rt that he was informed about the Khair and Gutka by the police as mentioned in Ext.PW-7/A. PW-8 Ramesh Chand registered FIR Ext.PW-8/A and made endorsement on the ruka Ext.PW-8/B.
15. PW-9 HC Som Dutt deposed that he was included in the party which intercepted the truck at Dhaula Kuan. However, he stated that person namely Shyam Lal produced permit authorizing him to transport 120 woods of khair but since there were scants more than the authorized limit, same were seized by SHO. He also admitted that permit was valid which was shown by the accused persons. PW-10 ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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Dave Ram prepared the spot map Ext.PW-10/A of the place, where from truck was loaded.
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16. PW-11 Sukh Ram who stated that he had sold sokta wood and lemon plants to Shyam Lal. PW-12 Dy. S.P. Virender Singh, is the material witness who stated that there was no shop or house on the spot as nobody met him. He of also stated that he got the help of forest department for determining the volume of the recovered gutka. PW-13 rt Jagat Singh who allegedly measured 190 logs and gutka weighing 18.90 quintal and submitted report Ext.PW-3/A. He categorically stated that he had measured the wood seized from the truck along with police officials at Naka at Dhaula Kuan but interestingly, in his statement under Section 161 Cr.PC, neither he unloaded the wood on the spot nor police had unloaded the same. Furthermore, he admitted that no police proceedings were conducted by the police on the spot.
17. On the other hand, accused persons in their statements recorded under Section 313 Cr.PC have pleaded their innocence and denied the whole case of the ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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prosecution. The perusal of statements under Section 313 Cr.PC makes it clear that they have not disputed the incident .
of interception, however, they have denied that they were transporting the timber in excess than the authorized quantity.
18. Now in view of the evidence led on record by of the prosecution as well as statements of the accused under Section 313 Cr.PC, only question remains whether rt prosecution has been able to prove the guilt of the accused beyond reasonable doubt.
19. PW-1 Tajender Singh who was posted at Renuka, Dadahu from March, 1998 till March, 2001 as DFO and had issued permit Ext.PW-5/A dated 11.8.1999 in the name of Mr. Amit Kumar which was further extended till 30.11.1999 i.e. Ext.PW-1/A whereas export permit No. 23/99-2000 Mark-X, was issued by the predecessor. However, in his cross-
examination, he admitted that under this permit, some timber was left, which was to be carried by party. He also stated that whenever truck is loaded, official of forest department verifies the same. Statement given by PW-1 ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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depicts that permit was issued in favour of the accused and admittedly, some timber was left which was to be .
transported/taken by the permit holders later on. Though, there is no explanation as to why whole of the timber was not carried on the same date but at this stage, it can be inferred that the vehicle, in which the authorized quantity of timber of was being carried, had no capacity to take whole of the timber scants as prescribed in the permit. Prosecution has rt nowhere placed on record any document showing the actual capacity of truck in question.
20. PW-2 Sunder Singh who was Range Officer at Forest Corporation, Nahan from the year, 1996 till 19.5.2001 stated that at that relevant time, he was also with the police party, B.O. Jagat Singh and Forest Guard Mahender Singh at Dhola Kauan. But at this Stage, it remains un-explained that how forest officials were with the police at the time of interception of the truck because admittedly as per prosecution story, it was not case of prior information. If it was the case of prior information, certainly the prosecution would have tried to place some documents in that regard ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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which was recorded in the daily diary register. Apart from PW-2 Sunder Singh, B.O. Jagat Singh and Forest Guard .
Mahender Singh were also present on the spot and as per the statement of PW-2 but there is no explanation to that effect; who called them there and on whose behest these officials of forest department on the spot? This is not a case of of prosecution that raid was being carried out at the behest of forest official. Rather, prosecution case is that police rt intercepted the truck. PW-2 also admitted that permit valid till 30.11.1999 was shown to the police at the time of accident. Interestingly, in his cross-examination, PW-2 stated that he had come to Paonta Division for a meeting and from where he joined the police party and at around 5:15 pm, he went from divisional office in jeep and reached the spot at 5:30 pm. He categorically stated that wood scants as well as Gutka were not counted on the spot as it was already dark. He also stated that he had given the statement to the police that 120 woods scants were separated and kept on road but he also stated that counting could not be completed as it was dark. Though in ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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his cross examination he stated that 120 wood scants were again reloaded on the truck but there is nothing on record .
that who did unloading and loading of the timber. It has also come in his cross-examination that gutka billets were never unloaded on the spot and Ext.PW2/A was prepared in police station. At this stage, it is not understood that why PW-2 who of as per his statement was in Paonta for a meeting joined police party, which intercepted the truck because there is rt nothing in the statement of the prosecution as well as other prosecution witnesses which suggest that these forest officials were called on site by the police and if so, on what basis, they were called because admittedly, there is no diary report of police to suggest that they had prior intimation that timber is illegally being transported in the truck in question.
21. PW-4 Dev Singh also stated that in truck, number whereof is not known to him had 190 khair wood scants and 18.90 gutkas, which were handed over by him to Tarsem, Forest Guard vide Ext.PW4/A but interestingly Tarsem Forest Guard has not been examined by prosecution. Records nowhere reveal that prosecution ever associated Tarsem in ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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the investigation nor he was cited as prosecution witness.
PW-4 also in his cross-examination stated that wood was .
never measured in his presence nor anybody signed in his presence. PW-5 Prithvi Singh stated that on 29.11.1999, a truck was carrying 120 scants of khair wood and 6 quintals billets/gutkas and on those scants, there was a mark of "Hammer property" which appeared to be in accordance with the permit and wood scants were bearing Hammer rt property mark strictly in confirmation with the permit issued by the forest department. He also submitted he had signed Ext.PW5/A. HC Bahadur Singh PW-6 stated that he partly investigated the matter and on 27.12.1999, he vide Ext.PW-
4/A handed over the timber to forest guard namely Tarsem Singh which statement of HC Bahadur Singh appears to be totally incorrect because actually excess wood was allegedly recovered on 29.11.1999. In his cross-examination, he admitted that he had recorded statements of different dates. Though, this witness has named Tarsem Singh forest guard to whom the wood was handed over. But reasons best ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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known to the prosecution, Tarsem Singh was never associated by the investigator and he was never examined.
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22. PW-7 Satwinder Singh who was deputed at Dharam Kanta of Industrial Department, stated that on weighment, timber was found to be 18.19 quintals. However, in his cross-examination stated that at the time of of weighment, driver tells with regard to the goods/things loaded in the truck, meaning thereby, this witness did not see rt whether there is timber in truck or it is loaded with something else because as per his version, loaded truck is measured on 'Dharam Kanta' and after measuring the same, weight of truck is subtracted to the actual weight of the things/woods.
However, he admitted that Ext.PW-7/A does not bear signature of driver. Another material witness PW-9 HC Som Dutt, as per prosecution story also visited along with SHO Virender Singh on 29.11.1999 to the site of occurrence. He in his statement though stated that khair wood scants were in excess of 120 wood scants as was authorized but timber could not be counted due to darkness. Even, in his cross-
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examination, he admitted that wood was not measured and counted on the spot.
.
23. PW-12 Dy. S.P. Virender Singh stated that in year 1999, he was posted as Inspector in Paonta Police Station.
On 29.11.1999, around 4;30pm, he also went to the spot along with SI Dave Ram, HC Som dutt and truck in question of was checked, wherein khair wood was found. He also stated that wood was in excess of 120 wood scants as authorized in rt the permit but wood could not be measured at that day.
However, in his cross-examination, he stated that truck was intercepted at 4:30pm and at that time, there was sufficient light. Even in his cross-examination he also stated that he does not know whether forest official had gone with them or not. As per his statement, forest official had measured the volume of wood on spot. In cross-examination, he also states that it is correct that officials have not given the volume of wood on the same date and rather was given later on. He categorically stated that police had not calculated the volume of the wood.
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24. Perusal of statement given by PW-12 as well as other prosecution witness leaves no doubt in the mind of the .
Court that there are major discrepancies, contradictions in the statements given by prosecution witnesses. PW-13 namely Jagat Singh, retired BO stated that during 1994, he was posted as a B.O and he had measured 190 scants of of khair which was approximately 18.90 quintals. However, in his cross-examination he has stated that no wood was unloaded rt on the spot and his statement was recorded by police on 30.11.1999. He also stated that it has Come in his statement that police had not initiated any proceeding on the spot, rather they had come to Paonta after taking the truck in possession.
25. A close scrutiny of the prosecution witnesses compels this Court to take a view that admittedly, there are major contradictions in the statements given by prosecution witnesses and there is no consistency to the statements given by the prosecution witnesses and as such same cannot be termed as confidence inspiring. All the prosecution witnesses have stated differently with regard to the timing of the ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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interception. It also remains un-explained that in what manner, the forest officials were associated at the time of the .
interception because, there is nothing on record to suggest that police had acted on the basis of some prior information.
Had it be so, there would have been some recording in the daily diary report. Even there is no record to suggest that of forest official were ever called by the police on spot. Even as per statement of forest official, PW-2, he had come to rt Paonta for a meeting but how and on whose behest, he joined police party, which intercepted the truck remains un- explained and this fact really casts suspicion with regard to the whole story put forth by the prosecution. Admittedly, Road Dhaula Kuan is an industrial station, where there is heavy flow of truck/traffic and it is not understood that how police could not associate an independent witness that too at 4:30PM. Mere statement by PW-10 Dave Ram that no independent witness could be found, cannot be accepted to be true because when at the relevant time people from the forest department that too from the far places could be associated why not then independent witnesses? Story put ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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forth by prosecution as has come on record through the statements given by the prosecution witnesses also fails to .
prove that actually measurement, if any, was done on spot because as per prosecution witness, measurement could not be done on the spot because of darkness. Though, story of darkness put forth by prosecution does not appear to be of plausible and real one because admittedly, at that time, interception was done between 4:30 to 5:30pm. There are rt major discrepancies with regard to loading/unloading of timber on the spot because nothing has come on record that who actually unloaded the wood logs on the spot and later on reloaded. Sapurdari allegedly given to forest guard Tarsem Singh also has not been proved because admittedly Tarsem Singh, Forest Guard was not associated by the prosecution nor he was cited as prosecution witness.
26. To the contrary, PW-1 categorically in his statement stated that whenever woods are loaded from the depot, it is properly verified by the officials of the department. He also stated that some wood /timber authorized in favour of the accused was left which was yet to ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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be carried/transported by the permit holders. Since prosecution has failed to prove that accused were carrying .
woods in excess to the authorized quantity it can be presumed here that capacity of truck was not sufficient enough to carry the whole of the wood as authorized in permit compelling the accused to leave the remaining in the of depot to be transported later on. If aforesaid presumption is considered to be true, admittedly, truck could not carry 190 rt scants of khair woods in any manner as alleged by prosecution. PW 4 and PW 5 also categorically stated that truck was loaded with 120 logs and six quintals gutkas. PW-2 though in his examination in chief stated that truck was carrying 190 logs and 18.90 gutkas but in his cross-
examination, he stated that 120 logs were unloaded from the truck on the road and thereafter, counting could not be completed due to darkness but he categorically stated that Gutka was not unloaded at that juncture. Majority of prosecution witnesses have stated that no written proceedings were carried out on the spot but actually, it was carried out in the police station that too on the next date.
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27. PW-4 also stated that logs and gutkas were not measured in his presence, however, he signed it but no other .
person signed in his presence. PW-10 admittedly in his statement has stated that he has prepared spot map after visiting the spot after 2-3 days of occurrence. Moreover, prosecution has failed to extract anything from PW-11 Sukh of Ram when he stated that he had sold 19 trees to the accused but later on in is cross-examination stated that trees rt were of lemon, and simmal and kokat/fuel wood, hence, this sale of trees, if any, cannot be connected with the recovery of timber which was allegedly of khairwood. PW-13 stated that neither the forest officials nor police had unloaded and loaded the wood on the spot and measurement was done in the afternoon of 29.11.1999 and report was submitted on 1.12.1999, whereas prosecution case is that vehicle was intercepted at 4:30pm on 29.11.1999 and due to dark could not be done on that day.
28. After carefully examining the statements of each and every prosecution witnesses and perusing the documentary evidence on record, I have no hesitation to ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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conclude that evidence put forth by prosecution is not reliable and trustworthy because apparently, there are major .
contradictions in their statements which are suggestive of the fact that story put forth by the prosecution is not correct/true.
Prosecution has not been able to prove its case beyond reasonable doubt that accused were carrying timber in of excess of the authorized quantity. It also remains un- explained that when it is a specific case of prosecution that rt the counting of woods could not be completed on the spot due to darkness then how they could have sent information in Ruka on the same day specifically detailing therein that 190 woods were found in the truck.
29. Mr. Rajiv Rai, also argued that admittedly permit was in the name of Amit Kumar accused No.3 son of accused No. 2 Sham Lal but he was not present on spot at that time and as such, he could not be charged under Sections 41 and 42 of the Indian Forest Act. Admittedly, in the present case, as per prosecution story, accused No. 2 was found sitting in the truck who himself stated that he is the owner of the wood but even PW-2 Shyam Lal had died ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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during the pendency of the appeal before the appeal Court. Accused No. 1 Kaku Ram was admittedly driver of the .
truck carrying wood. Accused Nos. 2 and 3 admitted that they were carrying wood in question on the basis of permit issued by the forest department. Kaku Ram who was mere a driver of that truck could not be connected in the case and of has been wrongly charged by the police under Sections 41 and 42 of the Indian Forest Act, especially when accused rt Nos. 2 and 3 have admitted that wood being carried out in truck belongs to them. Mr. Rai has relied upon the judgment reported in Anil Chandel V. State of HP, Cr.LJ 1792, wherein it has been held as under:-
13. In Criminal case No,121-I of 2002/II-II of 2006, original Registration Certificate (RC) of Tempo/Trax No.HP-24A-2186 has been placed on record. In RC owners of this vehicle have been shown Anil Chandel son of Gian Chand and Bhawna Chandel D/O Vinod. In other words Bhawna Chandel isalso co-owner of Tempo/Trax No.HP-24A-2186. The learned Addl.
Sessions Judge has wrongly held that Bhawna Chandel is the wife of Anil Chandel. There is nothing on record to support this finding. The ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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learned counsel for the petitioner has submitted that Bhawna Chandel is niece of Anil Chandel petitioner. In any case Bhawna Chandel is a co-
.
owner of Tempo/Trax No.HP-24A-2186 and admittedly no notice under section 52-B was given by the authorized officer to her before passing order of confiscation of Tempo/Trax No.HP-24A-2186. In absence of notice to of Bhawna Chandel the authorized officer has erred in ordering confiscation of this vehicle and same error has been committed by learned rt Addl. Sessions Judge while dismissing the appeal. The prosecution has miserably failed to prove that any timber was being transported on 10.1.2002 in Tempo-Trax No.HP-24A-2186 with the connivance or knowledge of the petitioner and person-in-charge of the vehicle. Thus Tempo/Trax No.HP-24A-2186 is not liable for confiscation.
30. Admittedly, in the present case, prosecution has not led any evidence to connect Kaku Ram, driver with the alleged transportation of timber. Prosecution has not proved that accused Kaku Ram and Amit Kumar who was not present in the truck, were connected in the present case ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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because there is nothing on record to suggest their connivance and knowledge.
.
31. In the present case, prosecution has failed to prove its case beyond reasonable doubt. It is well settled law that prosecution has to stand on its own legs and it cannot take advantage of the discrepancies, if any, of the accused of or opposite party.
32. Mr. Rai has also invited attention of this Court to rt the judgment rendered by the Hon'ble Apex Court in Sharad Birdhichand Sarda vs. State of Maharashtra, 1984 (4)SCC 116, whereby it is held as under:-
151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence.
This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a .
plea which is not accepted by a court.
33. Mr. Rai also placed reliance on the judgment rendered in State of HP versus Shamsher Singh,1999 Cr.LJ 4744, relevant paras No. 7, 8 and 9 of which are reproduced of herein below:-
7. It is against the aforesaid background that rt the evidence led by the prosecution in this case has to be appreciated. It is admitted case of the Prosecution that the Police has prior information that the truck in question was carrying timber illicitly and it is so admitted by PW-2 Harbhajan Singh the Investigating Officer.
In view of this prior information it would have been proper and lawful for the Investigating Officer to have joined some independent witnesses to witness the interception and the alleged recovery of the sleepers therefrom. However, it was not done. It is admitted by PW- 3 Duglu Ram, MHC, that at the place where the truck was intercepted there is heavy rush of traffic and there are Hotels, Tea Stalls and ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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residential houses in the near vicinity of the place of interception of the truck.
8. Apart from the two police officials who are .
the alleged eye-witnesses of the recovery, PW-1 Ved Ram, Range Officer, is the other eye- witness of the alleged recovery. He also happened to be present on the spot along with Forest Officials though it was not a joint raid or of patrol by the police and Forest officials. Thus, the presence of this Ranger, an official of the Forest Department on the spot at the relevant rt time, makes him a chance witness, whose statement cannot be readily believed. According to this witness i.e. PW-2 Ved Ram the truck was stopped on the spot by the police and it as checked and thereafter it was checked and thereafter it was found to be carrying 15 Deodar sleepers, therefore, it was taken to Police Post Bhuntar where the slippers were unloaded. He further goes on to state that the police took timber into possession vide memo Ext.PW-1/A. In his cross-examination he admits recovery memos Ex.PW-1/A and Ex.PW- 1/B were signed by him at the Police Post and his statement was also recorded by the police at the Police Post. It means that these documents were prepared at the Police Post ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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and his signatures were taken thereon at the Police Post. Whereas according to PW-2 Harbhajan Singh he has prepared the recovery .
memos and had recorded the statements of the witnesses on the spot, that is, near Naya Pool Bhuntar where the truck was intercepted. Thus, about the preparation of the records/documents there is contradiction in the of statements of these two witnesses inasmuch as according to one the recovery memos were signed and statements were recorded at the rt Police Post and as per the version of the other these were prepared on the spot.
9. PW-3 Duglu Ram states that after the inception of the truck they remained on the spot for one and half hour and the entire investigation proceedings were completed there while sitting inside the truck. Though to some extent on this count this witness supports the version of the Investigating Officer but both of them are contradicted by PW-1 Ved Ram. Thus, the statements of these witnesses cannot be said to be above suspicion particularly in the facts and circumstances of this case as has already been set-out in preceding paras.
34. In the case at hand, this has already been observed that very presence of forest officials creates doubt ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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about the story of prosecution case because there is nothing on record to suggest that it was joint raid conducted on .
some information. Hence, their versions cannot be accepted readily. Rather it requires great deal of caution to examine what they stated.
35. Mr. Rai has also invited attention of this Court to of the judgment rendered in State of HP versus Piare Ram and Anr., 2000 Cr.LJ 192, Para No. 4 of which reads as follows:-
rt
4. The only non-official witness examined in this case by the prosecution is PW-1 Hari Singh the driver of the Van who has not supported the prosecution case. PW-2 Gudoo Brahmchari and PW-3 Jagat Ram, SI, are the police officials and PW-4 Man Chand Thakur is the Forest Official.
Thus, their statements have to be read with caution. Though they have by and large supported the prosecution version but there are contradictions in their statements and there are other circumstances also which render their statements unreliable.
36. This Court has already concluded that in the facts and circumstances, where forest people from far off places could join the police at the time of interception, plea ::: Downloaded on - 15/04/2017 20:18:45 :::HCHP
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of unavailability of independent witness cannot be accepted that too on the road which is always flooded with .
heavy traffic. Hence, absence of independent witness creates serious doubt with regard to alleged interception and thereafter, recovery of wood/timber in excess of the permit.
of
37. I have no hesitation to conclude that the judgments passed by the courts below convicting the rt accused are not based on the correct and proper appreciation of the evidence on record and as such they are liable to be quashed and set-aide being perverse and illegal. In view of the aforesaid finding, accused are acquitted of the charges framed against them bail bonds are discharged. Interim order is vacated. Petition along with pending application(s), if any, stands disposed of.
May 10, 2016 (Sandeep Sharma),
manjit Judge.
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