Himachal Pradesh High Court
Shiv Lal And Others vs State Of Himachal Pradesh on 21 June, 2016
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 128 of 2008
Judgment Reserved on : 25.04.2016
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Date of Decision : 21.06.2016
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Shiv Lal and others ...Petitioners
Versus
State of Himachal Pradesh .....Respondent
of
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Coram: rt
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 No
For the Petitioners : Mr. Satyen Vaidya, Senior Advocate
with Mr. Vivek Sharma, Advocate.
For the respondent : Mr. Ramesh Thakur, Deputy Advocate
General.
Vivek Singh Thakur, J.
In present appeal judgment dated 12.06.2008 passed by learned Sessions Judge(Forest), Shimla in Criminal Appeal No. 19-S/10 of 2008/04 titled Shiv Lal and others versus State of Himachal Pradesh affirming the conviction and sentence imposed by Judicial Magistrate, 1st Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 2 Class, Chopal, Camp at Theog in Criminal case No. RBT 92- II of 2004/01 vide Judgment dated 10.08.2004 against petitioners has been assailed.
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2. On the basis of statement of PW-1 Ex. (PW-1/A) recorded under Section 154 Cr.P.C. FIR (Ex. PW-11/A) was registered under Section 379 read with Section 34 of the of Indian Penal Code and Section 33 of Indian Forest Act for dishonestly and illegally cutting Deodar and Kail trees from rt Government Forest without sanction or permission of appropriate authority and without valid permit to do so.
3. Challan was put up against three persons. All three accused were convicted by learned trial Court sentencing all of them for one year rigorous imprisonment under Section 379 IPC and fine of Rs.1,000/- each and in default of payment of fine to further undergo simple imprisonment for three months. Further the convicts were also sentenced to undergo for 2 years rigorous imprisonment under Section 33 of the Indian Forest Act and to pay a fine of Rs.5000/- each and in default of payment of ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 3 fine, to further undergo simple imprisonment for six months.
4. The accused had preferred an appeal against the .
judgment dated 12.06.2008, passed by learned trial Court.
The said appeal has been partly allowed and learned Special Judge (Forest) Shimla had acquitted accused Madan Lal for of want of evidence against him and has upheld conviction of present petitioners.
5. rt I have heard learned counsel for the parties and gone through exhibited documents placed on record.
6. Mr. Satyen Vaidya learned counsel for petitioners-accused has argued that both the courts below have committed mistake and illegality by misreading evidence and convicting the petitioners-accused and submitted that impugned judgment suffers from perversity.
On the other hand, Mr. Ramesh Thakur, learned Deputy Advocate General has vigorously contended that findings of both the learned courts below are based on proper appreciation of the evidence on record and supporting impugned judgments he has prayed for dismissal of appeal.
::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 47. As per prosecution case PW-1 Sewa Ram has visited Chhichar Forest on 23.04.2001 to check irrigation and water supply to his land and he noticed 20-21 .
sleepers of Kail lying in jungle. No person was found there.
He retuned back to his home and informed villagers regarding this and possibility of presence of those persons of during night hours who had stacked that timber in jungle.
Therefore about 7.00 PM in the evening he, his brother Hira rt Singh and Goverdhan had started towards Chhichar Forest.
They had also telephonically informed Gulab Singh of Village Nanhi with request to inform others also. Residents of village Nanhi also met them on the road. On hearing sound of throwing sleeper at about 10.00 PM, complainant PW-1 and his companions had apprehended persons red handed who were throwing sleepers. On inquiry, they had disclosed their names as Shiv Lal and Devinder. Thereafter PW-4 Sunil Kumar had gone to his house and had telephonically informed the police at about 12.00 O'clock in the night.
::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 58. After recording rapat No. 23 Ex.PW-8/A dated 24.04.2001 in Police Station, Theog, PW-12 SI Anant Ram had departed to the place of occurrence alongwith other .
police officials. After reaching on spot statement of PW-1 Sewa Ram Ex. PW-1/A was recorded under Section 154 of the Code of Criminal Procedure and was sent to Police of Station, Theog through Constable Pawan Kumar and on the basis of which FIR Ex. PW-11/A under Sections 379/34 IPC rt and Sections 41, 42 and 33 of the Indian Forest Act was registered by PW-11 ASI Kushal Chand. Sleepers taken in possession were handed over on superdari to PW-2 Varinder Singh vide Ex. PW-2/A.
9. During investigation, on the basis of statement of accused Shiv Lal (Ex. PW-4/A) recorded under Section 27 of the Indian Evidence Act, instrument used for cutting trees were recovered and were taken into possession vide Ex. PW-7/A. After completion of investigation challan was put in the Court.
10. Prosecution has examined 12 witnesses to prove guilt of accused. Thereafter statement of accused under ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 6 Section 313 Cr.P.C. was recorded in which cause for implication of accused was stated to be deposition of father of Shiv Lal accused against complainant Sewa Ram in a .
Civil Suit. In defence certified copies of statements of witnesses in Civil Suit titled as Balia Versus Goverdhan Dass were tendered as Ext. DX.
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11. PW-1 Sewa Ram, PW-3 Gulab Singh, PW-4 Sunil Kumar, PW-5 Ramesh Chand are witnesses of spot who had rt apprehended petitioners on the spot.
12. It has been argued that one Balia had filed a Civil Suit against PW-1 Sewa Ram and his brother Goverdhan in which father of petitioner No.1 Shiv Lal had deposed against PW-1 Sewa Ram and therefore, there was enmity between PW-1 and petitioner No. 1 and out of this enmity, present case had been launched at his instance against petitioners. PW-1 Sewa Ram has not denied suggestions put to him that father of petitioner No.1 had appeared as a witness against him in civil suit.
13. Statement of PW-1 is not the sole basis for convicting petitioners. The said statement is duly ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 7 corroborated by PW-3 Gulab Singh, PW-4 Sunil Kumar, PW-
5 Ramesh Chand and there is nothing on record to show that these witnesses were having any reason or interest to .
implicate petitioners falsely.
14. Plea of petitioners that all the witnessed had deposed at the instance of PW-1 Sewa Ram is also not of substantiated from evidence on record. There is no material on the basis of which it can be inferred that rt witnesses were under influence of PW-1 Sewa Ram or otherwise interested to implicate petitioners for extraneous reasons.
15. It has been argued on behalf of the petitioners that instead of reporting the matter to forest officers or police but calling villagers on the spot and apprehend petitioners cast doubt on prosecution story and in fact petitioners have been falsely implicated at the instance of PW-1 and PW-3. Learned Sessions Judge(Forest), Shimla has dealt with this argument of petitioners by holding that protection of forest is duty of all villagers and, therefore, conduct of PW-1 Sewa Ram cannot be rendered as doubtful.
::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 8There is no question put PW-1 Sewa Ram to explain reason for not reporting the matter to police or forest officials at first instance but calling villagers on the spot to apprehend .
the petitioners. In my opinion reactions and actions of different persons may differ in a same or similar circumstance. Behaviour of human being cannot be judged of in a particular frame work of thought process. There is also possibility of apprehension of fleeing of accused or not rt coming of accused in case of presence of police or forest officials on the spot. It has come in evidence that at first instance at the time of noticing timber by PW-1 Sewa Ram in forest no one was present there. At that time, any activity of police or forest officials would have made it not only difficult but impossible to trace accused persons.
Therefore, there is nothing abnormal in calling villagers to nab culprits instead of calling police so as to apprehend offenders red handed on spot. The police was informed at the earliest possible time after apprehending accused. Fact remains that there were 20 sleepers on the spot being ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 9 removed by petitioner without having authority to do so and for that act there is no plausible explanation on record.
16. It has been pointed out on behalf of petitioner .
that PW-1 Sewa Ram has stated that there were 20 sleepers of Kail whereas as per seizure memo, there are 6 sleepers of Deodar and 14 sleepers of Kail. This issue has of also rightly been dealt with by learned Sessions Judge(Forest), Shimla returning finding that PW-1 is not an rt expert witness to identify the kind of timber/sleeper. PW-2 Varinder Singh has stated in his statement that there were 6 sleepers of Deodar and 14 sleepers of Kail. He is a Forest Guard and he is the best person to identify the kind of timber. As such variance in statement also established that PW-1 Sewa Ram had reported to police in the manner as observed by him as per his prudence.
17. Learned counsel for petitioners have pointed out that Ex. PW-1/A was prepared on the spot and at that time FIR had not been registered but said documents bears FIR number on top rendering recovery of 20 sleepers from petitioners doubtful. As per Deputy Advocate General ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 10 papers are prepared by keeping space blank on the document for putting FIR number after registration of FIR and in present case also FIR number on Ex PW-1/A was .
inserted after registration of FIR in the space kept blank.
It is finding of fact which can be interfered if it is perverse.
Perusal of document Ex. PW-1/A suggests nothing to of interfere in finding of Lower Courts on this issue.
18. Petitioners have claimed that none of witnesses rt have deposed that petitioners were seen cutting forest tress and converting same into sleepers in their presence and chain of evidence against petitioners-accused is not complete. In my opinion, it has been duly proved beyond reasonable doubt on record that petitioners were apprehended alongwith recovered sleepers/timber and petitioners failed to show any permit/permission for having possession of said timber and otherwise to explain and justify possession of recovered timber. In absence of any document and explanation only conclusion that petitioners were in unauthorized and illegal possession of Government timber is possible.
::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 1119. Non-production of case property in the court is also of no help to the petitioner as prosecution has successfully proved beyond reasonable doubt that .
petitioners were caught red handed alongwith forest produce i.e. 20 sleepers without any valid permit extracted from Government Forest without permission of appropriate of authority.
20. No other point urged. Lower courts have rt appreciated evidence on record completely and correctly and there is no error, material illegality, infirmity or perversity in findings returned by Lower Courts against petitioners.
21. In the result, I find no force in this revision and therefore, no interference under Revisional jurisdiction of this Court is warranted and revision petition is dismissed and judgment passed by learned Sessions Judge(Forest), Shimla, in Appeal No. 19-S/10 of 2008/04, titled Shiv Lal and others versus State of Himachal Pradesh, affirming conviction and sentence, as awarded by trial Court, is upheld and sentence awarded to petitioners by learned ::: Downloaded on - 15/04/2017 20:37:34 :::HCHP 12 JMIC, Chopal, Camp at Theog in Criminal case No. RBT-
92-II of 2004/01 vide judgment dated 12.06.2008 is affirmed. Petitioners Shiv Lal and Devinder are directed to .
surrender before trial Court within 30 days from today to undergo sentence as awarded by it. Copy of Judgment alongwith entire record of trial Court as well as First of Appellate Court be sent forthwith.
(Vivek Singh Thakur),
June 21, 2016
rt Judge.
(brb)
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