Himachal Pradesh High Court
State Of H.P vs Hardyal And Others on 15 June, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 315 of 2006.
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Reserved on: 30th May, 2015.
Date of Decision : 15th June, 2015.
State of H.P. .....Appellant.
Versus
Hardyal and others
Coram
r to .....Respondents.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?
For the Appellant: Mr. R. S. Thakur, Additional Advocate General.
For the Respondents: Ms. Rita Goswami, Advocate.
____________________________________________ Sureshwar Thakur, Judge The instant appeal is directed by the State against the judgment rendered on 04.04.2006 by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahar, H.P., for enhancement of sentence as meted to the accused/respondents ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 2 by the learned Sessions Judge while convicting them for theirs having committed offences punishable under Sections 32 and .
33 of the Indian Forest Act and Section 379 read with Section 34 of the IPC, inasmuch as the learned Sessions Judge, Kinnaur at Rampur Bushahr having rendered a grossly inadequate sentence of imposing fine upon the accused/respondents in the sum of Rs.500/- each for proven commission of offences under Sections 32 and 33 of the Indian Forest Act and as also sentence of fine of Rs.500/- each for proven commission of offence under Section 379 read with Section 34, IPC by the accused/respondents.
2. Brief facts of the case are that on 19.01.2003 at about 1.00 p.m, the complainant Shri Hardev Singh, Forest Beat Guard, Chawai along with his helper Shri Shiv Ram were on patrolling duty in Forest Compartment No. C-149, UEF and found that one 1st D (deodar) tree was felled by the accused persons and they were also sawing it and making its logs, then the complainant asked the accused why they have cut the one deodar tree then accused Hardyal Singh replied him that he had ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 3 cut the deodar tree, whatever you want to do, you do that. On it, the complainant tried to take into possession the instruments .
of cutting then all of a sudden, all the accused started picking up quarrel with him and also pulled him and hurled filthy abuses to him. Accused Hardyal Singh has also laid the complainant on the earth by pushing him and also threatened him to do away with his life. The complainant was rescued from the clutches of the accused by his helper Shri Shiv Ram.
Thereafter, all the accused have also forcibly taken away their sawing instruments from the complainant and fled away from the spot. The accused have sawn the five logs of the tree on the spot and two logs were found on the spot un-sawn. The front (top) portion of the felled tree was not found by the complainant and his helper on the spot, which was removed by the accused prior to their reaching the spot. The accused have been alleged to have illegally felled one deodar tree on the spot as also threatened the complainant and obstructed or prevented the complainant and his helper in the discharge of their official duties being public servants. The complainant ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 4 reported the matter to the police on 20.1.2013 on the basis of which FIR was registered in the Police station concerned.
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During the course of investigation, the Investigating Officer prepared the site plans, procured the damage report, took into possession sawing instruments and logs and other relevant documents relating to the case.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
4. Accused were charged for theirs having committed offences punishable under Section 32 read with Section 33 of the Indian Forest Act and Sections 379, 353 and 506 read with Section 34 of the IPC by the learned trial Court to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statements of the accused, under Section 313 of the Code of ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 5 Criminal Procedure were recorded in which they pleaded innocence and no evidence was led by them in defence.
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6. Both, the learned Judicial Magistrate, Anni, District Kullu, H.P., as well as the learned Sessions Judge, Kinnaur at Rampur Bushahr on appreciation of the evidence which had been adduced by the prosecution, to substantiate the guilt of the accused qua the factum of the accused/respondents having committed offences punishable under Sections 32 and 33 of the Indian Forest Act and Sections 379, 353 and 506 read with Section 34 of the IPC , had concluded that the offences punishable under Section 32 and 33 of the Indian Forest Act and under Section 379 read with Section 34 of the IPC had been proven to be committed by the accused/respondents.
The prosecution evidence as existed before both the learned Courts below portrays the factum of the accused/respondents having felled a deodar tree from the protected forest. The existence of the felled deodar tree in a protected forest stood potently proved by tatima Ex.PW6/A. The accused/respondents projected a defence of the tree as allegedly felled from a ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 6 protected forest having been legally felled, it having been allotted to them under the Timber Distribution Rights.
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However, the aforesaid legality concerted to be fastened by the accused/respondents in theirs felling a deodar tree from a protected forest, inasmuch as it having been allotted to them under the Timber Distribution Rights, stands overcome and repelled by the factum of an existence in the testimony comprised in the cross-examination of the complainant portraying therein the factum of the felled deodar tree, though initially allotted under the Timber Distribution Rights to them, yet allotment thereof to the accused/respondents under the Timber Distribution Rights having been subsequently cancelled.
The deposition in the cross-examination of the complainant pronouncing upon the factum of cancellation of allotment of a deodar tree under the Timber Distribution Right to the accused/respondents under the garb of whose purported allotment they came to fell it, has remained un-shred or un- shattered at the instance of the accused/respondents, by adducing into evidence apposite documentary evidence ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 7 portraying the factum that the allotment of the felled deodar tree under the Timber Distribution Rights to them under whose .
garb they felled it, had not come to be cancelled. In face thereof, the deposition of the complainant in his cross-
examination that the allotment of a deodar tree to the accused under the Timber Distribution Rights stood cancelled acquires immense credibility hence obviously the accused/respondents stand ousted to claim that its felling at their instance was clothed with a legal cover rather it has to be concluded that the felling of the deodar tree, when its allotment previously under the Timber Distribution Rights to them further stood subsequently cancelled, constituted infraction of the provisions of Sections 32 and 33 of the Indian Forest Act as well as of the provisions of Section 379 read with Section 34 of the IPC. In face thereof, the conviction of the accused/respondents, by both the learned Courts below for theirs having committed offences punishable under Sections 32 read with Section 33 of the Indian Forest Act and Section 379 read with Section 34 of the IPC, cannot be construed to be lacking in legal soundness ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 8 besides, arising from any non-appreciation or mis-appreciation of the apposite evidence on record.
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7. Besides, the accused/respondents were alleged to have committed offences under Sections 353 and 506 read with Section 34 of the IPC constituted by their acts of hurling abuses at the complainant as well as preventing him in the discharge of his public duties, comprised in the act of the sawing instruments.
r to accused/respondents precluding the complainant to seize their Nonetheless, apart from the bald testimony of the complainant, the said fact remained unproved or unsubstantiated by PW-2 who rather in his deposition belied the version spelt out by the complainant in his examination-in-
chief wherein he has portrayed the fact of, no offence having been committed at the instance of the accused/respondents constituted under Sections 353 and 506 read with Section 34 of the IPC. With the helper (PW2), accompanying the complainant-Forest Guard hence having not lent support rather having contradicted the testimony of the complainant qua the factum of the accused/respondents having, by their acts of ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 9 threatening the complainant besides, having hurled abuses at him as well as prevented him in the discharge of his duties .
comprised in their act of precluding him to seize their sawing instruments, as such, having committed offences under Sections 353 and 506 read with Section 34 of the IPC, concomitantly then the commission of offences aforesaid at the instance of the accused/ respondents are to be concluded to have not come to be proved especially when the bald testimony of the complainant for want of corroboration of his testimony by PW-2, is hence incredible.
8. The learned Sessions Judge in his judgment impugned before this Court while affirming the findings rendered by the learned Judicial Magistrate, Anni, who had convicted the accused/respondents for theirs having committed offences punishable under Section 32 read with Section 33 of the Indian Forest Act and under Section 379 read with Section 34 of the IPC, had modified the sentence imposed upon the accused/respondents by the learned trial Court from imposition of sentence of simple imprisonment of one month and ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 10 imposition of fine of Rs.500/- each for theirs having committed offences punishable under Section 32 read with Section 33 of .
the Indian Forest Act and imposition of sentence of simple imprisonment of one month and imposition of fine of Rs.500/-
each for theirs having committed offence punishable under Section 379 read with Section 34 of the IPC, to imposition of fine of Rs.500/- each for theirs having committed offences punishable under Section 32 read with Section 33 of the IPC and imposition of fine of Rs.500/- each for theirs having committed offences punishable under Section 379 read with Section 34 of the IPC. Obviously, the sentence of one month of imprisonment each imposed upon each of the accused/respondents for the proven guilt under Section 32 read with Section 33 of the Indian Forest Act and Section 379 read with Section 34 of the IPC stood modified and replaced by imposition of fine of Rs.500/- each upon the accused/respondents on both counts.
9. The State of the Himachal Pradesh is aggrieved by the grossly disproportionate sentence of fine alone having been ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 11 imposed upon the accused/respondents for theirs proven guilt for commission of offences punishable under Section 32 read .
with Section 33 of the Indian Forest Act and Section 379 read with Section 34 of the IPC. However, the learned Sessions Judge, Kinnaur at Rampur Bushahr while reducing or modifying, in the aforesaid manner, the sentence as imposed upon the accused/respondents by the learned Judicial Magistrate, Anni, had relied upon a judgment of this Court reported in case titled as State of H.P. vs. Ami Chand, 1992(2), Sim.L.C., 169 wherein this Court when the accused therein was found guilty of felling of five deodar trees had also taken a lenient view and had found it fit and appropriate to instead of imposing sentence of imprisonment upon the accused therein to impose only a sentence of imposition of fine of Rs.500/- on the accused. The reliance as placed by the learned Sessions Judge on the view taken by this Court in the case supra is apt as well as tenable and does not necessitate any interference.
10. For the foregoing reasons, the appeal filed by the State of Himachal Pradesh for enhancement of sentence meted ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP 12 by the learned Sessions Judge, Kinnaur at Rampur Bushahr to the accused/respondents does not warrant any interference, .
hence, the appeal is dismissed and the judgment of the learned Sessions Judge, Kinnaur at Rampur Bushahr is affirmed and maintained. Records be sent back forthwith.
(Sureshwar Thakur) th 15 June, 2015 Judge (jai) ::: Downloaded on - 15/04/2017 18:22:03 :::HCHP