Jharkhand High Court
State Of Jharkhand vs Bihari Lal Khandelwal & Ors. on 18 March, 2015
Author: R.N. Verma
Bench: Ravi Nath Verma
Acquittal Appeal (S.J.) No. 38 of 2005
Against the judgment of conviction and order of sentence
dated 25.02.2004 passed by the learned 2nd Assistant Sessions
Judge, Chatra in Sessions Trial No.240 of 1990.
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The State of Jharkhand .... .... .... Appellant
--Versus--
1. Bihari Lal Khandelwal son of Rameshwar Lal Khendelwal
2. Krishna Kumar Khandelwal son of Bihari Lal Khandelwal
3. Ravindra Kumar Sinha son of Lalit Narayan Ambastha
4. Charitar Singh @ Ram Charitar Singh son of Arjun Singh
5. Braj Kishore Pathak @ Chhakari Pathak son of Late Gamvir Pathak
All residents of Main Road, Chatra, P.O. & P.S.- Chatra,
District- Chatra .... .... .... Respondents
For the Appellant : Mr. M. B. Lal, Advocate
For the Respondents : Mr. B.K. Dubey, Advocate
PRESENT
HON'BLE MR. JUSTICE RAVI NATH VERMA
JUDGMENT
C.A.V. ON: 27/02/2015 PRONOUNCED ON: 18/03/2015
This acquittal appeal filed by State under Proviso of
Section 378 of Code of Criminal Procedure is directed against the
judgment dated 25th February, 2004 passed by 2nd Assistant Sessions
Judge, Chatra in Sessions Trial No.240 of 1990 whereby and
whereunder the court having found the accused respondent nos. 1 to 5
not guilty for the offence under Sections 379, 413, 414 and 120(B) of
the Indian Penal Code and also under Sections 33 and 42 of the Indian
Forest Act, acquitted them from the charges.
2. The case of the prosecution which is based on the written
report dated 29.07.1984 submitted by Kishore Toppo, Range Officer,
Chatra in short is that on the basis of search warrant issued by S.D.M.,
Chatra on the request of D.F.O., South Division, Chatra the police in
presence of Ram Kishun Sahu, Magistrate and two independent
witnesses conducted raid in the bungalow-cum-godown of the
respondent nos.1 and 2 Bihari Lal Khandelwal and Krishna Kumar
Khandelwal of Chatra on 29.07.1984 and seized 146 bags of Katha
weighing 9452 Kg, 19 basket of Katha biscuit weighing 179 Kg. and
16.443 cubic meter Gila Kotch. It is also the allegation that the said
two respondents after cutting and removing Khair trees from various
2 Acquittal Appeal (S.J.) No.38 of 2005
protected forest, manufactures Katha with the help of their associates
for their wrongful gains and keeping the same in their godown
causing huge revenue loss to the State. Thereafter, Chatra P.S. Case
No.93 of 1984 was instituted under Sections 379, 411, 413, 414, 420,
120B of the Indian Penal Code and also under Sections 33 and 42 of
the Indian Forest Act.
3. After investigation, which was finally concluded by
C.I.D. Food, Bihar under the Investigation Officer, R.D. Suberno and
I.O. Krishna Bihari Singh, the charge sheet was submitted under the
aforesaid Sections against the two above respondents and other
accused persons. Some of the accused persons were shown as
absconder. The learned C.J.M., Chatra took cognizance of the offence
and committed the case to the court of Sessions for trial and disposal.
4. During trial, the prosecution examined altogether 11
witnesses. P.W.1 Jagdev Mahto and P.W.5 Birendra Tiwari as a
seizure witnesses, Kishore Toppo the informant as P.W.2. P.W.3 Jitan
Dusadh, P.W.4 Bifa Bhuiyan, P.W.6 Daneshwar Ganjhu and P.W.7
Mohit Bhuiyan were declared hostile. Mithilesh Kumar, D.F.O.,
North as P.W.8, Kuldeep Manjhi, Range Officer as P.W.9, Usha
Ranjan Biswas, D.F.O., South as P.W.10 and R.D. Suverno, who
investigated the case on behalf of C.I.D. as P.W.11. The defence also
examined one witness D.W.1 Krishna Kumar Khandelwal the
respondent no.2 and brought on record the following relevant
documents:-
(i) Ext.A, Ext.A/3, Ext.A/5, Ext.A/6 and Ext.E the letters of different
dates.
(ii) Ext.A/4 is Memo.
(iii) Ext.B/92 is Transit Permit of different dates.
(iv) Ext.C is Depot Register.
(v) Ext.D is handwriting and signature on Depot Register.
(vi) Ext.F is a Chart of Katha etc.
(vii) Ext.I Report of Tapez Depot for the month of February, 1984.
5. The trial court, after considering the evidence and other
materials including the documentary evidences, recorded the order of
acquittal as said above. Being aggrieved with that, this appeal has
been preferred by the State.
3 Acquittal Appeal (S.J.) No.38 of 2005
6. Learned counsel for the State while assailing the finding
recorded by the trial court seriously contended that the court below
failed to appreciate the evidence of the prosecution witnesses in right
perspective and without applying judicial mind, acquitted the
respondent nos.1 to 5. It was also submitted that there was no
justification in disbelieving the consistent evidence of prosecution
witnesses regarding theft of Khair trees and woods from the protected
forest areas by the respondents. Hence, the court below committed
error and wrongly acquitted the respondents.
7. Contrary to the aforesaid submissions, the learned
counsel appearing for the respondents relying upon the judgment
Bhim Singh Versus State of Haryana: 2002 (10) SCC 461 submitted
that in a case of appeal filed against acquittal, the appellate court has a
very limited role to play and should not interfere in the finding as a
matter of routine. The court below also bear in mind that there is
presumption of innocence in favour of the accused and the accused
are entitled to get the benefit of doubt.
8. Before I enter into the veils of submissions of counsels
and examine the depositions and other materials on record, a brief
analysis of the power of appellate court in an appeal against acquittal
is necessary. The Hon'ble Supreme Court in Bhim Singh Versus
State of Haryana (supra) while dealing with the power of appellate
court has held as follows:
"Before concluding, we would like to point out that this
court in a number of cases has held that an appellate
court entertaining an appeal from the judgment of
acquittal by the trial court though entitled to
reappreciate the evidence and come to an independent
conclusion, it should not do so as a matter of routine. In
other words, if from the same set of evidence two views
are possible and if the trial court has taken one view on
the said evidence, unless the appellate court comes to the
conclusion that the view taken by the trial court is either
perverse or such that no reasonable person could come
to that conclusion or that such a finding of the trial court
is not based on any material on record, it should not
merely because another conclusion is possible reverse
the finding of the trial court."
So, it appears that the appellate court has a very limited
role to play and unless the findings recorded by the trial court is
perverse or such that no reasonable person could come to that
4 Acquittal Appeal (S.J.) No.38 of 2005
conclusion or the finding is not based on any material on record, this
court cannot interfere. Now keeping in view the above judicial
pronouncement and limitations, I would like to examine the evidence
of prosecution witnesses to see as to whether the findings recorded by
the trial court are based on proper appreciation of evidence or not. The
prosecution case relates to illegal cutting of Khair woods from reserve
protected forest and subsequent manufacture of Katha out of the said
Khair woods. P.W.2, the informant has testified that two respondents
Bihari Lal Khandelwal and Krishna Kumar Khandelwal were the
forest contractors and had been purchasing Khair woods in auction
sale of State and Khair woods were auction sold on different
occasions by District Forest Officer but neither he had any occasion to
see the register concerning the purchase of Khair woods in auction
sale by the respondents nor he has knowledge in which year they had
purchased Khair woods and how much Khair were purchased. This
witness has further testified that he cannot say that how much trees
were cut and removed by the respondents from protected forest areas
of Changer Herua and Tapej. The witness has further clarified that
though the accused persons had purchased Khair woods in auction
and mixed them with stolen Khair wood but he cannot say how much
of those seized Katha was illegal and how much was legal. P.W.5 a
seizure list witness, in his cross examination has admitted that the two
respondents Bihari Lal Khandelwal and Krishna Kumar Khandelwal
were the departmental contractors and they used to take forest area of
Khair trees in contract and also used to prepare Katha from those
woods. Similarly, P.W.8 Mithilesh Kumar, who was D.F.O. North
Division has stated that he was posted at Chatra North Division from
July, 1983 to June, 1986 and during the above period the present case
was instituted but has further testified that Bihari Lal Khandelwal and
Krishna Kumar Khandelwal were forest contractor at that time and
those two contractors had purchased Khair coups in auction. The
witness has further admitted that he had given the relevant papers
showing purchase of Khair woods by the respondents to the
Investigation Officer.
9. P.W.9 Kuldeep Manjhi, who was Range Officer during
the period, has testified that as per direction of his superior officers he
had seized Katha and utensils used in making Katha. This witness has
5 Acquittal Appeal (S.J.) No.38 of 2005
also admitted the fact that the two respondents Bihari Lal Khandelwal
and Krishna Kumar Khandelwal were forest contractors at that time
and they used to purchase Katha coups and prepared Katha by
bringing Katha woods from State Depots to his godown and that for
bringing Khair tree and woods transportation permits were also issued
by the department in the name of the two respondents. The witness
has further submitted that in the year 1981-82 also accused persons
had purchased coups in Lawa Long area and transit permits were also
granted to him for transporting Khair woods but he had no occasion to
see the records of Tapej Depot. P.W.10 Usha Ranjan Biswas another
D.F.O., South Division, Chatra has testified that in the month of
January, 1983 the accused persons had prepared 55 Quintal Katha
from 2274 Khair trees and on the recommendation of Range Officer,
he had issued permit to the accused persons. This witness on mere
presumption and without any cogent reliable material, estimated that
the accused persons ought to have been in possession of 3350 Kg
Katha only but 13,000 Kg Katha were found excess from the
possession of the accused persons. This witness has also admitted that
the two respondents Bihari Lal Khandelwal and Krishna Kumar
Khandelwal were old forest contractors. He has further admitted the
issuance of certain letters which have been filed by the defence in this
case relating to storage of Katha. The witness has further admitted
that Khair woods Tona of Rajpur and Tapej forest were brought and
Katha was prepared and further testified that he had never seen the
respondents cutting Khair trees or getting the same cut away through
anyone and has also stated that during his tenure, permits were issued
to the contractors and he had issued permits to Krishna Kumar
Khandelwal in the year 1983 also.
10. From the critical analysis of the evidence of the
prosecution witnesses this much is clear that the two above
respondents Bihari Lal Khandelwal and Krishna Kumar Khandelwal
were old forest contractors and they used to purchase Khair trees and
woods in auction sale and thereafter on the basis of transit permits
issued by Government authorities, they used to bring those trees and
logs of Khair to their godown and thereafter prepare Katha.
11. The court below in my view, has rightly appreciated the
evidence of prosecution witnesses and the documentary evidences
6 Acquittal Appeal (S.J.) No.38 of 2005
brought on record by the defence relating to auction purchase and
transit permit and rightly came to the conclusion that the respondent
nos.1 and 2 were bonafide purchaser of Khair trees and woods from
the forest department in auction sale. There is absolutely no evidence
on record to show that the seized property were theft property or that
the accused persons committed any theft of Khair woods from any
reserved protected area or damaged any forest property. The
prosecution, in my view, has failed to prove beyond all reasonable
doubt that the respondent nos. 1 to 5 have committed any offence as
alleged.
12. In that event, I do not find any illegality with the
judgment of acquittal. Accordingly, this appeal is dismissed.
(R.N. Verma, J.)
Jharkhand High Court, Ranchi
Dated, 18th March, 2015
Anit/N.A.F.R.