Himachal Pradesh High Court
State Of H.P vs Bishamber Singh on 24 April, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 188 of 2009 Reserved on: 10.04.2019 Decided on: 24.04.2019 .
_____________________________________________________________ State of H.P. .....Appellant.
Versus
Bishamber Singh ...Respondent.
_____________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
_____________________________________________________________ For the appellant: M/s. S.C. Sharma and Shiv Pal Manhans, Additional Advocates General, with Mr. Raju Ram Rahi, r Deputy Advocate General.
For the respondent: Mr. Ashok Chaudhary, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State laying challenge to judgment dated 03.09.2008, passed by learned Judicial Magistrate 1st Class, Jawali, District Kangra, H.P., in Criminal Case No. 49-III/02, whereby the respondent/accused (hereinafter referred to as "the accused") was acquitted for the offences under Sections 41 and 42 of the Indian Forest Act read with Section 20 of the H.P. Forest Produce Transit Rules.
2. As per the prosecution, the background facts giving rise to culmination of the case against the accused can tersely be summarized 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 2as under:
On 15.06.2001, a police team was on patrol duty at Bhanai and a nakka was laid at Bhanai. The police team intercepted a truck .
coming from Jassur side, having registration No. HPK-4733, which was being driven by the accused. The accused disclosed his name as Bishamber Singh and on checking the said truck was found loaded with logs and fuel wood. The accused further divulged that he was taking the load from Fatehpur to Gagret vide Chit No. 131/NFD RFO, Jawali, dated 14.06.2001, vide permit No. 1492, dated 02.06.2001 and produce export permit, bearing number 4492 and challan number 3556 valid upto 26.06.2001. GR No. 3716, dated 14.06.2001 was produced by the accused and RC and Driving Licence were also shown to the police. The police got the truck unloaded and the material was measured. On measurement the material was found to be 104 quintals and 40 kgs and the permit, bearing number 4492 was only for 80 quintals wood scants and 10 quintals of fuel wood. Police sent the rukka to the police station, whereupon FIR was registered and the truck was impounded. The wood was taken into possession and given on superdari to Shri Kuldeep Singh, Forest Guard. Police prepared the spot map and recorded the statements of the witnesses. Lastly, the police prepared the challan and presented the same in the learned Trial Court.::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 3
3. The prosecution, in order to prove its case, examined as many as eleven witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty.
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4. The learned Trial Court, vide impugned judgment dated 03.09.2008, acquitted the accused for the offences punishable under Sections 41 and 42 of the Indian Forest Act read with Section 20 of H.P. Forest Produce Transit Rules, hence the present appeal is preferred by the appellant/State.
5. The learned Additional Advocate General for the appellant/State has argued that the learned Trial Court did not appreciate the evidence correctly and the accused has been acquitted on the basis of surmises and conjectures. He has further argued that after reappraisal of the evidence, which has come on record, the appeal be allowed and the accused be convicted. Conversely, the learned counsel for the accused has argued that the learned Trial Court has correctly appreciated the evidence and the judgment of acquittal is well reasoned.
He has further argued that there is nothing on record which could remotely establish the guilt of the accused. He has argued that the judgment of acquittal needs no interference, so the appeal be dismissed.
6. In rebuttal, the learned Additional Advocate General has argued that the accused be convicted after re-appreciating the evidence, as the learned Trial Court has failed to appreciate the evidence correctly.
::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 47. In order to appreciate the rival contentions of the parties, I have gone through the record carefully.
8. Succinctly, as per the prosecution, the accused was found .
transporting the wood exceeding the limit, as the permit number 4492, dated 02.06.2001, was given to Shri Jagdish Kumar from Nurpur Forest Division was for transporting 2271 quintals of Khair wood and 381 quintals of Khair fuel wood between 02.06.2001 and 20.06.2001. The prosecution has further alleged that the truck in question was hired by Truck Union and vide export permit number 4492, the said truck was only allowed to load 80 quintals of Khair wood and 10 quintals of fuel wood. On the contrary, the defence of the accused is that labourers loaded excess wood in the truck, so he is not at all responsible for excess of load for which he had been booked.
9. Indisputably, prosecution witnesses admitted, while deposing in the Court that 426 scants of Khair wood, which were found loaded in the truck, were having hammer marks. PW-1, Constable Mohinder Singh, went a steps further by deposing that 426 scants of Khair wood, which were loaded in the truck, having registration No. HPK-4733, had hammer marks and these scants were being transported under a valid permit. Likewise, PW-2, Shri Kuldeep Singh, Forest Guard, deposed that 426 scants of Khair wood had hammer marks.
::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 5Thus, it is clear that the wood loaded in the truck in question was having hammer marks.
10. PW-3, Constable Subhash Chand and PW-4, ASI Mohammad .
Arshad (Investigating Officer) deposed in their testimonies that the truck in question was parked outside the house of Shri Ranjeet @ Jito, who is owner of the truck. PW-10, Inspector Gurbaksh Singh, also fortified this fact by deposing that the truck was parked adjoining to the house of owner of the truck. From the testimonies of PWs 3, 4 and 10 it is proved that the truck was parked outside the house of its owner. Thus, if any illegal activity was underway, the owner and driver of the truck could not have parked the truck unworriedly. PW-5, Shri Punjab Singh, Forest Guard, deposed that on 14.06.2001, at about 04:30 p.m., permit, Ex. PW-5/A, was given to the driver of the truck and on 15.06.2001, at about 05:00 p.m., the truck left from Fatehpur to Gagret. From the version of PW-5, it also stands established that the wood, which was found loaded in the truck, was being transported under proper and valid permit.
11. PW-6, Shri Yog Raj, deposed that he loaded the truck, having registration No. HPK-4733. PW-7, Shri Jagdish Chand (owner of the truck) deposed that the driver of the truck told him that en route Gagret, he will park the truck outside the house of PW-7. PW-8, ASI Surinder ::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 6 Kumar, PW-9, Shri Om Prakash and PW-11, Shri Prem Singh, are formal witnesses, so their testimonies are not worth discussing.
12. After threadbare scrutiny of the material, which has come on .
record, it stands established that at Fatehpur, where the khair wood was loaded by the labour in the truck, there was no weighing scale. Thus, there is strong possibility that the truck might have been loaded with load exceeding the limit provided vide export permit No. 4492, which was issued in favour of Shri Jagdish Kumar (PW-7), owner of the truck.
The available material establishes the fact that the truck was found parked adjacent to the house of PW-7 and it was loaded with wood. The wood was loaded by the labour and under valid permit it was being transported, so it cannot be presumed by any stretch of imagination that the accused knowingly got the truck loaded with wood excessively and under the guise of permit he intended to transport extra wood. Further the act and conduct of the accused is also very important in the instant case. The accused informed the owner of the truck, Shri Jagdish Kumar (PW-7) that he will park the truck outside his house and accordingly parked the truck, where it was checked by the police. Therefore, the act and conduct of the accused seems natural and in case he was knowingfully transporting excessive wood, he could have transported it on the same day. The way the accused parked the truck adjacent to the house of the owner of the truck without any worry, further proves that ::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 7 the accused had no intention to commit the crime by illegally transporting the excessive wood.
13. After exhaustively discussing the testimonies of key prosecution .
witnesses, it is safe to hold that the learned Trial Court has rightly appreciated the evidence and the conclusion of acquittal of the accused is firmly based upon what has come on record. In the instant case, after evaluating the diluted evidence, it is more than safe to hold that the learned Trial Court rightly acquitted the accused. However, if any other view is qua the guilt of the accused, then also the law pronounced by the Hon'ble Supreme Court comes to the rescue of the accused, as the Hon'ble Supreme Court in Arun vs. State, (2008) 15 SCC 501, has held that if there are two reasonable views, then the view favouring the accused be adhered to. In the present case also there are two views and the available material on record compels us to tilt towards the view favouring the accused.
14. The Hon'ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
15. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal:
"42. From the above decisions, in our considered view, the following general principles regarding powers ::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 8 of the appellate court while dealing with an appeal against an order of acquittal emerge:
1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the .
evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal r jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court."
16. In view of the settled legal position, as aforesaid, and on the basis of material, which has come on record, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, need no interference, as the same are the result of appreciating the facts and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserve dismissal and is dismissed.
::: Downloaded on - 25/04/2019 21:58:46 :::HCHP 917. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of.
.
(Chander Bhusan Barowalia)
Judge
24th April, 2019
(virender)
r to
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