Himachal Pradesh High Court
State Of H.P. vs Shamsher Singh And Anr. on 11 June, 1999
Equivalent citations: 1999CRILJ4744
Author: M.R. Verma
Bench: M.R. Verma
JUDGMENT M.R. Verma, J.
1. This is an appeal against the judgment dated 22-4-1993 passed by the learned Chief Judicial Magistrate, Kullu whereby the accused-respondents (hereinafter referred to as "the accused") have been acquitted of the accusations under Sections 41 and 42 of the Indian Forest Act.
2. Case of the prosecution, in brief, is that on 30-3-1991 when ASI Harbhajan Singh along with Range Officer, Hurla and few other police and forest officials were on patrol duty at Bhuntar, a secret information was received that truck No. HIE 1316 was illegally transporting sleepers from Sarsari side. The said truck was intercepted and on checking it was found carrying 15 deodar sleepers of the size of 10' x 10" x 5" without any permit nor the sleepers were hammer marked. A case was, therefore, registered against the accused under Section 41 and 42 of the Indian Forest Act on the basis of ruqa Ex. PW 2/A prepared and sent by ASI Harbhajan Singh at Police Station, Kullu vide FIR Ex. PW 2/B. On completion? of investigation and on being satistied about the alleged commission of the offence by the accused, the officer in charge, Police Station, Kullu submitted a charge sheet against the accused, who came to be tried by the learned Chief Judicial Magistrate, Kullu. By the impugned judgment, the learned trial Magistrate acquitted the accused of the accusations. Hence this appeal.
3. I have heard the learned Deputy Advocate General and the learned counsel of the accused.
4. It may be pointed out at the very outset that suggestions put to the prosecution witnesses in their cross-examinations, the defence of the accused is that the track in question was parked due to mechanical defect and an entry was accordingly made in the Log Rook and thus it was not plying at the relevant time and that the case against the accused has been made out due to political pressure/grouse and the timber which was already lying with the police had been made the case property in this case to involve the accused in the commission of the offences. There is no dispute that during the course of investigation the documents of the truck in question were taken in possession by the Police vide Memo Ex. PW-1/B and such documents are the Registration Certificate, Route Permit (part-B), Insurance Certificate and Log Book. Despite having taken documents in possession these were not tendered/proved in evidence. A photo copy of the Log Book, after it was ordered to be released by the Court to the accused, has been placed on the record by the Investigating Agency and forms part of the charge-sheet submitted against the accused. Entry in the said copy against Sr. No. 127 reveals that there are no entries about the plying of this vehicle after 3-1-1991 and it was allegedly seized on 30-3-1991. It is, therefore, unbelievable that had truck in question been in road-worthy condition it was not plying till 30th of March, 1991, when it was allegedly seized.
5. I have minutely gone through the 'Ruqa' Ex. PW-2/A and the Charge-sheet submitted by the police. These do not aver anywhere that the Log Book of the truck was not complete and it was plying without completion of the Log Book and that by not making the entry in the Log Book about its plying on 30-3-1991 on the concerned road the accused had in any manner attempted to fabricate the evidence in his favour that the truck was not plying on the relevant date. Thus, not making of the entries for such a long period in the Log Book is a circumstance from which it can be inferred that the truck was not being plied after 3-1-1991 which lends credibility to the defence taken by the accused that the truck was mechanically defective since 3-1-1999 and was not plying since then.
6. It is the case of the prosecution itself that the truck was allegedly intercepted on 30-3-1991 at about 10.30 p.m. and the 'Ruqa' Ex. PW-2/A was prepared at 11 p.m. on the same date and the F.I.R. appears to have been registered at the Police Station on the same day at 11.30 p.m. However, an endorsement made on the copy of the F.I.R. as received by the Chief Judicial Magistrate mentions that the F.I.R. was received by him on April 1, 1991. at 10 a.m. through a Constable. There is no dispute that Police Station, Kullu, the Court of the Chief Judicial Magistrate, Kullu and the residence of the Chief Judicial Magistrate, Kullu, are located at the same station and not. very far from each other. The F.I.R. having been recorded on 30-3-1991 at 11.30pm. a copy thereof could be delivered to the Chief Judicial Magistrate even on31-3-1991 in the morning or at least during day time but it has been delivered after about 34 hours. In cases of delay in sending; the copy of the F.I.R. to the concerned Magistrate the possibility of. tampering with the evidence becomes a possibility.
7. It is against, the aforesaid background that 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 inters ception 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 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 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 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 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 Ex. 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 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 Nay a Pool Bhuntar where the truck was intercepted. Thus, about the preparation of the records/documents there is contra-diction in the statements of these two witnesses inasmuch as according to one the recovery memos were signed and statements were recorded at the 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.
10. In view of the above discussion, the case of the prosecution was not proved beyond reasonable doubt and the accused thus are entitled for the benefit of doubt.
11. It may be pointed out that one of the reasons given for not believing the prosecution evidence by the learned trial Magistrate is that the recovery memos (which is an incriminating evidence) are not signed by the accused, therefore, these appear to have been prepared in the absence of the accused, is a reason Unsustainable in law for the reason that except in the case of a statement made by the accused under Section 27 of the Indian Evidence Act, obtaining his signatures on the incriminating articles taken in possession by the police otherwise than on such statement are not required to be taken otherwise the prosecution may be blamed of forcing the accused to be a witness against himself by signing a recovery memo of an incriminating article from his possession by the police.
12. However, as already stated hereinabove, the prosecution case against the accused was not proved beyond reasonable doubts, therefore, the accused are entitled for the benefit of doubt and thus the impugned order of acquittal does hot call for any interference by this Court.
13. Resultantly, the appeal fails and is dismissed. Bail bonds furnished by the accused are discharged.