Himachal Pradesh High Court
State Of H.P vs Kashmir Singh And Ors. ... on 25 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.371 of 2009
Date of Decision: 25.6.2019
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______________________________ _______________________________________
[
State of H.P. .........Appellant
Versus
Kashmir Singh and Ors. .......Accused/Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellant: Mr. Sudhir Bhatnagar and Mr. Sanjeev Sood,
Additional Advocate Generals, Deputy
Advocate General.
For the respondents: Mr. N.K. Bhardwaj, Advocate, for respondents No. 1
and 2.
Mr. Rajesh Kumar, Advocate, for respondent No.3
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal appeal having been filed by the appellant-State lays challenge to impugned judgment of acquittal dated 10.4.2009, passed by the learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi, H.P., in Police Challan No. 380-I/2005/82-II/2005, whereby the learned court below while holding the accused not guilty of offences punishable under Sections 41 and 42 of Indian Forest Act read with Section 34 of IPC and under Section 24 read with Section 77 of the IPC, acquitted them.
2. Briefly stated facts, as emerge from the record are that police party present at Naka formed at Barjohru, stopped a scooter bearing No. HIB- 5232 for checking. Allegedly, person sitting behind the driver was holding Whether reporters of the Local papers are allowed to see the judgment? ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -2- three logs of deodar/cedar wood on his leg. On inquiry, scooter rider disclosed his name as Vijay S/o Mela Ram, VPO Bhangrotu Tehsil Sadar and the pillion rider disclosed his name as Rakesh Kumar, S/o Bhura Ram, VPO .
Bhangrotu. Police got the logs measured and since there was no hammer seal on the logs and apprehended persons failed to produce permit, if any, qua the wood allegedly recovered from them, Rukka was prepared by ASI Paras Ram, on the basis of which, formal FIR No. 116 of 2005 came to be registered against the accused under Sections 41 and 42 of the Indian Forest Act. Allegedly, during investigation, accused Vijay Kumar disclosed his real name as Kashmir Singh S/o Annant Ram, R/o VPO Dhaban, Sadar Mandi, whereas Rakesh Kumar told his name as Parveen Kumar S/o Bhola Ram, VPO Dhaban Sadar Mandi. Before arrest on 12.8.2005, both the accused were given notices under Section 50A CrPC and as per their wish, their friend namely Sanjay was telephonically informed with regard to their arrest.
3. During investigation accused disclosed that they had purchased the wood from accused Bhupinder, R/o Seri, P.O. Jachh, Tehsil Chachiot. Above named Bhupinder during investigation disclosed that he has sold his TD wood at Rs. 500/- to the accused and TD permit was taken into possession from the accused Bhupinder. Subsequently, case under Section 77 of Indian Forest Act and Section 120-B IPC was registered against Bhupinder. During investigation police arrived at a conclusion that timber in question was illicit and accordingly, case under Rules 11 and 20 of the Timber Transit (Land Route) Rules, 1978, came to be instituted against the accused. ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -3-
4. Police after completion of investigation presented challan in the competent court of law, who on being satisfied that prima-facie case exists against the respondent-accused, charged the accused Kashmir Singh and .
Parveen Kumar for violation of Rule 11 punishable under Rule 20 of H.P. Forest Produce Transit (Land Route) Rules, 1978, framed under Sections 41 and 42 of the Indian Forest Act read wit Section 34 of IPC, whereas another accused Bhupinder Singh came to be charge sheeted under Section 24 read with Section 77 of the Indian Forest Act, to which they pleaded not guilty and claimed trial. Prosecution with a view to prove its case examined as many as eight witnesses, whereas accused in their statements recorded under Section 313 Cr.PC denied the case of the prosecution in toto and claimed themselves to be innocent, but did not lead any evidence in defence.
5. Learned trial Court on the basis of evidence adduced on record by the prosecution held the accused not guilty of having committed offences punishable under aforesaid provisions of law and accordingly, acquitted them vide judgment dated 10.4.2009. In the aforesaid backdrop, appellant- State has approached this Court by way of instant proceedings, seeking therein conviction of the respondents-accused after setting aside the judgment of acquittal recorded by the court below.
6. Having carefully perused record, especially statements having been made by the prosecution witnesses vis-à-vis reasoning assigned by the learned trial Court acquitting the accused, this Court finds no illegality and infirmity in the impugned judgment, rather this Court finds that prosecution has not been able to prove its case beyond reasonable doubt. This Court is not ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -4- persuaded to agree with Mr. Sudhir Bhatnagar, learned Additional Advocate General that evidence led on record by the prosecution has not been appreciated in its right perspective, rather this Court has no hesitation to .
conclude that court below has dealt with each and every aspect of the matter very meticulously and there is no scope of interference, if any, by this Court.
7. Interestingly, in the case at hand, identity of the accused has not been proved, rather same is doubtful. As per own story of the prosecution, the accused at the first instance disclosed their names to be Vijay Kumar and Rakesh Kumar, but interestingly, there is no evidence led on record by the prosecution to establish on record that subsequently, from where it managed to ascertain the real names of the accused. As per story of the prosecution, somebody from Dhaban made a call that accused have deposed their names falsely, but interestingly, there appears to be no effort made by the prosecution to verify the credentials of the person, who allegedly made a call from Dhaban that accused have deposed their names falsely.
8. PW2 in his cross-examination has admitted that parents of the accused were called and they disclosed their correct names. PW8 Sh. Paras Ram (I.O.) simply stated that during investigation, the correct names of both the accused were ascertained. At this stage, it would be apt to take note of the notices issued under Section 50 (A) Cr.PC., sent at the time of arrest of the accused because bare perusal of the same clearly suggests that accused had showed their willingness to inform one Sanjay Kumar about their arrest. As ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -5- per prosecution story, Sanjay Kumar was informed with regard to the arrest of the accused, but for the reasons best known to the prosecution, Sanjay Kumar never came to be cited as prosecution witness and as such, presence of the .
accused on the spot itself becomes doubtful.
9. PW1 Tabinder Negi deposed that on 16.8.2005, after separating a sample scant, he had taken into possession the scooter bearing No. HID- 5232 (new No. HP-31-4820) alongwith keys and scants vide seizure memo Ext.PW1/A, which bears his signatures. He deposed that on 13.8.2005, he had hammered the logs with impression NACH-NSF-1 and had measured the timber and report is Ext.PW1/B. However, in his cross-examination, he deposed that separate hammer impression were obtained vide Ext.PW1/C and sample scant is Ext.P1. He also stated that he was informed on 13.8.2005 at 10:00am and admitted that there is no date on Ext.PW1/C.
10. As per story of the prosecution, during investigation accused Bhupinder Singh disclosed that he had sold his TD wood to Kashmir Singh, but subsequently, it was found that timber was illicit. Interestingly, there is no evidence led on record by the prosecution to prove, from where the alleged timber was obtained by the accused or whether any tree was felled so as to establish source from where the accused had picked the timber.
11. PW2 Surjeet Singh, in his examination in chief supported the case of the prosecution by stating that they had stopped the scooter on 12.8.2005 at 2:30 am at Bajarodu and the pillion rider was holding three logs of deodar. He stated that driver disclosed his name as Vijay Kumar and other disclosed his name as Rakesh Kumar. He further deposed that neither scants bear any ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -6- TD hammer nor the accused could produce any TD permit. In his cross- examination, this witness stated that they had laid a naka on the spot at 9pm and he was accompanied by Jai Gopal and Mani Ram. He also admitted .
that they had called the family members of the accused, who disclosed their names to be Vijay ( Kashmir ) and Rakesh ( Parveen ). This witness further stated that the accused Bhupinder Singh on 13.8.2005 had told them that he has sold the TD wood to the other accused, but in his cross-examination, he stated that logs which they recovered did not bear any hammer seal. Aforesaid version of this witness itself is contradictory because when as per PW2 alleged recovery of logs did not bear any hammer seal, then why the police took into possession the TD permit from Bhupinder because TD wood is always hammered. PW2 in his statement stated that they had formed a naka at 2:30 am. This witness deposed that scant and scooter were taken into possession in his presence, whereas in his cross-examination, he admitted that no proceedings regarding scooter No.HID-5232 took place in his presence.
12. PW3 Mani Ram, who is a spot police witness, in his examination in chief, supported case of the prosecution by stating that they had apprehended the accused on the alleged date, time and place but in his cross-examination, he stated that they reached the alleged place at 2:30 am and before they had visited other places and Chailchowk. He feigned ignorance that on which side they had parked the Gypsy and stated that I.O. must be knowing it. Careful perusal of statement of this witness clearly establishes on record that version put forth by this witness is in total contradiction of the statement of PW2 because as per this witness Naka was ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -7- laid at 2:30 am, whereas as per PW2, Naka was formed at 9:00 pm. Moreover, this witness stated that he does not know that where they had parked the gypsy.
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13. PW8 I.O. deposed that pillion rider was holding three logs of wood and driver disclosed his name as Vijay Kumar and other person was Rakesh Kumar. He deposed that wood did not bear any hammer seal. He stated that he prepared the site plan Ext.PW8/D and took the timber and scooter into possession vide seizure memo Ext.PW2/A. It has further come in his statement that during investigation, Vijay Kumar disclosed his name as Kashmir and Rakesh Kumar as Parveen Kumar. He further deposed that timber was got hammered with seal NACH/MF-1 from the forest guard and separate hammer impressions were also obtained. In his cross-examination, he stated that they reached Bajarodu at 2:30 am, where they formed a Naka. He also admitted that at Ext.PW8/A i.e. Rukka, the time was recorded as 3:15 am. He deposed that as per sale affidavit, scooter was purchased from Khaniya Lal and admitted that neither he recorded the statement of Khaniya nor took in possession the original affidavits. As per this witness, Mani Ram had gone to the spot on his scooter regarding which there was no mention in the report. He admitted that TD permit was got verified from a guard and he is not recorded his statement.
14. If the statements having been made by the aforesaid prosecution witnesses are read in injunction juxtaposing each other, it certainly compels this Court to agree with finding recorded by the court below that there are glaring differences in the testimonies of the alleged naka ::: Downloaded on - 28/09/2019 23:54:48 :::HCHP -8- party. On the top of everything, prosecution in the case at hand has failed to establish that accused Parveen Kumar had purchased the scooter from Khaniya Lal and affidavits marks A and B were not proved as per law. The RC .
of the scooter in question is in the name of Narender Kumar, who was also not made witness. Forest officials came to be associated after a period one day. PW4 in his cross-examination admitted that Ext.PW4/A only bears his signature and same is not of his hand.
15. Having carefully perused the evidence available on record, this Court is persuaded to agree with the contention of learned counsel representing the respondents-accused that there are material contradictions in the testimonies of the prosecution witnesses and as such, learned court below rightly did not place reliance upon the same. Reliance is placed on Judgment passed by the Hon'ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC 645, wherein it has been held as under:-
"45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency.
Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses."
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16. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, this Court sees no reason to differ with the well reasoned judgment passed by the learned court .
below which otherwise appears to be based upon the proper appreciation of evidence adduced on record and the same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.
25th June, 2019 (Sandeep Sharma),
manjit Judge
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