1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 13 of 2002. Date of Decision: 21-11-2008. ____________________________________________________________ State of H.P. Appellant. Versus Sanjeev Kumar and another. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh. Vikas Rathore, Deputy Advocate General. For respondent No.1. : Shri M.L. Brakta, Advocate. For respondent No.2 : Shri M.L. Sharma, Advocate vice Shri Anil Tanwar, Advocate. _________________________________________________________ Surinder Singh, J. (oral) Heard and gone through the record. As per the case of the prosecution, on 10-901994, at about 5.30 P.M, while checking the trucks at Parwanoo Check Post, PW3 Prem Singh, Block Officer In-charge of the Check Post and PW1 Gopal Singh Thakur, Forest Guard with the assistance of PW5 Head Constable Dharam Pal apprehended Truck No. HP-07-1789 which was loaded with 51 scants of Deodar. It is alleged that one Amit Kumar alias Lali was sitting in the truck. He was asked to produce the documents for transporting and possessing the timber but he failed to produce any such document. When asked about the Driver of the vehicle, Amit Kumar told that he had gone to the barrier to deposit the tax but in fact he had absconded. The truck was standing about 200 meters away from the check Barrier. It was taken into Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 possession and the police was informed by the Range Officer on the basis of which FIR was registered under Section 41 and 42 of the Indian Forest Act read with Section 379 of the Indian Penal Code. The Police took into possession the timber as well as the truck in question and prepared the site plan. The details of measurement and valuation of the seized timber were prepared and the timber aforesaid was handed over on supurdari to Block Officer. After recording the statements of the witnesses and on completion of the challan, it was presented for the trial of the respondents. Out of the two respondents, one was alleged to have been found present in the truck under the assumed name of Amit Kumar, but during the trial, his identity could not be established. The notice of accusation was put to the respondents under Section 41 and 42 of the Indian Forest Act to which they pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses. The case of the respondents was that of denial. No evidence in defense was led. At the end of the trial, the respondents were acquitted and their acquittal has been challenged in this appeal by the State. PW7 Gopal Singh along with PW3 Prem Singh and PW5 Head Constable Dharam Pal were on duty at the Barrier at Parwanoo as stated by them. They deposed that while checking the vehicles, the truck in question was also found standing about 200 meters away from the Barrier. Its body was covered with Tarpoline. On its checking, they detected 51 scants of Deodar. One person who disclosed his name as Amit Kumar was found present in the truck who could not produce any permit and driver was found missing. Pw Gopal Singh deposed that they counted the timber and fixed the seizure hammer. Thereafter the timber was taken into 3 possession vide memo Exhibit PW2/B on the same day. But none of the aforesaid witnesses have stated or pin-pointed even during the trial as to who, out of the respondents was Amit Kumar. They were not identified by the aforesaid witnesses. The connection of Sanjeev Kumar respondent with the alleged offence was not established. PW5 Dharam Pal though stated that the person who was found present in the vehicle had disclosed his name as Amit Kumar, was Rajinder Kumar but even he did not say that out of the respondents, who was that Rajinder Kumar. Further, PW1 and PW3 have stated that they had fixed the forest hammer on the seized timber after numbering and measuring it and the Memo Exhibit PW2/B was prepared but according to PW5 who was with them, the timber was not measured in his presence. PW2 Prem Singh has contradicted the above story. He is a marginal witness to the said document and stated that both the Exhibits, i.e., the list of the measurement and PW2/B supurdari memo were prepared on the next date. So there are material contradictions in the statements of the official witnesses. In nut-shell, the identity of the respondents stands not established and the aforesaid contradictions assume importance in the light of the above back-ground of the case. The photographs which are alleged to have been taken on the spot were also not proved. All these lapses of the prosecution has resulted into failure of its case which ultimately ended in fiasco. In order to prove the case against the accused, cogent and reliable evidence is required to be led which should be free from any embellishment or doubt which is lacking in the instant case. On culling the evidence adduced on record, I do not find any infirmity which could impel me to subscribe to the view of the learned Deputy Advocate General that the case against the respondents stands 4 proved. I do not find any infirmity in the impugned judgment of acquittal recorded by the trial Court and as such, their acquittal is up-held. The appeal is dismissed. (Surinder Singh) Judge. November 21, 2008. (bm)