IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 566 of 2002 Reserved on: 23.02.2010 Date of decision: 11.03.2010 State of H.P. ... Appellant Versus Jitender Singh … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Sunil Chauhan, Advocate. V.K. Ahuja , J. : This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sub Divisional Judicial Magistrate, Rajgarh, dated 4.7.2001, vide which he acquitted the respondent of the charge framed against him under Section 379 I.P.C. and under Sections 41/42 of the Indian Forest Act. Briefly stated, the facts of the case are that on the intervening night of 25/26.9.1999, PW-13 S.I./SHO Sangat Ram had received a secret information in regard to the transportation of the timber. He associated police officials and forest officials and laid a Naka at Paneli. A red Maruti Van appeared at Paneli at 2.00 A.M. and it was signalled to stop, but the van did not stop and fled 1Whether reporters of Local Papers may be allowed to see the judgment? Yes.. 2 towards Talia in a link road. The police party reached Talia at about 3.30 A.M. and found the Van parked there alongwith timber in it, but the driver was not inside the Van. The timber was unloaded and was taken into possession. After investigation, the challan was filed as against the respondent that he was driving the vehicle at the relevant time alongwith the timber in question. The respondent was tried by the learned trial Court under the above Sections, leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. The prime question which arises for consideration is as to whether the prosecution had been able to prove its case beyond any reasonable doubt that it was the respondent only who was driving the vehicle at the relevant time. To consider this question, a reference has to be made to the statements of the members of raiding party consisting of police officials and forest officials as to whether their statements can be relied upon to prove the identity of the respondents. It has come up in evidence of some of the witnesses as shall be referred below that the windowpanes were having no film and vehicle had gone at a fast speed and had not stopped during night time at about 2.00 A.M. This question has to be considered as to whether the witnesses were able to identify the respondent or not. PW-2 Roshan Lal, Forest Guard and a member of the Naka party has stated in regard to the fact that the vehicle was being driven by the respondent. He stated that lights of the vehicle were on, but these were switched off at the turning. PW-4 Jia Lal, 3 Forest Guard and also a member of the raiding party, has stated that he saw the number of the vehicle in the moonlit night as well as in the light of the torch and the vehicle was being driven by the accused. He stated that he cannot say if the side mirror of the Van was having film on it. He stated that one of the torch was with him, while second torch was with the police officials. He clearly stated that the vehicle was taken by the respondent at a fast speed. PW-5 Raghuvir Singh, LHC, has also stated that he alongwith other police officials saw the number of the vehicle in the moonlit night and the torch and vehicle was being driven by the respondent. He stated that all the police officials were having torch, while PW-4 Jia Lal has stated that there were only two torches, one with the police and another with the forest officials. He denied his knowledge in case the torches were also there with the forest officials. He stated that when the vehicle came, its mirror were closed. He admitted that the windowpanes were having black film on them. PW-9 Rajesh Kumar, Deputy Ranger, has also stated that in the torch light they saw the vehicle number, which was being driven by the respondent. In cross-examination, he stated that the speed of the Van was too much. In further cross-examination, he stated that all the windowpanes were closed at that time, while only the windowpane of driver was open. PW-13 SI/SHO Sangat Ram Negi, Incharge of the raiding party, has also stated that in the torch light and moonlit, they saw the vehicle number, which was being driven by the accused. He stated that he was holding the torch and he does not remember who else was having the torch. In regard to the speed, he stated 4 that it was neither fast nor slow. He stated that he was knowing the respondent since 1998 and the vehicle had crossed at 2.00 A.M. On the basis of the above evidence and the fact that some of the witnesses have stated that the windowpanes were having black film, the learned trial Court concluded that the identity of the respondent was not established, which conclusion was also drawn in view of the some of the contradictions in the statements of the witnesses in regard to some facts, which shall be mentioned below. However, this fact cannot be lost sight of that the vehicle must have gone at speed, which could not be stopped by the raiding party and the time of passing of the vehicle was 2.00 A.M. and it is difficult in darkness to identify as to who was the person who was driving the vehicle at the relevant time. Coming to the findings, the learned trial Court had referred to some contradictions in regard to the fact as to whether the witnesses went in two vehicles or one vehicle, since some of the witnesses have stated that they went in two different vehicles and forest officials went in a taxi, which got struck on way and thereafter, they proceeded to the spot on foot. However, it has also come up in statement of some of the witnesses that they have come together in one vehicle of the police. In referring to the evidence, the learned trial Court has considered only this discrepancy as to whether they came in one vehicle or two vehicles, but has not specifically referred to the fact as to whether the witnesses have referred to the evidence in regard to the place i.e. Paneli where they had come earlier and formed the raiding party. The forest officials were present there after having performed their election duty and they had come from 5 Rajgarh to Paneli and from Paneli they proceeded to spot at Habban where the respondent was apprehended. This vehicle was used twice once from coming to Paneli from Rajgarh and then from Paneli to Habban and in case, evidence is appreciated separately, there is no much contradiction in this regard. However, that is not material, but it had also weighed with the learned trial Court in disbelieving the prosecution story. The learned trial Court has also referred to some minor contradictions as to whether PW-1 Pingla Devi was called through a constable as per her statement or by PW-13 SHO Sangat Ram had called herself, as stated by him. The constable and the Forest Guard, as referred to above, have stated that they were holding torch, while PW-13 SHO Sangat Ram has stated that he was also holding a torch. The contradictions in this regard were minor and had to be ignored since there is no doubt in the story of the prosecution that the witnesses were present there at the spot, had recovered the vehicle at the spot alongwith the timber and they had no reason to depose falsely as against the respondent and therefore, these contradictions were not very material. However, the fact remains that the findings of the learned trial Court on the basis of the evidence that the identity of the respondent was not established as to whether the witnesses had an opportunity to identify the respondent or not particularly when the time of passing of the vehicle was 2.00 A.M. and there was sufficient darkness at that time and, therefore, such conclusion drawn by the learned trial Court that the identity of the respondent was not established beyond reasonable doubt, those findings cannot be said to be perverse. 6 In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), March 11, 2010 Judge (BSS) 7