IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 235/2001. Reserved on : 25.2.2008 Decided on: 28.2. 2008. State of H.P. … … Appellant. Versus Raj Kumar and others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 .No. For the Appellant: Mr. Rajinder Dogra and Mr. Anil Kumar Jaswal, Deputy Advocate Generals. For the Respondents: Mr. N.K. Thakur, Advocate. Rajiv Sharma, Judge: The respondents were prosecuted in case No.33-1/99 in the court of Judicial Magistrate 1st Class, Court No.II, Amb, District Una, H.P. under sections 41, 42 of the Indian Forest Act, 379 of the Indian Penal Code, under rules 11 and 20 of the H.P. Forest Produce Transit Land Route Rules, 1978 and were acquitted on 27.11.2000. Hence, this appeal by the State. The brief facts which can be culled out from the judgment of the trial court are that on the night of 9/10.10.1998 on Gagret-Hamirpur Road at Gagret, the accused persons were found transporting 14 logs Whether reporters of local papers may be allowed to see the judgment? No. - 2 - of khair wood in a truck No. HPK 6317 without any valid permit. These logs of khair wood were found to have been cut by the accused persons from Government land comprised in khasra No. 139 situated in Mouja Gagret. PW-7 Kirpal Singh lodged the complaint Ex.P-1 at Police Station, Gagret on the basis of which FIR Ex.P-2 was registered against the accused persons. During the course of investigation, site plan Ex. PW-12/A was prepared and two saws Ex.P-1, P-2 and canny Ex.P-3 and gunny bag Ex.P-4 were recovered vide memo Ex.PW-6/A. The challan was put up after the matter was investigated. The prosecution examined as many as 12 witnesses in order to prove its case. The accused persons were examined under section 313 of the Code of Criminal Procedure. The trial court acquitted the respondents on 27.11.2000. The learned Deputy Advocate General had strenuously argued that the prosecution has proved the case against the accused persons. Mr. N.K. Thakur, Advocate had supported the judgment dated 27.11.2000. I have heard the learned counsel for the parties and have perused the record carefully. PW-8 Amar Nath had stated that on 10.10.1998 Naka was laid near Asha Devi Temple where a truck bearing No. HPK 6317 was parked and when they reached near the truck, the accused persons were loading the scants. The two persons, namely, Raj Kumar and Pritam Singh were caught on the spot. They could not produce any permit to transport these scants and there was no mark on the scants. The vehicle was taken to Gagret and thereafter it was taken to Amb Range. He had stated that he had put signatures on Ex.PW-6/A when Ex.P-1, P-2 and PW-3 were recovered. He had further stated that the documents were prepared by him and thereafter the complaint was - 3 - lodged at Police Station, Gagret. PW-10 Asha Puran had deposed that on 10.10.1998, he and Amar Nath (PW-8) had laid a Naka near Asha Devi Temple and at about 4.00 A.M. in the morning they had heard the noise of loading and they reached near the truck No.HPK- 6317 which was parked there and 5 scants had already been loaded and 9 scants were to be loaded. Two persons, namely, Raj Kumar and Pritam Singh were present on the spot. The vehicle thereafter was brought to Amb. The truck and wood were handed over to Range Office, Amb. This incident was narrated by Asha Puran (PW-10) and Amar Nath (PW-8) to Range Officer, Sh. Kirpal Singh (PW-7). Since Kirpal Singh had not taken any action, the truck was brought to Range Office, Amb. He had categorically admitted that he had not made any report at Police station Amb. PW-7 Sh. Kirpal Singh was posted in Flying Squad from April, 1993 to January, 1998. He has stated that Asha Puran and Amar Nath i.e PW-10 and PW-8 had come to him at about 10.00 A.M. in the morning and they have told him that at about 4.00 A.M. at place 3 KMs ahead of Gagret, a truck bearing No. HPK-6317 was caught with khair wood and 14 scants of khair wood were recovered. PW-7 had admitted that he had no original record of mark A-1 to A-5. He has further stated that the FIR was lodged on the basis of his complaint. PW-6 Lal Chand, Forest Guard was declared hostile. PW-9 Anjani Kumar had deposed that he had prepared the seizure memo and receipt Ex.PA-1 and Ex.PA-2 and original record was handed over to Kirpal Singh (PW-7). PW-11 Ashok Kumar had stated that he went to Forest Office along with Sh. Manohar Lal at the instance of forest official and in the courtyard of forest office 14 scants were kept. PW-11 Ashok Kumar was declared hostile. PW-12 Sh. Kamal Chand - 4 - had investigated the case and he had prepared the site plan Ex.PW- 12/A. There is delay of about 11 hours in lodging the FIR, which has not been explained satisfactorily by the prosecution. The timber according to police version was recovered at Gagret. The FIR was required to be registered immediately at Police Station, Gagret. The prosecution has not explained why the truck loaded with timber was taken to Amb. The recovery memo, if any, and the documents were to be prepared at Gagret itself. PW-7 Kirpal Singh had categorically admitted that he had no original record regarding mark A-1 to A-5 though PW-9 had stated that he had handed over the original record to PW-7. The prosecution had failed to produce the original copy of seizure memo. What has been produced before the Court was mark A-2 which is photocopy of the recovery memo. The same has been rightly discarded by the trial court. The recovery of scants is also highly suspicious in view of the statement made by PW-11 Ashok Kumar. It is evident that the scants were not recovered in his presence, but he was called in the forest office where he had seen the scants lying in the courtyard of the forest office. PW-11 had neither stated that the scants were recovered from the accused persons nor he had stated that scants were taken into possession from truck No.HPK-6317. The recovery of Aaris Ex.P-1, P-2, plastic canny Ex.P-3 and bag is also doubtful in view of the statement made by PW-6. There is variance in the statements of the witnesses with regard to the recovery memo Ex.PW-6/A. The prosecution has failed to prove the case against the accused persons. There is a delay of about 11 hours in lodging the FIR. The original recovery memo was not produced in the court. The prosecution has not given any explanation why mark A-1 to A-5 were not available in the office of PW-7 Kirpal Singh. In - 5 - view of the statement made by PW-6, the recoveries effected vide Ex.PW-6/A are also doubtful. The prosecution has not explained why the truck alongwith the timber was taken to Amb for the preparation of documents, though the same was to be done at Gagret. From the above discussion it is clear that the trial Court has correctly appreciated the evidence and has rightly acquitted the respondents. Accordingly, there is no merit in this appeal and the same is dismissed. The bail bonds furnished by the accused-respondents stand discharged. February 28, 2008. (Rajiv Sharma) *Awasthi*. Judge