IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 173 of 2004. Judgment reserved on 2nd November, 2010. Date of Decision: 8th December, 2010. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Baldev Kumar and others ....Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Rana, Assistant Advocate General. For the respondents: Mr. V.S. Chauhan and Mr. O.P. Negi, Advocates. ____________________________________________________ SURINDER SINGH, J. The respondents were acquitted in Criminal Case No.24-2 of 03/2000, by the learned trial Court, vide its detailed judgment passed on 18th November, 2003, for the offences punishable under Sections 379, 120B of the Indian Penal Code and 41 and 42 of the Indian Forest Act. 2. In short, the allegations on which the respondents were put on trial can be stated thus. On 1st March, 2000, PW9 Head Constable Harjit Singh and Constable Kalam Singh, were on patrolling in Dhami Whether reporters of the Local papers are allowed to see the judgment? - 2 - area on the motorcycle. When the aforesaid police officials reached on Basantpur Road around 2.45 pm, they received a secret information that vehicle bearing No.HIS-2394 was loaded with Deodar scants being brought to Dhami from the area of Theog and vehicle was driven by Baldev respondent. Further, that some more persons were also sitting therein. Finding this information credible, they intercepted at the place known as ‘Tangesh’. The aforesaid vehicle which has a closed cabin was stopped. On seeing the police party, driver escaped, but the police was able to apprehend Suresh Kumar, the Conductor of the vehicle. During search Police Officer associated PW1 Sohan Lal and PW2 Bhagat Ram. On opening the cabin, 42 timber scants were recovered, which were neither having any hammer mark nor T.D. mark. Suresh Kumar failed to produce any permit or challan. Consequently, the slippers were taken into possession, vehicle was impounded. Suresh Kumar produced the documents of the vehicle. He was arrested. D.F.O., Shimla and Range Officer, Dhami were informed. 3. Rukka Ext.PW9/A was sent for the registration of the case, on the basis of which formal FIR Ext.PW9/B was recorded. Police prepared the site plan Ext.PW9/C - 3 - of the place of the alleged recovery. The photographs of the vehicle were also taken. 4. Forest officials affixed the seizure hammer on each of the scants while taking them on ‘Sapurdari’. Police recorded the statements of the witnesses. During interrogation of Suresh Kumar it was revealed that respondents Kanwar Singh and Kahan Singh had cut three trees in village Kelvi (Theog). Both of them were arrested. They had shown the place from where the trees were cut. The area was got demarcated from PW5 Baldev Singh, Naib Tehsildar. The stumps were measured by the Range Officer and memo Ext.PW9/K was prepared. The report of the demarcation is Ext.PW5/A. One tree was alleged to have been cut from Government forest and two from the Malkiyat land by said respondents, as such the case was concluded against the respondents under Sections 379, 120-B of the Indian Penal Code and 41 and 42 of the Indian Forest Act. 5. Chuni Lal Thakur son of Shri Bishnu Ram, resident of village Shangti, Post Office Chaili, Shimla-5 was found to be the registered owner of the vehicle in question, but it was released to Naresh Kumar son of Shri Tulsi Ram, resident of village Sandhu, Tehsil Theog, District Shimla on the basis of affidavit regarding its purchase - 4 - which was placed by him before the learned trial Court while seeking its release, to which police did not object. 6. The accused persons were enlarged on bail and after completing the Challan, it was presented in the Court for the trial of the respondents. 7. The learned trial Court charge-sheeted, tried and acquitted the respondents on the grounds that the independent witnesses turned hostile and the statements of the official witnesses did not inspire confidence. 8. Shri J.S. Rana, learned Assistant Advocate General, forcefully argued that the prosecution has put- forth the best evidence. Although PW1 Sohan Lal and PW2 Bhagat Ram the alleged witnesses of recovery turned hostile, but PW9 Head Constable Harjit Singh stood well in the cross-examination and there is no reason to disbelieve him. It is also argued that Suresh Kumar respondent was apprehended on the spot. He did not offer any plausible explanation and others had fled away. There is no reason for false implication of the respondents. It is also argued that if the evidence of the prosecution is properly appreciated, there are grounds for converting the acquittal into conviction. - 5 - 9. Shri V.S. Chauhan and Shri O.P. Negi, learned Counsel for the respondents supported the impugned judgment of acquittal. 10. I have thoughtfully and carefully reappraised the evidence on record. 11. There is no rule of law that the official witnesses cannot be believed, if their testimonies are confidence inspiring. 12. PW9 Head Constable Harjit Singh categorically stated that on 1st March, 2000 he alongwith Constable Kalam Singh was on patrolling duty and around 2.45 pm at ‘Tangesh’, they intercepted truck bearing No.HIS-2394. It was stopped, but its driver escaped. However, they apprehended Suresh Kumar, its Conductor. The vehicle in question was checked in the presence of PW1 Sohan Lal and PW2 Bhagat Ram. It was having 42 scants of Deodar which were not having any hammer mark or T.D. mark. He could not produce any permit thereof, but during interrogation he disclosed the name of the driver. Rukka Ext.PW9/A was sent for the registration of the case. D.F.O., Shimla and Range Officer, Dhami were informed. Site plan Ext.PW9/C of the place of recovery was prepared. Forest team in the presence of the witnesses visited the spot. The forest officials converted the said timber into C.F.T. Its memo is - 6 - Ext.PW3/C. The seized timber was handed over to the forest-department to which they took into possession after putting the seizure hammer on it and memo Ext.PW3/D was prepared to this effect. He stated that the vehicle in question alongwith Registration Certificate and insurance were taken into possession and these documents were produced by respondent Suresh Kumar. Suresh Kumar also led the police party to the place from where the timber was loaded and the memo Ext.PW6/A was prepared alongwith the site plan Ext.PW9/F. He further testified that it was he who disclosed the names to them that respondents Kanwar Singh and Kahan Singh residents of village Kelvi had cut and converted the trees. Kanwar Singh and Kahan Singh were arrested and they pointed out the place from where the trees were cut. The revenue department was pressed into service for its demarcation and the report is Ext.PW5/A. 13. In cross-examination he stated that he did not record the statement of the owner of the vehicle as to who was the driver at the relevant time nor he took into possession the log-book. He further stated that it was Suresh Kumar, who disclosed the name of the driver. It is pertinent to note that no cross-examination was - 7 - conducted to this witness that Suresh Kumar was not apprehended on the spot. 14. PW3 Bhgwan Dass, Deputy Range Officer, Dhami and PW4 Ram Lal, Forest Guard, categorically stated that 42 slippers were found in the said vehicle. They were seized and forest seizure hammer was affixed on it. This fact was also corroborated by PW6 Constable Ranjit Singh and PW7 Tara Chand. Except Ranjit Singh, the other witnesses were not cross-examined. No reasons or allegations were made against the police or the forest officials mentioned above for and on behalf of Suresh Kumar to implicate him in a false case. During the interrogation as stated by the Investigating Officer, he disclosed himself to be the Conductor of the said vehicle and he was also found traveling in the same vehicle. He did not explain his presence and even pleaded his ignorance as to what the cab was carrying, rather his case is denial simplicitor even about his apprehension on the spot. 15. PW1 Sohan Lal and PW2 Bhagat Ram, independent witnesses did not support the prosecution case for obvious reasons. They were contradicted with their earlier statements recorded under Section 161 of the Code of Criminal Procedure and the document of recovery to which they have signed. However, they - 8 - admitted their signatures on the recovery memo. If their statements and signatures were obtained on the memos contrary to facts, it was their duty to make a complaint to the Officer superior to the Investigating Officer to which they did not do. Therefore, their statements are required to be ignored. Contra, the statements of the officials witnesses qua accused Suresh Kumar are confidence inspiring. 16. Against the aforesaid background when respondent Suresh Kumar, was resident of Sandhu (Theog) and the vehicle was intercepted at ‘Tangesh’ near Dhami absolutely in a different Range, far away from Sandhu carrying the timber and he was the Conductor and found traveling in the said vehicle, the offence punishable under Sections 41 and 42 of the Indian Forest Act against him stands proved beyond doubt. Accordingly, his acquittal by the learned trial Court on the ground that the independent witnesses have turned hostile and statements of other witnesses are unbelievable, is devoid of any merit and is perverse. Contra, I find that the official witnesses are consistent in their versions and confidence inspiring. 17. As far as respondent Baldev Kumar is concerned, there is no cogent and convincing evidence against him that at the relevant time he was - 9 - driver of the said vehicle and insofar as respondents Kanwar Singh and Kahan Singh are concerned, they have been implicated on the statement of Suresh Kumar and their statements with respect to pointing out of the place in the presence of PW8 Rajinder Singh are not legal and valid. Even Rajinder Singh aforesaid to this document turned hostile. Further, PW5 Baldev Singh, Naib Tehsildar who demarcated the place from where the trees were felled in village Kelvi, stated that according to the revenue record, two trees were found cut from khasra Nos.253 and 250 which were the ownership land of Kanwar Singh and Kahan Singh, but one tree was having found cut from government land bearing khasra No.258. Since there is no evidence with respect to the conspiracy and the felling of the trees by the respondents and having converted and transported the timber, therefore, their acquittal is justified as the prosecution failed to prove against them beyond doubt. 18. For the aforesaid reasons, the appeal filed by the State is partly allowed. The acquittal of the respondents except that of Suresh Kumar is upheld, whereas, Suresh Kumar respondent is held guilty and is thus convicted for the offence punishable under Section 41/42 of the Indian Forest Act. - 10 - 19. While considering the sentence to be imposed, I have considered the fact that he has no criminal history to his discredit, but his case cannot be too leniently dealt with. Since the forest offences are rampant in the State, therefore, considering all the aspects of the case and also the date of offence, I feel that interest of justice shall be met in case Suresh Kumar aforesaid is sentenced to undergo rigorous imprisonment for a period of two months and to pay a fine of ` 500/-. In default of payment of fine to further undergo simple imprisonment for a period of 15 days. Ordered accordingly. 20. The respondent-convict Suresh Kumar is directed to surrender before the learned trial Court on 26th December, 2010, failing which the learned trial Court shall take steps in accordance with law to arrest and commit said Suresh Kumar to prison as ordered. 21. Further, The timber which is ordered to be released by the learned trial Court to the rightful owner is confiscated to the State since it has not been claimed by the respondents. It be put to auction and sale proceeds be deposited in the Treasury. The learned trial Court is directed to ensure the compliance of the judgment/order. - 11 - 22. The appeal is disposed of. 23. Send down the records so as to reach it before the learned trial Court on or before 26th December, 2010. December 8, 2010. (Surinder Singh), J. (rc)