IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 448 of 2003 Date of decision: 26.07.2010 Gurmail Singh ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Ajay Sharma, Advocate. For the respondent: Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellant under Section 374 Cr.P.C. against the judgment of the Court of learned Sessions Judge, Una, dated 16.9.2003, vide which the appellant was convicted for offence under Sections 41 and 42 of the Indian Forest Act and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.2000/-. In default of payment of fine, the appellant was to undergo further imprisonment for one month. 2. Briefly stated, the facts of the case are that 30.10.1999, at about 8.00A.M., PW-10 HC Ashok Kumar alongwith other police officials was on patrol duty at Chandpur Khad. A secret information was received that accused Gurmail Singh was bringing Khair wood in a Maruti Van No. PB-40-0041. The accused was accompanied by the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 driver. On receipt of the said information, PW-10 HC Ashok Kumar, Incharge P.P. Haroli, who was with him. Thereafter, he joined two witnesses Neelkanth and Updesh Singh in the raiding party. A Naka was laid by the side of the road and at 9.30 A.M., a Maruti Van came from Haroli side and was going towards Nangal side. He gave signal to the driver to stop the vehicle. But instead of stopping the vehicle, the driver hit him, as a result of which he fell down on the road and sustained injuries in his right leg and right arm. Accused Gurmail Singh was sitting on the front seat by the side of the driver. The driver of the van ran away from the spot and the vehicle was apprehended after some distance. Another person was also sitting in the said van at that time. Thereafter, they followed the Maruti Van on the scooters and the driver of the van on seeing them left the van after covering some distance by the side of the road. They caught hold of the Gurmail Singh and the driver and the third person managed to run away. After the investigation, the challan was filed before the Court of learned Sessions Judge and the appellant was tried by the learned trial Court for offence punishable under Section 307 read with Section 34 I.P.C. and under Sections 41 and 42 of the Indian Forest Act for having committed an offence under Rule 20 of H.P. Forest Produce Transit (Land Routes) Rules, 1978, read with Sections 41 and 42 of the Indian Forest Act. The appellant was held guilty under Sections 41 and 42 of the Indian Forest Act and convicted and sentenced as detailed above and was acquitted of the other charges framed against him. 3 3. This appeal has been filed by the appellant for setting aside his conviction and sentence under Sections 41 and 42 of the Indian Forest Act. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. It is clear from a perusal of the evidence led by the prosecution that there is statement of PW-10 HC Ashok Kumar, who has corroborated the assertions mentioned above that he formed a raiding party after joining two independent witnesses and signalled the driver to stop the vehicle, but it was not stopped and rather, it hit him and he fell down on the road and suffered injuries. The vehicle was followed by the members of the raiding party and thereafter it was apprehended after some distance and the accused was allegedly sitting on the front seat by the side of the driver. The other member of the raiding party was PW-8 HC Mangat Ram, who has corroborated this statement of PW-10 HC Ashok Kumar on material particulars. He stated that he alongwith Akshay Kumar, Sadhu Singh and Satnam Singh chased the van on scooters. He also stated that he was driving his own scooter and Satnam Singh was sitting with him. He further stated that PW Akshay Kumar went on motorcycle, may be alongwith Ashok Kumar. The suggestions made that the vehicle had not hit Ashok Kumar were denied by him. No other member of the raiding party has been examined by the prosecution including any other police official. Out of the two witnesses associated at the time of forming of raiding party. PW-2 Updesh Singh has been examined, who has stated that he reached Chandpur and found that the police had laid a trap. After some time, A Maruti Van came from Palkwah side. It was 4 signalled to stop, but it did not stop and went ahead with fast speed. He could not recognize the driver of the vehicle. He also could not identify the person who was sitting by the side of the driver. He did not see the maruti van striking against any police official while fleeing. He also did not notice any injuries having been caused to any police official. He was declared as hostile and was allowed to be examined by the learned Public Prosecutor. 6. A perusal of his statement shows that he was President of Gram Panchayat and accordingly he can be termed as respectable person of the area. He was associated at the time of forming of raiding party and has stated that the vehicle fled way from the spot and he cannot identify. The appellant was sitting by the side of the driver. A perusal of his statement shows that he never stated that he accompanied the members of the raiding party on either of the scooter or motorcycle and chased the appellant and the van was apprehended after some distance. A perusal of the statement of PW-8 HC Mangat Ram shows that he alongwith Akshay Kumar, Sadhu Singh and Satnam Singh chased the van on scooters. He stated that he was sitting on his own scooter alongwith Satnam Singh and PW Akshay Kumar went on motorcycle, may be alongwith Ashok Kumar. He never stated that PW-2 Updesh Singh has followed the van on the scooter or motorcycle and once the van was apprehended after some distance, he cannot be said to have seen the accused when the van was stopped. 7. The other eye witness, namely, Sadhu Singh, who was a material witness and an independent witness, should have been examined. Once PW-2 Updesh Singh, another independent witness had 5 not supported the prosecution case, but he was given up by the learned Public Prosecutor for the State on the statement that to avoid repetition, he is given up. 8. From the above discussion, it is very much clear that the statements of two witnesses of police have not been corroborated by any of the independent witnesses that two witnesses were associated and one of them was only examined, but when examined did not support the prosecution story. The accused was neither the driver nor there is any evidence to show that he was owner of the van and only evidence led is that he was sitting by the side of the driver, which evidence is shaky and in the absence of independent corroboration, it could not have been relied upon by the learned trial Court to hold that he was once of the occupants of the van and was found in possession of logs. The prosecution had also relied upon a disclosure statement made by the accused in regard to pointing of the place of occurrence from where the tress had been cut. The disclosure statement Ext. P-7 was proved from the statement of PW-7 Akshay Kumar. However, since recovery in question had already been effected and this statement was made in regard to pin pointing of the place from where the trees were cut. Once no recovery had been effected in pursuance of the disclosure statement, it cannot be termed as disclosure statement so as to link it with the appellant. 9. In view of the above discussion, I accordingly hold that the findings recorded by the learned trial Court holding the appellant guilty under Sections 41 and 42 of the Indian Forest Act, cannot be said to be correct and as such are liable to be set aside. The appeal filed by the appellant is accepted and the conviction and sentence 6 imposed upon the appellant is set aside. The bail bonds furnished by the respondent shall stand discharged forthwith. Fine if recovered, be refunded to the appellant. ( V.K. Ahuja ), July 26, 2010 Judge (BSS) 7