RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.129 of 2001 (Old No.3064 of 1999) Tanuj Kumar @ Rimpi … Appellant Versus The State … Opposite Party Mr. Sandeep Tandon, Advocate for the appellant Mr. P.S. Bohra, Brief Holder for the State/opposite party Dated: August 27, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been directed against the judgment and order dated 3.11.1999 passed by II Additional Sessions Judge, Dehradun in S.T. No.272 of 1995, State Vs. Tanuj Kumar @ Rimpi & others. In the said trial, eight accused persons were tried for the offence of Sections 395 and 412 IPC along with Sections 26/41 of the Indian Forest Act (hereinafter to be referred as the Act). At the conclusion of the trial, all the accused persons were acquitted from the charge of Section 395 IPC and 26/41 of the Act but the appellant/accused Tanuj Kumar @ Rimpi was held guilty for the offence of Section 411 IPC and was sentenced to undergo two years’ R.I. The background facts of the entire incident are that on 25/26.8.1993 at about 3:30 AM, when Sri Jagdish Chandra, Forest Guard along with Sri Diwan Singh, Plantation Chaukidar was patrolling in the forest, they heard some noise of loading the logs of wood. They proceeded in the direction wherefrom the voice was being aired. They saw a truck whereupon the wood logs were being loaded. Those wood logs were of Sagon (a special species of the Tree) and the number of the Truck was DL-1-L/1140. At the spot, they recognized 12 accused persons by name, but could not identify three others. In total, there were 15 accused persons. The Forest Guard 2 along with Chaukidar, named above, tried to prevent them but one of the accused Indra Singh Fauzi and other Sri Tanuj Kumar @ Rimpi (present appellant) threatened them to kill by showing countrymade pistol. This way, all the accused persons remained successful in carrying the wood logs of Sagon forcibly from the forest. Later, on the information supplied by one of the accused, named Ghasitu @ Chela, this wood was recovered from the residence of the appellant at his house No.46, located at Raja Road, city Dehradun. From that house, 19 Sagon woods were recovered, which were also identified by the forest officials as the forest produce. The FIR was lodged on 22.10.1993 at 4:30 PM by Gopal Krishan Rana, a forest official. Investigation was made and the chargesheet was submitted only against eight persons including the appellant. After taking the evidence produced by the prosecution, the appellant has been convicted, as aforementioned, whereagainst this appeal has been filed. I have heard learned counsel for the parties at length and perused the entire material available on record. The first and foremost significant aspect of the entire case is that the occurrence is of 25/26.8.1993 at 3:30 AM., the forest officials had recognized the names of at least 12 persons, who forcibly carried out the wood in their presence from the forest. That apart, this wood was allegedly recovered at the instance of one of the accused from the house of the appellant Tanuj Kumar @ Rimpi, albeit in his personal absence. This wood was allegedly recovered on 30.8.1993, i.e. almost after four days of the incident but no FIR was lodged, either soon after the occurrence or even after the recovery. The same was lodged with inordinate delay of almost quarter to two months on dated 22.10.1993. This lapse on the part of the prosecution has not been accepted, as justified, by the court below. Virtually, there is no explanation with the 3 prosecution as to what was the reason for lodging this FIR almost after quarter to two months of the incident. This is all the more become relevant for consideration of this Court, inasmuch as, the forest officials had identified at least 12 persons at the spot and the wood was allegedly recovered just after four days of the incident from the house of the appellant. In that situation, this Court is unable to understand the reason, albeit no reason has been offered behind this lapse committed on the part of the prosecution. It has been argued on behalf of the prosecution that under Section 69 of the Act, it is the presumption that the forest produce, which was recovered from the accused/ appellant, belonged to the Government. This presumption can be accepted if there remains no doubt regarding the recovery of the wood from the house of the appellant. It was the burden of the prosecution to prove the case to the hilt against the appellant. Learned counsel of the appellant has advanced the arguments that no site plan of the place of recovery was made by the Investigating Officer, while it was incumbent as a part of the investigation to make such a site plan. It has also been argued that no case of any dacoity or theft has been proved against any of the accused persons and that is why they have not been found guilty by the trial court and have been acquitted from the charge levelled against them u/s 395 IPC and also u/s 26/41 of the Act. Once they have been acquitted from the said charge and it was found that no theft or dacoity has ever been occurred in the forest place, vis-à-vis the facts stated in the FIR, then it would be quite unjust to punish the appellant for the offence of Section 411 IPC, connecting the alleged recovery from the incident of dated 26.8.1993, as alleged by the prosecution. It has also been argued that witnesses have deposed regarding bringing of those log woods from the house of 4 appellant in a police truck but the same has not been proved by producing the copy of G.D. or log book entry of the vehicle. A police vehicle, while leaving the police station to fetch the stolen goods, should find place as an entry in the general diary kept at the police station. Besides, there is glaring contradiction in the statements of witnesses too. PW3 S.I. Suresh Chandra has deposed before the Court that the case property (woodlogs) was brought to the police station before him, while PW1 Constable Gopal Singh Rana and PW2 Jagdish Chand Joshi have deposed that the case property remained lying at Jhajhara range of the forest. If the alleged recovered wood remained lying at Jhajhara range, then how could it be recovered from the residence of the appellant. This all creates a serious doubt in the entire prosecution story of recovery and the Court is of the view that the learned trial court has erred in holding the appellant guilty for the offence of Section 411 IPC and the appeal deserves to be allowed. Consequently, the appeal is allowed. Impugned judgment and order holding the appellant guilty for the offence of Section 411 IPC and sentencing him to two years’ R.I. is hereby set aside. Lower court record be sent back. (Servesh Kumar Gupta, J.) August 27, 2011 Rajeev Dang