IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1200 of 2001 (Old No. 768/1997) Kartar Singh & Another .…. Appellants/Accused Versus State …………… Respondent December 11, 2009 Mr. M.S. Pal, Sr. Advocate assisted by Mr. D.N. Sharma, Advocate for the appellants. Mr. M.A. Khan, Brief Holder for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellants u/s 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 25.4.1997 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 295 of 1992, State v. Kartar Singh & Anr., whereby learned Additional Sessions Judge has convicted the accused appellants Kartar Singh and Sohan Singh under Section 379 of Indian Penal Code, 1860 (for short, IPC) and sentenced each of them to undergo R.I. for three years. However, the accused appellants were acquitted of the charges levelled against them under Section 307 and 411 IPC. 2. In brief, the prosecution case is that on 19.12.1990, an FIR was lodged by Prem Chand Singh, Range Officer with the averments that in the night of 18/19.12.1990, the accused appellants committed theft of Sagon wood after cutting nine trees of Sagon from compartment no. 3 of Basgar Beet of forest department within PS Sittarganj. The accused appellants fired at the forest employees, viz., Kirti Prasad, Harish Lal (PW3), Anant Ram (PW5), Satya Narain Rai (PW1) and Charan Singh (PW2) with firearms when the above forest employees tried to stop them while they were taking away the Sagon wood from the Basgar Beet. On the same day, the stolen pieces of wood of nine Sagon trees were recovered from the field of the accused appellants in Doda Farm, Sittarganj and fard Ex. Ka-2 was prepared. On the basis of the FIR, Chick FIR Ex. Ka-4 was prepared by Head Moharrir Shankar Nath. Necessary entries were made by him in the GD. Carbon copy of GD is Ex. Ka-5. 3. Investigation of this case was handed over to PW6 S.I. Man Singh Sirohi, who during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka-6. The I.O. also inspected the place of recovery and prepared the site plan Ex. Ka-7. During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-8 against the accused appellants. 4. Learned Munsif Magistrate, Khatima, Nainital after giving the necessary copies of the documents to the accused appellants, as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 3.12.1992. Learned Sessions Judge transferred the case to Additional Sessions Judge for its disposal according to law. 5. On 12.5.1993, learned 1st Additional Sessions Judge, Nainital framed the charges against the accused appellants under Sections 307, 379 & 411 IPC. The charges were read over and explained to each of accused appellants, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Satya Narain Rai, Beet Rakshak; PW2 Charan Singh, Beet Rakshak; PW3 Harish Lal, Forest Guard; PW4 Dhan 2 Singh, Chowkidar; PW5 Anant Ram; Forest Guard and PW6 S.I. Man Singh Sirohi; the I.O. of the case. 7. Thereafter, statements of each of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not produce any documentary or oral evidence. 8. After hearing learned counsel for the parties and after appreciating the evidence available on record, the learned Special Judge/Additional Sessions Judge, Nainital vide his judgment and order dated 25.4.1997 convicted and sentenced to the accused appellants as discussed above. Against the aforesaid judgment and order dated 25.4.1997, the convict appellants have preferred the present appeal. 9. I have heard learned Counsel for the parties and have carefully perused the materials available on the record. 10. To prove its case, the prosecution has examined PW1 Satya Narain Rai, Beet Rakshak, who has not supported the case of prosecution and was declared hostile. 11. PW2 Charan Singh, Beet Rakshak also did not support the prosecution case and was declared hostile. 12. PW3 Harish Lal, Forest Guard has supported the contents of the FIR in his examination-in-chief. But in his cross-examination, he has admitted that it was complete dark on the night of date of incident. This 3 witness has further admitted that he did not see any firearm in the hands of the accused appellants. He has also admitted that the pieces of Sagon wood which were recovered from the field of the accused appellants were not produced before the court. 13. PW4 Dhan Singh has stated that on the date of incident, he was the chowkidar of the guest house. This witness has only stated that the recovered pieces of Sagon wood were brought in the guest house on the date of incident and were handed over in the supardgi of Forest Ranger Kirti Ballabh and supardginama Ex. Ka-3 was prepared. 14. PW5 Anant Ram, Forest Guard in his examination- in-chief, has supported the averments made in the FIR. But in his cross-examination, he has stated that he could not recall the name of the accused other than Kartar Singh. He has further admitted that he did not see the accused appellants cutting the treas. He has also stated that the pieces of Sagon wood were recovered on the next day of lodging the FIR. 15. PW6 S.I. Man Singh Sirohi, the I.O. of the case has proved the chick FIR Ex. Ka-4 and carbon copy of the GD Ex. Ka-5. He has further stated that during the course of investigation, he inspected the place of occurrence and prepared the site plan Ex. Ka-6. He also inspected the place of recovery and prepared the site plan Ex. Ka-7. He has further stated that during the course of investigation he received the report of the incident which was lodged with the forest department. He also received the fard of recovery (Ex. Ka-2) from the forest department. He has further stated that during the course of investigation, he recorded the statements of the witnesses and after 4 completing the investigation, he filed the chargesheet against the accused appellants. In his cross-examination, he has stated that the recovery was not made by the police and the recovered pieces of Sagon wood have not been produced before the court. He has also stated that no fired bullet was recovered from the place of occurrence. 16. Thereafter, statements of the accused appellants were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to each of them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. However, in defence, they did not file any documentary or oral evidence. 17. Sri M.S. Pal, learned Sr. Advocate for the accused appellants argued that the on the basis of the evidence adduced by the prosecution, the case against the accused appellants for the offence punishable under Section 379 IPC is not proved beyond reasonable doubt and the trial court has erred in convicting the accused appellants for the said offence. I find any substance in the argument of the learned Sr. Counsel for the accused appellants for the following reasons: (i) That the prosecution, to prove its case, has examined as many as six witnesses. But out of the six witnesses, two witnesses, viz., PW1 Satya Narain Rai and PW2 Charan Singh did not support the case of prosecution and were declared hostile. They were cross-examined by the prosecution, but could not be shaken. (ii) That PW5 Anant Ram has stated that he could not say the name of the other accused except Kartar Singh. He has further admitted that he did not see the accused appellants cutting the 5 trees, which reveals that this witness had not seen the alleged incident. He has also stated that the pieces of Sagon wood were recovered on the next day of lodging the FIR, but contrary to it, the case of the prosecution is that the said recovery was made on the alleged incident itself. Hence, statement of this witness does not support the prosecution case. (iii) That PW3 Harish Lal has stated in his cross- examination that the pieces of Sagon wood which were recovered from the field of the accused appellants were not produced before the trial court. He has also admitted that at the time of alleged incident, it was complete dark. Hence, it was not possible to identify the accused appellants in such a dark night. Therefore, the statement of this witness is not reliable and it does not inspire the confidence. Moreover, the statement of this witness is not corroborated by the deposition of any other witness. (iv) That the pieces of Sagon wood said to be recovered from the field of the accused appellants were not produced before the trial court. Admittedly, the alleged recovery was made from the field of the accused appellant and not from their house and the accused appellants were not present at the place of recovery. Hence, it cannot be said with certainty that the alleged recovery was made from the field of the accused appellants. (v) That on the same set of facts and evidence, the trial court has acquitted the accused appellants for the offences punishable under Section 307 and 411 IPC and, therefore, on the basis of the 6 same facts and circumstances and evidence, conviction of the accused appellants under Section 379 IPC is not justified. 18. Thus, for the reasons recorded above and in view of the facts and circumstances of the case, it can safely be concluded that the prosecution has failed to prove its case beyond reasonable doubt against the accused appellants for the offence punishable under Section 379 IPC and, therefore, the conviction of the appellants under Section 379 IPC recorded by the trial court vide the impugned judgment and order dated 25.4.1997 is not justified and correct and the same is liable to be set aside. 19. In the result, the appeal is allowed. The judgment and order dated 25.4.1997 passed by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No. 295 of 1992, State v. Kartar Singh & Anr., convicting the appellants Kartar Singh and Sohan Singh under Section 379 IPC is hereby set aside and sentence of three years’ R.I. awarded to each of the appellants is hereby quashed. Appellants are on bail. Their bail bonds are cancelled. They need not surrender unless wanted in any other case. 20. A copy of this order be sent to the lower court for its compliance. Let the lower court record be also sent back. (Dharam Veer, J.) 11.12.2009 PRABODH 7