IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No. 188 of 1997. Decided on: 5.8.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Surinder Kumar and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anil Jaswal, Deputy Advocate General. For the respondents : Mr. Rakesh Jaswal, Advocate. ___________________________________________________________ R.B. Misra, J. (Oral). The present criminal appeal has arisen after leave to appeal has been granted, under Section 378 (3) Cr.P.C., in reference to the impugned judgment, dated 22.8.1996, passed by the learned Additional Sessions Judge (2), Kangra at Dharamshala, in Sessions Case No. 5-G/VII/96, acquitting the respondents- accused for the alleged offence, under Section 395 IPC, in reference to FIR No. 44/95. 2. According to prosecution, 25 quintals of Khair logs and stumps having hammer mark as seized property were kept in the store of inspection hut, Gular Dhar where Hari Ram, Chowkidar was on duty. In the night of 28/29.3.1995 at about 11/12.00 p.m., 7-8 persons came and switched off the light of inspection hut from outside and bolted the door of inspection hut 1 Whether reporters of the local papers may be allowed to see the judgment? 2 where Hari Ram was sleeping and when he rushed towards backside door of the inspection hut, he found 2-3 persons standing there, who threatened Hari Ram, Chowkidar that in case he is trying to come out from the inspection hut, he would be done to death with a gun fire. Thereafter, few persons who were standing outside, broke open the store and committed theft of Khair logs weighing 25 quintals and loaded the same in the parked truck. Hari Ram remained in the inspection hut for the night and in the morning when he came out from the inspection hut, reported the matter to Shri Ranjodh Singh, Block Officer, who in turn informed the Range Forest Officer, who visited the spot and made inquiry and lodged the report vide FIR No. 44/95 in Police Station, Dehra. ASI Shri Raghubir singh, Police Post, Sansarpur Tarrace visited the spot on 30.3.1995, prepared the site plan, recovered the paddle of cycle Ext. P1 and iron rod Ext. P2 lying on the spot with which the lock of the door of the store was opened and arrested accused Surinder Kumar, Garib Dass and Ram Pal on the same day and 25 quintals of Khair logs lying near the store of Joginder Singh were recovered from village Balahar which were taken into possession. One piece of log out of recovered Khair logs was kept as case property while the remaining logs were handed over on Sapurdari to Shri Ram Kumar. The tempo No. PCJ 4694 owned by accused Dev Raj was also taken into possession on the same day from Talwara being parked there and after investigation, accused were charged for the offence under Section 395 IPC and the case was committed to Sessions trial. 3 3. In order to prove its case, the prosecution examined as many as 12 witnesses. Whereas, the respondents-accused in their statements under Section 313 Cr.P.C. have denied entire prosecution case and pleaded not guilty. 4. From perusal of prosecution evidence and material on record we noticed that the prosecution is only relying on the testimony of PW1 Hari Ram, who was deployed as Chowkidar for the last about 13 years, has stated as above in support of the prosecution case. PW1 has also stated that two persons came to the Rest House and locked the bolt from outside the room of the inspection hut, where he was sleeping and when he went towards the back door of his room, he found two persons standing outside, who threatened him that if he comes out of the room, they will kill him. Accused persons thereafter removed the ‘Kunda’ of the store room with iron rod and started taking out the logs of Khair after confining PW1 in the room. PW1 has further stated that he recognized accused Garib Dass and Gurbax Singh when PW1 was locked in the room. However, out of fear, he could not come out and Khair logs were taken away by the accused from the store and when in the morning PW1 came out of the room, he found Khair logs stolen from the store room and paddle of cycle was found lying at the door of the store room. Thereafter, he reported the matter to the police and on his report FIR was lodged. PW1 in cross- examination has stated that the store is at a distance of 25 meters from the inspection hut where PW1 was sleeping on the date of incident and on the date of occurrence, there was heavy rain and PW1 was not aware about the whereabouts of the two persons who 4 switched off the light and bolted the door from outside as PW1 remained inside the room. The door of the residence had two shutters, first of wooden frames and the outer one of wire gauze. PW1 had bolted the frame of wire gauze from inside. However, PW1 did not tell such fact of two doors of his residence to anybody. According to PW1, he had identified accused Garib Dass and Gurbax at that time and accordingly told the police and Ranjodh Singh that there were 6-7 persons who committed the theft. As per testimony of PW1, the house of Garib Dass is at a distance of 50 yards from the house of in-laws of PW1 as such PW1 knew him. PW1 also knew Gurbax Singh for the last more than 2-3 years. PW1 has also very categorically stated that on the date of incident, it was dark night. 5. PW2 Ranjodh Singh, Block Forest Officer in support of the prosecution case has stated that recovery of the stolen logs was made at his instance and after recovery of the Khair logs, the same were handed over on Sapurdari to Range Forest Officer, Dada Siba vide Ext. PW2/D. One log of Khair out of the recovered logs was kept as sample which is Ext. P3. As per testimony of PW2, he was apprised by PW1 Hari Ram, Chowkidar that 7-8 accused persons were there and despite asking PW1 did not disclose to PW2 the names of accused persons. The quantity of Khair logs stated to be about 25 quintals is only estimated quantity as it was not weighed before. PW2 has further stated that log of Khair Ext. P3 did not bear any hammer mark. Subsequently, stated that the portion of log bearing hammer mark was cut by the police and handed over on Sapurdari to Range Officer along with other 5 logs and only a small portion of log was kept as sample which was not bearing hammer mark. PW2 has further stated that when police visited the spot for the first time on report of PW2, accused Surinder Kumar, Gurbax and Garib Dass were accompanying the police. However, PW2 is not aware as to how and when these accused persons were arrested by the police. However, in view of the testimony of PW2, accused Surinder Singh made a disclosure statement Ext. PW2/B on the spot where theft was committed. However, PW2 was not aware about the statement of any person recorded by the police before recovery of Khair logs. 6. PW3 Ram Kumar, Range Forest Officer has stated that the matter was reported to Ranjodh Singh PW2 through Thakur Dass about the theft of Khair logs from the store. After preliminary inquiry, it was reported to the police vide Ext. PW2/A and the police visited the spot accompanying accused Surinder Kumar, Garib Dass and Gurbax and on the spot Surinder Kumar made a disclosure statement that on the intervening night 28/29.3.1995, he along with Gurbax, Garib Dass, Ram Pal and Jeevan had come to Gular Dhar store and after breaking the ‘Kunda’ of the store committed theft of Khair logs and loaded them in tempo No. PCJ 4696. Thereafter, the logs were kept at the depot of Joginder Singh in village Balahad. However, in view of the testimony of PW3 that Surinder Singh accused accompanied the police to village Balahad and on demarcation stolen Khair logs were recovered by the police from the depot of Joginder Singh. As per testimony of PW3, on inquiry PW1 was confused at that time and did not name any of the accused persons before him and as PW1 did not disclose the name 6 of any accused person, so PW3 also did not name any of the accused persons in the report Ext. PW2/A to the police. 7. PW4 Thakur Dass associated by the police in the investigation stated that investigating team had already recorded statement of accused Surinder and on obtaining the signatures, PW5 Dharam Singh, Forest Contractor, PW6 Rajan Kumar, PW7 Desh Raj, Forest Guard, PW8 Swaran Singh, Forest Guard, PW9 Gian Chand, Forest Guard and PW10 Joginder Singh, Forest Guard in due discharge of their official duty have assisted the prosecution to the extent the role was assigned to them. 8. PW11 ASI Raghubir Singh on receipt of application Ext. PW2/A from Ranjodh Singh, Block Officer forwarded the same with the endorsement Ext. PW11/A to Police Station, Dehra for registration of FIR. PW11 prepared the site plan Ext. PW11/B and took into possession paddle Ext. P1 and rod Ext. P2 vide Fard Ext. PW1/A from the spot and recorded the statements of PW1 Hari Ram, PW2 Ranjodh Singh, PW3 Ram Kumar and PW4 Thakur Dass. As per testimony of PW11, he arrested accused Ram Pal, Surinder and Garib Dass on 30.3.1995 from village Balahad and handed over further investigation to SHO. PW11 has recovered the logs from behind the house of Joginder Singh vide seizure memo Ext. PW2/C. In cross-examination, PW11 has stated that when he reached the spot on 30.3.1995 at about 7.30 a.m., Range Forest Officer and other forest staff were already present there and PW1 disclosed the names of accused persons to be Ram Pal, Surinder and Garib Dass. 7 9. From the analysis of the prosecution witnesses and material on record, we have noticed that the spot map prepared as Ext. PW11/B indicates that the Rest House where PW1 was sleeping on the date of incident was having a door opening West side and from all sides the room was closed and there was no other opening and whosoever was sitting or was sleeping in the Rest House at point ‘B’, could not have seen anything outside. It is also not known that when the light was switched off by the two persons on the date of incident and it was dark night, then how he saw the persons standing outside. It is also not clear as to when light was switched off, then, how two accused persons were seen by PW1 bolting the door from outside. It is also not clear that at whose instance PW1 came out of the room in the next morning and who opened the door from outside and how PW1 was successful to come out when the door was bolted from outside. As per testimony of PW1, Khair logs were taken out from point ‘A’ which is South side and loading was made near East part of the Rest House at point ‘B’. In that condition, point ‘C’ is in East and point ‘B” door of the Rest House is opening in West side. In dark night, taking out the Khair logs and loading of the same could not have been observed by PW1. This improbability goes to the root of the case and makes the prosecution case fatal. If PW1 was known to both the accused Garib Dass and Gurbax Singh, then he could have accordingly divulged to Ranjodh Singh, who thereafter, could have narrated to PW3 Ram Kumar, Range Forest Officer, the scriber of the FIR. Despite asking by PW2 Ranjodh Singh, PW3 Ram Kumar did not disclose the names of accused persons in the FIR. 8 10. When the police came to the spot on 29.3.1995 at about 7.30 a.m. before that a preliminary inquiry was already made by PW3 Ram Kumar and it was revealed that the matter was reported vide Ext. PW2/A. During investigation also, names of accused persons were not disclosed when PW11 came for investigation on 30.3.1995 on the spot accompanied with Surinder and Garib Dass. At that time also nothing was divulged that these are the accused persons who were accompanying the police. From the analysis, it is being inferred by us that PW1 had not seen the accused persons while logs were being taken by them from the store and loading in the tempo above mentioned. In the rainy dark night when PW1 was confined in a room could not have also seen any type of weapon being carried by the accused persons. PW1 has only stated that when he went to the door, he was threatened by two persons Garib Dass and Surinder whom PW1 did not recognize. Despite knowing Gurbax Singh and Garib Dass since past and non-mentioning their names in the FIR also makes the prosecution case doubtful. No independent witness of the village Balhad was associated in the recovery of 25 quintals of Khair, whereas, in view of testimony of PW11, recovery was made from the place behind the house of Joginder Singh whereas Joginder Singh was neither made accused nor was examined in corroboration to the recovery. The piece of wood produced before the Court was also not resembling with the one recovered as it was not having any stamp or hammer mark. Sole testimony of PW1 cannot be taken to have proved the prosecution case, more so, 9 when not inspiring confidence. The statement of PW1 is not corroborated by any of the prosecution witnesses. 11. In the facts and circumstances on the face of material on record, the learned Additional Sessions Judge has rightly come to the conclusion that prosecution has not been able to prove its case beyond reasonable doubt. The prosecution could not bring home the guilt to the accused. Therefore, the appeal being devoid of any merit is dismissed. (R.B. Misra) Judge. (V.K. Sharma) Judge. August 5, 2010. (cr)