IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 461/2004 Date of decision: 4.8.2011 State of H.P. …..Appellant Versus Prem Chand ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. P.M. Negi, Dy. Advocate General. For the respondent : Mr. Himmat Negi, Advocate. Surinder Singh, J. (Oral) Against the conviction and sentence passed by the learned trial Court in criminal case No. 87-II of 2000 decided on 9.7.2003, respondent herein filed the appeal No. 23-B of 2003 before the Court of Sessions which came to be decided by the learned Additional Sessions Judge, Kangra at Dharamshala, whereby it was set aside and the respondent was acquitted mainly on the ground that there have been material contradictions in the statements of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - the witnesses rendering the prosecution case doubtful. 2. Shri P.M. Negi, learned Deputy Advocate General vehemently argued that the grounds of acquittal are perverse and based upon surmises and conjectures and not borne out from the record and prayed to restore the judgment of conviction and sentence passed by the learned trial Court. 3. On the other hand Shri Himmat Negi, Advocate for the respondent supported the impugned judgment of acquittal. 4. I have considered the rival contentions of the parties and have carefully re-appraised the evidence on record. 5. In short, prosecution case is that on 2.10.1999 at about 4 p.m. PW6 ASI Joginder Singh along with H.C. Milap Chand, Constable Parveen Kumar and forest guards PW1 Mulakh Raj and PW2 Saju Ram were present at Deol Road near Dharer on nakabandi. They noticed a tempo vehicle bearing registration No. HPK 9237, coming from Deol side which raised suspicion. It was stopped and on checking, it was found carrying 9 scants of deodar. Respondent Prem Chand was its driver. One person taking the benefit of darkness escaped. The police - 3 - measured the scants and took into possession the timber aforesaid along with the tempo in question. Ruka was sent for the registration of the case. Police also prepared the site plan. Timber along with tempo in question was given on Sapurdari to one Shri Krishan Singh for producing the same before the authorized officer. 6. Police arrested Suresh Kumar who is alleged to have made the statement in the presence of Kashmir Singh and Krishan Singh that the timber in question was stolen from the Forest U-29/F Ripundhar pursuant to which the place was got identified. 7. Police also found the involvement of Milap Chand, Suresh Kumar and Amar Singh who were later enlarged on bail by the learned trial Court. 8. Respondent herein was chargesheeted for the offences punishable under Section 41 and 42 the Indian Forest Act and also under Section 379 Indian Penal Code along with his co-accused. 9. At the end of the trial, respondents, except Prem Chand respondent herein were acquitted and Prem Chand was convicted and sentenced under Section 41 and 42 Indian Forest Act - 4 - which was set aside in appeal by the learned Additional Sessions Judge. 10. The stand taken by the said respondent was that the alleged incident as projected was incorrect. In fact, some timber was lying on the spot and police intended to take it to the police station to which he refused, as such the case was foisted upon him. 11. On the scrutiny of the evidence, I find that the witnesses of the Forest Department, including the forest Guard have materially deviated from the prosecution story. Their statements are different from the statement of Investigating Officer. According to PW1 Mulakh Raj, he along with PW2 Saju Ram was in the Forest Guard hut. Police came after sometime. He was associated by PW6 ASI Joginder Singh at the time of naka put nearby on Deol road. They intercepted the tempo aforesaid near the forest-hut and recovered the aforesaid scants, which were taken into possession vide memo Ext. PW1/A which also contained the measurement. But in cross- examination both PW1 and PW2 aforesaid stated that the memo in question Ext. PW1/A was prepared in police Station which fact is also contrary to the Ruka Ext. PW6/A. Even they have gone to the extent - 5 - of saying that the entire proceedings, including the measurement were completed in the police Station which took around three hours. The statements of the above witnesses saying something else in the examination-in-chief and then altogether different in cross-examination is a material contradiction. Even PW6 ASI Joginder Singh has given a story different to that of above witnesses which was also initially projected in the police report. The aforesaid contradictions have made the prosecution story a suspect. 12. The respondent also adduced the defence evidence and examined DW1 Subir Katoch and Karam Chand. The aforesaid witnesses tried to probablize the defence taken by the respondent. Surprisingly respondent No. 2 in his cross-examination by the learned Public Prosecutor has given a positive suggestion that the police reached the spot in the morning whereas according to Investigating Officer (PW6), he reached the forest hut around 2 a.m. which fact also stands contradicted by the statement of PW1 Mulkh Raj that the police had arrived after they spotted the vehicle in question around 4 .am. Whereas PW2 Saju Ram stated that the police was along with them. He does not state - 6 - that the timber in question were measured and taken into possession on the spot. In cross examination, as already stated above, the document of recovery Ext. PW1/A was prepared in the police Station itself and admitted that he did not know what has been written in that document. Further, this witness has also admitted that he was under the employment of PW1 Mulkh Raj forest guard and in cross examination he expressed his inability to say that the timber in question were loaded by PW1 and police officials. But surprisingly thereafter he admitted that he along with PW1 Mulkh Raj had loaded the timber in the aforesaid vehicle and police officials took it to the police Station, which probablises the defence. 13. The above contradictions are material in nature which were taken note of by the learned Additional Sessions Judge. Since the findings of acquittal are bore out from the record, therefore, no interference is called for. The appeal is without any merit, hence dismissed. 14. The respondent is discharged of his bail bonds entered upon by him, at any time during the proceedings of this case. August 4, 2011 (Surinder Singh), (cm) Judge.