HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 708 of 2001 Decided on: 7.11.2008. State of Himachal Pradesh ………Appellant. Versus Bazir Singh and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondents: Mr.Ajay Sharma, Advocate. V.K. Ahuja, J (Oral): This is an appeal filed by the State of H.P. against the judgment of the court of learned Judicial Magistrate Ist Class, Nurpur dated 10.2.1999, vide which the respondents were acquitted of the charge framed against them under Sections 41 and 42 of the Indian Forest Act and under Section 379 of the Indian Penal Code. Briefly stated the facts of the case are that on 4.2.1991, Range Officer, Nurpur sent a written complaint to SHO, Police Station, Nurpur alleging that it has been reported to him by Block Officer, Khanni that during the night intervening 2/3 February, 1992, some Khair trees were cut from Jabbar Khad. He alleged that he verified this fact and found that six Khair trees worth Rs.7236/- were cut. He further alleged that he had verified and on inquiry, it has _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - been found that the respondent had taken these trees to Punjab on camels. On this report Ext.PW-4/A, a case was registered by the police vide FIR Ext.PW-2/A and during investigation, the recoveries of 15 logs of Khair were effected from the house of the accused person in Punjab. Thereafter, on completion of the investigation, the challan was filed before the learned trial Court, who tried the respondents leading to their acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. The learned trial Court had observed at more than one places that there is no direct evidence in regard to the cuttings of the trees in question or their transportation and the case, therefore, rests upon the circumstantial evidence. The most material evidence can be said to be the recovery of the logs of Khair from the house of the respondents and as to whether the said recovery has been proved beyond any reasonable doubt or not. Coming to the question of recovery of these Khair logs from the house of the respondents, the prosecution has proved in evidence the recovery memo Ext.PW-1/A, vide which these logs were taken in possession by the police. A perusal of this document shows that there is nothing on record as to who prepared this recovery memo, though it bears the signatures of two witnesses, namely, Jagdish Chander Sharma, B.O., and one Surender Singh, Incharge Khann Beat and these signatures have been attested by the Inspector/SHO, Police Station, Nurpur on 5.9.1992. The recoveries in question were made after the case had been registered by the police and during investigation, as per PW-9 Mohinder Singh, the then SHO, he had effected the recoveries. However, he had not mentioned that this was prepared by him or he made the recoveries and prepared this memo but simply it has been attested by him which procedure - 3 - adopted by him cannot be said to be proper. According to the statement of PW- 9 Mohinder Singh, he effected the recoveries on 5.9.1992 and took into possession 15 logs of Khair vide memo Ext.PW-1/A and gave it on Sapurdari to Incharge Khanni Beat. He stated that he had associated respectable persons from the village but has not been able to specify as to who were the respectable persons associated by him nor their names have been mentioned as witnesses to this recovery memo Ext.PW-1/A. He further stated that he had not associated the Sarpanch or the Namberdar at the time of effecting the recoveries. He has also stated that the said logs have not been shown to him in court. He did not prepare any site plan of the place from where the recoveries were effected and it was rightly observed by the learned trial Court that the site plan in this regard was required to be prepared by the Investigating Officer as to the house from where these recoveries were effected. The surprising part is that the SHO is silent about the persons present at the spot, namely, the accused persons in whose presence these logs were taken in possession so that it can be held as to who was found in possession of these logs. Coming to the testimony of two witnesses named in this recovery memo, PW-1 Surinder Singh has stated that he had accompanied SHO Mohinder Singh to the house of the accused and 15 logs of Khair were recovered which were given to him on Sapurdari name Ext.PW-1/A. However, he has not stated as to which of the accused was present at that time and simply stated that they had gone to the house of the accused. He admitted that no logs of Khair have been shown to him today in the court. He has come up with another plea that at the time they went to the house of the accused, they were accompanied by Babu Ram, Mela Ram and Kartar Singh, who are not witnesses to the recovery memo Ext.PW-1/A. He has stated that the logs have been kept over the tin sheet and - 4 - these were visible from outside and the said room in which these logs were kept was also open. He stated that all the logs were brought to the police station, then taken to the Range Office and these were given to him on Sapurdari. The other witness, namely, PW-3 Jagdish Chand, Range Officer, has also stated that he was associated by the police apart from the Forest Guard Surinder Singh and in the presence of respondent Bazir Singh, 15 logs of Khair were recovered which were taken in possession vide recovery memo Ext.PW-1/A, which was signed by him and Surinder Kumar. He stated that the Sarpanch of the Panchayat was associated at that time, which is in contradiction to the testimony of other witness. He further stated that he is not aware about the name of the Sarpanch nor his signatures are there on Ext.PW-1/A. He stated that he does not remember if the Sarpanch signed the recovery memo or not, but the house was identified by the Sarpanch. He stated that the accused was present in his house, but has not specified as to which of the two accused was present at that time. Apart from the above, the prosecution had also examined PW-4 V.G. Dogra, Range Officer, who stated that Babu Ram had informed that six trees of Khair had been cut from the beat and he sent a written complaint Ext.PW-4/A. He stated that he did not do any other work except signing the report and had not gone to Shahpur Kandi, the place from where these trees were cut. The statement of PW-5 Mela Ram is not material. PW-6 HC Surinder Kumar has stated that he had signed the recovery memo Ext.PW-1/A as a witness but no particulars had been mentioned in Ext.PW-1/A and it is difficult to hold that if he had signed the recovery memo as a witness or PW-1 Surinder Singh, Forest Guard, had signed the same. He stated that these logs were given to Surinder Kumar on Sapurdari. In cross examination, he has stated that he does not - 5 - remember if any local police official was associated with the investigation or not. He stated that Sarpanch or Namberdar was not called at that time. He denied that he had signed at Police Station at the instance of the SHO. The statement of other witnesses, namely, PW-7 Surinder Kumar and PW-8 Kartar Singh are not material. From the above discussion, it is clear that the Investigating Officer i.e. PW-9 Mohinder Singh had not conducted the investigation in a fair manner since he did not prepare the recovery memo, only attested it and had not prepared the site plan from where the recoveries were effected. He did not state about the presence of the respondents at that time or that the recoveries in question were effected from the possession of the respondents. Keeping in view the infirmities in the testimonies of the prosecution witnesses, it cannot be held that the prosecution had recovered these logs from the conscious possession of the respondents and, therefore, the final findings recorded by the learned trial Court holding that the prosecution had failed to prove its case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. Therefore, the appeal filed by the State of H.P. is dismissed being without any merit. The bail bonds furnished by the respondents shall stand discharged. November 7, 2008. (V.K. Ahuja), (TILAK) Judge.