IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.350 of 2008. Date of Decision: 17.6.2011. _______________________________________________ State of H.P. ….Appellant. Vs. Yaameen and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant: : Mr. P.K.Sharma, Addl. Advocate General with Ms.Shubh Mahajan, Dy. Advocate General. For Respondent-2 to 14,19 to 26.: Mr.Deepak Kaushal, Advocate. For respondent-1,15 to 18 & 27 Ms.Sandeep Dutta, Advocate. For respondent-32. Mr.Naveen Bhardwaj, Advocate. For respondent-28. Mr.Bimal Gupta, Advocate. For respondents 29 & 30 Ms.Aruna Sharma, Advocate vice Ms.Jyotsna Rewal Dua, Advocate. Dev Darshan Sud, J.(Oral). The State has preferred this appeal against the judgment and order of the learned Special Judge (Forest), Solan, acquitting all the respondents who are arrayed as accused before the learned trial Court for offences under Sections 420, 379, 120-IPC and Sections 33,41 and 42 of Indian Forest Act, Section 13(2) of Prevention of Corruption Act and Section 14 of HPSCP Act. Whether reporters of the Local papers are allowed to see the judgment.yes. 2 2. The prosecution case against the respondents is that on 20.4.1994, the Haryana Police apprehended some persons transporting khair wood and timber on camels in the area which falls within the State of Haryana. On interrogation of these persons, Haryana Police found that the timber had been felled from the forest of Himachal Pradesh adjoining to the State of Haryana. On receipt of this information, PW37 Milkhi Ram Chandel, Forest Range Officer reported the matter to the Police and a case under Sections 41 and 42 of the Indian Forest Act and Section 379 I.P.C. was registered against them. The case was investigated by PW22 Inspector Ramesh Chand and during the investigation, he found that on 30.4.1994 at 2 p.m, PW35 Dhoop Singh, Forest Guard, along with PW2 Phulla and PW19 HHC Beer Singh were returning from village Rampur Ganda to village Ranjit pur, they saw 40/42 persons with timber being carried on camel back. These people were coming from the Himachal Pradesh area. When they tried to stop the camels, the persons who were transporting this timber, threatened to beat them up. Since they were large number of persons, these witnesses could not apprehend them at the spot. PW2 Phulla identified some of the respondents, namely, Romesh Kumar, Jaspal, Abdulla, Suleman, Meer Hasan, Sharif Ahmad, Roshan and Yaaseen. During the investigation, the prosecution found that PW2 Phulla and PW19 Beer Singh had followed the camels, only two of them were loaded with timber. Jaspal, Rahamdeen, Mayanudin, Yaseen, Meer Hasan were found guarding the wood. 3. The Haryana Police took into possession wood weighing 121 quintals and 40 kilogram and had registered a case under Sections 379/411 IPC. I need to go into other aspect of the case because the 3 case of the prosecution is nothing but muddling of the evidence by production of number of witnesses who do not seems to know what they are talking about. 4. The learned appellate Court, on the evidence of the prosecution, acquitted all the accused. In order to arrive at this conclusion, the learned Court holds that the evidence produced by the prosecution is not satisfactory at all. The court concludes that the accused were the forest officials who having been engaged on the basis of felling, conversion and transportation of timber from the forest by the Forest Corporation and not on the basis of any substantive evidence linking them with participation in impelling and thus in criminality. The police had found as many as 184 logs on the spot. Whether these logs were of those 69 trees alleged to have been felled illicitly or of some other trees, have not been established by satisfactory evidence which, in fact, was the primary point required to be proved by the prosecution. 5. The most important point which the learned trial Court adjudicates and rightly so on the evidence produced on record that there is no evidence as to how the forest officials as also the police officials identified 69 trees as having been illicitly felled and in these circumstances no culpability is established. 6. Adverting to the evidence of PW9 Pawan Kumar, the Court found that he in no manner connects the accused with the felling of the trees. There is no conspiracy or connivance which has been proved on the record. In a nut shell, the learned court holds that there is no evidence whatsoever. 4 7. Learned Deputy Advocate General urges that the findings of both the courts below are perverse. She submits that the prosecution has been able to establish the violation of Sections 33, 41 and 42 of the Indian Forest Act as also other offences. 8. I have scanned to the evidence with the assistance of the learned Deputy Advocate General. I do not find such conclusion having been possible on the material on record. 9. It is by now well settled that when two views against the acquittal of accused are possible, the view favours the accused is to be preferred by the Court. The Supreme Court in Sunil Kumar Sambhudayal Gupta and others Vs. State of Maharashtra, 2011(1) S.C. 611.), holds: 38. It is a well-established principle of law, consistently re- iterated and followed by this Court is that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses. 39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into 5 consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference. 40. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See: Balak Ram & Anr. v. State of U.P., AIR 1974 SC 2165; Shailendra Pratap & Anr. v. State of U.P., AIR 2003 SC 1104; Budh Singh & Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066; Arulvelu & Anr. v. State, (2009) 10 SCC 206; Ram Singh alias Chhaju v. State of Himachal Pradesh, (2010) 2 SCC 445); and Babu v. State of Kerala, (2010) 9 SCC 189). (P. 673) I do not find any merit in this appeal which is accordingly dismissed. (Dev Darshan Sud), Judge. June 17, 2011(R)