IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.158 of 2001. Judgment reserved on: 15.9.2001 Date of decision: 19.9.2008 State of H.P. …….Appellant Vs. Mirya Khan & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondents : Mr. G.R. Palsra,Advocate. Kuldip Singh, Judge. This appeal has been directed against judgment of acquittal dated 2.11.2000 passed by learned Addl. Chief Judicial Magistrate, Court No.1, Paonta Sahib in Cr. Case No.96/2 of 96, arising out of FIR No.586/94 registered at Police Station, Paonta Sahib. 2. The prosecution case in brief is that on 27.12.1994, ASI Sucha Nand accompanied by ASI Shyam Lal, HC Paramjeet Singh, constable Deepak Kumar and constable Jagdish Chand while at Khala Palhori Jungle, met Sangat Singh, Range Officer, Majra, Tapinder Singh, Forest Guard, Ram Nath, Forest Guard and came to know that truck No.HYK 5741 had entered Palhori jungle and would Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… carry timber. On this, ASI Sucha Nand constituted a raiding party and laid a naka. At about 5.15 p.m. truck No.HYK 5741 came out from Palhori jungle and was signalled to stop, but it sped away. Tapinder Singh, Forest Guard identified the driver as Shyama, the truck was followed in private vehicles, but it entered Haryana. At village Nagli( Haryana) forest officials also tried to stop the truck and the truck was stopped, but driver of the truck jumped out from the window. On the body of the truck, Mirya Khan son of Barkat Ali resident of Majri was written. The truck was loaded with stones and under the stones khair wood was concealed. The logs were without hammer mark. The truck along with wood and stones was taken into possession. ASI Sucha Nand sent a ruka for registration of the case and on this FIR No.586/94 was registered at Police Station, Paonta Sahib under Section 379 IPC and Sections 41, 42 of the Indian Forest Act. The site plan was prepared, the truck was seized in presence of Sangat Singh, Tapinder Singh, Shyam Lal, Ram Nath and brought to police station. On 28.12.1994, loaded truck with wood along with documents was handed over to Ajay Kumar, Range Officer, Paonta Sahib in presence of Kirtan Pal and Ronki Ram. Tapinder Singh, Forest Guard while inspecting reserve forest, Gharatwali, found 21 khair trees felled and he issued damage report. Mithan Chand Patwari was taken to spot and he prepared a plan. ASI Sucha Nand also visited the forest and prepared a plan. Statements of witnesses were recorded. On completion of investigation, challan was presented in the Court. Mirya Khan, Bundi Ram and Shyama were charged for offences punishable under …3… Sections 379, read with Section 34 IPC, Section 42 of the Indian Forest Act, Shyam Lal was charged for offences punishable under Sections 379, 34 IPC, Section 42 of the Indian Forest Act read with Section 177 of the Motor Vehicles Act. The accused pleaded not guilty and claimed trial. The prosecution has examined six witnesses. The statements of all accused except accused Bundi Ram were recorded under Section 313 Cr.P.C. They denied their involvement in the case. Shyam Lal has stated that truck was loaded with stones in village Nagli, which was checked by forest officials of Haryana, who started beating him and he ran away. The learned Addl. Chief Judicial Magistrate has acquitted all the accused as noticed above, hence appeal by the State. 3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the State and Mr. G.R. Palsra, learned counsel for the respondents and gone through the record. On behalf of the appellant, it has been submitted that the learned Addl. Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondents. The prosecution has proved the case against the respondents beyond reasonable doubt, submission has been made for setting aside the impugned judgment and for convicting and sentencing the respondents for the offences for which they were charged. The learned counsel for the respondents has supported the impugned judgment of acquittal and has submitted that learned Addl. Chief Judicial Magistrate has properly appreciated the material on record. The respondents were falsely implicated in the case. The judgment of acquittal recorded by …4… learned Addl. Chief Judicial Magistrate does not require any interference. 4. PW-1 Prem Singh, driver in the office of Divisional Forest Officer, Yamunanagar has stated that on 27.12.1994, he and Shivcharan Singh Mali were patrolling near village Nagli at about 5 or 5.30. a.m. , truck No.HYK-5741 came from Himachal side which was being driven by Shyama, Nisar was accompanying him. They tried to stop the truck, but both of them took benefit of the darkness and ran away from the place after leaving the truck on the spot. The truck was loaded with stones. He took the truck to Jagadari. He was declared hostile and was cross-examined by the prosecution, but nothing favourable to the prosecution was extracted in the cross- examination of PW-1. He denied that he made any statement to the police. He denied that khair wood was concealed under the stones in the truck. In the cross-examination conducted on behalf of the accused he has stated that truck was handed over to DFO at Yamunanagar where it remained throughout the day. On 27.12.1994, DFO at about 3 or 3.30 p.m. asked him to take the truck along with Range Officer, Majra to Paonta Sahib, he brought the truck to Paonta Sahib. He did not see anything in the truck except stones. 5. PW-2 Ajay Kumar has stated that ASI Sucha Nand on 28.12.1994 after taking out the wood from the truck handed over the truck along with papers to him vide memo Ex.PW-2/A. In cross- examination he has stated that the truck was not unloaded in his presence. PW-3 Hatinder Pal has stated that he took photographs …5… Ex.P-1 to Ex. P-5 of truck No.HYK-5741. PW-4 Sangat Singh, Range Officer, Flying squad, Paonta Sahib has stated that truck was brought by Prem Singh by driving. PW-5 Tapinder Singh has also stated that driver of Divisional Forest Officer, Yamunanagar brought the truck to Paonta Sahib and the wood was in the truck. The truck could not go to the place where the trees were cut. They have not taken into possession any part of the fallen trees. PW-6 SI Sucha Nand, Investigating Officer has stated that Prem Singh driver in the office of Divisional Forest Officer, Yamunanagar brought the truck by driving. 6. Almost all the material witnesses have stated that Prem Singh driver in the office of Divisional Forest Officer, Yamunanagar brought the truck by driving at Paonta Sahib after the incident. According to prosecution, the incident took place at about 5.15 PM on 27.12.1994 whereas PW-1 Prem Singh has stated that truck HYK- 5741 came from Himachal side near village Nagli at about 5 or 5.30 A.M. where he and Shiv Charan, Mali were patrolling. He has also stated that Shyama was driving the truck and Nisar was accompanying him. They tried to stop the truck, but both of them took benefit of the darkness and after leaving the truck on the spot disappeared in the darkness. He has specifically stated that the truck was loaded with stones. He has nowhere stated that there were logs of wood in the truck. PW-1 has also stated that the truck was taken to Yamunanagar and was handed over to Divisional Forest Officer, Yamunanagar and at 3 or 3.30 PM, Divisional Forest Officer, Yamunanagar directed him to take the truck to Paonta Sahib and he …6… brought the truck to Paonta Sahib. The truck was in Haryana territory at about 3 or 3.30 P.M. on 27.12.1994 and it remained under the control of Haryana Forest Officials till it was brought back to Paonta Sahib by PW-1 Prem Singh. It is not clear, how the same truck was involved in carrying khair wood at about 5 or 5.30 PM on 27.12.1994. The prosecution case is that the truck came from Palhori Forest loaded with stones and under the stones khair wood logs were concealed. PW-5 Tapinder Singh, forest guard has stated that truck could not go to the place where the trees were cut. It is not the prosecution case that from the place where the trees were felled the khair wood logs were taken on head load or by any other mode for loading in the truck. The case property or sample of the case property was not produced in the Court. PW-1 Prem Singh has completely demolished the case of the prosecution. There is no reason to disbelieve PW-1 Prem Singh. The prosecution has failed to prove the case beyond reasonable doubt against the respondents. The learned Addl. Chief Judicial Magistrate has taken a possible view from the material on record in acquitting the respondents. This Court in appeal will not reverse the acquittal simply on the ground that other view is also possible, unless it is shown that the view taken by the trial Court is perverse or is not at all possible from the material on record, but the present case does not fall in that category. No case for interference has been made out, accordingly, appeal is dismissed. Bail bonds are discharged. ( Kuldip Singh ) Judge September 19, 2008 (sks)