-1- IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 295 of 2001. Decided on 9 th March, 2011. _________________________________________________________ State of H.P. …Appellant. Versus Brij Lal and others. …Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General. For the respondents: Ms. Prerna Ronta, Advocate for respondents No.1 to 3 and 5. and Mr. V.S. Chauhan, Advocate for respondent No.4. Justice R.B. Misra,J. ( Oral) The present Criminal Appeal has come up for consideration after the grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure against the judgment dated 5.2.2011 passed by the Learned Additional Sessions Judge, Shimla (H.P)., in Sessions Trial No. 17-S/7 of 1997, acquitting the accused/respondents for the offences under Sections 41, 42 of the Indian Forest Act and under Section 307 read with Section 120-B of the Indian Penal Code. 2. The prosecution story in brief is that on 22.4.1995, at about 2.15 A.M. Dhani Ram, SI/SHO (PW-10) along with ASI Roop Singh, ASI Basti Lal, H.C. Jagdish Chand and Constable -2- Kuldeep Singh received secret information that truck LP No. HIS-1178 and a maruti van No. HP-02-585 are proceeding from Kotkhai area carrying illicit deodar sleepers without any permit as such Naka was laid at Chhaila. At about 2 A.M. van No. HP-02-0585 came from Kotkhai side followed by truck No. HIS 1178. Both these vehicles were not stopped despite the signal given by the police party. Therefore, SHO Dhani Ram (PW-10) prepared a rukka Ex.PW10/A and sent the same to Police Station, Theog. He along with other police officials chased said maruti van and the truck, in a maruti van No. HP-02-3977 driven by driver-cum-owner Shri Inderjeet Singh. ASI Pratap Singh recorded the FIR Ex. PW 12/A at Police Station, Theog. While chasing the above two mentioned vehicles, several unsuccessful attempts were made by the chasing party to apprehend them. Dhani Ram ( PW-10) also fired on the tyres of the said truck, but in vain. At Balag, accused Shameshwar Singh all of a sudden stopped the truck in the middle of the road and reversed it and hit the maruti van with intention to kill the occupants of the maruti van chasing the accused. . However, the front and side glasses of the maruti van got damaged. Subsequently, accused Shameshwar Singh intentionally caused the accident of the said truck and the truck was over turned in the middle of the road at Tiyala as a result of which the road was blocked. 105 deodar sleepers had fallen on the road. The accused persons had escaped from the spot. SHO Dhani Ram (PW-10) took into possession the truck in question along with 105 deodar sleepers and tapaulines vide seizure memo Ex.PW-1/A and handed over -3- these on supurdari to Shri Vinay Sood, Range Officer, Theog vide supurdari memo Ex.PW-2/A. The maruti van No. HP-02-3977 and truck were got mechanically examined and no mechanical defect was found in the vehicles. Accused Suresh Kumar apprehended on 27.4.1995, made a disclosure statement Ex.PW1/B about the hide of accused Shmeshwar Singh, Briju, Pintu and Mintu at Pinjor. Maruti Van No. HP-02-0585 along with its documents was produced by accused Brij Lal and the same was taken into possession by the police vide recovery memo Ex.PW4/A. The documents of the truck No. HIS-1178 were found beneath the seat of the driver and the same were taken into possession vide memo Ex.PW7/A. On arrest accused Sushil Kumar alias Pintu made a disclosure statement Ex.PW 8/A about the place indicating from where 105 deodar sleepers were loaded into the said truck. After the completion of the investigation, the accused persons were charged for the aforesaid offences. 3. In order to prove its case, the prosecution has examined as many as fourteen prosecution witnesses, whereas, the accused through their statements under Section 313 Cr.P.C. denied the prosecution case. 4. Basti Ram (PW-1), Roop Singh(PW-11) and Dhani Ram (PW-10) said to have witnessed the occurrence who laid naka and had chased the truck No. HIS-1178 and maruti van No. HP-02-585, have supported the prosecution case. Whereas Constable Kuldeep Singh (PW-7) present with the naka party has not stated anything except that truck along with its documents -4- was taken into possession vide memo Ex.PW7/A. The only independent witness Inderjeet Singh (PW-5), the driver of the maruti van No. HP-02-3977 has turned hostile and did not support the prosecution case to its expectations. As per the testimony of PW-5 (Inderjeet Singh) because of ill health on the relevant date he could not accompany the police in chasing the accused persons however his taxi was taken by the police which was driven by their own constable. PW-5 has stated that he did not see any of the accused persons driving the said taxi No. HP-01-0585 and truck No. HIS-1178. PW-10 Dhani Ram while supporting the prosecution case has stated that when he along with other police officials was chasing the truck and maruti van in another maruti van No. HP-02-3977 he fired repeatedly on the tyres of the truck but he missed and accused Shameshwar Singh managed to escape. However, at village Tiyala, the said truck was found over turned in between the road and the engine of the truck was not stopped. 5. The statements of Basti Ram (PW1), Dhani Ram (PW-10) and Roop Singh (PW-11) reveal that said maruti van and truck crossed Chhaila around 2.15 a.m. and admittedly there was no street light in Chhaila and the vain and truck were being driven in fast speed and the accused persons did not stop despite the signal given by the naka party. However, these witnesses have asserted that the said accused persons Shameshwar Singh, Brij Lal and Susheel Kumar were traveling in truck No. HIS-02-0585 and accused Suresh Kumar and Vishal Kanwar alias Pintu were traveling in maruti Van No. HP-02-0585. -5- It is very surprising that how these accused persons were recognized by the police party when they were not acquainted with police personnel. More so, it was dark at that time at Chhaila and the said vehicles had crossed the Chhailla in fast speed. The doubt is also created when in rukka Ex.PW10/A was written by Dhani Ram (PW-10) as he had not mentioned the seeing of the accused persons. If PW-10 Dhani Ram had actually seen the Van and the truck crossing Chhaila then he should have mentioned the names of the accused persons in the rukka Ex.PW10/A. Dhani Ram (PW-10) has though mentioned the names of Suresh and Shameshwar Singh in the rukka, but there is no mention that he saw any of these two accused persons personally while driving the vehicles. Basti Ram(PW-1) and Roop Singh (PW-11) in their cross-examination has stated that though they saw personally accused Shameshwar Singh and Suresh Kumar driving the truck and Maruti Van at the place of naka, while crossing Chhaila and they have also admitted that there were no street light at Chhaila but when were confronted with their statements recorded under Section 161,Cr.P.C., it was not recorded there. In view of the testimony of Basti Ram (PW-1) naka party had not put logs or stones on the road to block the same and they were stopping the vehicles by giving signal despite receiving of secret information. Statement of PW-1 is contradicted by the testimony of Roop Singh (PW-11) who has stated that naka was arranged by putting 5-6 stones on the road and they were neither small nor very big. This material contradiction in the statements of two important witnesses of -6- the spot is making the presence of PW1 and PW11 doubtful at the place of naka. None of the prosecution witnesses have very definitely asserted who was driving which vehicle. The owners of the said maruti van and the truck involved in the said incident were not examined in order to prove that the said vehicles were utilized , with the consent of the owners or these vehicles were stolen one. In present case none of the accused was apprehended at the spot and none of the prosecution witness can be said to have seen the accused persons in the said vehicles when they were being driven with high speed. 6. On the basis of materials and evidences on record, learned Addl. Sessions Judge, Shimla has rightly arrived at the conclusion that the prosecution has failed to prove the guilt of the accused persons beyond shadow of reasonable doubt. We are also of the considered view that the prosecution has failed to bring home the guilt of the accused persons beyond shadow of reasonable doubt and there is no scope of interference in the impugned judgment. In view of the aforesaid facts and circumstances, the present criminal appeal, being devoid of any merit, is dismissed. 7. The bail bonds furnished by the accused/respondents are hereby discharged. (Justice R.B. Misra) Judge March 9, 2011 (Justice V.K. Sharma) (jai) Judge