IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 68 of 2003 Reserved on 07.09.2009 Date of Decision: 27.10.2009 State of H.P. …..Petitioner Versus Sanjeev Kumar and others …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Additional Advocate General with Mr. R.P. Singh Assistant Advocate General. For the Respondents : Mr. Rajiv Jiwan, counsel for respondents No.1,4 and 5. Mr. Vinay Thakur, Advocate for respondents No. 2, 3, 6 and 7. Kuldip Singh, Judge The State has come in appeal against the judgment dated 2.9.2002, passed by learned Chief Judicial Magistrate, Solan, in Criminal Case No. 182/2 of 1994. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The prosecution case in brief against the respondents is that on 18.5.1993, police party headed by SI Niranjan Singh intercepted a truck bearing Registration No. HPA-1297 which was being driven by respondent No.1 Sanjeev Kumar and on search, it was found that truck was carrying 50 scants of Kail and Devdar of different sizes without export permit. The ruqa Ex. PW-11/A was sent from spot and thereupon FIR Ex. PA was registered. The truck alongwith documents and 50 scants were taken into possession. On completion of investigation, challan was presented in the Court. The respondents were charged for offences punishable under Sections 379,120-B I.P.C. read with Sections 34 IPC and Sections 41, 42 of Indian Forest Act. The prosecution in support of its case has examined 11 witnesses. The evidence of the prosecution was closed by the order of Court. The respondents in their statements under Section 313 Cr.P.C denied the prosecution case. They led no evidence in defence. The learned Chief Judicial Magistrate acquitted the respondents on 2.9.2002, hence, the State has come in appeal. 3. Heard and perused the record. The learned Additional Advocate General has submitted that the learned Chief Judicial Magistrate has not properly appreciated the material on record in acquitting the respondents. The prosecution has proved the case against the respondents …3… beyond reasonable doubt. He has prayed for setting aside the impugned judgment and conviction of respondents. On the contrary, the learned counsel appearing on behalf of the respondents have submitted that the prosecution has miserably failed to prove the case against the respondents. They have supported the impugned judgment. 4. PW-1 Anil Kumar has stated that in the year, 1993, he was posted as Guard at Dharampur. He has stated that the police in his presence has unloaded sleepers from Truck bearing registration No. HPA-1297 memo Ex. W1/A was prepared for taking into possession tarpaulin, timber and rope. He had signed the memo. The accused could not produce any permit for carrying the timber. In cross examination, he has stated that he reached the Police Station at 11.30. The colour of the truck was red. He could not tell who and how many persons unloaded the truck. He also could not tell how many sleepers were of Chil and Kail. He could not tell the length and width of any sleeper. He has stated that memo Ex. PW-1/A was already prepared and he put his signatures on the memo. He did not read what was written in memo Ex. PW-1/A. He was not on the spot when police seized the timber. 5. PW-2 Kirpa Ram, B.O. did not support the prosecution and he was declared hostile and was cross- examined by the prosecutor. In the cross examination …4… conducted on behalf respondents he has stated that he reached at about 11.00 A.M. on the asking of the police and at that time timber was in the truck which was of green colour. PW-3 Mohan Singh has stated that there were 50 sleepers in Truck bearing registration No. HPA-1297. He has stated that nothing happened in his presence. He was declared hostile and cross examined by the prosecutor and has stated that he has signed memo Ex. PW-1/A. In the cross examination, conducted on behalf of the respondents, he has stated that there was only one truck out side the Police Station which was of yellow colour. The police generally calls him as a witness in the cases. He has signed Ex. PW-1/A as he was directed by the SHO to sign Ex. PW-1/A. 6. PW-4 Dina Nath has stated that on 18.5.1993, Solan police came to Matiana and he was posted as Forest Guard at Matiana beat at that time. He does not know that the trees were allotted to whom in TD, nothing happened in his presence. He was declared hostile and was cross examined by the prosecutor wherein he has stated that memo Ex. PW-4/A of demarcation was prepared on which he signed as witness. In cross examination conducted on behalf of the defence, he has stated that police had shown him the scants. There were TD marks on the scants. There was no report of theft of TD timber. He signed Ex. PW-4/A in …5… the year, 1993. He does not know whether any Musabi was with any person. 7. PW-5 Narain Dass has stated that he was called on 17.5.1993 to give duty at Dhalli Check Post for a week. The police demanded duty register of the officials of the persons who were on duty prior to him which was handed over by him to police. He was declared hostile and was cross examined by the Prosecutor. He admitted his handwriting on Memo Ext. PW-5/A. 8. PW-6, Hiroo Ram has stated that nothing happened in his presence in the present case. He was declared hostile and was cross examined by the Prosecutor. PW-7 Mansa Ram had placed on record certified copy of demarcation report Ex.PW-7/A and the certified copy of statements of witnesses Ex. PW-7/B in File No. 117/2 of 1995 State Versus Liaq Ram, PW-7(A) Jai Dev Sharma is a witness of record and has stated nothing material. 9. PW-8 Sahib Singh Head Constable is a witness of disclosure statement Ex. PW-8/A of Roop Singh. In cross examination he has stated that he does not remember who had written the statement of Roop Singh. The owner of the house was not called. PW-9 Gian Chand has stated that on 18.5.1993 SHO Nirjan Singh had given ruqa mark ‘X’ to him for registration of case at Police Station, Dharampur. PW-10 Brahmu Ram has stated that on 26.6.1993, Hira …6… Singh Forest Guard Shilaru handed over D.R. No. 17 dated 20.6.1993 to him and Head Constable Niku Ahmad memo Ex. PW-10/A. PW-11 Head Constable Ram Gopal has stated that on the basis of ruqa Ex. PW-11/A FIR Ex. PA was registered. 10. The illicit felling of trees from the Government Forest has not been proved by the prosecution. The material witnesses of the prosecution such as PW-2, Kirpa Ram, PW- 3, Mohan Singh, PW-4, Dina Nath, PW-5, Narayan Dass and PW-6 Hiroo Ram turned hostile. They were cross examined by the prosecutor but even in cross examination conducted by prosecution nothing could be extracted from these witnesses so as to support the prosecution case. 11. The charge against the respondents is under Sections 379,120-B I.P.C. read with Sections 34 IPC and 41, 42 of Indian Forest Act. The prosecution has miserably failed to prove the theft of the timber and illicit carrying of timber by the respondents. The recovery of timber from truck bearing registration No. HPA-1297 has not been proved. The prosecution witnesses have given even different colours of the truck from which timber was allegedly recovered. PW-1 has stated that colour of the truck was red, PW-2 has stated that the colour of the truck was green and PW–3 has stated that the colour of truck was yellow. The prosecution evidence was closed on 5.2.2002. The demarcation report …7… has not been proved in accordance with law. There is nothing on record so as to connect the scants with the timber and trees grown over Government land. There is no legal evidence on record so as to bring home the charge against the respondents. SI, SHO Nirjan Singh who headed the police party on 18.05.1993 at the time of alleged recovery of timber has not been examined by prosecution and there is no explanation why he was not examined. The learned Chief Judicial Magistrate has taken a possible view from evidence on record in acquitting the respondents. The acquittal order is supported by reasons which cannot be said to be perverse. No case has been made out for taking another view. Resultantly, the appeal fails and is accordingly dismissed. Bail bonds of respondent are discharged. ( Kuldip Singh ) Judge October 27, 2009 *brb*