IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 133 of 2004 Date of decision: 16.12.2011 State of Himachal Pradesh ... Appellant Versus 1. Suresh Kumar son of Sh. Khayali Ram, 2. Satish Kumar son of Sh. Khayali Ram, Both residents of village Nehrati Bhaghot, Tehsil and P.S. Rajgarh, Distt. Sirmour, H.P. … Respondents Appeal under Section 378 of the Code of Criminal Procedure against the impugned Judgment of acquittal dated 30.5.2003 passed by the ld. Sub Divisional Judicial Magistrate, Rajgarh, District Sirmaur, HP in Cr. Case No. 34/2 of 2001 under Sections 26 and 33 of IF Act and 379 of IPC read with Section 34 IPC. Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Hoshiar Kaushal, Advocate, vice Mr. Bimal Gupta, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Sub Divisional Judicial Magistrate, Rajgarh, Distrit Sirmour, dated 30.5.2003, vide which he acquitted the respondents of the charge 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 framed against them under Sections 26 and 33 of Indian Forest Act and under Sections 379/34 I.P.C. 2. Briefly stated, the facts of the case are that on 19.4.2001, a report Ext. PW1/A was sent to the Police station Rajgarh, by Range Officer Jagat Singh in regard to receipt of information from Forest Guard Jai Singh and other officials, regarding illicit cutting of trees from the forest. On this report, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondents, leading to their acquittal, as detailed above. 3. I have heard the learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, it is clear that there is no direct statement of any person who may have seen the respondents cutting the trees from the forest. There is also no evidence on record to prove that any person had seen the respondents converting the trees into logs and carrying them to their houses. The evidence led by the prosecution consists of firstly recoveries allegedly effected from the house of respondent Suresh Kumar vide recovery memo Ext. PW2/B. The first document relied upon is recovery memo Ext. PW2/A in regard to recovery of wood effected from the house of respondent Suresh Kumar and a perusal of the same shows that 29 sleepers of Deodar were recovered from his house as detailed in the recovery memo. There is nothing on record to suggest as to who prepared this document, which has simply been attested by the S.H.O. There is no mention of the scribe of the document. There were two witnesses 3 to this recovery memo Ext. PW2/B, who are PW-2 Rajesh Kumar and PW-3 Kumbi Ram. When examined, both these witnesses turned hostile and they stated that they never went to the house of respondent Suresh Kumar nor any recoveries were effected in their presence. 5. PW-14 Devi Singh, ASI, has stated that on 21.4.2001, room was checked and 29 of Deodar and other cut pieces were recovered, which were taken in possession vide recovery memo Ext. PW2/B and were given on sapurdari vide sapurdarinama Ext. PW2/A to Forest Guard Jai Singh. He does not state that he had joined two witnesses, searched the house of respondent Suresh Kumar and effected recoveries in their presence. Therefore, no reliance can be placed on this document in the absence of the fact that the Investigating Officer has not stated that he searched the house of the respondents, effected recoveries in presence of the witnesses and he has simply attested the recovery memo. 6. The next document relied upon by the prosecution is Ext. PW3/A, vide which recoveries were effected from the saw-mill of respondent Suresh Kumar, as detailed in the recovery memo. A perusal of the same shows that these were effected in presence of PW-3 Kumbi Ram and PW-10 Om Prakash, who have not supported the prosecution case when examined in Court, turned hostile and were allowed to be cross-examined by the learned A.P.P. for the State. They have clearly stated that they never went to the saw-mill of the respondent or any recoveries were effected in their presence. PW-14 Devi Singh, ASI, is the scribe of the document, who has stated that he went to the saw-mill of the 4 respondent and in presence of the witnesses made the recoveries and took the same in possession vide recovery memo Ext. PW3/A and these were handed over to Jai Singh vide sapurdarinama. Both the witnesses to the recovery memo have not supported the prosecution as mentioned above. A perusal of this recovery memo Ext. PW3/A also shows that ASI had simply attested the memo, but there is nothing that he was the scribe of the document. 7. PW-4 Jai Singh, Forest Guard, has stated that after the report was lodged with the police, he had accompanied the police to the saw-mill of the respondents and where the police showed him 29 logs, which were taken in possession in presence of Om Prakash and Kumbi Ram vide recovery memo Ext. PW3/A and were given to him on sapurdari. He stated that he had already seized these sleepers and then the police locked the room and the keys were given by Suresh Kumar, who had not come for 3-4 hours to the spot. Thereafter he stated that the lock was broken and these logs were recovered. This has not been stated by both the eye witnesses or the Investigating Officer as mentioned above and a different version has been given by the sapurdar, which does not inspire confidence. 8. Apart from the above, the prosecution has also relied upon the disclosure statements Exts. PW4/F and PW4/H allegedly made by the accused persons. These statements are per se not admissible in evidence having been made to a person in authority and had not led to any recovery. Therefore, they were not relied upon by the learned trial Court. The recovery of saw Ext. P-1 vide recovery memo Ext.PW5/A, does not link the same with the 5 respondents that this saw was used for cutting of the trees or for any such purpose or it further substantiates the case of the prosecution in any manner. 9. On appraisal of the evidence led by the prosecution, it is clear that the prosecution has failed to prove its case beyond any reasonable doubt and the final findings recorded by the learned trial Court leading to the acquittal of the respondents, cannot be termed as perverse, calling for an interference by this Court. 10. The learned trial Court has passed the order in regard to saw Ext. P-1 that it shall be destroyed after the expiry of the period of limitation. However, there is no order in regard to the disposal of the case property. Accordingly, it is clarified that the logs etc. recovered and taken in possession, if not already sold, shall be disposed of in accordance with the procedure and money shall be deposited in the Treasury and in case, the same has already been disposed of and the money has been deposited in the Treasury, the same shall be forfeited to the State of Himachal Pradesh. 11. With these observations, the appeal filed by the appellant is dismissed. The bail bonds furnished by the respondents shall stand discharged forthwith. December 16, 2011 ( V.K. Ahuja ), (BSS) Judge